Common use of Absence of Certain Changes Clause in Contracts

Absence of Certain Changes. Since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) above.

Appears in 1 contract

Samples: Acquisition Agreement (Inverness Medical Innovations Inc)

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Absence of Certain Changes. Since December 31Except as disclosed on Schedule 3M or in the Company's filings with the SEC (or in the filings with the SEC of the Company's Subsidiary, 2007 (3CI Complete Compliance Corporation) prior to the date of this Agreement, and except as provided below)for matters which are not Material, either individually or in the aggregate, the Seller Entities have conducted Company has operated the Business only in the Ordinary Course of BusinessBusiness since March 31, 1999. Without limiting the generality of this statement, and except as disclosed on Schedule 3M or in Schedule 4.7 and except for changes in connection the Company's filings with the transactions expressly contemplated under SEC (or in the filings with the SEC of 3CI Complete Compliance Corporation) prior to the date of this Agreement, there neither the Company nor any Subsidiary has not beensince March 31, 1999: (a1) Any change sold, leased, transferred or disposed of any of its assets used, held for use or useful in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations conduct of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred except in the Ordinary Course of Business; (e2) Any purchase, sale or other disposition, or entered into any agreement or other arrangement for Material Contract relating to the purchase, sale or other disposition of any of the Transferred Assets other than Business except in the Ordinary Course of Business; (f3) Any damageterminated, destruction accelerated or loss, whether or not covered by insurance, which could reasonably be expected to have a modified any Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally Contract relating to the Business other than to which it is or was a party or by which it is or was bound, or has agreed to do so, or has received Notice that another party had done so or intends to do so, except in the case of Contracts which expired in accordance with their terms or which were terminated in the Ordinary Course of Business; (h4) Except imposed or permitted any Lien on any of its assets relating to or used, held for employee turnover use or useful in the conduct of the Business; (5) delayed or postponed (beyond its normal practice) payment of its vendor accounts payable and other Liabilities; (6) canceled, compromised, waived or released any Material claim or right outside of the Ordinary Course of Business; (7) experienced any Material damage, destruction or loss to any of its assets used, held for use or useful in the conduct of the Business (whether or not covered by insurance); (8) changed the base compensation or other terms of employment of any of its employees except in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships Business and not exceeding 5% of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facilityits aggregate payroll; (i9) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in paid a bonus to any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen employee except in the Ordinary Course of Business; (k10) Any adopted a new Employee Benefit Plan, terminated any existing plan or increased the benefits under or otherwise modified any existing plan; (i11) promotional salesamended its Organizational Documents; (12) issued, discount activitysold, deferred redeemed or accelerated revenue activity, including repurchased any rebate, discount shares of capital stock or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Businesssecurities, or (iv) change granted or issued any stock options or warrants other than options granted in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practiceunder stock option plans in existence as of the date of this Agreement; (l13) Any declared or paid any dividends or made any other transaction distributions in respect of its capital stock; (14) made any Material loans or advances to another Person; (15) entered into by any Seller Entity that is individually Contract to do any of the matters described in the preceding clauses (1)-(14); and (16) entered into or taken together with all such engaged in any other transactions material to the Business other than transactions in Material transaction or activity outside of the Ordinary Course of Business; or (m) Any material agreement , or understanding whether in writing suffered the occurrence or otherwise, that would result in any other Material event involving the Business occurring outside of the transactions or events or require any Seller Entity to take any Ordinary Course of the actions specified in paragraphs (a) through (l) aboveBusiness.

Appears in 1 contract

Samples: Series a Convertible Preferred Stock Purchase Agreement (Stericycle Inc)

Absence of Certain Changes. Since Except as disclosed in the Interim Financial Statements, since December 31, 2007 2013: (except as provided below), the Seller Entities i) Rio Alto and its subsidiaries and affiliates have conducted the Business their respective businesses only in the Ordinary Course ordinary course of Businessbusiness and consistent with past practice, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly Arrangement contemplated under this Agreement, hereby; (ii) there has not been: (a) Any change in the propertiesbeen any event, assetsoccurrence, liabilities, business, condition (financial development or otherwise), results state of operations of the Business which change by itself circumstances or in conjunction with all other such changes, whether facts that has had or not arising in the Ordinary Course of Business, could would be reasonably be expected to have a Rio Alto Material Adverse Effect on the BusinessEffect; (biii) Any cancellation there has not been any material write-down by Rio Alto of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businessassets of Rio Alto; (civ) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any no member of the Transferred Assets which will remain on Rio Alto Group has approved or has entered into any agreement in respect of the Closing Date; (d) Any material obligation or liability purchase of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, assets or any agreement interest therein or other arrangement for the purchasesale, sale transfer or other disposition of any portion of its assets or any interest therein currently owned by Rio Alto and its subsidiaries and affiliates, whether by asset sale, transfer of shares or otherwise, or the change of control (by sale or transfer of shares or sale of all or substantially all of the Transferred Assets other than in property and assets of any member of the Ordinary Course of BusinessRio Alto Group); (fv) Any damageno liability or obligation of any nature (whether absolute, destruction accrued, contingent or loss, whether otherwise) which has had or not covered by insurance, which could is reasonably be expected likely to have a Rio Alto Material Adverse Effect on the Transferred Assets or the Businesshas been incurred; (gvi) Any labor trouble no member of the Rio Alto Group, or dispute any of the directors, officers, employees, consultants or claim auditors of unfair labor practices involving Rio Alto and its subsidiaries and affiliates, has received or otherwise had or obtained knowledge of any Seller Entity with respect to the Business fraud or complaint, allegation, assertion or Claim, whether written or oral, regarding fraud or the related manufacturing operation at accounting or auditing practices, procedures, methodologies or methods of any member of the Existing Facility; any material change, Rio Alto Group or the obtaining of information concerning a prospective change, with respect to the management of Business; their respective internal accounting controls; (vii) there has not been any change in the compensation accounting practices used by Rio Alto and its subsidiaries; (in the form viii) there has not been any redemption, repurchase or other acquisition of salaries, wages, incentive arrangements or otherwise) payable or to become payable Rio Alto Shares by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the BusinessRio Alto, or any bonus declaration, setting aside or payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation dividend or other similar agreement distribution (whether in cash, shares or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (iiproperty) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing FacilityRio Alto Shares; (iix) Any there has not been a material change in the manner level of keeping booksaccounts receivable or payable, accounts inventories or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Businessemployees; (jx) Any change in there has not been any Seller Entity’s business relationship with any material supplierentering into, customer or other entity having business relations with such Seller Entity arising out an amendment of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of BusinessRio Alto Material Contract; (kxi) Any (i) promotional sales, discount activity, deferred there has not been any satisfaction or accelerated revenue activity, including settlement of any rebate, discount Claims or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments liabilities that were not reflected in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (lxii) Any there has not been any increase in the salary, bonus, or other transaction entered into by remuneration payable to any Seller Entity that is individually non-executive employees of any of Rio Alto or taken together with all such other transactions material to the Business its subsidiaries or affiliates other than transactions as set out in the Ordinary Course of Business; orRio Alto Disclosure Letter; (mxiii) Any material agreement there has not been any increase in the salary, bonus, or understanding whether other remuneration payable to any officers or senior or executive officers of Rio Alto or its subsidiaries or affiliates other than as set out in writing the Rio Alto Disclosure Letter; and (xiv) Rio Alto has not agreed, announced, resolved or otherwise, that would result in committed to do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Arrangement Agreement (Rio Alto Mining LTD)

Absence of Certain Changes. Since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except Except as disclosed in Schedule 4.7 SECTION 2.8 of the Company Disclosure Schedule, from the Balance Sheet Date to the date hereof, the Company and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not beenits subsidiaries have not: (a) Any suffered any Company Material Adverse Effect or any event or change which could reasonably be expected to result in a Company Material Adverse Effect; (b) except for items incurred in the propertiesordinary course of business and consistent with past practice, assetsincurred any liabilities or obligations (absolute, liabilitiesaccrued, business, condition (financial contingent or otherwise), results of operations of the Business ) which change by itself or in conjunction with all other such changes, whether or not arising exceed $500,000 in the Ordinary Course aggregate; (c) paid, discharged or satisfied any claims, liabilities or obligations (absolute, accrued, contingent or otherwise) other than the payment, discharge or satisfaction in the ordinary course of Businessbusiness and consistent with past practice of claims, liabilities and obligations reflected or reserved against in the Company Balance Sheet or incurred in the ordinary course of business and consistent with past practice since the Balance Sheet Date; (d) permitted or allowed any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any Encumbrances, except for liens for current Taxes not yet due or liens the incurrence of which could not reasonably be expected to have a Company Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of BusinessEffect; (e) Any purchase, sale cancelled any debts or other disposition, waived any claims or any agreement or other arrangement for the purchase, sale or other disposition rights of any of the Transferred Assets other than in the Ordinary Course of Businessmaterial value; (f) Any damagesold, destruction transferred or lossotherwise disposed of any of their material properties or assets (real, whether personal or not covered by insurancemixed, which could reasonably be expected to have a Material Adverse Effect on tangible or intangible), except in the Transferred Assets or the Businessordinary course of business, consistent with past practice; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; granted any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change increase in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) benefits payable or to become payable by any Seller Entity to any of its officersdirector, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director officer or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of BusinessCompany; (h) Except for employee turnover in the Ordinary Course of Business, made any material change in the personnel severance policies or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facilitypractices; (i) Any change declared, paid or set aside for payment any dividend or other distribution (whether in cash, stock or property) in respect of their respective capital stock or other equity interests or redeemed, purchased or otherwise acquired, directly or indirectly, any shares of capital stock or other securities of the manner of keeping booksCompany, accounts other than (1) the Distribution or records, accounting methods or practices, (2) the Company's standard costs, credit practices or collection or pricing policies used by the Businessquarterly cash dividend payments to its stockholders; (ji) Any change made any changes in any Seller Entity’s business relationship with of the accounting methods used by it, except for such changes required by GAAP; or (ii) made or changed any material supplierelection relating to Taxes, customer adopted or other entity having business relations with such Seller Entity arising out changed any accounting method relating to Taxes, entered into any closing agreement relating to Taxes, filed any amended Tax Return, settled or consented to any claim or assessment relating to Taxes, incurred any obligation to make any payment of, relating to or resulting from the Business including in respect of, any material increase or notice thereof Taxes, except in the cost ordinary course of raw materials other than such changes which have arisen in business, or agreed to extend or waive the Ordinary Course statutory period of Businesslimitations for the assessment or collection of Taxes; (k) Any paid, loaned, modified or advanced any amount to, or sold, transferred or leased any material properties or assets (ireal, personal or mixed, tangible or intangible) promotional salesto, discount activityor entered into any material agreement or arrangement with, deferred any of their respective officers, directors or accelerated revenue activitystockholders or any affiliate or associate of any of their officers, including any rebatedirectors or stockholders, discount or other promotional programsexcept for directors' fees, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments reimbursements in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits ordinary course and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially compensation to officers at rates not inconsistent with the Company's past practice; (l) Any other transaction entered into written-down the value of any inventory (including write-downs by reason of shrinkage or mark-down) or assets, or written off as uncollectible any Seller Entity that is individually notes or taken together with all such other transactions axxxxnts receivable in excess of $500,000 in the aggregate; (m) suffered any material to the Business impairment of any Company Intellectual Property (as defined in Section 2.15 below) or any material adverse change in any Company Intellectual Property licensed from a third party, in each case, other than transactions in the Ordinary Course ordinary course of Businessbusiness consistent with past practice; (n) granted, issued, accelerated, paid, accrued or agreed to pay or make any accrual or arrangement for payments or benefits pursuant to any Company Employee Plans (as defined in Section 2.16(a) below) except in accordance with the terms of the respective Company Employee Plans, or adopted any Company Employee Plan, or amended any Company Employee Plan in any material respect, except in the ordinary course of business consistent with past practice; or (mo) Any material agreement authorized or understanding agreed, whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified action described in paragraphs (a) through (l) abovethis Section 2.8.

Appears in 1 contract

Samples: Merger Agreement (Lone Star Steakhouse & Saloon Inc)

Absence of Certain Changes. Since December 31, 2007 (except Except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in set forth on Schedule 4.7 3.10 and except for changes in connection with the transactions expressly contemplated under by this Agreement, since December 29, 2013, (i) there has not been: (a) Any change been no condition, fact, state of circumstances, development, action, or omission that individually or in the properties, assets, liabilities, business, condition (financial aggregate has had or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; Effect, (bii) Any cancellation of there has not been any material debt or claim owing todamage, destruction, loss, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating casualty to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on Purchased Assets, the Closing Date; Leased Equipment, the Leased Real Property or the Owned Real Property in an amount in excess of $25,000 (dtwenty-five thousand dollars) Any material obligation or liability of any nature for each occurrence (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance), which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (giii) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than has been operated in the Ordinary Course of Business; Business and Sellers have not entered DB03/0502991.0020/10136186.1 WP01 into any entering into agreement, transaction, or amending of activity or made any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover commitment except those in the Ordinary Course of Business, (iv) there has not been any material change in the personnel or in the responsibilities or reporting relationships write-down of the employees (i) value of the Business any Purchased Asset or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping booksOwned Real Property, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, leasehold improvements relating to any Leased Real Property, on the books or resulting from the Business including any material increase or notice thereof in the cost records of raw materials other than such changes which have arisen Sellers, except for depreciation and amortization in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (iiv) deferred or accelerated expense activity, (iii) Sellers have not incurred any material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions Liability except in the Ordinary Course of Business; or , (mvi) Any Sellers have not cancelled any debts or waived or released any material claims or rights of value except in the Ordinary Course of Business, (vii) Sellers have not changed any accounting methods, principles or practices, (viii) there has not been any material adverse change in the relations of Sellers with their Employees or suppliers, (ix) there has not been any material increase of any reserves for contingent liabilities, (x) there has been no surrender or revocation of any License and (xi) Sellers have not entered into any agreement or understanding whether in writing or otherwise, that would result in to do any of the foregoing. No assets of Sellers have been transferred since December 29, 2013, other than sales of inventory in the Ordinary Course of Business and sale-leaseback transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveRestaurants as described on Schedule 3.10.

Appears in 1 contract

Samples: Asset Purchase Agreement (NPC Restaurant Holdings, LLC)

Absence of Certain Changes. (a) Since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this AgreementStatement Date, there has not been: (a) Any been any material adverse change in (i) the propertiesAcquired Assets, (ii) the Facility or its operations, (iii) the Real Property or (iv) the business, operations, assets, liabilities, business, results of operations or condition (financial or otherwise)other) of Seller's business of manufacturing and distributing the SLC Products, results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, and no event has occurred that could reasonably be expected to have result in such a Material Adverse Effect on material adverse change; provided, however, that in no event shall any of the Business;following be deemed to constitute such a material adverse change: any change or effect arising out of or attributable to (x) a decline or deterioration in the economy, the capital markets or Seller's industry in general, (y) this Agreement or the transactions contemplated hereby or the announcement thereof, or (z) continued decline in sales of the SLC Products consistent with historical trends over the last 12 months; and (b) Any cancellation Except as disclosed in Part 4.9(b) of the Disclosure Schedule, since the Statement Date, Seller has not (i) incurred any material debt obligation or claim owing toliability or entered into, and none of Seller or waiver of the Acquired Assets have become bound by, any material right ofContract (except for this Agreement) relating to the Acquired Assets, the Seller Entities Facility or the operation of the Facility other than in the ordinary course of business and involving obligations and liabilities not in excess of $25,000 individually or $100,000 in the aggregate; (ii) mortgaged, pledged or subjected to any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien Encumbrance (other than a Permitted LienEncumbrances) placed on any of the Transferred Assets which will remain on the Closing Date; Acquired Assets; (diii) Any material obligation or liability of any nature (as guarantor sold, assigned, transferred, leased or otherwise with respect disposed of or agreed to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition dispose of any of the Transferred Acquired Assets other than in the Ordinary Course ordinary course of Business; business; (fiv) Any waived or released any material rights relating to the Acquired Assets or the Facility; or (v) suffered any material damage, destruction or loss, loss (whether or not covered by insurance) adversely affecting the Acquired Assets, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets Facility or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) above.

Appears in 1 contract

Samples: Asset Purchase Agreement (Icu Medical Inc/De)

Absence of Certain Changes. Since December March 31, 2007 (except as provided below)2021, the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 3.1(l) of the Company Disclosure Letter, and except other than for changes in connection with the purposes of the transactions expressly contemplated under this Agreement, herein: (i) the Company and each of its subsidiaries has conducted its business only in the ordinary course of business; (ii) there has not been: (a) Any change occurred one or more changes, events or occurrences which would, individually or in the propertiesaggregate, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have result in a Company Material Adverse Effect on the BusinessEffect; (biii) Any cancellation of the Company and its subsidiaries have not incurred any material debt liabilities or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability obligations of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise) which would, asserted individually or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchaseaggregate, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have result in a Company Material Adverse Effect on the Transferred Assets or the BusinessEffect; (giv) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any there has not been a material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (level of accounts receivable or payable, inventories or employees, other than those changes in the form ordinary course; (v) there has not been any satisfaction or settlement of salariesany material claims or material liabilities that were not reflected in the Company’s audited financial statements, wagesother than the settlement of claims or liabilities incurred in the ordinary course of business; (vi) there has not been any material increase in the salary, incentive arrangements bonus, or otherwise) other remuneration payable or to become payable by any Seller Entity to any employees of any of Company or its officerssubsidiaries (vii) there has not been any: (A) increase in the salary, employeesbonus, agents or independent contractors rendering services principally relating other remuneration payable to any officers of the Company or its subsidiaries; or (B) amendment or modification to the Businessvesting or exercisability schedule or criteria, including any acceleration, right to accelerate or acceleration event or other entitlement under any bonus payment or arrangement made to or with any of such officersstock option, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employmentrestricted stock, deferred compensation or other similar agreement (compensation award of any officer of the Company or any of its subsidiaries; (viii) there has not been any entering into, or an amendment to of, any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business Material Contract other than in the Ordinary Course ordinary course of Businessbusiness; (hix) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility;there has not been any: (iA) Any change in the manner of keeping booksincurrence, accounts assumption or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used guarantee by the Business; (j) Any change in Company or any Seller Entity’s business relationship with of its subsidiaries of any material supplier, customer debt for borrowed money or other entity having business relations with such Seller Entity arising out of, relating to creation or resulting from assumption by the Business including Company or any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course its subsidiaries of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of BusinessLiens; or (mB) Any material agreement making, by the Company or understanding whether in writing any of its subsidiaries, of any loan, advance or otherwise, that would result capital contribution to or investment in any of other person; and (x) the transactions Company has not effected any change in its accounting methods, principles or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) abovepractices, except as required by applicable Laws.

Appears in 1 contract

Samples: Arrangement Agreement (Jones Soda Co)

Absence of Certain Changes. Since December 31June 30, 2007 (2007, and except as provided below)for the marketing of the Biologics SBU for sale, the Seller Entities have has conducted the Business only business of the Biologics SBU in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreementsince June 30, 2007 there has not been: (a) Any change in the propertiesbeen no Material Adverse Effect, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could nor to Seller’s Knowledge has any event occurred that would reasonably be expected to have a Material Adverse Effect on the Businessbusiness of the Biologics SBU or any of the Purchased Assets. Since June 30, 2007, as relates to the Biologics SBU or the Purchased Assets, there has not been, nor has Seller committed to, any: (a) mortgage or pledge any of the Purchased Assets, other than Permitted Encumbrances; (b) Any cancellation of any material debt sale, assignment, transfer, lease or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien license (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation sales or liability of any nature (as guarantor or otherwise with respect licenses to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred customers in the Ordinary Course of Business) of the BSBU Intellectual Property or abandonment or lapse of any rights in the BSBU Intellectual Property; (c) incident of damage, destruction or loss of any Purchased Assets, whether or not covered by insurance, having a replacement cost or fair market value in excess of $300,000; (d) voluntary or involuntary sale, transfer, surrender, abandonment, waiver, release or other disposition of any kind of any right, power, claim, debt, asset or property related to the Purchased Assets having a replacement cost or fair market value in excess of $300,000 in the aggregate; (e) Any purchasecancellation, sale waiver or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition release of any of material debts, rights or claims with respect to the Transferred Assets other than Purchased Assets, except in the Ordinary Course of Business; (f) Any damagematerial change in accounting principles, destruction methods or loss, whether practices (including any change in depreciation or not covered amortization policies or rates) utilized by insurance, which could reasonably be expected to have a Material Adverse Effect on Seller in respect of the Transferred Assets or the BusinessBiologics SBU; (g) Any labor trouble change in cash management practices or dispute policies (including the timing of collection of receivables and payment of payables and other current liabilities) or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form maintenance of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business Seller’s books and records other than in the Ordinary Course of Business; (h) Except for employee turnover material increase in the Ordinary Course salary, bonus or other cash compensation of Businessany Key Employee, any material change in the personnel other than pursuant to requirements of pre-existing Contracts or in the responsibilities involving exclusively amounts to be paid by Seller on or reporting relationships of the employees (i) of the Business or (ii) with respect prior to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveEffective Time.

Appears in 1 contract

Samples: Asset Purchase Agreement (Nabi Biopharmaceuticals)

Absence of Certain Changes. Since Except as and to the extent set forth in Section 2.6 of the Seller Disclosure Schedule, since December 31, 2007 2000, (except as provided below), the Seller Entities have conducted a) the Business has been conducted, only in the Ordinary Course ordinary and usual course of Business, business consistent with past practice and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there (b) Seller has not beennot: (ai) Any suffered any adverse change in the propertiesits business, assetsprospects, liabilitiesoperations, businessworking capital, condition (financial or otherwise), results of operations of the Business assets, properties or Liabilities which change by itself resulted in or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have result in a Material Adverse Effect on Effect, and there has not been any damage, destruction, loss or other event which resulted in or could reasonably be expected to result in a Material Adverse Effect; (ii) incurred any Liabilities except current Liabilities for trade or business obligations in connection with the purchase of goods or services in the ordinary and usual course of business consistent with past practice, none of which, individually or in the aggregate, are material to the Business; (biii) Any cancellation paid, discharged or satisfied any Liabilities other than the payment, discharge or satisfaction in the ordinary and usual course of any business and consistent with past practice of Liabilities reflected or reserved against in the Balance Sheet or current Liabilities incurred since December 31, 2000 in the ordinary and usual course of business consistent with past practice none of which, individually or in the aggregate, are material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (civ) Any mortgage, encumbrance permitted or Lien (other than a Permitted Lien) placed on allowed any of its properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any Liens, except for Permitted Liens and the Transferred Assets which will remain on liens of CIT under the Closing DateCIT Financing; (dv) Any material obligation or liability materially written down the value of any nature (inventories or written off as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Businessuncollectible any accounts receivable; (evi) Any purchasecancelled any material debts or waived any claims or rights of substantial value; (vii) sold, sale or other dispositiontransferred, or any agreement or other arrangement for the purchase, sale or other disposition otherwise disposed of any of the Transferred Assets other than its properties or assets (real, personal or mixed, tangible or intangible), except in the Ordinary Course ordinary and usual course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (lviii) Any other transaction entered into by disposed of or permitted to lapse any Seller Entity that is individually Intellectual Property rights, or taken together with all such other transactions material disposed of or disclosed to the Business any Person, other than transactions representatives of Buyer, any Intellectual Property rights not theretofore a matter of public knowledge; (ix) made, or permitted any other Person to make, any change in the Ordinary Course rate of Businesscompensation, commission, bonus or other direct or indirect remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, or made any addition to or other change in any retirement, welfare, fringe or severance benefit or vacation plan, to or in respect of any member, director, manager, officer, employee, leased employee, broker, salesman, distributor or agent of Seller; (x) made any change in its selling, purchasing, pricing, advertising or personnel practices inconsistent with its prior practice and prudent business practices prevailing in the industry; (xi) instituted, settled or agreed to settle any litigation, action or proceeding before any Governmental Authority or arbitral body other than in the ordinary and usual course of business consistent with past practice, but not in any case involving (A) amounts in excess of $5,000, individually, or $10,000 in the aggregate, or (B) any form of non-monetary recovery, including consents, restraining orders or injunctions; (xii) made any single capital expenditure or commitment in excess of $10,000 for additions to property, plant, equipment or intangible capital assets or made aggregate capital expenditures and commitments in excess of $50,000 for additions to property, plant, equipment or intangible capital assets; (xiii) made any change in any method of financial or Tax accounting or reporting or financial or Tax accounting or reporting practice, except as required by GAAP; or (mxiv) Any material agreement or understanding agreed, whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified action described in paragraphs (a) through (l) abovethis Section 2.6.

Appears in 1 contract

Samples: Purchase Agreement (Hartmarx Corp/De)

Absence of Certain Changes. Since Except as and to the extent set forth in Section 2.6 of the Seller Disclosure Schedule, since December 31, 2007 2005, (except as provided below), A) the Seller Entities Sellers have conducted the Business only in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, including but not limited to, (i) fabric and production commitments, (ii) inventory, (iii) scheduling and delivery, (iv) customer pricing and shipping arrangements and (v) employment practices, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been(B) no Seller has: (a) Any suffered any adverse change in the its business, top 10 customers by sales volume, prospects (to Sellers' knowledge), operations, properties, assets, liabilities, businessworking capital, condition (financial or otherwise), results of operations of the Business assets, properties or Liabilities which change by itself resulted in or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have to, in each case, result, individually or in the aggregate, in a Material Adverse Effect on Effect, and there has not been any damage, destruction, loss or other event which resulted in or could reasonably be expected to, in each case, result, individually or in the Businessaggregate, in a Material Adverse Effect; (b) Any cancellation incurred any Liabilities except current Liabilities for trade or business obligations in connection with the purchase of any material debt goods or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred services in the Ordinary Course ordinary course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (c) paid, discharged or satisfied any Liabilities other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of current Liabilities incurred in the ordinary course of business consistent with past practice; (d) permitted or allowed any of its properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any Liens, except for Permitted Liens; (e) written down the value of any inventories or written off as uncollectible any accounts receivable, in either case, other than in the ordinary course of business consistent with past practice, and in amounts which are not, individually or in the aggregate, material; (f) cancelled any debts or waived any claims or rights; (g) sold, transferred, or otherwise disposed of any of its properties or assets (real, personal or mixed, tangible or intangible), except in the ordinary course of business consistent with past practice; (h) disposed of or permitted to lapse any Intellectual Property rights, or disposed of or disclosed to any Person, other than representatives of Buyer, any Intellectual Property rights not theretofore a matter of public knowledge; (i) made any change in the rate of compensation (except for routine annual merit or cost of living salary increases), commission, bonus or other direct or indirect remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, or made any addition to or other change in any retirement, welfare, fringe or severance benefit or vacation plan, to or in respect of any shareholder, director, officer, employee, broker, salesman, distributor or agent; (j) made any material change in its selling, purchasing, pricing, advertising or personnel practices; (k) instituted, settled or agreed to settle any litigation, action or proceeding by or before any Governmental Authority; (l) Any other transaction entered into by made any Seller Entity that is individually single capital expenditure or taken together with all such other transactions material commitment in excess of $25,000 for additions to the Business other than transactions property, plant, equipment or intangible capital assets or made aggregate capital expenditures and commitments in the Ordinary Course excess of Business$50,000 for additions to property, plant, equipment or intangible capital assets; (m) made any change in any method of financial or Tax accounting or reporting or financial or Tax accounting or reporting practice; or (mn) Any material agreement or understanding agreed, whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified action described in paragraphs (a) through (l) abovethis Section 2.6.

Appears in 1 contract

Samples: Purchase Agreement (Hartmarx Corp/De)

Absence of Certain Changes. Since December 31January 1, 2007 (except as provided below)2007, the Seller Entities Company and the Significant Company Subsidiaries have conducted the Business only in the Ordinary Course of Business. Since January 1, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement2007, there has not been: (a) Any change in the propertiesbeen no Material Adverse Effect, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, nor has any event occurred that could reasonably be expected to have a Material Adverse Effect Effect, on the Business; (b) Any cancellation of any material debt or claim owing to. Except as set forth on Schedule 3.10 and except as required by this Agreement, or waiver of any material right ofsince January 1, 2007, there has not been, nor has the Seller Entities Company or any Affiliate arising from, relating to Significant Company Subsidiary (or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of othersitems set forth in Subsections (a), whether accrued(d), absolute(e), contingent (f), (h), (i), (l), and (o) with respect to the Indicated Subsidiares) committed to, any: (a) material borrowings or otherwiseindebtedness, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities borrowings or were indebtedness incurred in the Ordinary Course of Business; (b) Lien on its properties or assets, other than Permitted Liens; (c) sale, assignment, transfer, lease or license (other than licenses to customers in the Ordinary Course of Business consistent with past practice) of any material Intellectual Property owned or licensed by the Company or any Significant Company Subsidiaries or abandonment or lapse of any rights in any material Intellectual Property owned or licensed by the Company or any Significant Company Subsidiaries; (d) incident of damage, destruction or loss of any property owned by it or used in the operation of the Business, whether or not covered by insurance, having a replacement cost or fair market value in excess of $500,000; (e) Any voluntary or involuntary sale, transfer, surrender, abandonment, waiver, acceleration, modification, release or other disposition of any kind of any right, power, claim, debt, asset or property (having a replacement cost or fair market value in excess of $500,000 in the aggregate), except with respect to Intellectual Property (which is the subject of Section 3.10(c)) or the sale of investments in the Ordinary Course of Business; (f) material loan, guarantee or advance to Seller, any Affiliates of Seller or any employees of the Company or any Significant Company Subsidiary, other than loans, guarantees or advances to be incurred in the Ordinary Course of Business; (g) capital expenditures in excess of the amounts set forth for fiscal year 2007 for capital expenditures in the Company’s capital operating budget; (h) declaration, setting aside, or payment of any dividend or other distribution in respect of equity interests or any direct or indirect redemption, purchase, sale or other dispositionacquisition of such equity interest, or the payment of principal or interest on any agreement note, bond, debt instrument or other arrangement for debt to any Affiliate of the purchaseCompany or any Significant Company Subsidiary; (i) issuance, sale or other disposition of any notes, bonds, or other debt securities or any Equity Securities including capital stock of the Transferred Assets Company or any Significant Company Subsidiary, or securities convertible into, or exchangeable for, any Equity Securities or guaranty of any indebtedness for borrowed money or capitalized lease obligations either involving more than $25,000 singly or $250,000 in the aggregate; (j) cancellation, delay, postponement, waiver or release of any material debts, rights or claims, except with respect to Intellectual Property (which is the subject of Section 3.10(c)) or in the Ordinary Course of Business consistent with past practice; (k) change in accounting principles, methods or practices (including any change in depreciation or amortization policies or rates) utilized by the Company or any Significant Company Subsidiary; (l) change in cash management practices or policies (including the timing of collection of receivables and payment of payables and other current liabilities) or change in the maintenance of the Books and Records other than in the Ordinary Course of Business; (fm) Any damageincrease in any manner of compensation of any director or employee of the Company or any Significant Company Subsidiary with a base salary of $100,000 or more per year, destruction or loss, whether or not covered by insurance, which could reasonably be expected other than pursuant to have a Material Adverse Effect on the Transferred Assets or the Businessrequirements of pre-existing Contracts; (gn) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material changeagreement, contract, lease, or the obtaining license (or series of information concerning a prospective changerelated agreements, with respect to the management of Business; any change in the compensation (in the form of salariescontracts, wagesleases, incentive arrangements or otherwiseand licenses) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in outside the Ordinary Course of Business; , except licenses of Intellectual Property (which is the subject of Section 3.10(c)); (o) capital investment in, any entering into loan to, or amending any material acquisition of the securities or assets of, any employment, deferred compensation or other similar agreement Person (or any amendment to any such existing agreementseries of related capital investments, loans, and acquisitions) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in outside the Ordinary Course of Business; (hp) Except for employee turnover in the Ordinary Course of Businessany employment contract or collective bargaining agreement, any material change in the personnel written or in the responsibilities oral, or reporting relationships modification of the employees (i) terms of the Business any existing such contract or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facilityagreement; (iq) Any any other change in the manner employment terms for any of keeping booksits or their directors, accounts or recordsofficers, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in and employees outside the Ordinary Course of Business; (kr) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount charitable or other promotional programs, capital contribution (iior pledge relating thereto) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (ms) Any disclosure of any material Confidential Information other than in the Ordinary Course of Business or pursuant to a written non-disclosure or similar agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveprotecting such information.

Appears in 1 contract

Samples: Stock Purchase Agreement (Jarden Corp)

Absence of Certain Changes. Since December 31Except as set forth in Section 2.8 of the Seller Disclosure Letter or as otherwise contemplated by Section 1.10, 2007 (except as provided belowfrom June 30, 2005 or, in the case of Section 2.8(k), from October 1, 2004, to the Seller Entities have conducted the Business only in the Ordinary Course date of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not beenbeen a Seller Material Adverse Effect and: (a) Any change in the propertiesCompany has not sold, leased, transferred or assigned any of its assets, liabilitiestangible or intangible, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course ordinary course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development business and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (b) other than agreements with growers, the Company has not entered into any contract (or series of related contracts) either involving more than $50,000 or outside the ordinary course of business; (c) no party (including the Company) has accelerated, suspended, terminated, modified or canceled any contract to which the Company is a party or by which it is bound that would have been a contract required to be disclosed in Section 2.15 of the Seller Disclosure Letter at the time of any such action; (d) other than (i) liens for taxes not yet due and payable, (ii) statutory liens of lessors, liens of carriers, warehousemen, mechanics and materialmen incurred in the ordinary course of business for sums not yet due or (iii) liens incurred or deposits made in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other types of social security, or to secure the performance of statutory obligations (“Permitted Liens”), no Lien has been imposed on any assets of the Company; (e) the Company has not issued any note, bond or other debt security or created, incurred, assumed or guaranteed any indebtedness for borrowed money (including advances on existing credit facilities) or capitalized lease obligation; (f) the Company has not delayed, postponed or accelerated the payment of accounts payable or other liabilities or the receipt of any accounts receivable, in each case outside the ordinary course of business; (g) the Company has not canceled, compromised, waived or released any material right or claim (or series of related rights or claims); (h) there has been no change made or authorized in the certificate of incorporation or by-laws of the Company; (i) the Company has not issued, sold or otherwise disposed of any of its capital stock or equity interests, or granted any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock; (j) the Company has not made any loan to, or entered into any other transaction with, any of its directors, officers or employees outside the ordinary course of business; (k) the Company has not entered into any employment or collective bargaining agreement, written or oral, or modified the terms of any such existing agreement; (l) Any other transaction entered into by the Company has not granted any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions increase in the Ordinary Course base compensation or made any other change in employment terms of Business; orany of its directors, officers or employees outside the ordinary course of business; (m) Any material agreement neither the Company nor Seller has adopted, amended, modified or understanding whether in writing or otherwise, that would result in terminated any of the transactions Company Plans for any Covered Individual (as those terms are defined in Section 2.11(a)); (n) Seller has not made any change in accounting principles or events or require any practices from those utilized in the preparation of the Financial Statements; and (o) neither the Company nor Seller Entity on behalf of the Company, has committed to take any of the actions specified described in paragraphs (a) through (l) abovethis Section 2.8.

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement (Imperial Sugar Co /New/)

Absence of Certain Changes. Since December 31Except as set forth in Schedule 3.14 of the Disclosure Schedule, 2007 (except as provided below)since the date of the Audited Financial Statements, Holdings, the Seller Entities Company and the Company Subsidiaries have conducted the Glass Business only in the Ordinary Course of BusinessCourse, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course neither Holdings, the Company, any Company Subsidiary, nor the Glass Business has: (i) Suffered any material adverse change in its financial conditions, assets, liabilities (absolute, accrued, contingent or otherwise), reserves, business, operations or pros- pects other than changes reflected in the Unaudited Consolidated October 31, 1996 Financial Statements, or those arising from or relating to general economic conditions of the glass industry in Italy; (ii) Incurred any liabilities or obligations (absolute, accrued, contingent or otherwise) other than as reflected in the Interim Unaudited Financial Statements, or the Unaudited Consolidated October 31, 1996 Financial Statements, or increased, or experienced any change in any assumptions underlying or methods of calculating any bad debt, contingency or other re- serves; (iii) Paid, discharged or satisfied any claims, liabilities or obligations (absolute, accrued, contingent or oth- erwise) other than the payment, discharge or satisfaction of lia- bilities and obligations reflected or reserved against in the Au- dited Financial Statements; (iv) Permitted or allowed any of its property or assets (real, personal or fixed, tangible or intangible) to be subjected to any Lien; (v) Written down the value of any Inventory (including write-downs by reason of shrinkage or xxxx-down) or written off as uncollectible any notes or accounts receivable, except for immaterial write-downs; (vi) Cancelled any credits or waived any claims or rights of substantial value; (vii) Transferred any of its properties or as- sets (real, personal or fixed, tangible or intangible) except for sales of properties or assets unrelated to the Glass Business; (fviii) Any damageDisposed of or permitted to lapse any rights to the use of any patent, destruction trademark, trade name or losscopy- right, whether or disposed of or disclosed to any person other than repre- sentatives of the Purchaser any trade secret, formula, process or know-how not covered by insurance, which could reasonably be expected to have theretofore a Material Adverse Effect on the Transferred Assets or the Businessmatter of public knowledge; (gix) Any labor trouble Granted any general increase in the com- pensation of officers or dispute employees (including any such increase pursuant to any bonus, pension, profit sharing or claim of unfair labor practices involving other plan or commitment) or any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change increase in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officersofficer or employee, employees, agents and no such increase is customary on a periodic basis or independent contractors rendering services principally relating to the Business, required by agreement or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Businessunder- standing; (hx) Except Made any capital expenditure or commitment other than as specifically provided for employee turnover in the Ordinary Course of BusinessInterim Unaudited Financial Statements or the Unaudited Consolidated October 31, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility1996 Financial Statements; (ixi) Any change Other than in connection with the manner of keeping booksfiscal year ended December 31, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used 1995 and the redemption contemplated by the BusinessMerger, declared, paid or set aside for payment any dividend or other distribution in respect of its capital stock or redeemed, purchased, or otherwise acquired, directly or indirectly, any shares of capital stock or other securities of Holdings, the Company or any Company Subsidiary; (jxii) Any Made any change in any Seller Entity’s business relationship with any material supplier, customer method of account- ing or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past accounting practice; (lxiii) Any other transaction Paid, loaned or advanced any amount to, or transferred or leased any properties or assets (real, personal or fixed, tangible or intangible) to, or entered into by any Seller Entity that is individually agree- ment or taken together with all such other transactions material to arrangement with, any of the Business other than transactions in the Ordinary Course Sellers, its senior executives or directors or any Affiliate of Businessany of its senior executives or directors; or (mxiv) Any material agreement or understanding Agreed, whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified action described in paragraphs (a) through (l) abovethis Section 3.14.

Appears in 1 contract

Samples: Acquisition Agreement (Owens Illinois Inc /De/)

Absence of Certain Changes. Since December 31, 2007 1999: (a) there has not been any Material Adverse Change and, to the knowledge of the Company, no event has occurred that could have a Material Adverse Effect; (b) the Company has not declared, accrued, set aside or paid any dividend or made any other distribution in respect of any shares of capital stock; (c) the Company has not amended its Articles of Incorporation or Bylaws and has not effected or been a party to any Acquisition Transaction, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction; (d) the Company has not made any individual capital expenditure in excess of $1,000; (e) the Company has not pledged or hypothecated any of its assets or otherwise permitted any of its assets to become subject to any lien or encumbrance; (f) the Company has not made any loan or advance; (g) the Company has not paid any bonus or made any profit-sharing or similar payment to, or increased the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of its directors, officers or employees; (h) except as provided below)specifically contemplated by this Agreement, there has been no resignation or termination of employment of any officer or employee of the Seller Entities Company; (i) except as described in Part 4.10 of the Disclosure Schedule, there has been no borrowing or agreement to borrow by the Company or change in the contingent obligations of the Company by way of guaranty, endorsement, indemnity, warranty or otherwise or grant of a mortgage or security interest in any property of the Company; (j) the Company has not discharged any lien or encumbrance or discharged, paid or forgiven any indebtedness or any other Liability, except for accounts payable that (i) are reflected as current liabilities in the "liabilities" column of the balance sheets of the Financial Statements or have conducted been incurred by the Business only Company since June 30, 2000 in the Ordinary Course of Business, Business and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts have been discharged or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen paid in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred the Company has not released or accelerated revenue activity, including waived any rebate, discount right or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practiceclaim; (l) Any other transaction entered into by the Company has not changed any Seller Entity that is individually of its methods of accounting or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; oraccounting practices; (m) Any material agreement the Company has not received notice that there has been a loss of, or understanding whether cancellation any order by, any customer of the Company; and (n) the Company has not agreed, committed or offered (in writing or otherwise), that would result in any of the transactions or events or require any Seller Entity and has not attempted, to take any of the actions specified referred to in paragraphs clauses (ab) through (lm) above.

Appears in 1 contract

Samples: Merger Agreement (Nextron Communications Inc)

Absence of Certain Changes. (a) Since December 31the Interim Balance Sheet Date, 2007 there has occurred no event or development which, individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect. (b) Since the Interim Balance Sheet Date, (i) the Stockholders have operated the Acquired Companies and Group Subsidiaries in the Ordinary Course of Business and in compliance with all applicable Laws and, to the extent consistent therewith, used its reasonable best efforts to preserve intact its current business organization, kept its physical assets in good working condition, excepting for normal wear and tear, kept available the services of its current officers and employees and preserved its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business shall not be impaired in any material respect, and (ii) except as provided below)for the matters set forth on Section 3.6(b) of the Disclosure Schedule, none of the Seller Entities have conducted Acquired Companies or Group Subsidiaries has taken any of the Business only following actions: (i) issued, redeemed, sold, pledged, disposed of, granted, transferred or encumbered any shares of capital stock of, or other Equity Securities in, any Acquired Company of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Securities, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Securities or such convertible or exchangeable securities of any Acquired Company; (ii) split, combined or reclassified any of its Equity Securities, or declared, set aside or paid any dividend or other distribution (whether in cash, stock or property, or any combination thereof) in respect of its Equity Securities; (iii) other than trade payables incurred in the Ordinary Course of Business, and except as disclosed created, incurred or assumed any Indebtedness (including obligations in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreementrespect of capital leases), there has not been: assumed, guaranteed, endorsed or otherwise became liable or responsible (a) Any change in the propertieswhether directly, assets, liabilities, business, condition (financial contingently or otherwise)) for the obligations of any other Person, results of operations of the Business which change by itself or in conjunction with all made any loans, advances or capital contributions to, or investments in, any other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the BusinessPerson; (biv) Any cancellation of entered into, adopted or amended any material debt Employee Benefit Plan or claim owing toany employment or severance agreement or arrangement, or waiver of increased in any material right manner the compensation or benefits of, or modified the Seller Entities employment terms of, its directors, officers or employees, generally or individually, or paid any bonus, severance or other benefit to its directors, officers or employees, or accelerated the vesting of, or payment of, any compensation or benefit under any Company Plan or hired or terminated (except for cause) any officers or any Affiliate arising from, relating to or resulting from the Businessemployees; (cv) Any mortgageacquired, encumbrance sold, leased, licensed or Lien disposed of any assets or property (including any shares or other Equity Securities of any Subsidiary or any corporation, partnership, association or other business organization or division thereof), other than a Permitted Lien) placed on any purchases and sales of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred assets in the Ordinary Course of Business; (evi) Any purchase, sale mortgaged or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of pledged any of the Transferred Assets its property or assets or subjected any such property or assets to any Lien; (vii) discharged or satisfied any Lien or paid any obligation or liability other than in the Ordinary Course of Business; (fviii) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Businessamended its Governing Documents; (gix) Any labor trouble changed its accounting methods, principles or dispute practices, except insofar as may be required by a generally applicable change in GAAP; (x) (i) made, changed or claim of unfair labor practices involving revoked any Seller Tax election, (ii) settled or compromised any claim, notice, audit report or assessment for Taxes, (iii) changed (or requested to any Governmental Entity with respect to the Business or the related manufacturing operation at the Existing Facility; change) any material changeaspect of any method of accounting for Tax purposes, (iv) filed any income Tax Return, (v) filed any amended Tax Return, (vi) failed to file any non-income Tax Return when due (or, alternatively, failed to file for available extensions) or failed to cause such Tax Returns when filed to be complete and accurate in all respects, (vii) failed to pay any amount of Taxes when due, (viii) entered into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement, pre-filing agreement, advance pricing agreement, cost sharing agreement, closing agreement or other agreement relating to Taxes, (ix) surrendered, compromised or forfeited any claim for a refund of Taxes, (x) filed any ruling request or make a voluntary Tax disclosure, amnesty filing or similar disclosure, (xi) consented to any extension or waiver of the obtaining statute of information concerning a prospective change, with respect limitations period applicable to any Tax claim or assessment or (xii) taken (or failed to take) any other action that could increase the management Tax liability of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements Taxpayer or otherwise) payable or to become payable by any Seller Entity to any of its officersAffiliates or decrease any Tax asset of any Taxpayer or any of its Affiliates in any taxable period (or portion thereof) beginning on the Closing Date; (xi) entered into, employeesamended, agents terminated, taken or independent contractors rendering services principally relating omitted to the Businesstake any action that would constitute a violation of or default under, or waived any bonus payment rights under, any Contract or arrangement made agreement of a nature required to be listed in Section 3.10, Section 3.11 or with Section 3.14 of the Disclosure Schedule; (xii) formed any of such officersSubsidiary; (xiii) purchased, employeessold, agents assigned, transferred, licensed, leased, abandoned or independent contractors other than in the Ordinary Course of Business; any entering into or amending otherwise disposed of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business Company Intellectual Property other than in the Ordinary Course of Business; (hxiv) Except for employee turnover made or committed to make any capital expenditure in excess of $25,000 per item or $50,000 in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facilityaggregate; (ixv) Any change in the manner of keeping books, accounts instituted or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Businesssettled any Legal Proceeding; (jxvi) Any change in any Seller Entity’s business relationship with any material supplieradopted a plan of complete or partial liquidation, customer dissolution, merger, restructuring or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Businessrecapitalization; or (mxvii) Any material agreement agreed to take, authorize or understanding whether in writing or otherwise, that would result in approve any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing actions.

Appears in 1 contract

Samples: Stock Purchase Agreement (American Superconductor Corp /De/)

Absence of Certain Changes. Since December 31, 2007 (except as provided below), the Seller Entities have conducted date of the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not beenAcquiror Balance Sheet: (a) Any has not (i) issued or sold any promissory note, stock, bond, option or other corporate security of which it was an issuer or other obligor, (ii) incurred or suffered to be incurred any liability or obligation other than in the ordinary course of business, the aggregate of which do not exceed $100, (iii) caused or permitted any lien, encumbrance or security interest to be created or arise on or in any of its properties or assets, (iv) declared, set aside or made any dividend, payment or other distribution to any stockholder or purchased or redeemed or agreed to purchase or redeem any shares of its capital stock, (v) reclassified its shares of capital stock, or (vi) entered into any agreement or transaction; (b) except for liabilities incurred in connection with this Agreement or the transactions contemplated hereby, has conducted its business only in the ordinary and usual course of business, and there has not been (i) any event or occurrence which could have a Material Adverse Effect on Acquiror, (ii) except insofar as may have been or required by a change in GAAP and practices as in effect from time to time in the propertiesUnited States, any change in accounting methods, principles or practices by Acquiror materially affecting its assets, liabilities, business, condition liabilities or business or (financial or otherwise), results of operations of the Business which change by itself iii) made any tax election that individually or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, aggregate could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business;Acquiror; and (c) Any mortgage, encumbrance or Lien has not taken and has not agreed to take any action (other than a Permitted Lienactions contemplated by this Agreement) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which that could reasonably be expected to have prevent the transactions contemplated by this Agreement from constituting a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i"reorganization" under section 368(b) of the Business Code or (ii) with respect to as an acquisition of in excess of 80% of the development and manufacture stock of lateral flow immunoassay products and related products at a corporation in exchange for property under Section 351 of the Existing Facility; (i) Any change in the manner Code nor is it aware of keeping booksany agreement, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer plan or other entity having business relations with such Seller Entity arising out of, relating circumstance that could reasonably be expected to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of prevent the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) abovecontemplated by this Agreement from so qualifying.

Appears in 1 contract

Samples: Share Exchange Agreement (Forsythe Group Two, Inc)

Absence of Certain Changes. Since December Except as reflected on Schedule 5.15, or elsewhere in this Agreement or specifically identified on any Schedules hereto, and since March 31, 2007 (except as provided below)1999, the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there Company has not beenand at the Closing Date will not have: (a) Any change in the propertiesSuffered a Material Adverse Effect, assets, liabilities, business, condition (financial or otherwise), results become aware of operations of the Business any circumstances which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could might reasonably be expected to result in such a Material Adverse Effect; or suffered any material casualty loss to the Assets (whether or not insured), except for losses that, individually or in the aggregate, would not have a Material Adverse Effect on the BusinessEffect; (b) Any cancellation Incurred any obligations specifically related to the Assets (including Customer Agreements), except in the ordinary course of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businessbusiness consistent with past practices; (c) Any mortgage, encumbrance Permitted or Lien (other than a Permitted Lien) placed on allowed any of the Transferred Assets which will remain on to be mortgaged, pledged, or subjected to any lien or encumbrance, except for liens for Taxes not yet due and payable and liens and encumbrances that, individually or in the Closing Dateaggregate, would not have a Material Adverse Effect; (d) Any material obligation or liability Written down the value of any nature (inventory, contract or other intangible asset, or written off as guarantor uncollectible any notes or otherwise with respect to the obligations of others)accounts receivable or any portion thereof, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations except for write-downs and liabilities which are not Assumed Liabilities or were incurred write-offs in the Ordinary Course ordinary course of Businessbusiness, consistent with past practice and at a rate no greater than during the latest complete fiscal year; cancelled any other debts or claims, or waived any rights of substantial value, or sold or transferred any of its material properties or assets, real, personal, or mixed, tangible or intangible, except in the ordinary course of business and consistent with past practice, and except for those that, individually or in the aggregate, would not have a Material Adverse Effect; (e) Any purchaseSold, sale licensed or other dispositiontransferred or agreed to sell, license or any agreement or other arrangement for the purchasetransfer, sale or other disposition of any of the Transferred Assets other than Assets, except in the Ordinary Course ordinary course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development business and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (lf) Any To the Company's and Parent's knowledge, received notice of any pending or threatened adverse claim or an alleged infringement of proprietary material, whether such claim or infringement is based on trademark, copyright, patent, license, trade secret, contract or other transaction restrictions on the use or disclosure of proprietary materials; (g) Incurred obligations to refund money to customers, except in the ordinary course of business, all of which will have no Material Adverse Effect; (h) Become aware of any event, condition or other circumstance relating solely to the Assets (as opposed to any such event, condition, or circumstance which is, for example, national or industry-wide in nature) which might reasonably be expected to materially adversely affect the Assets; (i) Made any capital expenditures or commitments, any one of which is more than $50,000, for additions to property, plant, or equipment; (j) Made any material change in any method of accounting or accounting practice; (k) Paid, loaned, guaranteed, or advanced any material amount to, or sold, transferred, or leased any material properties or assets (real, personal, or mixed, tangible or intangible) to, or entered into by any Seller Entity that is individually agreement, arrangement, or taken together transaction with all any of the Company's officers or directors, or any business or entity in which any officer or director of the Company, or any affiliate or associate of any of such other transactions material to the Business other than transactions in the Ordinary Course of BusinessPersons has any direct or indirect interest; or (ml) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity Agreed to take any of the actions specified action described in paragraphs (a) through (l) abovethis Section 5.15.

Appears in 1 contract

Samples: Merger Agreement (Mestek Inc)

Absence of Certain Changes. Since December 31Except as disclosed in Section 3.2(j) of the Disclosure Letter, 2007 (since September 30, 2011 and except as provided below), the Seller Entities otherwise permitted by this Agreement: (i) Fibrek and its subsidiaries have conducted the Business their respective businesses only in the Ordinary Course ordinary course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection business consistent with the transactions expressly contemplated under this Agreement, past practice; (ii) there has not been:been any event, circumstance or occurrence which has had, or is reasonably likely to give rise to, a Material Adverse Effect; (aiii) Any change in the propertiesno liability or obligation of any nature (whether absolute, assetsaccrued, liabilities, business, condition (financial contingent or otherwise), results of operations of the Business ) which change by itself has had or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could is reasonably be expected likely to have a Material Adverse Effect on the Businesshas occurred; (biv) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are there has not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; been any change in the compensation accounting practices used by Fibrek and its subsidiaries; (v) except for ordinary course adjustments to non-executive employees, there has not been any increase in the form of salariessalary, wagesbonus, incentive arrangements or otherwise) other remuneration payable or to become payable by any Seller Entity to any non-executive employees of any of Fibrek or its officerssubsidiaries; (vi) there has not been any redemption, employees, agents repurchase or independent contractors rendering services principally relating to the Businessother acquisition of Common Shares by Fibrek, or any bonus declaration, setting aside or payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation dividend or other similar agreement distribution (whether in cash, shares or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (iiproperty) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing FacilityCommon Shares; (ivii) Any there has not been a material change in the manner level of keeping booksaccounts receivable or payable, accounts inventories or recordsemployees, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof than those changes in the cost ordinary course of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent business consistent with past practice; (lviii) Any other transaction entered into by there has not been any Seller Entity that is individually entering into, or taken together with all such other transactions material to the Business an amendment of, any Material Contract other than transactions in the Ordinary Course ordinary course of Business; orbusiness consistent with past practice; (mix) Any material agreement there has not been any satisfaction or understanding whether settlement of any claims or liabilities that were not reflected in writing the 2010 Financial Statements, other than the settlement of claims or otherwiseliabilities incurred in the ordinary course of business consistent with past practice; and (x) except for ordinary course adjustments, that would result there has not been any increase in the salary, bonus, or other remuneration payable to any officers or senior or executive officers of the transactions Fibrek or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveits subsidiaries.

Appears in 1 contract

Samples: Support Agreement (Mercer International Inc.)

Absence of Certain Changes. Since Except as set forth in Schedule 4.8 or otherwise disclosed in writing to GLOBAL, since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only 2001: 4.8.1 other than in the Ordinary Course normal course of Businessbusiness, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, CYBER has not entered into any material transaction; 4.8.2 there has not been: (a) Any been no material adverse change in the properties, assets, liabilities, business, condition (financial or otherwise), results business, property, prospects, assets or liabilities of operations of CYBER as shown on the Business which change by itself or in conjunction with all CYBER Financial Statements, other such changes, whether or not arising than changes that both individually and in the Ordinary Course of Business, could reasonably be expected to aggregate do not have a Material Adverse Effect on the Businessconsequence that is materially adverse to such condition, business, property, prospects, assets or liabilities; (b) Any cancellation of any 4.8.3 there has been no material debt or claim owing damage to, destruction of or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition loss of any of the Transferred Assets other than in the Ordinary Course properties or assets of Business; CYBER (f) Any damage, destruction or loss, whether or not covered by insurance) materially and adversely affecting the condition (financial or otherwise), which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets business, property, prospects, assets or the Businessliabilities of CYBER; (g) Any labor trouble 4.8.4 CYBER has not declared or dispute paid any dividend or claim made any distribution on its capital stock, redeemed, purchased or otherwise acquired any of unfair labor practices involving its capital stock, granted any Seller Entity with respect options to the Business purchase shares of its stock, or the related manufacturing operation at the Existing Facility; issued any shares of its capital stock; 4.8.5 there has been no material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change except in the compensation (ordinary course of business, in the form contingent obligations of salariesCYBER by way of guaranty, wagesendorsement, incentive arrangements indemnity, warranty or otherwise) payable or ; 4.8.6 there have been no loans made by CYBER to become payable by any Seller Entity to any of its officers, employees, agents officers or independent contractors rendering services principally relating directors; 4.8.7 there has been no waiver or compromise by CYBER of a valuable right or of a material debt owed to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors it; 4.8.8 other than in the Ordinary Course normal course of Business; any entering into or amending business, there has been no extraordinary increase (defined herein as an increase in excess of 40% of such compensation as of January 1, 2002) in the compensation of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business CYBER employees; 4.8.9 other than in the Ordinary Course normal course of Business;business, there has been no agreement or commitment by CYBER to do or perform any of the acts described in this Section 4.8; and (h) Except for employee turnover 4.8.10 there has been no other event or condition of any character which might reasonably be expected either to result in the Ordinary Course of Business, any a material adverse change in the personnel or in the responsibilities or reporting relationships of the employees condition (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing financial or otherwise) business, that would result in any property, prospects, assets or liabilities of CYBER or to impair materially the transactions or events or require any Seller Entity ability of CYBER to take any of conduct the actions specified in paragraphs (a) through (l) abovebusiness now being conducted.

Appears in 1 contract

Samples: Plan and Agreement of Reorganization (Global Business Services Inc)

Absence of Certain Changes. Since December 31Except as set forth on Schedule 3.07 or as contemplated by this Agreement, 2007 (except since April 30, 2024, or such earlier date as provided below)set forth in such representations in this Section 3.07, the Seller Entities have conducted the Fluids Business only has been conducted, in all material respects, in the Ordinary Course of Business, including that the Fluids Entities have (i) preserved intact the business organization of the Fluids Entities, (ii) maintained existing relations with key suppliers, customers, employees and except as disclosed in Schedule 4.7 and except for changes in connection other Persons having material business relationships with the transactions expressly contemplated under this AgreementFluids Entities and (iii) maintained material insurance policies of the Fluids Entities; and, except pursuant to the Pre-Closing Reorganization, there has not beenbeen any: (a) Any change Material Adverse Effect on the Fluids Entities or the Fluids Business, since the Balance Sheet Date; (b) material incident of damages, destruction or loss of any Leased Real Property or Owned Real Property or in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations operation of the Business which change by itself or in conjunction with all other such changesbusinesses of any Fluids Entity, as applicable (whether or not arising covered by insurance), since the Balance Sheet Date; (c) cancellation or compromise of any material Funded Debt of any Active Fluids Entity or claim, waiver or release of any material right of any Fluids Entity or settlement of any action by any Fluids Entity that involves (A) Material Contracts, (B) any equitable or injunctive relief that remains available or (C) the assumption of any Liabilities by any Active Fluids Entity in excess of $250,000 in the aggregate, in each case, since the Balance Sheet Date; (d) incurrence, creation, assumption or other Liability for any Funded Debt in excess of $250,000, guarantee of any such Funded Debt, or issuance or sale of any debt securities or warrants or rights to acquire any debt securities of such Person or guarantee any debt securities of others, in each case, by any Active Fluids Entity; (e) entry into any commitment for any capital expenditure to be made following the Closing in excess, in any material respect, of the aggregate amount set forth in the budget of the Active Fluids Entities, which budget has been previously made available to Purchaser; (f) lapse of any Insurance Policy of any Fluids Entity, since the Balance Sheet Date; (g) material amendment or modification to the Organizational Documents of any Fluids Entity or formation of any Subsidiary, partnership or joint venture entity of any Fluids Entity; (h) imposition of any material Lien on the properties or assets of any Fluids Entity, except for Permitted Liens; (i) entry by any Fluids Entity into any new lease or sublease of Real Property (whether as a lessor, sublessor, lessee, or sublessee), or termination of any lease or sublease of Real Property prior to the end of its term; (j) sale, lease, license, pledge, encumbrance, transfer, surrender, abandonment, waiver, release or other disposition of, or agreement to sell, lease, license, pledge, encumber, transfer, surrender, abandonment, waiver, release or otherwise dispose of, any of material properties or assets or any Intellectual Property of any Fluids Entity, other than (A) dispositions of used, obsolete or excess equipment in the Ordinary Course of BusinessBusiness or (B) other dispositions in the Ordinary Course of Business that do not, individually or in the aggregate, involve property or assets with a value greater than $250,000; (k) acceleration by any Fluids Entity of the payment of material customer accounts receivable (including by shortening payment terms, providing incentives for early payment or otherwise); (l) delay by any Fluids Entity on the payment of material accounts payable or other material Liabilities to suppliers, vendors or others, in each case, other than in the Ordinary Course of Business consistent with past practices of the Fluids Entities; (m) material amendment, assignment, transfer, waiver of any rights under, termination or other disposition of any of the Material Contracts; (n) acquisitions by any Fluids Entity in any manner (whether by merger or consolidation, the purchase of Equity Interests in or a material portion of the assets of or otherwise) of any business or any corporation, partnership, association or other business organization or division thereof of any other Person, in a single transaction or a series of related transactions, with a value in excess of $250,000, since the Balance Sheet Date; (o) issuances, sales, deliveries, transfers or other authorization of any Equity Interests of any Fluids Entity, or any rights, warrants, calls, subscriptions or options to acquire any such Equity Interests; (p) material liquidation, dissolution, merger or consolidation of any Fluids Entity; (q) reclassification, split, combination, subdivision, directly or indirectly, of any Equity Interests in any Fluids Entity; (r) since the Balance Sheet Date, changes to any of the material accounting or Tax policies, practices or procedures of any Fluids Entity, except as required by GAAP; (s) material elections (or changes or revocations with respect thereto) relating to Taxes, filings of any amended Tax Returns with respect to income Taxes or any other material Tax, entrance into any “closing agreement” described in Code Section 7121 (or any corresponding or similar provision of U.S. state or local or non-U.S. Law), settlements or compromises of any claim or assessments with respect to any Tax, surrenders of any right to claim a refund of any material amount of Tax, consents to any extension or waiver of the limitation period applicable to any Tax claim or assessment, or any other action outside the Ordinary Course of Business by any Fluids Entity in respect of Taxes that could reasonably be expected to have a Material Adverse Effect material adverse Tax impact on the BusinessPurchaser or any Fluids Entity; (bt) Any cancellation entry by any Fluids Entity into, material modification of, or termination by any Fluids Entity of any material debt Employee Plan or claim owing toany other employment, compensation, benefits, consulting, severance, retention, bonus, change in control or indemnification agreements with its employees, members, managers, officers, directors, or waiver contractors, in each case, with such Persons with an annual salary in excess of $175,000, or entry by any Fluids Entity into or material right modification of, or, since the Seller Entities Balance Sheet Date, any Fluids Entity becoming bound by, or any Affiliate arising fromFluids Business Employee becoming covered by, relating any Collective Bargaining Agreement or other obligation to any labor organization or resulting from the Businessemployee representative; (cu) Any mortgageany work stoppages, encumbrance slowdowns, picketing, strikes, or Lien (other than a Permitted Lien) placed on any material labor dispute or, to the Knowledge of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability Seller, threats thereof, in each case, of any nature (as guarantor Fluids Entity or otherwise with respect to any Fluids Business Employee, in each case, since the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of BusinessBalance Sheet Date; (ev) Any purchaseincreases in the salary, sale wage or other disposition, compensation or any agreement level of benefits payable or other arrangement for the purchase, sale or other disposition of to become payable to any of the Transferred Assets Fluids Business Employees with an annual salary of greater than $175,000, other than in the Ordinary Course of Business; (fw) Any damagesince the Balance Sheet Date, destruction or loss, whether or not covered by insurance, which could reasonably entry into any Affiliate Transaction (other than any Transaction that will be expected to have a Material Adverse Effect on the Transferred Assets or the Businessdischarged at Closing in accordance with Section 5.02(b)); (gx) Any labor trouble or dispute or claim terminations of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; employee of any material changeFluids Entity, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than terminations in the Ordinary Course of Business; any entering into or amending Business of any employment, deferred compensation or other similar agreement (or any amendment employees with an annual base salary of less than $175,000 immediately prior to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Businesstermination; (hy) Except for employee turnover entry into, engagement in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standardsotherwise operation, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions Fluids Entity, of any material to new line of business, since the Business other than transactions in the Ordinary Course of BusinessBalance Sheet Date; or (mz) Any material agreement or understanding whether in writing or otherwise, that would result in commitments by any Fluids Entity to do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Purchase Agreement (Newpark Resources Inc)

Absence of Certain Changes. Since December 31, 2007 (except as provided below)1997, each of the Seller Entities have Companies has in all material respects conducted the Business only its business in the Ordinary Course of Business, ordinary course and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change in the propertiesany Material Adverse Change with respect thereto or any event, assets, liabilities, business, condition (financial occurrence or otherwise), results development of operations a state of circumstances or facts known to any of the Business Sellers, which change by itself or in conjunction with all other such changes, whether or not arising in as of the Ordinary Course of Business, date hereof could reasonably be expected to have a Material Adverse Effect on either of the BusinessCompanies; (b) Any cancellation any declaration, setting aside or payment of any material debt dividend or claim owing to, or waiver other distribution by either of any material right of, the Seller Entities or any Affiliate arising from, relating Companies other than dividend distributions to or resulting from the BusinessShareholders and distributions to partners; (c) Any mortgageany repurchase, encumbrance redemption or Lien (other than a Permitted Lien) placed on any acquisition by either of the Transferred Assets which will remain on Companies of any outstanding shares of capital stock or other securities or other ownership interests in either of the Closing DateCompanies; (d) Any material obligation or liability any amendment of any nature (as guarantor or otherwise with respect to term of any outstanding securities of either of the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of BusinessCompanies; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, other property or casualty loss (whether or not covered by insurance) affecting the business, assets, liabilities, earnings or prospects of either of the Companies which, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect on either of the Companies; (f) any increase in indebtedness for borrowed money or capitalized lease obligations of either of the Companies, except in the ordinary course of business; (g) any sale, assignment, transfer or other disposition of any tangible or intangible asset material to the business of either of the Companies, except in the ordinary course of business and for a fair and adequate consideration; (h) any amendment, termination or waiver by either of the Companies of any right of substantial value under any agreement, contract or other written commitment to which it is a party or by which it is bound which could reasonably be expected to have a Material Adverse Effect on either of the Transferred Assets or the BusinessCompanies; (gi) Any labor trouble or dispute or claim any material reduction in the amounts of unfair labor practices involving any Seller Entity coverage provided by existing casualty and liability insurance policies with respect to the Business business or properties of either of the related manufacturing operation at the Existing Facility; Companies; (j) any material change, (i) grant of any severance or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity termination pay to any director, officer or employee of its officerseither of the Companies, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any (ii) entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officerdirector, director officer or employee of any Seller Entity rendering services principally relating to either of the Business Companies other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used Non-Competition Agreements contemplated by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activitythis Agreement, (iii) material reduction any increase in benefits payable under any existing severance or elimination of expenses of termination pay policies or investments in the Businessemployment agreements, or (iv) change any increase in credit extension compensation, bonus or other credit practicesbenefits payable to directors, including changes in credit limits and underwriting standards, in each case, which would have officers or employees of either of the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial StatementsCompanies, in each case other than in a manner outside the Ordinary Course ordinary course of Business or materially inconsistent business consistent with past practice; (k) any new or amendment to or alteration of any existing bonus, incentive, compensation, severance, stock option, stock appreciation right, pension, matching gift, profit-sharing, employee stock ownership, retirement, pension group insurance, death benefit, or other fringe benefit plan, arrangement or trust agreement adopted or implemented by either of the Companies which would result in a material increase in cost; (l) Any other transaction entered into any capital expenditures, capital additions or capital improvements incurred or undertaken by either of the Companies in excess of $10,000, or any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions non-budgeted expenditure in the Ordinary Course excess of Business$5,000; or (m) Any material the entering into of any agreement or understanding whether in writing or otherwise, that would result in any by either of the transactions Companies or events or require any Seller Entity person on behalf of either of the Companies to take any of the actions specified in paragraphs foregoing actions; (an) through (l) abovecancellation or threat of cancellation from any issuing company or reinsurer that affects more than 10% of either IAI's or GIR's business.

Appears in 1 contract

Samples: Purchase Agreement (HCC Insurance Holdings Inc/De/)

Absence of Certain Changes. Since December 31January 1, 2007 (except as provided below)2000, the Seller Entities have Xxxxx has conducted the Business its business only in the Ordinary Course of Business, ordinary course thereof consistent with past custom and except as disclosed in Schedule 4.7 practice (including with respect to quantity and except for frequency) and has not experienced any changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change in the propertiesits financial condition, assets, liabilities, business, condition (financial business or otherwise), results of operations of the Business which change by itself individually or in conjunction with all other such changes, whether the aggregate had or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on Effect. For purposes of this Section, an item shall be deemed "material" if the Businessdollar amount or value associated with such item exceeds Twenty-Five Thousand Dollars ($25,000). Without limiting the generality of the foregoing sentence, since January 1, 2000, Xxxxx has not: (i) in a single transaction or a series of related transactions, sold (including by sale-leaseback), leased, licensed, or otherwise disposed of any assets which, individually or in the aggregate, have a fair market value in excess of Fifty Thousand Dollars ($50,000); (bii) Any cancellation of paid, discharged or satisfied any material debt liability or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; obligation (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business ) other than liabilities and obligations and liabilities which are not Assumed Liabilities were paid, discharged or were incurred satisfied in the Ordinary Course ordinary and usual course of Businessbusiness, or liabilities or obligations shown or reflected on the Xxxxx Balance Sheet, or incurred any material liability or obligation except for this Agreement and except in the ordinary course of business consistent with past practice since the date of the Xxxxx Balance Sheet; (eiii) Any purchaseprepaid any material expenses, sale indebtedness or other dispositionobligations; (iv) except in the ordinary and usual course of business, permitted or allowed any assets (whether real, personal or mixed, tangible or intangible) to be subjected to any Lien of any kind; (v) written off as uncollectible any notes or accounts receivable; (vi) released, waived or terminated any material obligation of any third party to Xxxxx; (vii) disposed of or permitted to lapse any rights in, to or for the use of any patent, trademark, trade name or copyright; (viii) settled any material claim, action or lawsuit involving Xxxxx, or amended any Tax Return in any respect; (ix) granted any increase in the base compensation or other payment to any director, officer or employee, whether now or hereafter payable or granted (other than increases in compensation in the ordinary course consistent in timing and amount with past practice) or granted any severance or termination pay (other than for severance pay to employees who are not Related Parties (as defined in Section 3.25) in amounts consistent with Xxxxx'x established severance pay practices), terminated any employee earning greater than Thirty-Five Thousand Dollars ($35,000) per year, entered into amended or become obligated under any employment, severance, bonus, profit sharing or other employee benefit arrangement or entered into, established, adopted, amended or renewed any employment, consulting, severance or similar agreement or other arrangement for the purchasewith any director, sale officer or other disposition of any of the Transferred Assets stockholder (other than in the Ordinary Course ordinary course of Businessbusiness consistent with past custom and practice); (fx) Any damagemade any material capital expenditure or commitment for additions to property, destruction plant or lossequipment, or leased or agreed to lease any assets which, if purchased, would be reflected in the property, plant or equipment accounts; (xi) made any change in any method of accounting or keeping its books of account or accounting practices; (xii) paid any amounts to, or sold or otherwise disposed of any assets to, assets from, or entered into any agreement or arrangement with, any Related Party; (xiii) except for this Agreement, incurred any obligation or liability, including without limitation any liability for nonperformance or termination of any contract, except liabilities incurred in the ordinary and usual course of the business; (xiv) other than under Xxxxx'x existing credit facilities as in effect as of the date hereof, incurred or become contingently liable with respect to any indebtedness for borrowed money or guaranteed any such indebtedness, where the aggregate amount of indebtedness so incurred or guaranteed exceeded Ten Thousand Dollars ($10,000), redeemed any long-term debt; issued any debt securities or assumed, guaranteed or endorsed, or otherwise as an accommodation become responsible for, the obligations of any person, or made any loans, advances, or capital contributions to or investments in, any other person; (xv) entered into or amended any contract, agreement or commitment, or engaged in any transaction, in each case which is material to Xxxxx and which is not in the usual and ordinary course of the business; (xvi) amended or proposed to amend its Certificate of Incorporation or By-laws; (xvii) acquired or agreed 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, association or other business entity, in a transaction or series of related transactions; (xviii) solicited or encouraged any inquiries or proposals regarding, or offers for, or entered into or continued any discussions with any third party concerning any sale or transfer of Xxxxx or any of its assets or entered into or consummated any agreement or understanding providing for a sale or transfer of Xxxxx or any of its assets, other than as contemplated herein; (xix) redeemed, purchased, otherwise acquired, or agreed to redeem, purchase or otherwise acquire, any shares of capital stock of Xxxxx, or declared, set aside or paid any dividend or otherwise made a distribution (whether in cash, stock or property or any combination thereof) in respect of Xxxxx'x capital stock; (xx) issued, sold, pledged, disposed of, granted or encumbered, or authorized the issuance, sale, pledge, disposition, grant or encumbrance of, any shares of capital stock or other equity securities of any type or class, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of such capital stock or other equity securities, or any other ownership interest (including, without limitation, any phantom interests); (xxi) reclassified, combined, split, subdivided or redeemed, purchased or otherwise acquired, or proposed to redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or other equity securities; (xxii) commenced any voluntary petition, proceeding or action under any bankruptcy, insolvency or other similar Law; (xxiii) authorized, proposed or agreed, whether or not covered by insurancein writing, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified described in paragraphs clauses (a) through i)- (lxxii) above.

Appears in 1 contract

Samples: Merger Agreement (Rymer Foods Inc)

Absence of Certain Changes. Since December 31the Balance Sheet Date, 2007 (the Company and each of the Subsidiaries has operated its business in the Ordinary Course of Business and substantially consistent with past practice and, except as provided below)set forth on Schedule 3.8: (a) there have not been any changes in the financial condition, business, or assets of the Seller Entities Company and the Subsidiaries taken as a whole that would in the aggregate have conducted a Material Adverse Effect; (b) neither the Company nor any Subsidiary has entered into any transaction or incurred any liability or obligation other than in the Ordinary Course of Business only substantially consistent with past practice; (c) except in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection neither the Company nor any Subsidiary has (A) issued, created, incurred, assumed, guaranteed, endorsed or otherwise become liable or responsible with the transactions expressly contemplated under this Agreementrespect to (whether directly, there has not been: (a) Any change in the properties, assets, liabilities, business, condition (financial contingently or otherwise)) any Indebtedness; (B) paid, results of operations of repaid, discharged, purchased, repurchased or satisfied any Indebtedness; or (C) materially modified the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation terms of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing DateIndebtedness; (d) Any material obligation neither the Company nor any Subsidiary has sold, assigned, leased or liability of transferred any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets assets other than in the Ordinary Course of BusinessBusiness substantially consistent with past practice and other than assets that have been replaced with other assets of equal or greater value; (e) neither the Company nor any Subsidiary has granted (i) any increase in any rate or rates of salaries or compensation or in benefits of any kind to any of its employees, directors, or officers other than as part of the Person’s annual review process consistent with past practice and, with respect to any employee having annual compensation in excess of $125,000, no such increase exceeded 7% or (ii) granted any unusual or extraordinary bonus, benefit or other direct or indirect compensation to any director, officer, employee or consultant or (iii) increased the coverage or benefits available under any (or created any new) severance pay, termination pay, vacation pay, Company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan or arrangement made to, for, or with any of the directors, officers, employees, agents or representatives of the Company or any of the Subsidiaries or otherwise modified or amended or terminated any such plan or arrangement; or (iv) entered into any employment, deferred compensation, severance, special pay, consulting, non-competition or similar agreement or arrangement with any directors or officers of the Company or any Subsidiary (or amended any such agreement to which the Company or any of the Subsidiaries is a party); (f) Any there has not been any default under any Indebtedness of the Company or any Subsidiary or any event which with the lapse of time or giving of notice or both would constitute such a default; (g) there has not been any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business property and assets of the Company or any Subsidiary having a replacement cost of more than $50,000 for any single loss or $200,000 for all such losses; (h) other than by and between the related manufacturing operation at Company and the Existing Facility; Subsidiaries, there has not been any declaration, setting aside or payment of any dividend or other distribution in respect of any shares of capital stock of or ownership interest in the Company or any repurchase, redemption or other acquisition by the Company or any Subsidiary of any outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or any Subsidiary; (i) there has not been any change by the Company or any Subsidiary in underwriting, accounting or Tax reporting principles, methods or policies and neither the Company nor any Subsidiary has introduced any material change, or the obtaining of information concerning a prospective change, change with respect to the management operation of Business; the Company or any of the Subsidiaries, including any material change in the compensation Policies of the Company or any Subsidiary, Cardholder Agreement, collection practices, pricing, or credit line increases; (j) neither the Company nor any Subsidiary has made any loans, advances or capital contributions to, or investments in, any Person or entity or paid any fees or expenses to Seller or to any director, officer, partner, stockholder or Affiliate of Seller; (k) neither the Company nor any Subsidiary has made or committed to make any capital expenditures or capital additions or betterments in excess of $50,000 individually or $200,000 in the form aggregate; (l) neither the Company nor any Subsidiary has granted any license or sublicense of salaries, wages, incentive arrangements any rights under or otherwise) payable or to become payable by any Seller Entity with respect to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than Intellectual Property except in the Ordinary Course of Business; (hm) Except for employee turnover neither the Company nor any Subsidiary has instituted or settled any pending or threatened legal proceeding or claim or claims for, or that resulted in a payment or a loss of revenue in excess of $50,000 in the Ordinary Course aggregate; (n) none of BusinessSeller, the Company or any material Subsidiary has transferred, issued, sold, pledged, encumbered or disposed of any shares of capital stock or other securities of, or other ownership interests in, the Company or any of the Subsidiaries or granted options, warrants, calls or other rights to purchase or otherwise acquire shares of the capital stock or other securities of, or other ownership interests in, the Company or any of the Subsidiaries; (o) neither the Company nor any Subsidiary has effected any recapitalization, reclassification, stock split, combination or like change in the personnel or in the responsibilities or reporting relationships capitalization of the employees (i) of the Business Company or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions Subsidiaries, or events amended the terms of any outstanding securities of the Company or require any Seller Entity Subsidiary; and (p) neither the Company nor any Subsidiary has agreed to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Stock Purchase Agreement (Compucredit Corp)

Absence of Certain Changes. Since December 31, 2007 (except as provided below), To Seller's best knowledge and from the date Seller Entities have conducted acquired the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this AgreementProperty, there has not been: (a) Any been any material adverse change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations ) of the Business which change by itself or the Property or any event, condition or contingency that is likely to result in conjunction with all other such changesany such material adverse change, whether or not arising and Seller and Seller's predecessor(s) in the Ordinary Course of Business, could reasonably be expected to interest have a Material Adverse Effect on the Business;not: (bi) Any cancellation of except as disclosed to Buyer in writing, sold, assigned, leased, transferred, mortgaged, pledged or imposed any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date;Property; or (dii) Any material obligation or liability of suffered any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, or suffered any repeated, recurring or prolonged shortage, cessation or interruption of delivery of supplies or utility services used in or required to conduct the Business, or suffered any change in its financial condition or in the nature of its business or operations which could reasonably be expected to will have a Material Adverse Effect an adverse effect on the Transferred Assets operations, assets, properties or the Business; (g) Any labor trouble or dispute or claim prospects of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business;Property. (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination Title to the Property. Seller has good and valid title to the Property, free and clear of expenses any and all liens, charges, claims, security interests, mortgages, tenancies, licenses, covenants, conditions, rights of or investments in way, easements, encroachments, deeds of trust, pledges, restrictions and encumbrances of any nature whatsoever (collectively, "Liens"), subject only to the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit items set forth in Exhibit "B" to be attached hereto upon Buyer's review and approval of the Purchase Price Financial Statements"Title Commitment" (as defined below), in each case in and including real property taxes and assessments not yet due and owing (collectively, "Permitted Exceptions"). At Closing, such title will be indefeasibly transferred to Buyer. Within ten (10) days after the Effective Date of this Agreement, Seller shall deliver to Buyer a manner outside commitment for title insurance (the Ordinary Course "TitleCommitment"), issued by First American Title Insurance Company (the "Title Insurer"), including copies of Business or materially inconsistent with past practice; all title exceptions shown on the Title Commitment (l) Any other transaction entered into by including without limitation copies of any Seller Entity that is individually or taken together with all such other transactions material covenants, conditions and restrictions applicable to the Business Property). Buyer shall be deemed to have approved the condition of title to the Property and the results of its review of such title matters and other than transactions in documents pertaining to the Ordinary Course Property unless Buyer delivers written notice of Business; or disapproval to Seller and Title Insurer within fifteen (m15) Any material agreement or understanding whether in writing or otherwise, that would result in any days after Buyer's receipt of the transactions or events or require Title Commitment, after which, any Seller Entity such title matters as to take any which Buyer does not deliver timely notice of the actions specified in paragraphs (a) through (l) abovedisapproval shall be deemed to be Permitted Exceptions, and such Permitted Exceptions shall be attached hereto as Exhibit "B," as aforesaid.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Nobel Learning Communities Inc)

Absence of Certain Changes. Since December 31September 1, 2007 (except as provided below)1996, the Seller Entities have Sunset has conducted the Business its business only in the Ordinary Course of Businessordinary course and consistent with prior practice, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there Sunset has not beennot: (a) Any change in the properties2.11.1 discharged, assets, liabilities, business, condition (financial satisfied or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of paid any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accruedliability, absolute, accrued, contingent or otherwise, asserted whether due or unassertedto become due, known material to Sunset considered as a whole or unknownto the Acquired Business considered alone, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations current liabilities and current portion of long-term debt shown on the June 30, 1996 Balance Sheet and current liabilities which are not Assumed Liabilities or were incurred since the date of the June 30, 1996 Balance Sheet in the Ordinary Course ordinary course of Businessbusiness and consistent with its prior practice; (e) Any purchase, sale 2.11.2 suffered any damage or destruction in the nature of a casualty loss or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any loss that would be treated as an extraordinary item pursuant to Opinion No. 30 of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or lossAccounting Principles Board, whether or not covered by insuranceinsurance or not, which could adversely affecting any property or business of Sunset or of the Acquired Business, that might reasonably be expected to have a Material Adverse Effect on be material to the Transferred Assets business, operations, assets, financial condition, results of operations, properties or prospects of the Acquired Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving 2.11.3 granted any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change increase in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity Sunset to any of its directors, officers, employeesmanagers, consultants or agents or independent contractors rendering services principally relating to employed in the Business, Acquired Business or any bonus payment increase in benefits under any bonus, insurance, pension or arrangement other benefit plan made to for or with any of such officerspersons other than increases that are provided to broad categories of employees and do not discriminate in favor of the aforementioned persons; 2.11.4 encountered any labor union organizing activity material to the business, operations, assets, financial condition, results of operations, properties or prospects of Sunset considered as a whole or of the Acquired Business considered alone, had any employee strike, work-stoppage, slow-down or lockout, or any substantial threat of any imminent strike, work- stoppage, slow-down or lock-out, or had any adverse change in its relations with its employees, agents agents, customers or independent contractors suppliers or any governmental or regulatory authorities, that, in any of the foregoing cases, has had or could reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, operations, assets, financial condition, results of operations, properties or prospects of Sunset considered as a whole or of the Acquired Business considered alone; 2.11.5 transferred or granted any rights under, or entered into any settlement regarding the breach or infringement of, any United States or foreign intellectual property, or modified any existing rights with respect thereto, as related to the Acquired Business, other than in the Ordinary Course ordinary course of Business; business and consistent with prior practice; 2.11.6 cancelled or compromised any entering into debts or amending waived or permitted to lapse any claims or rights of substantial value, or sold, leased, transferred or otherwise disposed of any employmentof its properties or assets (real, deferred compensation personal or other similar mixed, tangible or intangible), except in the ordinary course of business and consistent with prior practice; 2.11.7 made any material capital expenditure or commitment for any addition to property, plant or equipment not in the ordinary course of business and consistent with prior practice; 2.11.8 made any change in any method of accounting or accounting practice; 2.11.9 paid, loaned or advanced any amount to, or sold, transferred or leased any properties or assets (real, personal or mixed, tangible or intangible) to, or entered into any agreement (or any amendment to any such existing agreement) with arrangement with, any officer, director, "affiliate," officer of an "affiliate," director of an "affiliate," "associate" of an officer, "associate" of a director, or employee "associate" of any Seller Entity rendering services principally relating to the Business other than an "affiliate" (as such terms are defined in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships rules and regulations of the Securities and Exchange Commission), except for normal business advances to employees (i) of the Business or (ii) consistent with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or prior practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) above.

Appears in 1 contract

Samples: Acquisition Agreement (Caci International Inc /De/)

Absence of Certain Changes. Since December 31September 24, 2007 (except as provided below)1998, the such Seller Entities have has conducted the Distribution Business only in the Ordinary Course of Businessordinary course consistent with its past practice. Without limiting the foregoing, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreementduring such period, there has not beensuch Seller: (a) Any has not created, incurred or assumed any obligation which in any material way affects the Distribution Business, the Assets or Buyers' ability to conduct the Distribution Business following the Closing in substantially the same manner and condition as conducted by such Seller on the date of this Agreement; (b) has not increased the annual level of compensation of any Employee, or increased the annual level of compensation of any person whose total compensation from any Seller in the last preceding fiscal year exceeded $50,000, or granted any unusual or extraordinary bonuses, benefits or other forms of direct or indirect compensation to any Employee, officer, director or consultant, except in amounts in keeping with past practices by formulas or otherwise; (c) has not increased, terminated, amended or otherwise modified any plan for the benefit of Employees without prior written consent of Buyers; (d) has maintained insurance coverage in amounts adequate to cover the reasonably anticipated risks of the Distribution Business; (e) has not sold, disposed of or encumbered any of the Assets or licensed any Assets to any Person in the normal course of business consistent with past practice; (f) has not entered into any agreements or commitments relating to the Distribution Business, except on commercially reasonable terms in the ordinary course of business; (g) has complied in all material respects with all laws and regulations applicable to the Distribution Business; (h) has not entered into any agreement with any third party for the distribution of any of the Assets; (i) has not changed or announced any change to the products or services sold by the Distribution Business, except in the ordinary course of business; (j) has not expanded the use of the Assets within the organization of such Seller; (k) has operated the Distribution Business in the ordinary course so as to use reasonable efforts to preserve the Distribution Business intact, to keep available to Buyers the services of the Employees, and to preserve for Buyers the goodwill of the Distribution Business's suppliers, customers and others having business relations with it; (l) has not permitted, incurred or suffered any change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations assets, liabilities, reserves, earnings, business or prospects of the Business Distribution Business, except for changes which change by itself have not, individually or in conjunction with all other such changesthe aggregate, whether or not arising in been materially adverse to the Ordinary Course of Distribution Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of and has not borrowed any material debt or claim owing tofunds, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent under existing credit lines or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement except as reasonably necessary for the purchase, sale or other disposition of any ordinary operation of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Distribution Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent keeping with past practicehistorical practices; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material made any agreement or understanding whether in writing or otherwise, that would result in to do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Asset Purchase Agreement (Qad Inc)

Absence of Certain Changes. Since Except as set forth on Schedule 3.7, since December 31, 2007 1998, (except as provided below)i) Seller has conducted its business only in, and since such date, has not engaged in any transaction other than according to, the Seller Entities have conducted the Business only in the Ordinary Course ordinary and usual course of Businesssuch business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreementand, (ii) there has not been: been (a) Any change any event, circumstance, condition, development or occurrence causing, resulting in or having a material adverse effect on the properties, assets, liabilitiesfinancial condition, business, condition (financial prospects, properties or otherwise), results of operations of either Seller, the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have Transferred Assets (a "Material Adverse Effect on the Business; Change"); (b) Any cancellation of any material debt change by Seller in accounting principles, practices or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; methods; (c) Any mortgageany labor dispute or difficulty which is reasonably likely to result in any Material Adverse Change, encumbrance and to the Knowledge of Seller, no such dispute or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; difficulty is now threatened; (d) Any any asset material obligation to the Business sold or liability disposed of (except inventory sold in the ordinary course of business), or any material asset mortgaged, pledged or subjected to any lien, charge or other encumbrance; (e) any increase in excess of $10,000, individually or in the aggregate, in the compensation payable or which could become payable by Seller to employees, distributors, dealers or sales representatives of the Business; (f) any amendment by Seller of any nature employee benefit plan; (as guarantor or otherwise g) any indebtedness incurred by Seller with respect to the obligations of others)Business, whether accrued, absolute, contingent except for indebtedness that will be repaid in full by Seller prior to the Closing; (h) any loan made or otherwise, asserted or unasserted, known or unknown, incurred agreed to be made by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business Business, nor has Seller become liable or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning agreed to become liable as a prospective change, guarantor with respect to the management any such loan; or (i) any waiver by Seller of Business; any change in the compensation (in the form right or rights of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating material value related to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) above.

Appears in 1 contract

Samples: Asset Purchase Agreement (Summa Industries)

Absence of Certain Changes. Since Except as set forth in Section 3.1(f) of the Disclosure Schedule, since December 31, 2007 (except as provided below)2002, the Seller Entities Company and the Subsidiaries have conducted the Business been operated only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (ai) Any change any write-down in the properties, assets, liabilities, business, condition (financial or otherwise), results value of operations any of the assets or properties of the Company or the Subsidiaries, other than depreciation consistent with past practices; (ii) any voluntary or involuntary sale, assignment, license or other disposition, of any kind, of any asset or property of the Company or either Subsidiary, except for the sale of inventory in the Ordinary Course of Business which change by itself or the disposition of worn-out, outdated or obsolete furniture, fixtures and equipment consistent with past practice; (iii) any Encumbrance imposed or created on any of the assets or properties of the Company or either Subsidiary, other than Encumbrances (i) for Taxes and other governmental charges and assessments that are not yet due and payable or that are being contested in good faith and are disclosed in Section 3.1(f) of the Disclosure Schedule and (ii) of carriers, warehousemen and materialmen and other similar Encumbrances; (iv) to the knowledge of the Sellers and Parent, any change, event, development, damage or circumstance affecting the Company, either Subsidiary or the Business which, individually or in conjunction with all the aggregate, has had or could reasonably be expected to have, a Material Adverse Effect; (v) any damage, destruction or loss of any of the assets or properties of the Company or either Subsidiary by fire or other such changescasualty, whether or not arising covered by insurance; (vi) any material change in the manner in which the Company or either Subsidiary extends discounts or credits to customers or otherwise deals with customers or any change in its commission structure or policies; (vii) any sale, transfer, assignment, termination, modification or amendment of any Contract to which the Company or either Subsidiary was or is a party, except for terminations, modifications or amendments made in the Ordinary Course of Business and which would not, either individually or in the aggregate, have a Material Adverse Effect; (viii) any written or, to the knowledge of the Sellers and Parent, oral notice to the Company, Parent or either Subsidiary that any Contract to which the Company or either Subsidiary is a party has been breached, repudiated or terminated or will be breached, repudiated or terminated; (ix) except in the Ordinary Course of Business, could reasonably or otherwise as necessary to comply with any applicable minimum wage law, any increase in the salary or other compensation of any Business Employee, or any increase in or any addition to other benefits to which any Business Employee may be expected to have a Material Adverse Effect on the Businessentitled; (bx) Any cancellation of any material debt extraordinary compensation, bonus or claim owing to, distribution to the Company or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businesseither Subsidiary; (cxi) Any mortgage, encumbrance any failure to pay or Lien discharge when due (other than a Permitted Lienor within forty-five (45) placed on days of becoming due) any Liabilities of the Company or either Subsidiary; (xii) any change in any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred accounting principles adopted by the Seller Entities arising out ofCompany, relating to Parent or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other dispositioneither Subsidiary, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salariesCompany's, wagesParent's or either Subsidiary's policies, incentive arrangements procedures or otherwise) payable or methods with respect to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of applying such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Businessprinciples; (hxiii) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel transaction or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the BusinessContract entered into, or (iv) change in credit extension Liability created, assumed, guaranteed or other credit practicesincurred, including changes in credit limits and underwriting standards, in each case, which would have by or involving the effect of increasing the Revenue Company or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner any Subsidiary outside the Ordinary Course of Business or materially inconsistent with past practiceinvolving an amount in excess of $50,000; (lxiv) Any any termination of any officer of the Company or either Subsidiary or other transaction entered into employee of any Seller whose compensation on an annualized basis is at least $75,000 or whose position with such Seller is a department head or senior thereto (each, a "KEY EMPLOYEE") or, to the knowledge of the Sellers and Parent, any expression of intention by any Seller Entity that is individually such officer or taken together Key Employee to terminate their employment; (xv) any declaration, setting aside or payment of any dividend or other distribution of any assets of any kind whatsoever with all respect to any shares of the capital stock of the Company or either Subsidiary, any direct or indirect redemption, purchase or other acquisition of any such shares of the capital stock of the Company or either Subsidiary or any other transactions payment or distribution to any stockholder of the Company or either Subsidiary (other than a payment by a Subsidiary to the Company) or any Affiliate of any such stockholder; (xvi) any cancellation or forfeiture of any material debts or claims of the Company or either Subsidiary or otherwise related to the Business or any waiver of any rights of material value to the Company or either Subsidiary or otherwise related to the Business; (xvii) any issuance by the Company or either Subsidiary of any shares of its capital stock or debt security or any security, right, option or warrant convertible into or exercisable or exchangeable for any shares of its capital stock or debt security; (xviii) any write-off of any accounts receivable or notes receivable of the Company or either Subsidiary or any portion thereof in excess of $5,000 individually or $25,000 in the aggregate; (xix) any loan, advance or capital contribution to or investment in any Person or the engagement in any transaction with any employee, officer, director or securityholder of the Company, Parent or either Subsidiary, other than transactions the payment of normal wages and salaries to employees in the Ordinary Course of BusinessBusiness and advances to employees in the Ordinary Course of Business for travel and similar business expenses and consistent with past practice; or (mxx) Any material agreement any agreement, understanding, authorization or understanding proposal, whether in writing or otherwise, that would result in any of for the transactions Company, Parent or events or require any Seller Entity either Subsidiary to take any of the actions specified in paragraphs (a) through (l) abovethis Section 3.1(f).

Appears in 1 contract

Samples: Asset Purchase Agreement (Student Advantage Inc)

Absence of Certain Changes. Since December 31, 2007 (except Except as provided below), set forth in Section 5.08 of -------------------------- the Seller Entities have conducted the Business only in the Ordinary Course of Business, SELLER Disclosure Letter and except as disclosed in Schedule 4.7 and except for changes in connection with required by, made necessary by reason of or contemplated by the transactions expressly contemplated under Transaction Documents or the Transactions, since the Balance Sheet Date through the date of this Agreement, there has not been: (a) Any change There has been no Material Adverse Effect, other than changes relating to the economy in general or the propertieschemical industry in general, assets, liabilities, business, condition (financial or otherwise), results of operations changes resulting from the announcement by SELLER of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Businesstransactions contemplated hereby; (b) Any cancellation The Companies have not incurred any Indebtedness that exceeds in the aggregate US$10,000,000, other than in the ordinary course of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businessbusiness; (c) Any mortgage, encumbrance or There has not been created any material Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on assets, tangible or intangible, of the Closing DateCompanies, other than Permitted Liens; (d) Any material obligation Other than any sale, transfer or liability lease made pursuant to any Transfer Contract, there has not been any sale, transfer or lease of any nature (as guarantor or otherwise with respect to assets of the obligations of others)Companies, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course ordinary course of Businessbusiness, in an aggregate amount in excess of US$10,000,000; (e) Any purchaseNo physical damage, sale restriction or other disposition, loss has been suffered by any Company that individually or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Businessaggregate would have a Material Adverse Effect; (f) Any damage, destruction Except for changes and write-ups associated with (i) the Continuing Affiliate Contracts or loss, whether or not covered by insurance, which could reasonably be expected to have (ii) the establishment and implementation of a Material Adverse Effect on the Transferred Assets or separate information system and a separate accounting process of the Business, there has not been any material change in the Tax or accounting methods or practices followed by any Company or any material change in depreciation or amortization policies or rates previously adopted or any write-up of inventory or other assets; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; There has not been (i) any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (manner in which any Company extends discounts or credits to customers except for any such changes made in the form ordinary course of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Businessbusiness, or (ii) any bonus payment material change in the manner or arrangement made to terms by which any Company collects its accounts receivable or otherwise deals with any of such officers, employees, agents or independent contractors customers other than in the Ordinary Course utilization by the Companies of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering collection services principally relating to the Business other than in the Ordinary Course of Businessprovided by Ernst & Young; (h) Except for employee turnover There has not been any material failure by any Company to pay Non-US Payables when due, other than in the Ordinary Course ordinary course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facilitybusiness; (i) Any change in The Companies have not liquidated or dissolved, consolidated with, or merged into or with, any other Person, or purchased or otherwise acquired all or substantially all of the manner assets of keeping books, accounts any Person (or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Businessof any division thereof); (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from The Companies have not decreased the annual spending of the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business;for research and development below historic levels; and (k) Any (i) promotional salesThere has not been any agreement, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in by any of the transactions or events or require any Seller Entity Company to take any of the actions specified restricted by any of clauses (b), (c), (d), (f), (g), (i) or (j) in paragraphs (a) through (l) abovethis Section 5.08.

Appears in 1 contract

Samples: Sale Agreement (RPP Capital Corp)

Absence of Certain Changes. Since December 31, 2007 (except as provided below)the Balance Sheet Date, the Seller Entities Company and its subsidiaries have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not beennot: (a) Any suffered any Material Adverse Effect (excluding the effects of (i) any change in the propertiestrading price of Company Common Stock and (ii) loss of customer relationships after the date hereof as a result of the announcement or pendency of the Transactions; provided that such losses are not from customers who, assetsover the immediately preceding 12-month period, liabilitiesconstituted greater than 20% of the aggregate revenues from all customers in such period) or any event or change which is reasonably likely to have or constitute such a Material Adverse Effect; (b) to the knowledge of the Company, businessincurred any material liabilities or obligations (absolute, condition (financial accrued, contingent or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising except items incurred in the Ordinary Course ordinary course of Businessbusiness and consistent with past practice; (c) paid, could reasonably discharged or satisfied any claims, liabilities or obligations (absolute, accrued, contingent or otherwise) other than the payment, discharge or satisfaction (i) in the ordinary course of business and consistent with past practice of liabilities and obligations reflected or reserved against in the Company Balance Sheet or (ii) incurred in the ordinary course of business and consistent with past practice since the Balance Sheet Date or (iii) aggregating less than $50,000 since the Balance Sheet Date; (d) permitted or allowed any of their properties or assets (real, personal or mixed, tangible or intangible) to be expected subjected to any liens, except for liens for current taxes not yet due or liens the incurrence of which would not have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of BusinessCompany; (e) Any purchase, sale cancelled any debts or other disposition, waived any claims or any agreement or other arrangement for the purchase, sale or other disposition rights of any of the Transferred Assets other than in the Ordinary Course of Businesssubstantial value; (f) Any damagesold, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material changetransferred, or the obtaining otherwise disposed of information concerning a prospective changeany of their material properties or assets (real, with respect to the management of Business; any change personal or mixed, tangible or intangible), except in the compensation (in the form ordinary course of salariesbusiness, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (g) granted any increase in the compensation or benefits of any director, officer, employee or consultant of the Company or its subsidiaries (including any such increase pursuant to any bonus, pension, profit sharing or other plan or commitment) or any increase in the compensation or benefits payable or to become payable to any director, officer, employee or consultant of the Company or its subsidiaries, except in the case of employees other than officers or former officers of the Company or its subsidiaries for such increases in compensation or benefits made in the ordinary course of business, consistent with past practice; (h) made any change in severance policy or practices; (i) made any capital expenditure or acquired any property, plant and equipment for a cost in excess of $650,000 per fiscal quarter in the aggregate, subject to an increase of up to $1,000,000 per fiscal quarter in the aggregate but only with the prior written consent of the Vice President of Finance of Parent for any such expenditures in excess of $650,000; (j) declared, paid or set aside for payment any dividend or other distribution in respect of their respective capital stock or redeemed, purchased or otherwise acquired, directly or indirectly, any shares of capital stock or other securities of the Company or its subsidiaries; (k) made or changed any election relating to Taxes, adopted or changed any accounting method relating to Taxes, entered into any closing agreement relating to Taxes, filed any amended Tax Return, settled or consented to any claim or assessment relating to Taxes, incurred any obligation to make any payment of, or in respect of, any Taxes, except in the ordinary course of business, or agreed to extend or waive the statutory period of limitations for the assessment or collection of Taxes; (l) Any other transaction paid, loaned or advanced any amount to, or sold, transferred or leased any material properties or assets (real, personal or mixed, tangible or intangible) to, or entered into by any Seller Entity that is individually agreement or taken together arrangement with, any of their respective officers, directors or stockholders or any affiliate or associate of any of their officers, directors or stockholders except for directors’ fees, and compensation to officers at rates not inconsistent with all such other transactions material to the Business other than transactions in the Ordinary Course of BusinessCompany or its subsidiaries’ past practice; or (m) Any material agreement or understanding agreed, whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified action described in paragraphs (a) through (l) abovethis Section 3.5.

Appears in 1 contract

Samples: Merger Agreement (Openwave Systems Inc)

Absence of Certain Changes. Since Except as set forth on Schedule 3.11, from December 31, 2007 2010 (except as provided below)“Balance Sheet Date”) to the date of this Agreement, the Seller Entities have has conducted the Business only in the Ordinary Course of Business. As amplification and not limitation of the foregoing, and except as disclosed in set forth on Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement3.11, there has not beensince December 31, 2010: (a) Any change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or there has not arising in the Ordinary Course of Business, could reasonably be expected to have a occurred any Material Adverse Effect on the BusinessEffect; (b) Any cancellation Seller has not purchased, sold, leased, mortgaged, pledged or otherwise acquired or disposed of any material debt properties or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from assets used in the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred except in the Ordinary Course of Business; (ec) Any purchaseSeller has not sustained or incurred any loss or damage with respect to the Business (whether or not insured against) on account of fire, sale flood, accident or other dispositioncalamity; (d) Seller has not increased the rate of compensation of any employee of the Business, or any agreement other Person compensated by Seller involved in the Business, granted any unusual or extraordinary bonuses, benefits or other arrangement for the purchase, sale forms of direct or other disposition of indirect compensation to any employee of the Transferred Assets Business or any other Person compensated by Seller involved in the Business, and has not adopted, increased the benefits under, and, other than as required by Law, amended any Seller Plan; (e) there has been no material adverse change in the Ordinary Course of Businessor with respect to Seller’s relations with Authorities or its employees, creditors, suppliers, customers or others having business relationships with Seller and no fact exists which may reasonably be expected to give rise to any such material adverse change; (f) Any damage, destruction Seller has not changed any accounting methods or loss, whether practices (including any change in depreciation or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets amortization policies or the Businessrates); (g) Any labor trouble or dispute or claim Seller has taken all commercially reasonable steps to retain all engineering and information technology staff, sales managers and other critical talent necessary for the operation of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business;and (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity has not agreed to take any of the actions specified described in paragraphs (ab), (d) through or (lf) above.

Appears in 1 contract

Samples: Asset Purchase Agreement (Textura Corp)

Absence of Certain Changes. Since December 31January 1, 2007 (except as provided below)2007, the Seller Entities have SimpleChoice Business has been conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change in the propertiesany event, assetsoccurrence or development which has had, liabilitiesor is reasonably likely to have, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the BusinessEffect; (b) Any cancellation of any material debt or claim owing todamage, or waiver of any material right ofdestruction, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale eminent domain taking or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; casualty loss (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on ) affecting the Transferred SimpleChoice Business or any Purchased Assets or the Businessin any respect; (gc) Any labor trouble any creation or dispute other incurrence of any Debt or claim Lien on any Purchased Asset, other than the Debt incurred by the Sellers and their Affiliates pursuant to the Amended and Restated Loan Agreement and any Liens associated with such Amended and Restated Loan Agreement, which Liens will be released at Closing in accordance with Section 5.03; (d) any material change in any method of unfair labor practices involving any Seller Entity accounting or accounting practice (including with respect to reserves) with respect to the SimpleChoice Business except for any such change required by reason of a concurrent change in GAAP; (e) any amendment to the Organizational Documents of the Sellers; (f) other than the approximately $440,827 in promissory notes from SpectRx dated April 17, 2007 to three officers and a former officer of SpectRx representing unpaid salary, any increase or alteration to the related manufacturing operation at the Existing Facility; any material changecompensation payable or paid, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change alteration in the compensation (in the form timing or method of salariessuch payments, wages, incentive arrangements whether conditionally or otherwise) payable or to become payable by any Seller Entity , to any of its officersemployee or consultant, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; or any entering into change or amending revocation of any employmentmaterial Tax election, deferred compensation change to methods of accounting for Tax purposes, settlement in respect of Taxes or other similar agreement (or any amendment to any such existing agreement) entered into with respect of Taxes with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business;Governmental Authority; or (hg) Except for employee turnover in the Ordinary Course of Business, any other material adverse change in the personnel Purchased Assets (taken as a whole) or the SimpleChoice Business, and to Sellers' Knowledge no event has occurred that could reasonably be expected to result in the responsibilities or reporting relationships such a material adverse change; provided, however, that in no event shall any of the employees following be deemed to constitute such a material adverse change: any change or effect arising out of or attributable to (i) of the Business a decline or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change deterioration in the manner of keeping bookseconomy, accounts the capital markets or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change Sellers' industry in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programsgeneral, (ii) deferred this Agreement or accelerated expense activitythe transactions contemplated hereby or the announcement thereof, or (iii) material reduction or elimination continued decline in sales of expenses of or investments in the Business, SimpleChoice Products consistent with historical trends over the last twelve (12) months or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any termination of the transactions or events or require any Seller Entity SimpleChoice Product line and cessation of sales thereof by Sellers prior to take any of the actions specified in paragraphs (a) through (l) aboveClosing.

Appears in 1 contract

Samples: Asset Purchase Agreement (Spectrx Inc)

Absence of Certain Changes. Since December 31Except as disclosed on Section 3.08 of the Disclosure Schedule, 2007 (except as provided below)since June 30, 2004, the Seller Entities have Business has been conducted in the ordinary course consistent with past practices and, with respect to the Business only in or the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not beenPurchased Assets: (a) Any change in the propertiesthere has not been any event, assets, liabilities, business, condition (financial occurrence or otherwise), results of operations of the Business development which change by itself has had or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could is reasonably be expected likely to have a Material Adverse Effect on the BusinessEffect; (b) Any cancellation neither Seller nor any of its Subsidiaries has paid, discharged or satisfied any material debt claim, liability or claim owing toobligation (whether absolute, accrued, contingent or waiver otherwise) outside the ordinary course of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgagethere has not been any damage, encumbrance destruction or Lien other casualty loss (other than a Permitted Lienwhether or not covered by insurance) placed on affecting the Business or any of the Transferred Purchased Assets which will remain on the Closing Datehas had or is reasonably likely to have a Material Adverse Effect; (d) Any material obligation neither Seller nor any of its Subsidiaries has permitted or liability allowed any of the Purchased Assets (real, personal or mixed, tangible or intangible) to be subject to any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business Liens other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of BusinessPermitted Liens; (e) Any purchaseneither Seller nor any of its Subsidiaries has sold, sale or other dispositiontransferred, or any agreement or other arrangement for the purchase, sale or other disposition otherwise disposed of any of material properties or assets (real, personal or mixed, tangible or intangible) outside the Transferred Assets other than in the Ordinary Course ordinary course of Business; (f) Any damageneither Seller nor any of its Subsidiaries has written down the value of any Inventory (including write-downs by reason of shrinkage or xxxx-down), destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on except for write-downs in the Transferred Assets or the Businessordinary course of business and consistent with past practice; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to other than in the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management ordinary course of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any neither Seller Entity to nor any of its officersSubsidiaries has waived or otherwise released any material causes of actions, employeeslawsuits, agents judgments, claims and demands, other than any such rights to causes of actions, lawsuits, judgments, claims and demands the Business has against Seller or independent contractors rendering its Affiliates or any Persons who have provided legal or accounting services principally relating to Seller or its Affiliates; (h) neither Seller nor any of its Subsidiaries has disposed of or permitted to lapse any material rights to the use or registration of any Intellectual Property Right, or disposed of or disclosed to any Person, other than representatives of Purchaser and the other participants, and their respective representatives in the auction to acquire the Business and the Purchased Assets pursuant to non-disclosure agreements, any trade secret, formula, process, know-how or other Technical Information not theretofore a matter of public knowledge; (i) there has not been any transaction or commitment made, or any contract or agreement entered into, by Seller or any of its Subsidiaries material to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than transactions and commitments in the Ordinary Course ordinary course of Business; business consistent with past practices and those contemplated by the Transaction Documents; (j) there has not been any entering into or amending of any (i) employment, deferred compensation compensation, severance, retirement or other similar agreement entered into with any Transferred Employee (or any amendment to any such existing agreement), (ii) with any officer, director or employee grant of any Seller Entity rendering services principally relating severance or termination pay to the Business any Transferred Employee or (iii) change in compensation or other benefits payable to any Transferred Employee pursuant to any severance or retirement plans or policies thereof, in each case other than in the Ordinary Course ordinary course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) business consistent with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or past practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business;; or (k) Any (i) promotional salesneither Seller nor any of its Subsidiaries has agreed, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified action described in paragraphs (a) through (l) abovethis Section 3.08.

Appears in 1 contract

Samples: Asset Purchase Agreement (Wrigley Wm Jr Co)

Absence of Certain Changes. Since December Except as contemplated by this Agreement or as set forth on Section 3.8 of the Seller Disclosure Letter, since March 31, 2007 (except as provided below), 2018 to the Seller Entities have conducted the Business only in the Ordinary Course date of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, (a) the Business has been conducted in all material respects in the ordinary course and consistent with past practice and (b) no “Event of Default” under the Debt Facilities has occurred and is continuing, and (c) there has not been: been any event, development or state of circumstances which would require the consent of Purchaser pursuant to Section 5.2(a)(ii), (iii), (vi), (vii) (but replacing $250,000 in Section 5.2(a)(vii), with $1,000,000), (viii) (but replacing $100,000 in Section 5.2(a)(viii), with $1,000,000 and $1,000,000 in Section 5.2(a)(viii), with $10,000,000), (ix), (x), (xv) or (xvi) were it to be taken between the date hereof and the Closing Xxxx.Xx Litigation. Except as set forth on Section 3.9 of the Seller Disclosure Letter, (a) Any change there is, and since June 30, 2015 there has been, no Action or Order outstanding, pending or, to the Knowledge of Seller, threatened in the propertieswriting against any of Seller, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities Selling Subsidiary or any Affiliate arising from, Transferred Subsidiary relating to the Purchased Assets or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at Business Employees or against the Existing Facility; Miraclon Entities or the Transferred Subsidiaries by or before any Governmental Authority or arbitrator and (b) there is, and since June 30, 2015 there has been, no material changeAction, outstanding, or the obtaining of information concerning a prospective change, with respect to the management Knowledge of Business; Seller, threatened in writing against Seller, any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, Selling Subsidiary or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standardsTransferred Subsidiary, in each case, which would have relating to the effect of increasing Purchased Assets or the Revenue Assumed Liabilities or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by the Business Employees or against the Miraclon Entities or the Transferred Subsidiaries. None of Seller, any Seller Entity that Selling Subsidiary or any Transferred Subsidiary is individually or taken together with all such other transactions material subject to any Order of any Governmental Authority relating to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in by which any of the transactions Purchased Assets is bound. To the Knowledge of Seller, no Business Employee is subject to any Order that prohibits such Business Employee from engaging in or events continuing any conduct, activity or require any Seller Entity practice relating to take any of the actions specified in paragraphs (a) through (l) aboveBusiness.

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement

Absence of Certain Changes. Since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except Except as disclosed in Schedule 4.7 and except for changes 3.11, since the date of the most recent balance sheet contained in connection with the transactions expressly contemplated under this AgreementFinancial Statements, there has not beenthe Company: (a) Any has not (i) issued or sold any promissory membership interest, note, stock, bond, option or other company interest or security of which it was an issuer or other obligor, (ii) discharged or satisfied any lien or encumbrance or paid any obligation or liability, absolute or contingent, direct of indirect, (iii) incurred or suffered to be incurred any liability or obligation other than in the ordinary and usual course of business, (iv) caused or permitted any lien, encumbrance or security interest to be created or arise on or in any of its properties or assets, (v) declared, set aside or made any dividend, payment or other distribution to any stockholder or purchased or redeemed or agreed to purchase or redeem any shares of its capital stock, (vi) reclassified its shares of capital stock, or (vii) entered into any agreement or transaction except in the ordinary and usual course of business or in connection with the execution and performance of this Agreement; (b) except for liabilities incurred in connection with this Agreement or the transactions contemplated hereby, has conducted its business only in the ordinary and usual course of business, and there has not been (i) any event or occurrence which could have a Material Adverse Effect on the Company’s business, assets or prospects, (ii) except insofar as may have been or required by a change in generally accepted accounting principles and practices as in effect from time to time in the propertiesUnited States, any change in accounting methods, principles or practices by the Company materially affecting its assets, liabilities, business, condition liabilities or business or (financial or otherwise), results of operations of the Business which change by itself iii) made any tax election that individually or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, aggregate could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation Company's business or assets, or any of its tax attributes or any settlement or compromise of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business;income tax liability; or (c) Any mortgage, encumbrance or Lien has not taken and has not agreed to take any action (other than a Permitted Lienactions contemplated by this Agreement) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which that could reasonably be expected to have prevent the transactions contemplated by this Agreement from constituting a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i“reorganization” under section 368(b) of the Business Code or (ii) with respect to as an acquisition of in excess of 80% of the development and manufacture stock of lateral flow immunoassay products and related products at a corporation in exchange for property under Section 351 of the Existing Facility; (i) Any change in the manner Code nor is it aware of keeping booksany agreement, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer plan or other entity having business relations with such Seller Entity arising out of, relating circumstance that could reasonably be expected to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of prevent the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) abovecontemplated by this Agreement from so qualifying.

Appears in 1 contract

Samples: Share Exchange Agreement (Versant International, Inc.)

Absence of Certain Changes. Since December March 31, 2007 (2012, except as provided below), the Seller Entities have conducted the Business only identified and described in the Ordinary Course of BusinessSEC Filings, Acquiror has conducted its business in the ordinary course consistent with past practice and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change in the propertiesany Effect that, assets, liabilities, business, condition (financial individually or otherwise), results of operations of the Business which change by itself or in conjunction taken together with all other such changesEffects that have occurred prior to the Closing, whether or not arising in the Ordinary Course of Business, could would reasonably be expected to have a Material Adverse Effect on the BusinessAcquiror or its subsidiaries, taken as a whole; (b) Any cancellation any change in the consolidated assets, liabilities, financial condition or operating results of any material debt Acquiror from that reflected in Acquiror’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2012, except for changes in the ordinary course of business which, individually or claim owing toin the aggregate, or waiver of any material right ofwould not reasonably be expected to have a Material Adverse Effect on Acquiror and its subsidiaries, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businesstaken as a whole; (c) Any mortgageany declaration or payment of any dividend, encumbrance or Lien (other than a Permitted Lien) placed any authorization or payment of any distribution, on any of the Transferred Assets which will remain on the Closing Datecapital stock of Acquiror, or any redemption or repurchase of any securities of Acquiror; (d) Any any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insuranceinsurance to any assets or properties of Acquiror or its subsidiaries; (e) any waiver, not in the ordinary course of business, by Acquiror or any of its subsidiaries of a material right or of a material debt owed to it, other than inter-company debt; (f) any satisfaction or discharge of any lien, claim or Encumbrance or payment of any obligation by Acquiror or its subsidiaries, except in the ordinary course of business consistent with past practice and which could is not material to the assets, properties, financial condition, operating results or business of Acquiror; (g) any change or amendment to Acquiror’s Certificate of Incorporation or Bylaws; (h) the loss of the services of any executive officer (as defined in Rule 405 under the Securities Act) of Acquiror; or (i) the loss of any customer which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material changeAcquiror and its subsidiaries, or the obtaining of information concerning taken as a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) abovewhole.

Appears in 1 contract

Samples: Merger Agreement (Glu Mobile Inc)

Absence of Certain Changes. Since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except Except as disclosed in Schedule 4.7 -------------------------- 3.04 or as provided for or contemplated in this Agreement and except for changes in connection with to the transactions expressly contemplated under this Agreementbest knowledge of Seller, since December 31, 1995 (the "Balance Sheet Date") there has not been: been (ai) Any any transaction not in the ordinary course of business; (ii) any material adverse change in the properties, assets, liabilities, businessresults of operations, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changesassets, liabilities (whether or not arising in the Ordinary Course of Businessabsolute, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise), asserted business or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course prospects of Business; Seller; (eiii) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to has had or may have a Material Adverse Effect material and adverse effect on the Transferred Assets Assets; (iv) any sale or transfer of the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the BusinessAssets, or any bonus payment or arrangement made to or with any of such officersportion thereof, employees, agents or independent contractors other than except sales in the Ordinary Course ordinary course of Businessbusiness of inventory; (v) any entering into mortgage, pledge or amending subjection to lien, charge or encumbrance of any employmentkind, deferred compensation or other similar agreement (except liens for taxes not due, of the Assets, or any amendment to portion thereof; (vi) any such existing agreement) with any officermaterial amendment, director modification or employee termination of any Seller Entity rendering services principally material contract or agreement relating in any way to the Business other than in the Ordinary Course of Business; Assets to which Seller is a party; (hvii) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change alteration in the manner of keeping the books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any records of Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to the Assets, or resulting from the Business including any material increase or notice thereof in the cost accounting practices therein reflected; or (viii) any other event or condition of raw materials other than such any character which has had or may have a material and adverse effect on the Assets. Purchaser acknowledges that changes which have arisen in gross receipts due to fluctuations in attendance at the Angelika Theatre in the Ordinary Course ordinary course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, business do not constitute material adverse changes for purposes of clause (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) above.

Appears in 1 contract

Samples: Asset Purchase and Sale Agreement (Craig Corp)

Absence of Certain Changes. Since December 31September 30, 2007 (except as provided below)1999, each of the Seller Entities have conducted -------------------------- Acquired Companies and, with respect to the Business only US-Based Assets, NMT-US, has operated its business in the Ordinary Course ordinary course of Businessits business and consistent with past practice. Since September 30, and 1999, except as disclosed in Schedule 4.7 3.6, ------------ (i) there have been, and except for changes as of Closing there will have been, no events, changes, or occurrences which have had or could reasonably be expected to have, individually or in connection with the transactions expressly contemplated under aggregate, a Material Adverse Effect, and (ii) none of the Acquired Companies or NMT-US has taken any action, or failed to take any action, prior to the date of this Agreement, there has not beenwhich action or failure, if occurring after the date of this Agreement, would represent or result in a breach or violation of any of the covenants and agreements applicable to the Acquired Companies and NMT-US set forth in Section 5. Without limiting the generality of the foregoing and except as disclosed on Schedule 3.6, since ------------ September 30, 1999, none of the Acquired Companies or, as applicable and with respect to the US-Based Assets, NMT-US, has: (ai) Any change abandoned or sold, leased, transferred or assigned any of its assets, tangible or intangible, other than for a fair consideration in the propertiesordinary course of its business, consistent with past practice and which assets do not have an aggregate book value in excess of US$50,000 (excluding sales of inventory in the ordinary course), or (ii) mortgaged, incurred or permitted to be attached any Liens in excess of US$50,000 on any of its assets, liabilitiestangible or intangible; (b) entered into any Contract involving more than US$50,000 in the aggregate, outside the ordinary course of business, condition consistent with past practice, and which cannot be terminated on less than thirty (financial 30) days notice by such Acquired Company or otherwiseNMT-US without penalty; (c) accelerated, terminated, modified (other than modifications in the ordinary course of business and consistent with past practice), results or cancelled any Contract (or series of operations related Contracts) involving more than US$50,000 in the aggregate to which such Acquired Company or NMT-US is a party or is otherwise bound; (d) merged or consolidated with, or made any capital investment in, any loan to, any advance to, or any acquisition of the Business which change by itself securities or assets of, any other Person (or series of related capital investments, loans, and acquisitions); (e) issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any indebtedness or capitalized lease obligation; (f) issued, sold or otherwise disposed, directly or indirectly, of any of its capital shares, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital shares; (g) granted any license or sublicense, transferred or assigned any right, or commenced or settled any litigation or dispute with respect to any Intellectual Property (h) made or instituted any unusual or new methods of manufacture, purchase, sale, distribution, shipment or delivery, lease, management, accounting or operation, or shipped or delivered any quantity of Products in conjunction with all other such changesexcess of normal shipment or delivery levels; (i) experienced any damage, destruction, or loss (whether or not arising covered by insurance) to its assets or property in an aggregate amount greater than US$50,000; (j) made any loan to, or entered into any other transaction with, any of its directors, officers, or employees or any of their family members, trustees or beneficiaries; (k) entered into any employment contract, deferred compensation agreement, severance agreement, retirement agreement or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement; (l) granted, provided or paid compensation or benefits to any of its directors, officers, or employees, other than salary increases in the Ordinary Course ordinary course of such Acquired Company's business consistent with past practice; (m) adopted, amended, modified, or terminated any Employee Benefit Plan, including, without limitation, accelerating any payments due or to become due under any deferred compensation plan; (n) made any other change in employment terms for any of its directors, officers or employees; (o) made or pledged to make any charitable or other capital contribution which is (i) not reflected on the September 30, 1999 balance sheet delivered to Buyer's representatives or (ii) in excess of US$50,000 in the aggregate which remains unfulfilled; (p) made any capital expenditure or commitment for any capital expenditure in excess of US$50,000 in the aggregate; (q) amended its articles or memorandum/articles of incorporation/ association, by-laws or other governing instruments; (r) made any change in any accounting methods or systems of internal accounting controls; (s) waived, released or compromised any right or claim in excess of US$50,000 in the aggregate; (t) commenced or settled any litigation or similar adversarial proceeding, including, without limitation, any such litigation or proceeding involving the such Acquired Company or NMT-US that, if adversely determined, could restrict the operations of any of the Acquired Companies or the Business; (u) entered into any closing agreement or settled or agreed to settle any claim or assessment for Taxes or surrendered any right to claim a refund of Taxes or otherwise offset or reduce any Tax liability; (v) made or changed any election with respect to Taxes; (w) experienced any labor dispute, other than individual grievances, or any lockouts, strikes, slowdowns, work stoppages by or with respect to any of its employees; or (x) experienced any event, occurrence, development or set of circumstances of facts, which individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveEffect.

Appears in 1 contract

Samples: Purchase Agreement (NMT Medical Inc)

Absence of Certain Changes. Since December 31, 2007 (except Except as provided below), set forth in Section 4.1(k) -------------------------- of the Seller Entities have conducted Disclosure Letter, since the Business only in date of the Ordinary Course March Balance Sheet, no member of the Seller Group, with respect to the Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not beenhas: (ai) Any Suffered any change or changes which, individually or in the propertiesaggregate, assets, liabilities, business, condition (financial have had or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could may reasonably be expected to have a Material Adverse Effect on other than as a result of changes in the BusinessMemory Products industry or the economy generally; (bii) Any cancellation Except for Liabilities incurred in the ordinary course of business and consistent with past practice, borrowed or agreed to borrow any material debt funds or claim owing incurred, assumed or become subject to, whether directly or waiver by way of guarantee or otherwise, any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the BusinessLiability; (ciii) Any mortgageTo the knowledge of Seller, encumbrance or Lien (other than a Permitted Lien) placed on any no member of the Transferred Assets Seller Group has become subject to any newly enacted or adopted Law which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could may reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the BusinessEffect; (giv) Any labor trouble Permitted or dispute allowed any of its property or claim assets (real, personal or mixed, tangible or intangible) to be subjected to any Liens, except for Permitted Liens; (v) Written up the value of unfair labor practices involving any Seller Entity inventory, any notes or accounts receivable or any other assets, except for write-ups in the ordinary course of business and consistent with respect past practices; (vi) Waived any claims or rights of substantial value, or sold, transferred, or otherwise disposed of any of its properties or assets (real, personal or mixed, tangible or intangible), except in the ordinary course of business and consistent with past practices; (vii) Licensed, sold, transferred, pledged, modified, disclosed, disposed of or permitted to lapse any right to the Business use of any Acquired Intellectual Property, except in the ordinary course of business and consistent with past practices; (viii) Granted any general increase in the compensation of officers or employees (including any such increase pursuant to any bonus, pension, profit-sharing or other plan or commitment), except in the related manufacturing operation at the Existing Facility; ordinary course of business and except for any material change, or the obtaining of information concerning a prospective change, bonuses to be paid by Seller and consistent with respect to the management of Business; past practices; (ix) Made any change in any method of accounting or accounting practice or any change in depreciation or amortization policies or rates theretofore adopted; (x) Paid, lent or advanced any amount to, or sold, transferred or leased any properties or assets (real, personal or mixed, tangible, or intangible) to, or entered into any agreement or arrangement with, any officer or director or Affiliate of any other member of the Seller Group, except for directors' fees and employment compensation to officers; (in the form xi) Sold, leased or otherwise disposed of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officersassets, employeesexcept in the ordinary course of business and consistent with past practices; (xii) Entered into any other transaction, agents or independent contractors rendering services principally relating to the Businesscontract, or any bonus payment commitment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course ordinary course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) business and consistent with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Businesspast practices; (hxiii) Except for employee turnover in the Ordinary Course of BusinessAgreed, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in to undertake any of the transactions Remedial Activity or events or require any Seller Entity to take any of the actions specified action described in paragraphs (a) through (l) abovethis Section 4.1(k).

Appears in 1 contract

Samples: Acquisition Agreement (Micron Technology Inc)

Absence of Certain Changes. Since Except as reflected in Financial Reports, since December 31, 2007 (except as provided below)1998, Mud Logging, its business and the Seller Entities Purchased Assets owned by it have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any suffered or undergone any change in the properties, assets, liabilities, that is reasonably likely to have an adverse effect on its business, condition (financial or otherwise), results or prospects (whether as a result of operations any change as to inventory or other assets, any loss of a competitive position, any natural disaster, accident, strike, or any other event or condition affecting or relating to its business, Mud Logging or the Business which change Purchased Assets owned by itself or in conjunction with all other such changesit, whether or not arising in the Ordinary Course of Business, could reasonably be expected related to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of othersforegoing), whether accrued, absolute, contingent experienced any labor difficulty or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or suffered any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, loss (whether or not covered by insuranceinsured). Except as reflected in Financial Reports since December 31, which could reasonably be expected to 1998, Well Logging and its business have a Material Adverse Effect on the Transferred Assets or the Business;not: (ga) Any labor trouble incurred any obligations or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material changeliabilities (whether absolute, accrued, contingent, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable otherwise and whether due or to become payable by any Seller Entity to any due), except current liabilities lin the ordinary course of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development business and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (lb) Any other transaction entered into by written down or written up the value of any Seller Entity that is individually of the Inventory; (c) canceled or taken together with all such other transactions material to the Business other than transactions waived any claim of right of substantial value or sold, assigned, transferred or encumbered any of its properties or assets, real, persona, or mixed, tangible or intangible, except for fair consideration and in the Ordinary Course ordinary course of Business; orbusiness and consistent with past practice; (md) Any granted any increase in compensation, rate of compensation or commission payable or to become payable, or made any loan, advance or other extension of credit to any of its employees or agents except merit increases made in the usual and ordinary course of business; (e) changed the methods of accounting or accounting principles or practices of Mud Logging set forth in or reflected in the Financial Reports; (f) lost any key employees; (g) terminated or been advised of the termination of its relationship with any material agreement customer or understanding supplier; (h) changed in any material respect the business policies or practices of Mud Logging or failed to operate the business of Mud Logging in good faith and in the ordinary course; and (i) agreed, whether in writing or otherwisenot, that would result in to do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Purchase and Sale of Assets Agreement (Rentech Inc /Co/)

Absence of Certain Changes. Since Except as disclosed in the Disclosure Package and the Final Offering Circular, since December 31, 2007 2006, (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, i) there has not been: (a) Any been no change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have development that has had a Material Adverse Effect Effect, (ii) the Issuer has not declared or paid any dividends other than the dividends paid on March 29, 2007 to the Business; stockholders of record as of March 19, 2007 and the dividends paid on June 29, 2007 to the stockholders of record as of June 20, 2007, (biii) Any cancellation neither the Issuer nor any of its Subsidiaries has sold any assets, individually or in the aggregate, in excess of $1,000,000 outside of the ordinary course of business and (iv) neither the Issuer nor any of its Subsidiaries has made any capital expenditures, individually or in the aggregate, in excess of $5,000,000. Neither the Issuer nor any of its Subsidiaries has taken any steps to seek protection pursuant to any bankruptcy law nor does the Issuer have knowledge that either its or its Subsidiaries’ respective creditors intend to initiate involuntary bankruptcy proceedings or knowledge of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating fact which would reasonably lead a creditor to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any do so. The Issuer is not as of the Transferred Assets which will remain on date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing Date; (d) Any material obligation or liability of any nature will not be, Insolvent (as guarantor or otherwise with respect to the obligations defined below). For purposes of othersthis Section 6(p), whether accrued“Insolvent” means (i) the present fair saleable value of the Issuer’s assets is less than the amount required to pay the Issuer’s total Indebtedness, absolute(ii) the Issuer is unable to pay its debts and liabilities, subordinated, contingent or otherwise, asserted as such debts and liabilities become absolute and matured or unasserted(iii) the Issuer has unreasonably small capital with which to conduct the business in which it is engaged as such business is now conducted. “Indebtedness” of any Person means, known without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or unknown, incurred by assumed as the Seller Entities arising out of, relating to deferred purchase price of property or resulting from the Business services (other than trade payables entered into in the ordinary course of business), (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and liabilities which are not Assumed Liabilities other similar instruments, (D) all obligations evidenced by notes, bonds, debentures or were similar instruments, including obligations so evidenced incurred in connection with the Ordinary Course acquisition of Business; property, assets or businesses, (eE) Any purchase, all indebtedness created or arising under any conditional sale or other dispositiontitle retention agreement, or any agreement or other arrangement for the purchaseincurred as financing, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity either case with respect to any property or assets acquired with the Business proceeds of such indebtedness (even though the rights and remedies of the seller or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change bank under such agreement in the compensation (in the form event of salaries, wages, incentive arrangements default are limited to repossession or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any sale of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programsproperty), (iiF) deferred all monetary obligations under any leasing or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standardssimilar arrangement which, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) above.connection with

Appears in 1 contract

Samples: Purchase Agreement (Vector Group LTD)

Absence of Certain Changes. Since From December 31, 2007 (2013 to the date hereof, except as provided below)set forth on Schedule 4.22, disclosed in the Seller Entities Financial Statements or otherwise contemplated by this Agreement, Sellers have conducted the Business only in all material respects in the Ordinary Course of Business, ordinary course and except as disclosed in Schedule 4.7 consistent with past practice and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change material loss, damage or destruction to, or any material interruption in the propertiesuse of, assets, liabilities, business, condition (financial or otherwise), results of operations any of the Business which change by itself or in conjunction with all other such changes, assets of WPCS-Seattle (whether or not arising in the Ordinary Course of Business, could reasonably be expected to have covered by insurance) that constitutes a Material Adverse Effect on the BusinessEffect; (b) Any cancellation change in the business, financial condition or operations of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the BusinessWPCS-Seattle that has had a Material Adverse Effect; (c) Any mortgagechange relating to employees, encumbrance including, without limitations, any increase in the compensation, granting of bonuses payable or Lien (other than a Permitted Lien) placed on any to become payable by the Sellers in connection with the Business, hiring of new employees except in the ordinary course of the Transferred Assets which will remain on the Closing DateBusiness consistent with past practice; (d) Any material obligation Except in the ordinary course of the Business, any sale or liability transfer or other disposition by WPCS-Seattle of any nature (as guarantor assets, Tangible Personal Property or otherwise with respect to the obligations Intellectual Property, any mortgage or pledge or creation of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, any Encumbrance relating to any such property, any lease of equipment or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities any cancellation of any debt or were incurred in the Ordinary Course of Businessclaim; (e) Any purchasechange of the methods of accounting or accounting practices, sale business or manner of conducting business of Sellers or any other dispositionevent or development that has had, or any agreement would have individually or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Businessaggregate, a Material Adverse Effect; (f) Any damage, destruction or loss, whether other transaction not in the ordinary course of the Business or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on otherwise consistent with the Transferred Assets or the Businesspast practices of WPCS-Seattle; (g) Any labor trouble or dispute or claim material transactions with Affiliates of unfair labor practices involving any Seller Entity with respect WPCS-Seattle, including without limitation WPCS, relating to the Business or the related manufacturing operation at the Existing Facility; any material changePurchased Assets, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Businesswhich are not listed on Schedule 4.22 hereto; (h) Except for employee turnover in the Ordinary Course Any waiver by WPCS-Seattle of Business, any right of material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facilityvalue; (i) Any change in acquisition by Sellers of all of any part of the manner assets, properties, capital stock or business of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Businessany other Person; (j) Any material change in any Seller Entity’s by WPCS-Seattle to its business relationship with any material supplierpolicies regarding advertising, customer marketing, pricing, sales or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Businessreturns; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments expenditures by WPCS-Seattle in connection with the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth except in the Purchase Price Financial Statements, in each case in a manner outside ordinary course of the Ordinary Course of Business or materially inconsistent with past practiceBusiness; (l) Any other transaction entered into incurrence by WPCS-Seattle of any Seller Entity that is individually or taken together material debt in connection with all such other transactions material to the Business other than transactions Business, except in the Ordinary Course ordinary course of the Business; or (m) Any material agreement dividend or understanding whether in writing distribution declared or otherwise, that would result in any paid on the capital stock of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveWPCS-Seattle.

Appears in 1 contract

Samples: Asset Purchase Agreement (WPCS International Inc)

Absence of Certain Changes. Since December 31Except as set forth on Schedule 2.8, 2007 (except as provided below)contemplated by this Agreement or any of the Related Documents, since the Seller Entities have conducted date of the Business only in Interim Financial Statements until the Ordinary Course date of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change there has been no Material Adverse Effect and no event has occurred or circumstance has arisen that, in the properties, assets, liabilities, business, condition (financial combination with any other events or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Businesscircumstances, could reasonably be expected to have or result in a Material Adverse Effect on the BusinessEffect; (b) Any cancellation the Company and the Subsidiary have conducted their businesses in the ordinary course of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businessbusiness; (c) Any mortgage, encumbrance the Company and the Subsidiary have not cancelled any material debts or Lien (other than a Permitted Lien) placed on claims or waived any rights of the Transferred Assets which will remain on the Closing Datematerial value; (d) Any material obligation or liability of the Company and the Subsidiary have not suffered any nature (as guarantor or otherwise with respect to the obligations of others)theft, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or lossloss of or to any property or properties owned or used by it, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on would, individually or in the Transferred Assets aggregate, materially impair the ability of the Company or the BusinessSubsidiary to operate in the ordinary course of business; (e) the Company and the Subsidiary have not made or granted any bonus or any wage, salary or compensation increase or severance or termination payment to, or promoted, any director, officer, employee, group of employees or consultant, or entered into any employment contract or hired any employee other than bonuses, compensation increases, promotions or new hires in the ordinary course of business; (f) the Company and the Subsidiary have not sold, licensed, assigned, transferred, mortgaged, pledged or subjected to any Encumbrance any of its assets or properties (tangible or intangible), except for Permitted Encumbrances or sales or licenses in the ordinary course of business consistent with past practice; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or Company and the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; Subsidiary have not made any change in the compensation accounting principles or methods (in the form of salaries, wages, incentive arrangements or otherwise) payable or other than actions required to become payable be taken by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the BusinessGAAP), or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts and records of the Company or recordsthe Subsidiary which is, or may be, inconsistent with the principles or methodology by which the Financial Statements have been prepared; (h) the Company and the Subsidiary not made, changed or rescinded any Tax election, adopted or changed any annual accounting methods period or practicesany accounting method with respect to Taxes, standard costsfiled any amended Tax Return, credit practices entered into any closing agreement, settlement or collection compromise of any proceeding with respect to any Tax claim or pricing policies used by assessment, surrendered any right to claim a refund of Taxes, consented to any extension or waiver of the Businesslimitation period applicable to any Tax claim or assessment or taken any other similar action relating to the filing of any Tax Return or the payment of any Tax; (i) the Company and the Subsidiary have not made or granted any increase in benefits payable under any Benefit Plan, amended or terminated any Benefit Plan or adopted any new Benefit Plan; (j) Any change in there has been no amendment or modification, waiver or express termination of any Seller Entity’s business relationship with any material supplierMaterial Contract, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen any expiration of a Material Contract in accordance with its terms or any amendment, modification or waiver that has been delivered to Purchaser prior to the Ordinary Course of Businessdate hereof; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Businessthere has been no settlement, or (iv) change in credit extension offer or other credit practicesproposal to settle, including changes in credit limits and underwriting standardsany Proceeding involving or against the Company or the Subsidiary or any of their respective officers, in each casedirectors, which would have assets or properties, or that relates to the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice;transactions contemplated hereby; and (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material the Company and the Subsidiary have not agreed to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Share Purchase Agreement (Orthopediatrics Corp)

Absence of Certain Changes. Since Except as set forth on Schedule 3.10, since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been2008: (a) Any neither the Company nor any Subsidiary has amended its Charter Documents; (b) the Company and its Subsidiaries have conducted their Business only in, and have not engaged in any material transaction outside of, the ordinary course of business consistent with past practice; (c) there has been no change in the properties, assets, liabilities, business, Company’s Business or the condition (financial or otherwise), properties, or results of operations of the Business which change by itself Company and its Subsidiaries that has had or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could would reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing DateEffect; (d) Any material obligation the Company has not declared, set aside or liability paid any dividend or made any other distribution or payment in respect of any nature (as guarantor or otherwise with respect to the obligations shares of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Businessits capital stock; (e) Any purchasethe Company has not, sale by repurchase, redemption or other dispositionotherwise, or acquired any agreement or other arrangement for the purchase, sale or other disposition shares of any of the Transferred Assets other than in the Ordinary Course of BusinessCapital Stock from its stockholders; (f) Any neither the Company nor any Subsidiary has incurred any Indebtedness or mortgaged, pledged or subjected to any Lien any of the assets or properties of the Company and its Subsidiaries other than Permitted Liens; (g) neither the Company nor any Subsidiary has loaned or advanced to any Person other than sales to customers on credit in the ordinary course of business consistent with past practice; (h) neither the Company nor any Subsidiary has canceled, waived or released Liabilities, except in the ordinary course of business consistent with past practice; (i) neither the Company nor any Subsidiary has (i) increased the base salary or base wages payable to any of its officers or employees, other than normal and customary increases reasonably consistent with past practice or increases that otherwise were required by the obligations of the Company or any Subsidiaries pursuant to applicable Legal Requirements or contracts in effect as of December 31, 2008, (ii) increased severance obligations payable to any of its officers or employees, (iii) made or committed to make any bonus payment to any of its employees or agents other than payments or arrangements in the ordinary course of business consistent with past practice, (iv) loaned money to any officer or employee of the Company or its Subsidiaries or (v) adopted, amended or terminated any Plan; (j) neither the Company nor any Subsidiary has acquired by merger, consolidation or otherwise any material assets or business of, any corporation, partnership, limited liability company, association or other business organization or division thereof; (k) neither the Company nor any Subsidiary has entered into any Material Contract other than as provided to Parent, or any amendment or termination thereof; (l) the Company has not amended the term of any outstanding security of the Company; (m) neither the Company nor any Subsidiary has suffered any condemnation, seizure, damage, destruction or loss, other casualty loss (whether or not covered by insurance) affecting the assets, which could reasonably be expected to have a Material Adverse Effect on properties or Business of the Transferred Assets Company or the Businesssuch Subsidiary and no such loss is threatened; (gn) Any neither the Company nor any Subsidiary has relinquished any Material Contract or other material right; (o) there has not occurred any labor trouble dispute, other than routine and individual grievances that are unlikely to result in any material claim or dispute action, or claim any activity or proceeding by a labor union or representative thereof to organize any employees of unfair labor practices involving the Company, or any Seller Entity lockouts, strikes, slowdowns or work stoppages or threats thereof by or with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, such employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (hp) Except neither the Company nor any Subsidiary has made any capital expenditure, or commitment for employee turnover a capital expenditure, for additions or improvements to property, plant and equipment in excess of $50,000 individually or $50,000 in the Ordinary Course of Businessaggregate; (q) except for capital expenditures and commitments referred to in paragraph (p) above, there has not occurred any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business acquisition, lease, license or other purchase of, or (ii) with disposition, assignment, transfer, license or other sale of, any tangible assets or property or Intellectual Property in one or more transactions, or any commitment in respect to thereof, that, individually or in the development and manufacture aggregate, involved or involve payments of lateral flow immunoassay products and related products at the Existing Facility$50,000 or more; (ir) Any neither the Company nor any Subsidiary has granted credit to any customer, distributor or supplier of the Company or any Subsidiary on terms or in amounts materially more favorable than had been extended to such customer, distributor or supplier in the past; (s) there has not been any material adverse change in the manner Company’s relations with any customers, distributors, suppliers or agents; (t) there has not been a default (or an event that, with notice or lapse of keeping bookstime or both, accounts would become a default) by the Company or recordsany Subsidiary or, to the Company’s Knowledge, any default (or an event that, with notice or lapse of time or both, would become a default) by another party under any Material Contract or any receipt of notice of noncompliance, violation or default (or an event that, with notice or lapse of time or both, would become a default) thereof by the Company or any Subsidiary from any Person; (u) there has not been any delay or postponement by the Company or any Subsidiary in the payment of Liabilities outside the ordinary course of business; (v) the Company has not changed its accounting principles, methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (mw) Any material agreement or understanding whether in writing or otherwise, that would result in the Company and its Subsidiaries have not agreed to do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Merger Agreement (Telecommunication Systems Inc /Fa/)

Absence of Certain Changes. Since December 31, 2007 (except Except for matters that would be permitted in accordance with Section 5.01 if they occurred after the date of this Agreement or as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed set forth in Schedule 4.7 and except for changes in connection with B.08, from March 29, 1998 to the transactions expressly contemplated under date of this Agreement, there has not been:been any material (a) Any change in the properties, assets, liabilities, business, condition (financial any event or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have occurrence that has had a Material Adverse Effect on the TTS Business, other than those resulting from changes, whether actual or prospective, in general conditions applicable to the industries in which the TTS Business is involved or general economic conditions; (b) Any cancellation any damage, destruction or other casualty loss affecting the TTS Business or any assets that would constitute Contributed Assets or Transferred Intellectual Property if owned, held or used by Parent or any of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from Companies on the Businessdate on which the transactions contemplated by Section 2.01 are consummated that has a value in excess of $250,000; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on this Agreement, any transaction or commitment made, or any Contract entered into, by Parent or any Seller Company relating primarily to the TTS Business or any assets that would constitute Contributed Assets or Transferred Intellectual Property if owned, held or used by Parent or any of the Transferred Assets which will remain Seller Companies on the Closing Datedate on which the transactions contemplated by Section 2.01 are consummated (including the acquisition or disposition of any assets) or any termination or amendment by Parent or any Seller Company of any Contract or other right relating primarily to the TTS Business, in either case, which would be prohibited by the provisions of Section 5.01 of the Agreement if it were so made, entered, amended or modified; (d) Any material obligation any sale or liability of any nature (as guarantor or otherwise with respect to the obligations of others)other disposition, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities as contemplated by this Agreement, of more than $50,000 individually or were incurred $250,000 in the Ordinary Course aggregate of Businessassets (other than the sale of Inventory (including obsolete Inventory whether or not made in the ordinary course of business) in the ordinary course of business) that would constitute Contributed Assets or Transferred Intellectual Property if owned, held or used by any Seller Companies on the date on which the transactions contemplated by Section 2.01 are consummated; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for increase in the purchase, sale or other disposition compensation of any current employee of the Transferred Assets TTS Business other than as would be permitted under Section 5.01 and other than nondiscretionary increases pursuant to Employee Plans or Benefit Arrangements disclosed in the Ordinary Course of Business;Schedule B.20 or referenced in Exhibit D; and (f) Any damageany cancellation, destruction compromise, waiver or loss, whether release by Parent or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect Company of any claim or right (or a series of related rights and claims) related to the Business TTS Business, other than cancellations, compromises, waivers or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change releases in the compensation (in the form ordinary course of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) abovebusiness.

Appears in 1 contract

Samples: Reorganization, Recapitalization and Stock Purchase Agreement (True Temper Sports Inc)

Absence of Certain Changes. Since December 31, 2007 (except Except as provided below), expressly contemplated by this Agreement or as set forth in Schedule 3.7 of the Seller Entities have Disclosure Schedule, since the Balance Sheet Date through the date hereof, (a) the Sale Business has been conducted the Business only in the Ordinary Course of Business, Business and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, (b) there has not been: (a) Any change been any event, change, development or set of circumstances that, individually or in the propertiesaggregate, assets, liabilities, business, condition (financial has had or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could would reasonably be expected to have a Seller Material Adverse Effect on Effect. Without limiting the Business;generality of the foregoing, since the Balance Sheet Date through the date hereof: (bi) Any cancellation of there has not been any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets condemnation or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity other taking with respect to the Transferred Assets; (ii) neither Seller nor any Subsidiary has awarded or paid any bonuses to any of the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, Employees with respect to the management of Business; current fiscal year, except to the extent accrued on the Seller Balance Sheet or entered into any change in employment, deferred compensation, severance or similar agreement (nor amended any such agreement) or agreed to increase the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity it to any of its officersthe Business Employees or agreed to increase the coverage or benefits available under any severance pay, employeestermination pay, agents vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or independent contractors rendering services principally relating to the Businessother incentive compensation, insurance, pension or any bonus other employee benefit plan, payment or arrangement made to to, for or with any of such officers, employees, agents or independent contractors the Business Employees; (iii) other than as required by Applicable Law, GAAP or SEC requirements, there has not been any change by Seller or any Subsidiary in accounting or Tax reporting principles, methods or policies; (iv) neither Seller nor any of its Subsidiaries has made, changed or revoked any Tax election or settled any controversy with a Taxing Authority if such election or settlement could have an adverse effect on any Purchaser, the Sale Business or the Transferred Assets after the Closing; (v) neither Seller nor any Subsidiary has failed to promptly pay and discharge current liabilities except for liabilities not material in amount that are disputed in good faith by appropriate proceedings; (vi) neither Seller nor any Subsidiary has mortgaged, pledged or subjected to any Lien, or acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of Seller or any Subsidiary used or held for use in the Ordinary Course Sale Business, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (hvii) Except for employee turnover neither Seller nor any Subsidiary has canceled or compromised any debt or claim or amended, modified, canceled, terminated, relinquished, waived or released any Contract or right except in the Ordinary Course of BusinessBusiness and which, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect aggregate, would not be material to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Sale Business; (jviii) Any change in neither Seller nor any Seller Entity’s business relationship Subsidiary has granted any exclusive license or exclusive sublicense of any rights under or with respect to any material supplier, customer Sale Business Intellectual Property or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Sale Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business;Technology; and (kix) Any (i) promotional salesneither Seller nor any Subsidiary has agreed, discount activitycommitted, deferred arranged or accelerated revenue activity, including entered into any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit understanding to do anything set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) abovethis Section 3.7.

Appears in 1 contract

Samples: Asset Purchase Agreement (Universal Electronics Inc)

Absence of Certain Changes. Since December 31Except as contemplated by this Agreement and those incurred in ordinary business consistent with past practice, 2007 (except as provided below)Buyer has not, the Seller Entities have conducted the Business only in the Ordinary Course of Businesssince January 23, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been2007: (a) Any change issued, delivered or agreed to issue or deliver any stock, bonds or other corporate securities (whether authorized and unissued or held in the propertiestreasury), assetsor granted or agreed to grant any options (including employee stock options), liabilitieswarrants or other rights for the issue thereof; (b) been removed from trading on the OTC-BB because of a breach or violation of any applicable Laws, or received notice by any security supervisory agencies warning or punishing Buyer due to a violation of exchange market rules or receive notice of termination or suspension in trading on the OTC-BB, except for suspensions for trading in normal situations; (c) borrowed or agreed to borrow any funds exceeding $100,000, except current bank borrowings not in excess of the amount thereof shown on the Buyer’s Balance Sheet; (d) incurred any obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due exceeding $100,000, except current liabilities for trade obligations incurred in the ordinary course of business and consistent with prior practice; (e) discharged or satisfied any encumbrance exceeding $100,000 other than those then required to be discharged or satisfied, or paid any obligation or liability other than current liabilities shown on the Buyer’s Balance Sheet and liabilities incurred since January 23, 2007 in the ordinary course of business and consistent with prior practice; (f) sold, transferred, leased to others or otherwise disposed of any assets exceeding $100,000, except for inventories sold in the ordinary course of business and assets no longer used or useful in the conduct of its business, condition or canceled or compromised any debt or claim, or waived or released any right of substantial value; (financial g) received any notice of termination of any Contract, or otherwise)suffered any damage, results of operations of the Business which change by itself destruction or in conjunction with all other such changes, loss exceeding $100,000 (whether or not arising covered by insurance) which, in any case or in the Ordinary Course of Businessaggregate, could has had, or might reasonably be expected to have, a Material Adverse Effect on Buyer; (h) had any material change in its relations with its employees, agents, clients, customers or insurance carriers which has had or might reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing FacilityBuyer; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business;suffered any other serious Material Adverse Effect; or (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in made any of the transactions or events or require any Seller Entity commitment to take any of the actions specified types of action described in paragraphs any of the foregoing clauses (aother than clauses (f), (g) through or (l) abovei)).

Appears in 1 contract

Samples: Share Purchase Agreement (ChinaGrowth North Acquisition CORP)

Absence of Certain Changes. Since December 31, 2007 (except Except for the execution of this Agreement or as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under by this Agreement, there has not beenfrom the date of the Pre-Closing Balance Sheet and through the date of this Agreement: (a) Any change in the propertiesCompany has not sold, leased, transferred or assigned any material assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (fb) Any the Company has not accelerated, terminated or cancelled any Contract (or series of related Contracts) involving annual payments of more than $100,000 to which the Company is a party or by which it is bound (other than Contracts relating to Inventory cancelled in the Ordinary Course of Business); (c) the Company has not canceled, compromised, waived or released any right or claim (or series of related rights and claims) involving more than $100,000 outside the Ordinary Course of Business; (d) the Company has not experienced any damage, destruction or loss, whether or loss (not covered by insurance, which could ) to any of its property that would reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the BusinessEffect; (ge) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to except as set forth in Schedule 3.11(e), the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; Company has not made any change in the compensation (in the form rate of salariescompensation, wagescommission, incentive arrangements bonus or otherwise) other direct or indirect remuneration payable to or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director officer or employee of any Seller Entity rendering services principally relating to the Business other than Company, in each case whose base compensation exceeds $125,000, outside the Ordinary Course of Business; (hf) Except for employee turnover in the Ordinary Course of Business, Company has not failed to make any material change expenditures in connection with the personnel or in the responsibilities or reporting relationships normal maintenance, repair and replacement of the employees (i) material assets used in connection with the operation of the Business in accordance with its past custom and practice; (g) except as set forth in Schedule 3.11(g), the Company has not paid or declared any dividends or other distributions to its stockholders; (iih) with respect to except as set forth in Schedule 3.11(h), the development and manufacture of lateral flow immunoassay products and related products at the Existing FacilityCompany has not created, incurred, assumed or guaranteed any indebtedness for borrowed money or capital lease obligations; (i) Any change the Company has not made any investment in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Businessloan to any Person; (j) Any no change has been made in the number of shares of the Company’s authorized, issued or outstanding capital stock; nor has any Seller Entity’s business relationship with any material supplier, customer option or other entity having business relations with such Seller Entity arising out of, similar right been granted or made relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of BusinessCompany’s capital stock; (k) Any (i) promotional sales, discount activity, deferred the Company has not materially changed any of its methods of accounting or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past accounting practice;; and (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in knowledge of Seller, the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in Company has not committed to do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Stock Purchase Agreement (Champion Enterprises Inc)

Absence of Certain Changes. Since December 31, 2007 (except as provided below), the Seller Entities have conducted date of the Business only Company's most recent audited financial statements contained in a Form 10-K filed by the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this AgreementCompany, there has not been: (a) Any been no material adverse change and no material adverse development in the propertiesbusiness, assets, liabilitiesproperties, businessoperations, condition (financial or otherwise), results of operations or prospects of the Business which change Company. Except as disclosed in Schedule 3(l), since the date of the Company's most recent audited financials statements contained in a Form 10-K filed by itself the Company, neither the Company nor any of its Subsidiaries has (i) except for dividends on its Series A-1 Preferred Stock and Series B-1 Convertible Preferred Stock, declared or paid any dividends, (ii) sold any assets, individually or in conjunction with all other such changesthe aggregate, whether in excess of $100,000 outside of the ordinary course of business or not arising (iii) had capital expenditures (A) in excess $500,000 individually or $6,000,000 in the Ordinary Course aggregate during the period from July 1, 2005 to March 31, 2006 and (B) after February 9, 2006, in excess of Businessthe amounts permitted to be made by Interpharm, could reasonably be expected Inc. under its Credit and Security Agreement dated as of February 9, 2006 with Xxxxx Fargo Bank, National Association ("Xxxxx Fargo"). Neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have a Material Adverse Effect on the Business; (b) Any cancellation any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any material debt or claim owing tofact which would reasonably lead a creditor to do so. The Company and its Subsidiaries, or waiver of any material right ofindividually and on a consolidated basis, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any are not as of the Transferred Assets which date hereof, and after giving effect to the transactions contemplated hereby to occur at the Closing, will remain on the Closing Date; (d) Any material obligation or liability of any nature not be Insolvent (as guarantor or otherwise defined below). For purposes of this Section 3(l), "Insolvent" means, with respect to any Person (as defined in Section 3(s)) (i) the obligations present fair saleable value of otherssuch Person's assets is less than the amount required to pay such Person's total Indebtedness (as defined in Section 3(s)), whether accrued(ii) such Person is unable to pay its debts and liabilities, absolutesubordinated, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations as such debts and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development absolute and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activitymatured, (iii) material reduction such Person intends to incur or elimination of expenses of or investments in the Business, believes that it will incur debts that would be beyond its ability to pay as such debts mature or (iv) change such Person has unreasonably small capital with which to conduct the business in credit extension or other credit practices, including changes in credit limits which it is engaged as such business is now conducted and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material proposed to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) abovebe conducted.

Appears in 1 contract

Samples: Securities Purchase Agreement (Interpharm Holdings Inc)

Absence of Certain Changes. Since December 31, 2007 Except for (except as provided below), i) the Seller Entities have conducted matters set forth in Section 3.9 of the Business only in the Ordinary Course of Business, Disclosure Schedule and except as disclosed in Schedule 4.7 and except for changes in connection with (ii) the transactions expressly contemplated under this Agreementhereby, since November 30, 2002, the Acquired Business has been conducted in the ordinary and usual course consistent with past practices of the Company or the Sellers with respect to the Acquired Business in all material respects and since November 30, 2002 there has not beenbeen no Company Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth on Section 3.9 of the Disclosure Schedule, the Company and Sellers relating to the Assets have not, since such date: (a) Any change in the propertiesmortgaged, assets, liabilities, business, condition (financial pledged or otherwise), results of operations subjected to any Lien other than Permitted Encumbrances any of the Business which change by itself Company’s assets or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the BusinessAssets; (b) Any cancellation sold, assigned, disposed of or transferred any material debt of the Company’s assets or claim owing to, the Assets or waiver **THE CONFIDENTIAL PORTION HAS BEEN SO OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAS BEEN FILED SEPARATELY WITH THE COMMISSION.** with respect to any of any material right of, the Seller Entities Company’s assets or any Affiliate arising from, relating to or resulting from the BusinessAssets (except in the ordinary course of business consistent with past practice); (c) Any mortgageexcept in each case in the ordinary course of business, encumbrance consistent with past practice: (1) incurred any material obligations or Lien liabilities (other than a Permitted Lienfixed, contingent or other); or (2) placed on cancelled any debts or claims; (3) made or committed to make any additions to its property or any purchases of machinery or equipment, except in the Transferred Assets which will remain on the Closing Dateordinary course of business, consistent with past practice; (d) Any suffered any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, loss (whether or not covered by insurance) or any acquisition or taking of material property by any Governmental Entity; (e) amended or terminated any Company Contract or any material governmental license, which could reasonably be expected permit or authorization, except for terminations in the ordinary course of business, consistent with past practice, in accordance with the terms thereof; (f) entered into or adopted or materially amended any Plan relating solely to have a Material Adverse Effect on the Transferred Assets Employees, or increased in any manner the Businesscompensation or fringe benefits of the Employees (except pursuant to pre-existing agreements or as required by applicable law or, other than senior management, in the ordinary course of business and consistent with past practice); (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material changechanged its billing, or the obtaining of information concerning a prospective changeaccounts payable, with respect to the management of Business; any change in the compensation (in the form of salariesaccounts receivable, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation collections or other similar agreement (cash management practices or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Businessaccounting methods; (h) Except for employee turnover changed its equipment, improvements, building maintenance or capital expenditures practices in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facilityway; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Businessentered into any Contracts other than on an arm’s length basis; (j) Any change acquired or agreed to acquire by merging or consolidating with, or by purchasing any of the assets of or equity in, or by any other manner, any business of any Person in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Businessrespect; (k) Any (i) promotional salesamended or terminated any insurance policy or coverage, discount activity, deferred and has kept all such policies and coverage in full force and effect including renewing to the extent the same would otherwise expire or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practiceterminate; (l) Any other transaction entered into except as required by law, changed any Seller Entity that is individually method of Tax accounting or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course make any Tax election; (m) amended any provision of Businessits certificate of incorporation, bylaws or similar organizational documents; or (mn) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity agreed to take any of the actions specified in paragraphs (a) through (l) aboveforegoing actions.

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement (Interactive Data Corp/Ma/)

Absence of Certain Changes. Since December 31January 1, 2007 (except as provided below)1998, the Seller Entities have has conducted the Business only in the Ordinary Course of Businessordinary course consistent with its past practice. Without limiting the foregoing, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreementduring such period, there has not beenSeller: (a) Any has not created, incurred or assumed any obligation which in any material way affects the Business, the Assets or Buyer's ability to conduct the Business following the Closing in substantially the same manner and condition as conducted by Seller on the date of this Agreement; (b) has not changed in any manner the compensation of, or agreed to provide additional benefits to, or entered into any employment agreement with, any employee, or terminated or amended any plan for the benefit of employees; (c) has maintained insurance coverage in amounts adequate to cover the reasonably anticipated risks of the Business; (d) has not entered into any agreements or commitments relating to the Business, except on commercially reasonable terms in the ordinary course of business; (e) has complied in all material respects with all laws and regulations applicable to the Business; (f) has not entered into any agreement with any third party for the distribution of any of the Assets; (g) has not commenced a lawsuit related to or involving the Assets; (h) has operated the Business in the ordinary course so as to use reasonable efforts to preserve the Business intact, and to preserve for Buyer the goodwill of the Business's suppliers, customers and others having business relations with it; (i) has not permitted, incurred or suffered any change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations assets, liabilities, reserves, earnings, business or prospects of the Business Business, except for changes which change by itself have not, individually or in conjunction with all other such changesthe aggregate, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating been materially adverse to the Business, and has not borrowed any funds, under existing credit lines or any bonus payment or arrangement made to or with any of such officersotherwise, employees, agents or independent contractors other than in except as reasonably necessary for the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) ordinary operation of the Business or (ii) in a manner keeping with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or historical practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in has not issued any Seller Entity’s business relationship with any material supplierequity securities or options, customer warrants, rights or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Businessconvertible securities; (k) Any (i) promotional saleshas not paid any dividends, discount activity, deferred or accelerated revenue activity, including redeemed any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Businesssecurities, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect otherwise caused assets of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course Seller to be distributed to any of Business or materially inconsistent with past practice;its shareholders; or (l) Any other transaction entered into by made any Seller Entity that is individually or taken together with all such other transactions material agreement to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Asset Purchase Agreement (Genesis Media Group Inc /De/)

Absence of Certain Changes. Since December 31, 2007 2010, (except as provided below)i) there have been no events, the Seller Entities occurrences or developments that have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change in the properties, assets, liabilities, business, condition (financial had or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could would reasonably be expected to have have, either individually or in the aggregate, a Material Adverse Effect on the Business; Company, (bii) Any cancellation of the Company has not incurred any material debt liabilities (contingent or claim owing otherwise) other than (A) trade payables, accrued expenses and other liabilities incurred in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company’s financial statements pursuant to GAAP or required to be disclosed in filings made with the SEC, (iii) the Company has not altered materially its method of accounting or the manner in which it keeps its accounting books and records, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its shareholders or purchased, redeemed or made any agreements to purchase or redeem any shares of its capital stock (other than in connection with repurchases of unvested stock issued to employees of the Company), (v) the Company has not issued any equity securities to any officer, director or Affiliate, except Common Stock issued pursuant to existing Company stock option or stock purchase plans or executive and director arrangements disclosed in the Company Reports, (vi) there has not been any material change or amendment to, or any waiver of any material right ofby the Company under, any material contract under which the Seller Entities Company or any Affiliate arising fromCompany Subsidiary is bound or subject, relating and (vii) to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any knowledge of the Transferred Assets which will remain Company, there has not been a material increase in the aggregate dollar amount of: (A) the Bank’s nonperforming loans (including nonaccrual loans and loans 90 days or more past due and still accruing interest) or (B) the reserves or allowances established on the Closing Date; (d) Any material obligation Company’s or Bank’s financial statements with respect thereto. Except for the transactions contemplated by this Agreement, no event, liability of any nature (as guarantor or otherwise development has occurred or exists with respect to the obligations of others)Company or any Company Subsidiary or their respective business, whether accruedproperties, absolute, contingent operations or otherwise, asserted or unasserted, known or unknown, incurred financial condition that would be required to be disclosed by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any Company under applicable securities laws as of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or time this representation is made that has not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect been publicly disclosed at least one trading day prior to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining date as of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that this representation is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) abovemade.

Appears in 1 contract

Samples: Securities Purchase Agreement (Intermountain Community Bancorp)

Absence of Certain Changes. Since December the October 31, 2007 2003, except as otherwise disclosed in the SEC Filings, there has been no event or combination of events, which individually or in the aggregate, is reasonably likely to (x) have or result in a material adverse effect on the results of operations, assets, prospects or financial condition of the Company and its subsidiaries, taken as a whole, or (y) adversely impair the Company's ability to perform fully on a timely basis any of its material obligations under this Agreement (a "Material Adverse Effect"). Since October 31, 2004, except as provided belowin the SEC Filings, the Company has not (i) incurred or become subject to any material liabilities (absolute or contingent) except liabilities incurred in the ordinary course of business consistent with past practices; (ii) discharged or satisfied any material lien or encumbrance or paid any material obligation or liability (absolute or contingent), the Seller Entities have conducted the Business only other than current liabilities paid in the Ordinary Course ordinary course of Businessbusiness consistent with past practices; (iii) declared or made any payment or distribution of cash or other property to shareholders with respect to its capital stock, and or purchased or redeemed, or made any agreements to purchase or redeem, any shares of its capital stock; (iv) sold, assigned or transferred any other material tangible assets, or canceled any material debts owed to the Company by any third party or material claims of the Company against any third party, except as disclosed in Schedule 4.7 and the ordinary course of business consistent with past practices; (v) waived any rights of material value, whether or not in the ordinary course of business, or suffered the loss of any material amount of existing business; (vi) made any increases in employee compensation, except for changes in the ordinary course of business consistent with past practices; or (vii) experienced any material problems with labor or management in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change in the properties, assets, liabilities, business, condition (financial or otherwise), results terms and conditions of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any their employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) above.

Appears in 1 contract

Samples: Exchange Agreement (New Visual Corp)

Absence of Certain Changes. (a) Since December 31June 30, 2007 (except as provided below)1999, the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 SCHEDULE 3.8, the Seller has conducted the business of the Funnoodle Product Line in the ordinary course consistent with past practices and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (ai) Any material adverse change in the properties, assets, liabilities, business, Assets or any material adverse change in the condition (financial or otherwise), results of operations of or prospects of, the Business which change by itself Assets or in conjunction with all other such changesthe Funnoodle Product Line (collectively, whether the "CONDITION OF THE FUNNOODLE PRODUCT LINE") or not arising in the Ordinary Course of Businessany event, occurrence or circumstance that could reasonably be expected to have cause such a Material Adverse Effect on the Businessmaterial adverse change; (bii) Any cancellation of any material debt transaction or claim owing to, or waiver of any material right of, Contract (except for the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (cManufacturing Agreement) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations purchase, acquisition, lease, disposition or transfer of others), whether accrued, absolute, contingent all or otherwise, asserted any part of any Assets or unasserted, known or unknown, incurred by the Seller Entities arising out of, to any capital expenditure relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred Funnoodle Product Line (in the Ordinary Course of Business; (e) Any purchaseeach case, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course ordinary course of Businessbusiness in accordance with past practice); (fiii) Any changes in the Certificate of Incorporation or By-laws of the Seller; (iv) Any damage, destruction or loss, other casualty loss (whether or not covered by insurance), which condemnation or other taking affecting the Funnoodle Product Line, the Assets or the Seller; (v) Any change in any method of accounting or accounting practice by the Seller; (vi) Any increase in the commission or other direct or indirect remuneration paid, payable or to become payable to any sales representative of the Seller, or any alteration in the benefits payable or provided to any thereof; (vii) Any material adverse change, or any event, occurrence or circumstance that could reasonably be expected to have cause a Material Adverse Effect on material adverse change, in the Transferred Assets relationship of the Seller with its customers, suppliers or vendors relating to the BusinessFunnoodle Produce Line; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (hviii) Except for employee turnover any changes made in the Ordinary Course ordinary course of Businessbusiness, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions Seller's business policies related to the Funnoodle Product Line, including advertising, marketing, pricing, purchasing, personnel, returns or events budget policies; (ix) Except in the ordinary course of business, consistent with past practice, or require as disclosed in SCHEDULE 3.10, any payment, directly or indirectly, of any Liabilities of the Seller Entity relating to take the Funnoodle Product Line before the same became due in accordance with its terms; (x) Any agreement or arrangement whether written or oral to do any of the actions specified foregoing. (b) Except as set forth in paragraphs (a) through (l) aboveSCHEDULE 3.8, no Liabilities of the Seller relating to the Funnoodle Product Line are past due.

Appears in 1 contract

Samples: Asset Purchase Agreement (Toymax International Inc)

Absence of Certain Changes. Since Except as disclosed in Section 4.8 of the Sellers’ Disclosure Schedule or permitted under Section 6.1, since December 31, 2007 (except as provided below), the Seller Entities have 2005 each Acquired Company has conducted the Business its business only in the Ordinary Course ordinary course of Business, such business consistent with past practice and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (ai) Any change any event or events through the date hereof which, individually or in the propertiesaggregate, assets, liabilities, business, condition (financial had or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the BusinessCompany (provided that as to those matters in respect of which the Sellers’ representations or warranties set forth elsewhere in this Article IV are expressly limited to the Sellers’ knowledge, to the Sellers’ knowledge there have been no such events); (bii) Any cancellation of any material debt damage or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others)destruction, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insuranceinsurance or not, suffered by any Acquired Company which has had or could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the BusinessCompany; (giii) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change increase in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Acquired Entity to its officers or employees, except to employees in the ordinary course consistent with past practice or pursuant to nondiscretionary provisions of existing employment agreements listed in Section 4.4.(a) of the Sellers’ Disclosure Schedule; (iv) any dividend declared, set aside or paid or any other distribution on or in respect of the shares of its officersCapital Stock made or any direct or indirect redemption, employeesretirement, agents purchase or independent contractors rendering services principally relating to other acquisition of such Capital Stock; (v) any material change through the Businessdate hereof in (A) the accounting methods or practices it follows, whether for general financial or Tax purposes, or (B) its depreciation or amortization policies or rates; (vi) any bonus payment sale, lease, sublease, abandonment or arrangement made to other disposal of any Real Property, leasehold interests, machinery, equipment or with any of such officersother operating property, employees, agents or independent contractors other than in the Ordinary Course ordinary course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development business and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (lvii) Any any sale, assignment, transfer, license or other disposal of any Intellectual Property of the Acquired Companies; (viii) any entry into any material commitment or transaction entered into by (including, without limitation, any borrowing) other than in the ordinary course of business and consistent with past practice; (ix) any material incurrence of Debt, except in the ordinary course of business and consistent with past practice; (x) any of its property, leasehold interests or assets subjected to any Lien, except for Liens for current taxes not yet due and purchase money security interests incurred in the ordinary course of business and consistent with past practice; (xi) any transaction between any Acquired Company, on the one hand, and any Seller Entity that is individually or taken together with all such any Affiliate or Relative of any Seller, on the other transactions material to the Business other than transactions in the Ordinary Course of Businesshand; or (mxii) Any material any agreement to take any action described in this Section 4.8 or understanding whether in writing or otherwise, that which would result in constitute a breach of any of the transactions representations or events or require any Seller Entity to take any warranties of the actions specified Sellers contained in paragraphs (a) through (l) abovethis Agreement.

Appears in 1 contract

Samples: Stock Purchase Agreement (Alon USA Energy, Inc.)

Absence of Certain Changes. Since the Company Current Balance Sheet Date through the date hereof, each of the Company and its Subsidiaries has conducted its business in the ordinary course and in a manner consistent with past practice, and since December 31, 2007 (except as provided below), 2016 through the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreementdate hereof, there has not beenbeen any event, circumstance or change in the businesses, operations or financial conditions 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. Without limiting the generality of the foregoing, except as reflected on the Company Financial Statements or set forth in Section 3.7 of the Company Disclosure Schedule, since the Company Current Balance Sheet Date through the date hereof, neither the Company nor any of its Subsidiaries has: (a) Any change acquired (including by merger, consolidation, acquisition of stock or equity) a substantial portion of the assets of, any Person, or business or division thereof which acquisition provides for a total financial commitment of the Company and/or any of its Subsidiaries in excess of $2,500,000 (other than inventory in the properties, assets, liabilities, business, condition (financial or otherwiseordinary course of business consistent with past practice), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation incurred, assumed, guaranteed or discharged any Company Indebtedness, except in the ordinary course of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businessbusiness consistent with past practice; (c) Any mortgageamended, encumbrance modified or Lien (other than a Permitted Lien) placed on authorized the amendment of any of the Transferred Assets which will remain on the Closing DateCompany Charter Documents; (d) Any material obligation declared or liability paid any non-cash dividend or made any non-cash distribution in respect of any nature (as guarantor of its Equity Securities or issued, sold or otherwise with respect permitted to the obligations become outstanding any Equity Securities, or split, combined, reclassified, repurchased or redeemed any of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Businessits Equity Securities; (e) Any purchasesold, sale leased, transferred, mortgaged, assigned or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of encumbered any of the Transferred Assets other than assets, tangible or intangible, reflected on the Company Current Balance Sheet or any assets acquired after the Company Current Balance Sheet Date, except for (i) personal property sold or otherwise disposed of in the Ordinary Course ordinary course of Businessits business consistent with past practice and (ii) Company Permitted Liens; (f) Any damagelicensed, destruction sold, transferred, acquired, abandoned or losspermitted to lapse any material Company Intellectual Property; (g) waived or cancelled any material claim or rights, account receivable or trade account outside of the ordinary course of business in excess of $50,000 in the aggregate; (h) suffered any material destruction, damage or loss of any asset (whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facilityexceeding $150,000; (i) Any change entered into any commitment for capital expenditures under which there remains outstanding payments or expenditure obligations exceeding $250,000 in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Businessaggregate; (j) Any made any change in accounting methods, principles or practices or changed any Seller Entity’s business relationship with of the assumptions underlying, or methods of calculating, any material supplierbad debt, customer contingency or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Businessreserve; (k) Any made any loan to any Person outside the ordinary course of business; (l) made any change in its trade payables and trade receivables and other credit, collection and payment policies, including without limitation (i) promotional salesacceleration of collections or receivables (including through the use of discounts for early payment, discount activity, deferred requests for early payment or accelerated revenue activity, including any rebate, discount or other promotional programs, otherwise) and (ii) deferred failure to pay payables when due or accelerated expense activitydelay in payment of payables compared to past practices (including continuation of past practices with respect to early payment of payables to obtain the benefit of any payment discounts); (m) settled any legal, judicial, administrative or arbitral proceedings, hearings, orders, investigations, audits, charges, complaints or claims that required payment in excess of $100,000 or imposed any limitation on the conduct of the Company or any of its Subsidiaries; (iiin) material reduction increased the salary or elimination of expenses of or investments in the Businesshourly wage, or (iv) change in credit extension bonus opportunity, incentive compensation, severance entitlement or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue compensation or Pre-Tax Profit set forth in the Purchase Price Financial Statementsbenefits, in each case other than pursuant to the Retention Program or increases in a manner outside salary or hourly wages made in the Ordinary Course ordinary course of Business or materially inconsistent business consistent with past practice; (lo) Any accelerated, terminated, made modifications to, or canceled any Company Material Contract or any Contract that, if in effect as of the date of this Agreement, would have been a Company Material Contract or been informed that any other transaction entered into by party thereto has done so; (p) encountered any Seller Entity labor union organizing activity or had any actual or overtly threatened employee strikes, work stoppages, slowdowns or lockouts; (q) adopted a plan or agreement of complete or partial liquidation, dissolution, consolidation, restructuring, recapitalization or other material reorganization; (r) amended or terminated, in any material respect, any Company Plan, or established or adopted any plan, arrangement or agreement that is individually would be a material Company Plan (including without limitation any change of control, retention, deferred compensation, equity or taken together equity-based or severance plan, program or arrangement (other than severance arrangements for newly hired or promoted employees that are consistent in all material respects with all such other transactions material severance arrangements of similarly situated employees of Company on the date hereof as made available to Holdings)) if it were in effect on the date hereof, except for (A) Contracts with employees performing non-management, clinical functions in the ordinary course of business and consistent with past practice, (B) the Retention Program, or (C) to the Business extent required by Law; (s) hired (A) any officer or (B) any other employee whose aggregate annualized compensation is expected to exceed $100,000 (other than transactions in the Ordinary Course of Businessemployees performing non-management, clinical functions); or (mt) Any material agreement authorized, agreed, resolved or understanding whether in writing or otherwise, that would result in committed to any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Equity Purchase and Contribution Agreement (Select Medical Corp)

Absence of Certain Changes. Since December 31, 2007 (except Except as provided below), set forth in Section 2.9 of the Seller Entities have conducted the Business only in the Ordinary Course of BusinesseMachines Disclosure Schedule, and except as disclosed in Schedule 4.7 other than the execution and except for changes in connection with delivery of this Agreement and the transactions expressly contemplated under this AgreementTransactions to take place pursuant hereto on or prior to the Closing Date, since December 27, 2003 there has not beenbeen any material adverse change, nor any event or development which, individually or together with other such events, would reasonably be expected to result in a material adverse change, in the financial condition, assets and liabilities, results of operations or businesses of eMachines and its Subsidiaries, taken as a whole, and neither eMachines nor its Subsidiaries has: (a) Any suffered any material adverse change in the propertiesits working capital, financial condition, results of operation, assets, liabilitiesliabilities (absolute, accrued or contingent), reserves, business, condition (financial operations or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Businessprospects; (b) Any cancellation with respect to eMachines, declared, paid or set aside for payment any dividend or other distribution in respect of eMachines Common Stock or redeemed, purchased or otherwise acquired, directly or indirectly, any material debt shares of eMachines Common Stock or claim owing to, or waiver other securities of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the BusinesseMachines other than as contemplated by this Agreement; (c) Any mortgageincurred any liability or obligation (absolute, encumbrance accrued or Lien (contingent) other than a Permitted Lien) placed on in the ordinary course of business and consistent with past practices, or increased, or made any material change in any assumptions underlying or methods of the Transferred Assets which will remain on the Closing Datecalculating, any bad debt, contingency or other reserves; (d) Any material paid, discharged or satisfied any claim, liability or obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent accrued or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business contingent) other than obligations and liabilities which are not Assumed Liabilities or were incurred (i) in the Ordinary Course ordinary course of Businessbusiness or (ii) in amounts not materially in excess of amounts reflected or reserved against in the 2002 Balance Sheet or the Unaudited Balance Sheet; (e) Any purchasepermitted or allowed any of its properties or assets (real, sale personal or mixed, tangible or intangible) to be subjected to any mortgage, pledge, lien, security interest, encumbrance, restriction or charge of any kind, except for liens for current taxes not yet due and materialmen’s or other dispositionliens that arise by operation of law that, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course aggregate, are not material to the business or operations of BusinesseMachines; (f) Any damagewritten off as uncollectible any notes or accounts receivable, destruction except for write-downs and write-offs in the ordinary course of business and consistent with past practices or loss, whether or in amounts not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on materially in excess of the Transferred Assets or reserves reflected in the BusinessUnaudited Balance Sheet; (g) Any labor trouble cancelled any debts or dispute waived any claims or claim rights of unfair labor practices involving substantial value; (h) sold, transferred, or otherwise disposed of any Seller Entity with respect of its properties or assets (real, personal or mixed, tangible or intangible), except in the ordinary course of business; (i) disposed of or permitted to the Business or the related manufacturing operation at the Existing Facility; lapse any material change, rights eMachines or any of its Subsidiaries has under Company Intellectual Property (as defined below) other than in the obtaining ordinary course of information concerning a prospective change, business and consistent with respect to the management of Business; past practices; (j) granted any change increase in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by to (i) any Seller Entity to any of its officers, directors, or key employees, or (ii) agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors consultants other than in the Ordinary Course ordinary course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) business and consistent with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or past practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional salesmade any capital expenditure or commitment or acquired any property, discount activityequipment or intangible assets for a cost in excess of US $350,000, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments than as reflected in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Unaudited Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction made any material change in any method of accounting or accounting practice; (m) paid, loaned or advanced any amount to, or sold, transferred or leased any properties or assets (real, personal or mixed, tangible or intangible) to, or entered into by any Seller Entity that is individually agreement or taken together with all such other transactions material to the Business arrangement with, any of its officers or directors or any Affiliate of any of its officers or directors (other than transactions between or among eMachines and any of its Subsidiaries); (n) granted, issued, accelerated or increased any payments or benefits pursuant to, or adopt or amend, any new or existing Plan or Foreign Plan (each as defined in the Ordinary Course of BusinessSection 2.20(a)); or (mo) Any material agreement or understanding agreed, whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified action described in paragraphs (a) through (l) abovethis section.

Appears in 1 contract

Samples: Merger Agreement (Gateway Inc)

Absence of Certain Changes. Since December 31Except as set forth on Schedule 6.9 hereto, 2007 (except as provided below)since April 30, the Seller Entities have conducted the Business only in the Ordinary Course of Business2003, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change the Sellers have operated the Business in the propertiesordinary course of business consistent with past practice, assets(b) there have not occurred any events or conditions that, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself individually or in conjunction with all other such changesthe aggregate, whether have had or not arising in the Ordinary Course of Business, could are reasonably be expected likely to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; and (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the no Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other dispositionhas, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility;has agreed to: (i) Any change sell, lease, encumber, transfer or dispose of any assets or rights or acquire any assets or rights which would be included in the manner of keeping booksTransferred Assets, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof unless in the cost ordinary course of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent business consistent with past practice; (lii) Any other transaction entered into engage in any sales of products (1) with payment terms longer than terms customarily offered by any Seller Entity that is individually or taken together for such product, (2) at a materially greater discount from listed prices than customarily offered for such products, other than pursuant to a promotion of a nature previously used in the normal course of business of any Seller for such products, (3) at a price which does not give effect to any previously announced general increase in the then current list price for such products, (4) with all such other transactions material shipment terms materially more favorable to the Business customer than shipment terms customarily offered by any Seller for such products, (5) in a quantity materially greater than the reasonable retail or wholesale (as the case may be) resale requirement of the particular customer or (6) in conjunction with other material benefits to the customer not in the ordinary course of business consistent with past practice; (iii) change (or permit to be changed) any accounting or Tax procedure or practice (other than transactions as required by GAAP or applicable Laws) or its financial structure or make (or permit to be made) any Tax election that would be binding on Purchaser or settle or compromise any liability for Taxes for which Purchaser may be liable; (iv) enter into, amend or terminate any Assumed Contract, except in the Ordinary Course ordinary course of Businessbusiness consistent with past practice; (v) enter into any transaction or any Assumed Contract with any Affiliate, except in the ordinary course of business consistent with past practice; or (mvi) Any material agreement assign, license, sublicense, abandon, fail to maintain or, except in the ordinary course of business consistent with past practice, enter into, amend or understanding whether in writing or otherwiseterminate any Contract with respect to, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveProprietary Rights.

Appears in 1 contract

Samples: Asset Purchase Agreement (Sun Healthcare Group Inc)

Absence of Certain Changes. Since December 31, 2007 (except Except for matters that would be permitted in accordance with Section 5.01 if they occurred after the date of this Agreement or as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed set forth in Schedule 4.7 and except for changes in connection with B.06, from March 30, 1998 to the transactions expressly contemplated under date of this Agreement, there has not been any material adverse change in the business, financial condition or results of operations of the HPG Business and there has not been: (a) Any change in the properties, assets, liabilities, business, condition (financial any event or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have occurrence that has had a Material Adverse Effect on the HPG Business; (b) Any cancellation of any material debt damage, destruction or claim owing to, or waiver of any material right of, other casualty loss affecting the Seller Entities HPG Business or any Affiliate arising fromassets that would constitute Transferred Assets if owned, relating to held or resulting from used by Seller or any of the Affiliated Transferors on the Closing Date that has had a Material Adverse Effect on the HPG Business; (cd) Any mortgage, encumbrance any sale or Lien other disposition of more than an aggregate of $500,000 of assets (other than a Permitted Lien) placed on the sale of Inventory in the ordinary course of business consistent with past practices, the sale of obsolete Inventory whether or not in the ordinary course of business, any sale made in the ordinary course of business and the sale of surplus equipment and materials arising out of or relating to the closing of the Kuantan Facility) that would constitute Transferred Assets which will remain if owned, held or used by any Seller Companies on the Closing Date; (de) Any material obligation or liability any increase in the compensation of any nature (as guarantor current employee of the HPG Business at a level of vice president or otherwise with respect to the obligations of others)above, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities nondiscretionary increases pursuant to Employee Plans or were incurred Benefit Arrangements disclosed in the Ordinary Course of Business; (e) Any purchase, sale Schedule B.18 or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than referenced in the Ordinary Course of Business;Exhibit D; and (f) Any damageany cancellation, destruction compromise, waiver or loss, whether release by Seller or not covered by insurance, which could reasonably be expected to have any Affiliated Transferor of any claim or right (or a Material Adverse Effect on the Transferred Assets or the Business; (gseries of related rights and claims) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect related to the Business HPG Business, other than cancellations, compromises, waivers or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change releases in the compensation (in the form ordinary course of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) abovepractices.

Appears in 1 contract

Samples: Transaction Agreement (Windmere Durable Holdings Inc)

Absence of Certain Changes. Since December 31As of the date hereof, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with 3.9, since the transactions expressly contemplated under this Agreement, there has not beenBalance Sheet Date: (a) Any change the Acquired Companies have conducted their business only in the propertiesordinary course of business consistent with past practice; (b) there has not been any one or more changes, assetsevents, liabilitiesor developments that, business, condition (financial or otherwise), results of operations of the Business which change by itself individually or in conjunction with all other such changesthe aggregate, whether have had or not arising in the Ordinary Course of Business, could would reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the BusinessEffect; (c) Any mortgageno Acquired Company has sold, encumbrance leased, transferred, pledged or Lien (other than a Permitted Lien) placed on assigned any of the Transferred Assets which will remain on the Closing Dateits material assets; (d) Any no Acquired Company has cancelled, compromised, waived, or released any material obligation right or liability claim outside of any nature (as guarantor or otherwise the ordinary course of business consistent with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Businesspast practice; (e) Any purchase, sale no Acquired Company has granted any material license or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition sublicense of any of the Transferred Assets rights under or with respect to any Intellectual Property other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice; (f) Any no Acquired Company has made or authorized any change in any Organizational Document of any of Acquired Company; (g) no Acquired Company has issued, sold, or otherwise disposed of any of its Equity Securities, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its Equity Securities; (h) no Acquired Company has experienced any material damage, destruction destruction, or loss, loss (whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facilityproperty; (i) Any change no Acquired Company has (i) made any material increase in the manner base compensation of keeping booksany of its directors, accounts officers or recordsEmployees, accounting methods except in the ordinary course of business consistent with past practice, or practices(ii) adopted any material Benefit Plan or modified any material Benefit Plan in any material respect, standard costsin each case, credit practices except as may be required by any Law or collection or pricing policies used by the BusinessContract; (j) Any change in any Seller Entity’s business relationship with no Acquired Company has made any material supplier, customer or other entity having Tax election outside of the ordinary course of business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (k) no Acquired Company has changed its accounting policies or procedures, except as required by changes in Law or GAAP; and (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material no Acquired Company has legally obligated itself to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Securities Purchase Agreement (Conmed Corp)

Absence of Certain Changes. Since December October 31, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, 2002 and except as disclosed set forth in Schedule 4.7 and except for changes in connection with 5.12, Seller has diligently conducted the transactions expressly contemplated under this Agreement, there has not been: (a) Any change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the SCO Business which change by itself in accordance with its ordinary and usual course of business and consistent with past practice and has not done (or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lienby this Agreement agreed to do) placed on any of the Transferred Assets which will remain on the Closing Date;following: (d) Any material 5.12.1 incurred any indebtedness, obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than ) except (i) normal trade obligations and liabilities which are not Assumed Liabilities or were normal and ordinary items incurred in the Ordinary Course ordinary course of the SCO Business and (ii) obligations under contracts, agreements and leases entered into in the ordinary course of the SCO Business, all of which have been disclosed to Buyer; (e) Any purchase, sale 5.12.2 discharged or satisfied any lien or other dispositionencumbrance or paid any obligation or liability (fixed or contingent) of the SCO Business, except in the ordinary course of the SCO Business or as required by the terms thereof; 5.12.3 mortgaged, pledged or subjected to any agreement encumbrance, any assets, properties or other arrangement for rights included in the purchaseAcquired Assets; 5.12.4 sold, sale assigned, transferred, conveyed, leased or other disposition otherwise disposed of any of the Transferred Assets assets, properties or rights of the SCO Business, except for fair consideration in the ordinary course of the SCO Business; 5.12.5 canceled or compromised any debt or claim of the SCO Business other than in the Ordinary Course ordinary course of Businessbusiness; (f) Any damage5.12.6 waived or released any rights relating to the Acquired Assets; 5.12.7 transferred, destruction granted, disposed of or losspermitted to lapse any rights with respect to any Intellectual Property, or sold licensed or transferred any of its Intellectual Property other than in the ordinary course of the SCO Business and consistent with past practice; 5.12.8 suffered any casualty loss or damage to the Acquired Assets, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble 5.12.9 entered into any other transaction, contract or dispute or claim of unfair labor practices involving any Seller Entity commitment with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the SCO Business other than in the Ordinary Course ordinary course of the SCO Business; (h) Except for employee turnover 5.12.10 experienced any material adverse change, or any occurrence or event which is reasonably likely to result in such a change or in any material adverse effect, in the Ordinary Course of Business, any material change in Acquired Assets or the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of SCO Business; or (m) Any material agreement or understanding 5.12.11 agreed, whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified action described in paragraphs (a) through (l) abovethis Section.

Appears in 1 contract

Samples: Asset Purchase Agreement (Packetport Com)

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Absence of Certain Changes. Since December 31Except as set forth on Section 3.01(h) of the Disclosure Schedule, 2007 (except as provided below)from the date of the Recent Balance Sheet to the date of this Agreement, the Seller Entities have conducted the Business only Company has operated its business in the Ordinary Course of BusinessBusiness and there have not been any events or occurrences that have resulted in, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, that could reasonably be expected to have result in, a Material Adverse Effect Effect. Except as set forth on Section 3.01(h) of the BusinessDisclosure Schedules, since the date of the Recent Balance Sheet to the date of this Agreement, Company has not: (i) incurred any Indebtedness, except borrowings from banks or similar financial institutions necessary to meet Ordinary Course of Business working capital requirements pursuant to commitments in place as of the date of the Recent Balance Sheet; (bii) Any cancellation mortgaged, pledged or subjected to any Lien, any of any material debt or claim owing tothe assets of Company, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businessexcept for Permitted Liens; (ciii) Any mortgagesold, encumbrance assigned or Lien (other than a Permitted Lien) placed on transferred any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation its assets or liability of any nature (as guarantor or otherwise with respect to the obligations of others)properties, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred except in the Ordinary Course of Business; (eiv) Any purchasematerially increased the compensation (including bonuses, sale commissions, or other dispositionbenefits) payable to any employee or independent contractor of Company, except for increases in the Ordinary Course of Business or provided for in any Contract or Company Benefit Plan in effect; (v) merged, combined, amalgamated or consolidated with any Person; (vi) made any changes in its methods of financial accounting or financing accounting practices, except as required by changes in GAAP; (vii) made any capital expenditures or commitments exceeding $50,000 per expenditure or commitment, or $100,000 in the aggregate with respect to all such expenditures and commitments; (viii) entered into any agreement Contract (or series of reasonably related Contracts, each of which materially relates to the underlying transaction as a whole) involving more than $500,000 annually; (ix) suffered any material loss, damage or destruction affecting Company’s assets or properties (whether or not covered by insurance); (x) entered into, terminated, adopted or amended any change of control or severance arrangement or any other arrangement for similar plan; (xi) materially delayed or postponed the purchase, sale or other disposition payment of any accounts payable or commissions or any other liability or agreed or negotiated with any Person to extend the payment date of any accounts payable or commissions or any other liability; (xii) cancelled, compromised, waived, or released any right or claim (or series of related rights and claims) in an amount more than $100,000; (xiii) accelerated the Transferred Assets other than in collection or receipt of, or discounted, any Account Receivables outside the Ordinary Course of Business; (fxiv) Any damage, destruction settled or loss, whether compromised any pending or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Businessthreatened Action; (gxv) Any labor trouble or dispute or claim terminated the employment of unfair labor practices involving any Seller Entity with respect to the Business employee or the related manufacturing operation at the Existing Facility; engagement of any material changeservice provider (whether voluntary or involuntary), or the obtaining of information concerning a prospective changeother than, with respect to the service providers and non-management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; Business and excluding the expiration of an employment or engagement Contract in accordance with its terms; (xvi) sold, assigned or transferred any entering into Company Intellectual Property; (xvii) entered into, terminated or amending of modified in any employmentmaterial respect or waived or released any material right under, deferred compensation or other similar agreement suffered any default under (or i) any amendment to any such existing agreement) Contract with any officerAffiliate, director or employee of any Seller Entity rendering services principally relating to the Business other than intercompany payables and receivables in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of BusinessBusiness which will be satisfied at or before Closing, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facilityany Material Contract; (ixviii) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred made or accelerated revenue activity, including changed any rebate, discount or other promotional programsmaterial Tax election, (ii) deferred or accelerated expense activityfiled any amended Tax Return, (iii) settled or compromised any material reduction Tax assessment, claim, audit or elimination of expenses of or investments in the Businessliability, or (iv) surrendered any right to claim a material Tax refund, (v) consented to any extension or waiver of the limitations period applicable to any material Tax assessment that would be in effect after the Closing, (vi) changed any method of Tax accounting or practice or (vii) made any change in credit extension any method of financial accounting or financial accounting practice or policy (including as related to pricing, payment and collection of payment, prepayment of expenses, accrual of expenses, and deferral and recognition of revenue) other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practicethan those required by GAAP; (lxix) Any issued, or authorized the issuance of, any shares of capital stock or other transaction entered into by equity security or any Seller Entity that is individually Contingent Company Equity; (xx) suffered any material casualty losses or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Businessextraordinary losses; or (mxxi) Any material agreement authorized or understanding whether in writing or otherwise, that would result in entered into any Contract to do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Stock Purchase Agreement (Techprecision Corp)

Absence of Certain Changes. Since December Except as disclosed in the Recent Financial Statements, since October 31, 2007 2005 (except as provided below), i) the Seller Entities have conducted the Business only Company and each of its Subsidiaries has operated in the Ordinary Course of BusinessBusiness and, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, (ii) there has not been: (a) Any change in the propertiesbeen no change, assetseffect, liabilitiesfact, business, condition (financial event or otherwise), results of operations of the Business circumstance which change by itself has had or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on Effect. Except as disclosed in the BusinessRecent Financial Statements, since October 31, 2005 neither the Company nor any Subsidiary thereof has: (i) permitted or allowed any of the assets or properties (whether tangible or intangible) of the Company or any Subsidiary to be subjected to any Lien, other than Permitted Liens or Liens that will be released at or prior to the Closing; (bii) Any cancellation except as disclosed as Schedule 5.1(g)(ii), made any loan to, guaranteed any Indebtedness of or otherwise incurred any Indebtedness on behalf of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien other Person (other than the Company or a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of othersSubsidiary), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are loans to employees (not Assumed Liabilities officers or were incurred directors) made in the Ordinary Course of Business; (eiii) Any purchaseexcept in accordance with reasonable commercial practices and in the Ordinary Course of Business with respect to matters being Table of Contents contested in good faith, sale failed to pay any creditor any amount owed to such creditor when due; (iv) made any changes outside of the Ordinary Course of Business in practices and policies relating to manufacturing, purchasing, marketing, selling or other dispositionpricing; (v) merged with, entered into a consolidation with or acquired an interest of 5% or more in any Person or acquired a substantial portion of the assets or business of any Person or any division or line of business thereof, or otherwise acquired any agreement material assets; (vi) made any single capital expenditure in excess of $250,000, entered into any non-cancelable commitments for any capital expenditures that will remain outstanding after the Effective Time in excess of $250,000 in the aggregate or other arrangement for entered into any capital lease, except as shown on the purchaseCompany’s cash flow statement and projected balance sheet contained in the Recent Financial Statements; (vii) sold, sale transferred, leased, subleased, licensed or other disposition otherwise disposed of any of the Transferred Assets properties or assets, real, personal or mixed (including, without limitation, leasehold interests and intangible assets), other than the sale of Inventories or surplus, obsolete or worn out equipment in the Ordinary Course of Business; (fviii) Any damageentered into any agreement, destruction arrangement or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity transaction with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its shareholders, directors, officers, employees, agents or consultants, independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, leased employees, agents or independent contractors except with employees (other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreementofficers) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (hA) Except for granted any increase, or announced any increase or made any alteration to the wages, conditions, salaries, compensation, bonuses, incentives, pension or other benefits payable by the Company or any Subsidiary to any of its directors, officers, employees, consultants, independent contractors or leased employees other than in the Ordinary Course of Business and, in no event, in excess of 5% in the aggregate or (B) established, increased, otherwise amended or promised to increase or otherwise amend any Employee Benefit Plan or other pension, profit sharing, deferred compensation, group insurance, severance pay, retirement or other employee turnover benefits covering any director, officer or employee, whether past or present under any employee plan, fund or otherwise; (x) written down or written up the value of any Inventories or Receivables or revalued any assets of the Company or any Subsidiary thereof, except in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships ; Table of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility;Contents (ixi) Any change in shortened or lengthened the manner of keeping bookscustomary payment cycles for any payables or Receivables thereof, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen except in the Ordinary Course of Business; (kxii) Any amended, terminated, canceled or compromised any material claims of the Company or any Subsidiary thereof or waived any other rights of substantial value to the Company or any Subsidiary thereof; (ixiii) promotional salesmade any material change in any tax or financial accounting methods, discount activityprinciples, deferred practices or accelerated revenue activity, including elections utilized by the Company or any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments Subsidiary in the Business, preparation of the latest Tax returns or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practiceother than such changes required by GAAP; (lxiv) Any other transaction entered into by any Seller Entity that is individually amended, modified or taken together with all such other transactions material consented to the Business termination of any Scheduled Contract or the Company’s or any of its Subsidiary’s rights thereunder; (xv) amended or restated the articles of incorporation or the by-laws (or other than transactions organizational documents) of the Company or any Subsidiary thereof; (xvi) terminated, discontinued, closed or disposed of any plant, facility or other business operation, except as specifically disclosed in this Agreement or laid off any employees (except seasonal employees in the Ordinary Course of Business). The Company has not implemented any early retirement, separation or other program providing early retirement window benefits (whether or not within the meaning of Section 1.401(a)-4 of the Treasury Regulations) or announced or planned any such action or program for the future; (xvii) made any express or deemed election or settled or compromised any liability with respect to Taxes of the Company or any Subsidiary thereof; (xviii) allowed any material License that was issued or relates to the Company or any Subsidiary thereof to lapse or terminate or failed to renew any such License that is scheduled to terminate or expire within 45 calendar days of the Closing Date; (xix) declared, set aside, or paid any dividends or other distributions with respect to any shares of capital stock or other securities of the Company or any Subsidiary thereof; (xx) suffered any material theft, damage, destruction or loss of or to any real or personal property or properties owned by it whether or not covered by insurance; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) above.

Appears in 1 contract

Samples: Merger Agreement (Fortune Brands Inc)

Absence of Certain Changes. Since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except Except as disclosed in on Schedule 4.7 3.11, between January 1, 2019 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not beenClosing Date: (a) Any change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or there has not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of been any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or lossloss relating to the Acquired Assets, whether or not covered by insuranceinsurance or any other event or condition that has, which could reasonably be expected to had or would have a Material Adverse Effect an impact on the Transferred Business or on the Acquired Assets or the Businessvalued in excess of thirty thousand Dollars ($30,000); (gb) Any labor trouble there have not been any claims asserted in writing against Seller or dispute or claim of unfair labor practices involving any Seller Entity with respect the UK Subsidiary relating to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management Acquired Assets not covered by applicable policies of Business; any change in liability insurance within the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any maximum insurable limits of such officers, employees, agents or independent contractors policies after payment of deductibles; (c) no Acquired Asset has been disposed of other than in the Ordinary Course ordinary course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (ld) Any other transaction entered into by there has not been any Seller Entity that is individually creation or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course attachment, or notice thereof, of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any Lien on any of the Acquired Assets; (e) there has not been any (i) assumption, incurrence or guarantee, except in the ordinary course of business consistent with past practice, of any obligation for borrowed money that would constitute, or increase Buyer’s or UK Buyer’s obligation respecting, an Assumed Liability, (ii) cancellation or compromise, except in the ordinary course of business consistent with past practice, or any debts owed to it that would constitute, or decrease the value of Buyer’s right respecting, an Acquired Asset, (iii) acceleration of providing prepaid services under Customer Contracts, or (iv) waiver or release of any rights relating to the Acquired Assets valued in excess of twenty thousand Dollars ($20,000) in the aggregate; (f) except in the ordinary course of business, no joint venture, partnership or other similar arrangement or form nor any other new material arrangement for the conduct of the business relating to the Acquired Assets has been entered into; (g) there has not been made in writing any Tax election (or change in or revocation of any Tax election) that relates to the Acquired Assets and that will have continuing effect on the Acquired Assets after the consummation of the transactions contemplated by this Agreement; (h) except as required by Law, Contract or events the terms of an Employee Plan existing on the date hereof, there have been no (i) increases in the base compensation of, or require entry into any Seller Entity to take new bonus or incentive agreement or arrangement not consistent with Seller’s policies respecting such agreements with, any of the actions specified Assumed Employees; (ii) payment or agreement to pay any pension, retirement allowance or other employee benefit to any Assumed Employee, whether past or present not otherwise required by Contract or under any Employee Plan in paragraphs effect on the date hereof; (aiii) through entry into any express new employment, severance, consulting or other compensation agreement with any Assumed Employee; (liv) abovedisposal of, exclusive licensure, abandonment, assignment or other action that would adversely affect in any material respects any Owned Intellectual Property; or (v) commitment to any pension, profit sharing, deferred compensation, group insurance, severance pay, retirement or other Employee Plan, fund or similar arrangement in addition to those in effect on the date hereof and intended exclusively for the Assumed Employees; provided, however, that any bonuses, severance payments or other incentives committed to in connection with or in contemplation of the Asset Purchase or a similar transaction as set forth on Schedule 3.11 shall be paid by Seller at or prior to Closing; and (i) Seller and the UK Subsidiary have not agreed to do any act that would render any of the preceding clauses inaccurate (other than the transactions specifically contemplated hereby).

Appears in 1 contract

Samples: Asset Purchase Agreement (Accelerize Inc.)

Absence of Certain Changes. (a) Since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this AgreementStatement Date, there has not been: (a) Any been any material adverse change in the propertiesAcquired Assets, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, and no event has occurred that could reasonably be expected to have result in such a Material Adverse Effect on material adverse change; provided, however, that in no event shall any of the Business;following be deemed to constitute such a material adverse change: any change or effect arising out of or attributable to (w) a decline or deterioration in the economy, the capital markets or Seller’s industry in general, (x) this Agreement or the transactions contemplated hereby or the announcement thereof, (y) the MCDA, or (z) continued decline in sales of the Critical Care Products consistent with historical trends over the last twelve (12) months; provided, further, that a material adverse change in the Acquired Assets shall be a material change in supply (or intent to supply) pressure transducer components to the applicable Seller Entities by [***] or its Affiliates or any material change in the commercial relationship between the Applicable Seller Entities and [***] or its Affiliates; and (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any Except as set forth in Part 4.9 of the Transferred Assets which will remain on Disclosure Schedule, since the Closing Statement Date; , no Seller Entity has (di) Any material incurred any obligation or liability or entered into, and none of Seller or the Acquired Assets have become bound by, or subject to, any nature Contract (as guarantor or otherwise with respect except for this Agreement) relating to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Acquired Assets other than in the Ordinary Course and involving obligations not in excess of Business; $25,000, individually, or $100,000 in the aggregate; (fii) Any mortgaged, pledged or subjected to any Encumbrance (other than Permitted Encumbrances) any of the Acquired Assets; (iii) sold, assigned, transferred, leased or otherwise disposed of or agreed to dispose of any of the Acquired Assets other than in the Ordinary Course; (iv) waived or released any material rights relating to the Acquired Assets; or (v) suffered any material damage, destruction or loss, loss (whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on ) adversely affecting the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveAcquired Assets.

Appears in 1 contract

Samples: Asset Purchase Agreement (Icu Medical Inc/De)

Absence of Certain Changes. Since Except as (i) disclosed in the Target SEC Reports filed and publicly available prior to the Agreement Date, including the unaudited balance sheet as at September 30, 2007, (ii) set forth in Section 4.8 of the Target Disclosure Letter or (iii) contemplated by this Agreement, since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been2006: (a) Any change Other than with respect to actions taken by the Cripple Creek & Xxxxxx Xxxx Mining Company (the “Joint Venture”) pursuant to the Amended and Restated Joint Venture Agreement between AngloGold Xxxxxxx (Colorado) Corp. (as successor-in-interest to Pikes Peak Mining Company) and Target, dated January 1, 1991, and any and all subsequent amendments thereto (as so amended, the “Joint Venture Agreement”), as to which this Section 4.8(a) shall not apply, Target and its Subsidiaries have conducted their respective businesses only in the propertiesordinary course of business consistent with past practice and there (i) have not been any changes or developments that, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself individually or in conjunction with all other such changesthe aggregate, whether have had or not arising in the Ordinary Course of Business, could would be reasonably be expected likely to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent Target or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are (ii) has not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or been any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any material damage, destruction or lossother casualty loss with respect to any material asset or property owned, leased or otherwise used by Target or its Subsidiaries, whether or not covered by insurance; and (b) Neither Target nor any of its Subsidiaries has (i) except as required pursuant to the terms of the Target Benefit Plans as in effect on December 31, which could 2006 or as required to comply with applicable Law, (A) increased or agreed to increase the wages, salaries or compensation payable to any officer, employee or director from the amount thereof in effect as of December 31, 2006, other than increases in wages, salaries and other cash compensation in the ordinary course of business consistent with past practice, (B) granted any severance or termination pay, (C) entered into or made any loans to any of its officers, directors or employees or made any change in its borrowing or lending arrangements for or on behalf of any of such Persons or (D) adopted or amended, or accelerated the payment or vesting of benefits under, any Target Benefit Plan, (ii) declared, set aside or paid any dividend or other distribution (whether in cash, stock or property) with respect to any of Target’s capital stock, (iii) effected or authorized any split, combination or reclassification of any of Target’s capital stock or any issuance thereof or issued any other securities in respect of, in lieu of or in substitution for shares of Target’s capital stock, except for issuances of Target Common Shares upon the exercise of Target Stock Options, in each case, in accordance with their terms at the time of exercise, (iv) changed in any material respect, or had knowledge of any reason that required any material change in, any accounting methods (or underlying assumptions), principles or practices of Target or its Subsidiaries, (v) made or changed any material Tax election, or settled or compromised any material income Tax liability, or materially amended any Tax Return, (vi) acquired any material assets, or sold, leased, exchanged, transferred, licensed, farmed-out or otherwise disposed of any material assets, in each case other than in the ordinary course of business consistent with past practice, (vii) amended its articles of incorporation, bylaws or other organizational documents, (viii) discharged or satisfied any Indebtedness or paid any obligation or Liability, other than current Liabilities incurred and paid in the ordinary course of business and consistent with past practice, (ix) suffered or permitted any Lien to arise or be granted or created against or upon any of its assets other than Liens which, individually or in the aggregate, would not be reasonably be expected likely to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business Target, (x) made any agreement or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation commitment (in the form of salaries, wages, incentive arrangements contingent or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in do any of the transactions foregoing or events or require any Seller Entity to (xi) take any of the actions specified other action that would have been prohibited by Section 6.1 if this Agreement had been in paragraphs (a) through (l) aboveeffect since December 31, 2006.

Appears in 1 contract

Samples: Merger Agreement (Golden Cycle Gold Corp)

Absence of Certain Changes. Since December 31, 2007 (except Except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed set forth in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under 4.6 or as otherwise permitted by this Agreement, there has not beensince the end of the period covered by the Latest Interim Financial Statements: (a) Any change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of Seller has owned and operated the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (eb) Any purchaseno event has occurred and no circumstance exists or has developed, sale including but not limited to damage, destruction, or loss, whether as the result of fire, explosion, earthquake, accident, casualty, labor trouble, requisition or taking of property by any government or any agency of government, flood, windstorm, embargo, riot or act of God or the enemy, or other dispositionsimilar casualty or event or otherwise (whether or not covered by insurance) that has had or would reasonably be expected to have a Material Adverse Effect; (c) Seller has not sold, assigned, leased, subleased, licensed, transferred, mortgaged, pledged or otherwise disposed of, or created any agreement or Encumbrance (other arrangement for the purchasethan Permitted Encumbrances) upon, sale or other disposition of any of the Transferred Assets assets to be sold to Buyer hereunder, other than sales or other dispositions of properties or assets under and in accordance with the terms of existing Contracts; dispositions of inventory and dispositions of surplus or obsolete properties or assets in the Ordinary Course of Business, except where the same would not reasonably be expected to have a Material Adverse Effect; (d) Seller has not entered into, terminated, canceled, materially amended, materially extended or waived, released or assigned any material right or claim under any Key Business Contract other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or except where the same would not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on Effect; (e) Seller has not transferred, assigned, terminated, canceled, abandoned or modified any Permits related to the Transferred Assets Business or failed to use commercially reasonable efforts to maintain any Permits related to the Business, except where the same would not reasonably be expected to have a Material Adverse Effect; (f) Seller has not made any material changes to the compensation, benefits, or terms of employment or engagement with any Business Employee, or entered into any employment contract with any such employee, or instituted any employee welfare, bonus, equity award, profit-sharing, retirement or similar plan or arrangement directly benefiting any such employee, other than in the Ordinary Course of Business and other than any such changes that are generally applicable to the employees of Seller, which changes are not material in the aggregate; (g) Any labor trouble Seller has not adopted or dispute materially increased the payments to or claim benefits under, any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, severance or other employee benefit plan for or with any employees of unfair labor practices involving the Business other than any such changes that are generally applicable to the employees of Seller that are not material in the aggregate; (h) Seller (or any Seller Entity Affiliate) has not transferred or licensed to any Person or allowed to lapse or go abandoned any Transferred Intellectual Property or commenced, discharged or settled any Proceeding relating to any Transferred Intellectual Property, except where the same would not reasonably be expected to have a Material Adverse Effect; (i) Seller (or any Seller Affiliate) has not knowingly waived any claims or rights with respect to the Business or the related manufacturing operation at the Existing FacilityTransferred Intellectual Property of substantial value; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business;and (j) Any change in Seller (or any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (kAffiliate) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction has not entered into by any Seller Entity that is individually or taken together with all such other transactions material Contract to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Asset Purchase Agreement (Zep Inc.)

Absence of Certain Changes. Since Except as contemplated by this Agreement or the Ancillary Agreements or as set forth in Section 2.7 of the Disclosure Schedule, since December 31, 2007 (except as provided below)2017, the Seller Entities and its Affiliates have conducted the Business only in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, and there has been no activity that would reasonably be expected, individually or in the aggregate, to result in a Business Material Adverse Effect. Without limiting the generality of the immediately preceding sentence, since December 31, 2017, except as disclosed contemplated by this Agreement or the Ancillary Agreements or as set forth in Schedule 4.7 and except for changes in connection with Section 2.7 of the transactions expressly contemplated under this AgreementDisclosure Schedule, there the Seller has not beennot: (a) Any change sold, assigned, transferred or otherwise disposed of any portion of the Acquired Assets in a single transaction or series of related transactions, except for sales of Products in the properties, assets, liabilities, ordinary course of business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of transferred, assigned or granted any material debt license or claim owing to, sublicense under or waiver of any material right of, with respect to the Seller Entities Intellectual Property constituting Acquired Assets (except non-exclusive licenses or any Affiliate arising from, relating to or resulting from sublicenses granted in the Businessordinary course of business consistent with past practice); (c) Any mortgageabandoned, encumbrance allowed to lapse or Lien (other than a Permitted Lien) placed on failed to maintain in full force and effect, in each case, whether intentional or unintentional, the Seller Intellectual Property constituting Acquired Assets, or failed to take or maintain reasonable measures to protect the confidentiality or value of any of Trade Secrets included in the Transferred Assets which will remain on the Closing DateSeller Intellectual Property constituting Acquired Assets; (d) Any suffered any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, or any material interruption in use of the Acquired Assets (whether or not covered by insurance, which could reasonably be expected ); (e) made any capital expenditures or commitments therefor in an amount in excess of $25,000 in the aggregate with respect to have a Material Adverse Effect on the Transferred Acquired Assets or the Businesswhich would constitute an Assumed Liability; (f) acquired any properties or assets that are Acquired Assets; (g) Any labor trouble incurred, assumed or dispute or claim of unfair labor practices involving guaranteed any Seller Entity indebtedness for borrowed money with respect to the Business Acquired Assets or the related manufacturing operation at the Existing Facility; otherwise imposed any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to Liens upon any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of BusinessAcquired Assets; (h) Except for employee turnover in the Ordinary Course of Businesscanceled any debts or claims or amended, terminated or waived any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facilityrights constituting Acquired Assets; (i) Any change in materially changed the manner of keeping booksaccounting principles, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by of the Business; (j) Any change in any Seller Entity’s business relationship with any material supplierexperienced an event, customer occurrence or other entity having business relations with such Seller Entity arising out ofdevelopment that has had, relating or would reasonably be expected to have, individually or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Businessaggregate, a Business Material Adverse Effect; (k) Any (i) promotional salesentered into, discount activityaccelerated, deferred terminated, modified or accelerated revenue activity, including canceled any rebate, discount contract that would require disclosure in Section 2.14 of the Disclosure Schedule or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination any Permit that would require disclosure in Section 2.19 of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice;Disclosure Schedule; or (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in commitment with respect to any of the transactions or events or require any Seller Entity matters referred to take any of the actions specified in paragraphs (a) through (lk) aboveof this Section 2.7.

Appears in 1 contract

Samples: Asset Purchase Agreement (Enphase Energy, Inc.)

Absence of Certain Changes. Since December 31January 1, 2007 (except as provided below)2016, the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 Section 3.1(l) of the Company Disclosure Letter, and except other than for changes in connection with the purposes of the transactions expressly contemplated under this Agreement, herein: (i) the Company has conducted its business only in the ordinary course of business; (ii) there has not been: (a) Any change occurred one or more changes, events or occurrences which would, individually or in the propertiesaggregate, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have result in a Company Material Adverse Effect on the BusinessEffect; (biii) Any cancellation of the Company has not incurred any material debt liabilities or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability obligations of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise) which would, asserted individually or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchaseaggregate, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have result in a Company Material Adverse Effect on the Transferred Assets or the BusinessEffect; (giv) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any there has not been a material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (level of accounts receivable or payable, inventories or employees, other than those changes in the form ordinary course; (v) there has not been any satisfaction or settlement of salariesany material claims or material liabilities that were not reflected in the Company’s audited financial statements, wagesother than the settlement of claims or liabilities incurred in the ordinary course of business; (vi) except for ordinary course adjustments to employees (other than directors or officers) or pursuant to contractual obligations under a Collective Agreement, incentive arrangements there has not been any material increase in the salary, bonus, or otherwise) other remuneration payable or to become payable by any Seller Entity to any non-executive employees of any of Company or its officerssubsidiaries; (vii) except as set out in the Company’s definitive proxy statement dated May 25, employees2016, agents there has not been any increase in the salary, bonus, or independent contractors rendering services principally relating other remuneration payable to any officers of the Company or its subsidiaries or any amendment or modification to the Businessvesting or exercisability schedule or criteria, including any acceleration, right to accelerate or acceleration event or other entitlement under any bonus payment or arrangement made to or with any of such officersstock option, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employmentrestricted stock, deferred compensation or other similar agreement (compensation award of any officer of the Company or any of its subsidiaries; (viii) there has not been any entering into, or an amendment to of, any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business Material Contract other than in the Ordinary Course ordinary course of Businessbusiness; (hix) Except there has not been any incurrence, assumption or guarantee by the Company of any debt for employee turnover borrowed money, or any making the Company of any loan, advance or capital contribution to or investment in any other person; and (x) the Ordinary Course of Business, Company has not effected any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping booksits accounting methods, accounts or records, accounting methods principles or practices, standard costs, credit practices or collection or pricing policies used except as required by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveapplicable Laws.

Appears in 1 contract

Samples: Arrangement Agreement (Thompson Creek Metals Co Inc.)

Absence of Certain Changes. Since December 31, 2007 (except Except as provided belowset forth in SCHEDULE 4.1(h), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as or otherwise disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreementwriting to MRM, since April 30, 1997: (i) LM has not entered into any material transaction; (ii) there has not been: (a) Any been no change in the properties, assets, liabilities, business, condition (financial or otherwise), results business, property, prospects, assets or liabilities of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising LM as shown in the Ordinary Course of BusinessLM Financial Statements, could reasonably be expected to other than changes that both individually and in the aggregate do not have a Material Adverse Effect on the Business; consequence that is materially adverse to such condition, business, property, prospects, assets or liabilities; (biii) Any cancellation of any material debt or claim owing there has been no damage to, destruction of or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition loss of any of the Transferred Assets other than in the Ordinary Course properties or assets of Business; LM (f) Any damage, destruction or loss, whether or not covered by insurance) materially and adversely affecting the condition (financial or otherwise), business, property, prospects, assets or liabilities of LM; (iv) LM has not declared or paid any dividend, made any distribution on its capital stock, redeemed, purchased or otherwise acquired any of its capital stock, granted any options to purchase shares of its stock, or issued any shares of its capital stock; (v) there has been no material adverse change, except in the ordinary course of business, in the contingent obligations of LM by way of guaranty, endorsement, indemnity, warranty or otherwise; (vi) there have been no loans made by LM to its employees, officers or directors; (vii) there has been no waiver or compromise by LM of a valuable right or of a material debt owed to it; (viii) there has been no extraordinary increase in the compensation of any of LM' employees; (ix) there has been no agreement of commitment by LM to do or perform any of the acts described in this Section 4.1(h); and (x) there has been no other event or conditions of any character which could might reasonably be expected either to have result in a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any and adverse change in the compensation condition (in the form of salaries, wages, incentive arrangements financial or otherwise) payable ), business, property, prospects, assets or liabilities of LM, or to become payable by any Seller Entity materially impair the ability of LM to any of its officers, employees, agents or independent contractors rendering services principally relating to conduct the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) abovenow being conducted.

Appears in 1 contract

Samples: Plan and Agreement of Reorganization (Medical Resources Management Inc)

Absence of Certain Changes. Since December Except as reflected on Schedule 6.15, or elsewhere in this Agreement or specifically identified on any Schedules hereto, and since March 31, 2007 (except as provided below)1999, the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there Purchaser has not beenand at the Closing Date will not have: (a) Any change in the propertiesSuffered a Material Adverse Effect, assets, liabilities, business, condition (financial or otherwise), results become aware of operations of the Business any circumstances which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could might reasonably be expected to result in such a Material Adverse Effect; or suffered any material casualty loss to the Assets (whether or not insured), except for losses that, individually or in the aggregate, would not have a Material Adverse Effect on the BusinessEffect; (b) Any cancellation Incurred any obligations specifically related to the Assets (including Customer Agreements), except in the ordinary course of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businessbusiness consistent with past practices; (c) Any mortgage, encumbrance Permitted or Lien (other than a Permitted Lien) placed on allowed any of the Transferred Assets which will remain on to be mortgaged, pledged, or subjected to any lien or encumbrance, except for liens for Taxes not yet due and payable and liens and encumbrances that, individually or in the Closing Dateaggregate, would not have a Material Adverse Effect; (d) Any material obligation or liability Written down the value of any nature (inventory, contract or other intangible asset, or written off as guarantor uncollectible any notes or otherwise with respect to the obligations of others)accounts receivable or any portion thereof, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations except for write-downs and liabilities which are not Assumed Liabilities or were incurred write-offs in the Ordinary Course ordinary course of Businessbusiness, consistent with past practice and at a rate no greater than during the latest complete fiscal year; cancelled any other debts or claims, or waived any rights of substantial value, or sold or transferred any of its material properties or assets, real, personal, or mixed, tangible or intangible, except in the ordinary course of business and consistent with past practice and except for those that, individually or in the aggregate, would not have a Material Adverse Effect; (e) Any purchaseSold, sale licensed or other dispositiontransferred or agreed to sell, license or any agreement or other arrangement for the purchasetransfer, sale or other disposition of any of the Transferred Assets other than Assets, except in the Ordinary Course ordinary course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development business and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (lf) Any To Purchaser's knowledge, received notice of any pending or threatened adverse claim or an alleged infringement of proprietary material, whether such claim or infringement is based on trademark, copyright, patent, license, trade secret, contract or other transaction restrictions on the use or disclosure of proprietary materials; (g) Incurred obligations to refund money to customers, except in the ordinary course of business, all of which will have no Material Adverse Effect; (h) Become aware of any event, condition or other circumstance relating solely to the Assets (as opposed to any such event, condition, or circumstance which is, for example, national or industry-wide in nature) which might reasonably be expected to materially adversely affect the Assets; (i) Made any capital expenditures or commitments, any one of which is more than $50,000, for additions to property, plant, or equipment; (j) Made any material change in any method of accounting or accounting practice; (k) Paid, loaned, guaranteed, or advanced any material amount to, or sold, transferred, or leased any material properties or assets (real, personal, or mixed, tangible or intangible) to, or entered into by any Seller Entity that is individually agreement, arrangement, or taken together transaction with all any of Purchaser's officers or directors, or any business or entity in which any officer or director of Purchaser, or any affiliate or associate of any of such other transactions material to the Business other than transactions in the Ordinary Course of BusinessPersons has any direct or indirect interest; or (ml) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity Agreed to take any action described in this Section 6.15. The Company and Parent acknowledge and agree that a decrease in the market price of the actions specified in paragraphs (a) through (l) abovePurchaser Common Stock is not a material adverse change.

Appears in 1 contract

Samples: Merger Agreement (Mestek Inc)

Absence of Certain Changes. Since Except as and to the extent set forth on Schedule 2.10, each Company Seller has conducted the Business since December 31, 2007 (2013 in the ordinary course consistent with past practices. Without limiting the generality of the foregoing, except as provided below)and to the extent set forth on Schedule 2.10, the since December 31, 2013, no Company Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not beenhas: (a) Any suffered any adverse change in the propertiesits working capital, financial condition, assets, liabilities, businessbusiness or prospects, condition experienced any labor difficulty, or suffered any casualty loss (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Businessinsured); (b) Any cancellation of made any material debt change in the Business or claim owing to, operations or waiver in the manner of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from conducting the Business; (c) Any mortgageincurred any Indebtedness or incurred any Liabilities, encumbrance except Liabilities that are reflected or Lien (other than a Permitted Lien) placed on any reserved against in the Financial Statements or that were incurred since the end of the Transferred Assets last fiscal month prior to the date hereof for which will remain on the Closing DateFinancial Statements have been provided in the ordinary course of business and consistent with past practices, or experienced any change in any assumptions underlying or methods of calculating any bad debt, contingency or other reserves; (d) Any material obligation paid, discharged or liability of satisfied any nature (as guarantor Lien or otherwise with respect to the obligations of others)Liability, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities Liens or Liabilities which are not Assumed Liabilities reflected or were incurred reserved against in the Ordinary Course Financial Statements and which were paid, discharged or satisfied since the date thereof in the ordinary course of Businessbusiness and consistent with past practices; (e) Any purchase, sale or other dispositionwritten down the value of any Inventory, or written off as uncollectible any agreement notes or other arrangement accounts receivable or any portion thereof, except for the purchase, sale or other disposition write-downs and write-offs of any of the Transferred Assets other less than $25,000 in the Ordinary Course of Businessaggregate; (f) Any damage, destruction authorized or loss, whether adopted a plan of liquidation or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Businessdissolution; (g) Any labor trouble cancelled any debts or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material changeclaims, except as contemplated by this Agreement, or the obtaining waived any rights of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Businesssubstantial value; (h) Except for employee turnover in the Ordinary Course entered into any new line of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facilitybusiness; (i) Any change in the manner entered into a settlement or compromise of keeping books, accounts any pending or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Businessthreatened Proceeding; (j) Any change in sold, transferred or conveyed any Seller Entity’s business relationship with any material supplierof its properties or assets (whether real, customer personal or other entity having business relations with such Seller Entity arising out ofmixed, relating to tangible or resulting from the Business including any material increase or notice thereof intangible), except in the cost ordinary course of raw materials other than such changes which have arisen in the Ordinary Course of Businessbusiness and consistent with past practices; (k) Any (i) promotional sales, discount activity, deferred made any capital expenditures or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination commitments in excess of expenses of or investments $100,000 in the Businessaggregate for replacements or additions to property, plant, equipment or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practiceintangible capital assets; (l) Any other transaction except as indicated in the Audited Financial Statements, made any change in any method of accounting or accounting practice or any method of income Tax accounting or income Tax elections; (m) paid, loaned or advanced any amount to or in respect of, or sold, transferred or leased any properties or assets (real, personal or mixed, tangible or intangible) to, or entered into any agreement, arrangement or transaction with, any Shareholder or any other equity holder of any of the Company Sellers or the officers or directors of any Company Seller, any Affiliates or associates of any Company Seller or any of a Company Seller’s respective officers or directors, or any business or entity in which any of such Persons has any direct or indirect interest, except for compensation to the officers and employees of such Company Seller at rates not exceeding the rates of compensation in effect at December 31, 2013 and advances to employees in the ordinary course of business and consistent with past practices for travel and expense disbursements, but not in excess of $5,000 at any one time outstanding; (n) sold, transferred, licensed, abandoned, let lapse, encumbered or otherwise disposed of any Intellectual Property; (o) suffered any Material Adverse Effect; (p) failed to preserve and maintain all Consents required for the conduct of the Business as currently conducted or the ownership and use of the Acquired Assets; (q) failed to pay the debts, Taxes and other obligations of the Business or such Party when due; (r) failed to collect accounts receivable in a manner consistent with past practices, without discounting such accounts receivable; (s) discontinued any insurance policies, except as required by applicable Law; (t) failed to perform any Seller Entity of its obligations under any Material Contract; (u) entered into, terminated or amended any Material Contract (or any Contract that is individually or taken together if in effect as of the date hereof would be a Material Contract), other than in the ordinary course of business consistent with past practices; (v) failed to maintain the books and records of the Business in accordance with past practices; (w) failed to comply in all respects with all such other transactions material Laws applicable to the conduct of the Business or the ownership and use of the Acquired Assets; (x) amended its articles of incorporation or organization, bylaws or operating agreement, or similar governing documents; (y) entered into any change in control, severance, termination or employment agreement or any similar agreement with any Company Employee or established any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other than transactions in plan, trust fund, policy or arrangement for the Ordinary Course benefit of Businessany current or former employee; or (mz) Any material agreement or understanding agreed, whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified action described in paragraphs (a) through (l) abovethis Section 2.10.

Appears in 1 contract

Samples: Asset Purchase Agreement (Chefs' Warehouse, Inc.)

Absence of Certain Changes. Since December 31Except as set forth on Schedule 4.11 attached hereto, 2007 since September 30, 2000: (except as provided below), a) Seller and the Seller Entities Subsidiaries have conducted operated the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Businessordinary course; (b) Any cancellation No Material Contract has expired or been rescinded or terminated by agreement of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businessparties; (c) Any mortgageNeither Seller nor any Subsidiary has sold, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others)transferred, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out disposed of, relating or agreed to sell, transfer or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchasedispose of, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating assets related to the Business other than in the Ordinary Course ordinary course of business; (d) Neither Seller nor any Subsidiary has acquired any material assets related to the Business, except in the ordinary course of business, nor acquired or merged with any other business related to the Business; (e) No material Encumbrances have been incurred or created on any of the assets related to the Business of Seller or any Subsidiary; (f) No asset or property material to the conduct of the Business has been destroyed, damaged or otherwise lost (whether or not covered by insurance); (g) Neither Seller nor any Subsidiary has increased the salary or other compensation payable or to become payable to any employee who may become a Company Employee or obligated itself to pay any bonus or other additional salary or compensation to any such employee other than in the ordinary course of business; (h) Except for employee turnover in the Ordinary Course of Business, Neither Seller nor any Subsidiary has made any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of related to the Business in any pricing, marketing, purchasing, allowance or (ii) tax or accounting practice, policy or method or any method of calculating any bad debt, contingency or other reserve for accounting, financial reporting or tax purposes or made any material tax election or settled or compromised any material income tax liability with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility;any Governmental Authority. (i) Any change in There has been no waiver or amendment of any material right relating to Seller or any Subsidiary which would reasonably be expected to be material to the manner conduct of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any There has been no agreement to take any action described above; and (k) There has been no material adverse change in any Seller Entity’s business relationship with any material supplierthe earnings, customer prospects, properties or other entity having business relations with such Seller Entity arising out ofcondition, financial or otherwise, relating to or resulting from in respect of the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) above"Material Adverse Change").

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Centura Software Corp)

Absence of Certain Changes. Since December Except as reflected on SCHEDULE 5.12, or elsewhere in this Agreement or specifically identified on any Schedules hereto, since March 31, 2007 (except as provided below)1999, the Seller Entities MIOA and its Subsidiaries have conducted the Business only in the Ordinary Course of Businessnot, and except as disclosed in Schedule 4.7 and except for changes in connection with at the transactions expressly contemplated under this AgreementClosing Date will not, there has not beenhave: (a) Any change Suffered a Material Adverse Effect, or become aware of any circumstances which might reasonably be expected to result in such a Material Adverse Effect; or suffered any material casualty loss to the properties, assets, liabilities, business, condition Assets (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising insured); (b) Incurred any obligations specifically related to the Assets, except in the Ordinary Course ordinary course of Businessbusiness, could consistent with past practices; (c) Permitted or allowed any of the Assets to be mortgaged, pledged, or subjected to any lien or encumbrance, except liens or encumbrances specifically excepted by the provisions of Section 5.14; (d) Written down the value of any inventory, contract or other intangible asset, or written off as uncollectible any notes or accounts receivable or any portion thereof, except for write-downs and write-offs in the ordinary course of business, consistent with past practice and at a rate no greater than during the latest complete fiscal year; cancelled any other debts or claims, or waived any rights of substantial value, or sold or transferred any of its material properties or assets, real, personal, or mixed, tangible or intangible, except in the ordinary course of business and consistent with past practice; (e) Sold, licensed or transferred or agreed to sell, license or transfer, any of the Assets, except in the ordinary course of business and consistent with past practice; (f) To MIOA's and its Subsidiaries' knowledge, received notice of any pending or threatened adverse claim or an alleged infringement of proprietary material, whether such claim or infringement is based on trademark, copyright, patent, license, trade secret, contract or other restrictions on the use or disclosure of proprietary materials; (g) Incurred obligations to refund money to customers, except in the ordinary course of business, all of which will have no Material Adverse Effect; (h) Become aware of any event, condition or other circumstance relating solely to the Assets (as opposed to any such event, condition, etc., which is, for example, national or industry-wide in nature) which might reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing FacilityAssets; (i) Any change Made any capital expenditures or commitments, any one of which is more than $1,000,000, for additions to property, plant, or equipment, unless approved in the manner of keeping books, accounts writing by CCI or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used deemed approved by the BusinessCCI pursuant to EXHIBIT 4.2(B)(IV) hereof; (j) Any Made any material change in any Seller Entity’s business relationship with any material supplier, customer method of accounting or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Businessaccounting practice; (k) Any (i) promotional salesPaid, discount activityloaned, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Businessguaranteed, or advanced any material amount to, or sold, transferred, or leased any material properties or assets (ivreal, personal, or mixed, tangible or intangible) change to, or entered into any agreement, arrangement, or transaction with any of MIOA's or any Subsidiaries' officers or directors, or any business or Person in credit extension which any officer or other credit practicesdirector of MIOA or any of its Subsidiaries, including changes in credit limits and underwriting standards, in each case, which would have the effect or any affiliate or associate of increasing the Revenue any of such Persons has any direct or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice;indirect interest; or (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity Agreed to take any of the actions specified action described in paragraphs (a) through (l) abovethis Section 5.12.

Appears in 1 contract

Samples: Stock Exchange Agreement (Medical Industries of America Inc)

Absence of Certain Changes. Since Except as set forth in Schedule 4.1(g), or otherwise disclosed in writing to ESSXSPORT, since December 31, 2007 2003, (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, i) MBH has not entered into any material transaction; (ii) there has not been: (a) Any been no change in the properties, assets, liabilities, business, condition (financial or otherwise), results business, property, prospects, assets or liabilities of operations of MBH as shown on the Business which change by itself or in conjunction with all MBH Financial Statement, other such changes, whether or not arising than changes that both individually and in the Ordinary Course of Business, could reasonably be expected to aggregate do not have a Material Adverse Effect on the Businessconsequence that is materially adverse to such condition, business, property, prospects, assets or liabilities; (biii) Any cancellation of any material debt or claim owing there has been no damage to, destruction of or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition loss of any of the Transferred Assets other than in the Ordinary Course properties or assets of Business; MBH (f) Any damage, destruction or loss, whether or not covered by insurance) materially and adversely affecting the condition (financial or otherwise), business, property, prospects, assets or liabilities of MBH; (iv) MBH has not declared, or paid any dividend or made any distribution on its capital stock, redeemed, purchased or otherwise acquired any of its capital stock, granted any options to purchase shares of its stock, or issued any shares of its capital stock except in conjunction with the private placement described in Schedule 4.1(g); (v) there has been no material change, except in the ordinary course of business, in the contingent obligations of MBH by way of guaranty, endorsement, indemnity, warranty or otherwise; (vi) there have been no loans made by MBH to its employees, officers or directors that have not been disclosed; (vii) there has been no waiver or compromise by MBH of a valuable right or of a material debt owed to it; (viii) there has been no extraordinary increase in the compensation of any of MBH's employees; (ix) there has been no agreement or commitment by MBH to do or perform any of the acts described in this Section 4.1(g); and (x) there has been no other event or condition of any character, which could might reasonably be expected either to have result in a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any and adverse change in the compensation condition (in the form of salaries, wages, incentive arrangements financial or otherwise) payable ), business, property, prospects, assets or liabilities of MBH or to become payable by any Seller Entity impair materially the ability of MBH to any of its officers, employees, agents or independent contractors rendering services principally relating to conduct the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) abovenow being conducted.

Appears in 1 contract

Samples: Securities Exchange Agreement (Essxsport Corp)

Absence of Certain Changes. Since December 31Except as set forth on Disclosure Schedule Section 5.5, 2007 (except as provided below)or where no Material Adverse Effect on the Sellers has or is likely to occur, since the Seller Entities have conducted latest date of the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not beenFinancials: (a) Any There has not been any event, change in or effect with respect to the propertiesAssets or the business, assets, liabilities, businessoperations, condition (financial or otherwise), working capital, Liabilities, earnings, reserves or operating results of operations of the Business or the Business Employees or, to Sellers’ and Devaraj’s knowledge, customers of the Business under the Customer Contracts, which change by itself has had or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could is reasonably be expected likely to have a Material Adverse Effect on the Business;material adverse effect. (b) Any cancellation of the Assets have not suffered any material debt or claim owing toloss, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or lossother casualty adversely affecting any of the Assets, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (gc) Any labor trouble Sellers have not incurred, assumed or dispute become subject to, whether directly or claim by way of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements guarantee or otherwise) payable , any Liability arising from or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the BusinessAssets except for trade or business obligations incurred in the ordinary course of business and consistent with past practice in connection with the purchase of goods and services; (d) Sellers have not sold, transferred, leased or otherwise disposed of any bonus payment Assets or arrangement made to permitted or with allowed any of such officersthe Assets to be subject to any Encumbrance (other than the Permitted Liens) of any kind, employees, agents or independent contractors other than in the Ordinary Course ordinary course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development business and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (le) Any other transaction Sellers have not instituted, settled or agreed to settle any Action before any Governmental Authority relating to the Assets; (f) Sellers have not entered into any other transaction, contract or commitment in respect of the Assets other than in the ordinary course of business and consistent with past practice which calls for fixed and/or contingent payments thereunder; (g) Sellers have not paid or agreed to pay any brokerage or finders’ fee in connection with, and Sellers have not incurred any severance pay obligations by reason of, this Agreement; (h) Sellers have not made any Seller Entity that is individually capital expenditure or taken together with all such other transactions material commitment therefore relating to the Business other than transactions in the Ordinary Course of Business; orfor additions to its property, facilities or equipment; (mi) Any material agreement or understanding whether in writing or otherwiseSellers have not made, that would result with respect to the Business, any change in any method of the transactions its accounting or events accounting practice or require any Seller Entity to take change in its depreciation or amortization policies or rates theretofore adopted or revalued any of the actions specified in paragraphs (a) through (l) above.its assets; and

Appears in 1 contract

Samples: Asset Purchase Agreement (Grilled Cheese Truck, Inc.)

Absence of Certain Changes. Since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only Except for losses incurred in the Ordinary Course ordinary course of Businessbusiness, and except consistent with prior practice, that have been publicly disclosed at least five (5) days prior to the date hereof or as disclosed in set forth on Schedule 4.7 and except for changes in connection with 3(h) hereof, since the transactions expressly contemplated under this Agreementdate of the Company’s most recent 10-Q or 10-K, there has not been: (a) Any been no material adverse change and no material adverse development in the properties, assets, liabilities, business, condition (properties, operations, financial condition, or otherwise), results of operations of the Business which change by itself Company or any of its Subsidiaries. For purposes of this Section 3(h), the terms "Material Adverse Change" and "Material Adverse Development" shall exclude continuing losses that are consistent with the Company's historical losses. Except as disclosed in Schedule 3(h) or in conjunction the Company’s periodic reports on Form 10-Q, since the date of the Company’s most recent audited financial statements contained in a Form 10-K, neither the Company nor any of its Subsidiaries has (i) declared or paid any dividends on its Common Stock; (ii) sold any assets, individually or in the aggregate, in excess of $100,000 outside of the ordinary course of business, consistent with all prior practice; (iii) except as set forth in Schedule 3(h), had capital expenditures, individually or in the aggregate, in excess of $100,000; (iv) issued any stock, bonds or other corporate securities or any rights, options or warrants with respect thereto; (v) borrowed any amount or incurred or become subject to any liabilities (absolute or contingent) except current liabilities incurred in the ordinary course of business, consistent with prior practice, which are comparable in nature and amount to the current liabilities incurred in the ordinary course of business, consistent with prior practice, during the comparable portion of its prior fiscal year, as adjusted to reflect the current nature and volume of the Company's or such changessubsidiary's business; (vi) discharged or satisfied any lien or encumbrance or paid any obligation or liability (absolute or contingent), other than current liabilities paid in the ordinary course of business, consistent with prior practice; (vii) declared or made any payment or distribution of cash or other property to stockholders with respect to its stock, or purchased or redeemed, or made any agreements so to purchase or redeem, any shares of its capital stock; (viii) sold, assigned or transferred any other tangible assets, or canceled any debts or claims, except in the ordinary course of business, consistent with prior practice; (ix) sold, assigned or transferred any patent rights, trademarks, trade names, copyrights, trade secrets or other intangible assets or intellectual property rights, or disclosed any proprietary confidential information to any person except to customers in the ordinary course of business, consistent with prior practice, or to the Purchasers or their representatives; (x) suffered any material losses or waived any rights of material value, whether or not arising in the Ordinary Course ordinary course of Businessbusiness, could reasonably be expected to have a Material Adverse Effect on or suffered the Businessloss of any material amount of prospective business; (bxi) Any cancellation made any changes in employee compensation except in the ordinary course of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businessbusiness and consistent with past practices; (cxii) Any mortgage, encumbrance made capital expenditures or Lien (other than a Permitted Lien) placed on any commitments therefor that aggregate in excess of the Transferred Assets which will remain on the Closing Date$50,000; (dxiii) Any material obligation or liability of entered into any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets transaction other than in the Ordinary Course ordinary course of Businessbusiness, or entered into any other material transaction, whether or not in the ordinary course of business; (fxiv) Any made charitable contributions or pledges in excess of $10,000; (xv) suffered any material damage, destruction or casualty loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (gxvi) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; experienced any material change, problems with labor or management in connection with the obtaining terms and conditions of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any their employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (hxvii) Except for employee turnover effected any two or more events of the foregoing kind which in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which aggregate would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions be material to the Business other than transactions in the Ordinary Course of BusinessCompany or its subsidiaries; or (mxviii) Any material agreement or understanding whether in writing entered into an agreement, written or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified foregoing actions. Except as set forth in paragraphs (a) through (l) aboveSchedule 3(h), neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have any knowledge or reason to believe that its creditors intend to initiate involuntary bankruptcy proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so.

Appears in 1 contract

Samples: Securities Purchase Agreement (Mabcure Inc.)

Absence of Certain Changes. Since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement1991, there has not beenoccurred or arisen any of the following: (a) Any any change in the properties, assets, liabilities, nature of the business, prospects, financial condition, or manner of conducting the business of PMSI, other than changes in the ordinary course of business, none of which has had, or may reasonably be expected to have, a material adverse effect on PMSI's business as presently conducted; or (b) any damage or casualty loss (including, without limitation, any occurrence affecting the soil or groundwater condition (financial of any real property presently or otherwiseformerly owned, operated or leased by PMSI), results whether covered by insurance or not, having a material adverse effect on PMSI's business as presently conducted; or (c) any declaration, setting aside or payment of operations a dividend (whether in cash, stock or property) in respect of, or repurchase or redemption of, the capital stock of PMSI; or (d) any actual or, to the Business which change knowledge of PMSI, threatened strike (whether asserted or unasserted) or other labor trouble or dispute involving employees of PMSI that has had or is having a material adverse affect on PMSI's business as presently conducted; or (e) any borrowing or lending of money or guarantee of any obligation by itself PMSI, except in the ordinary course of business not involving any employee or director of PMSI; or (f) any disposition of any material properties or assets used in the business of PMSI, except sales from inventory made in the ordinary course of business; or (g) any violation of or conflict with any applicable laws, statutes, orders, rules or regulations promulgated or judgment entered by any court, Government Entity or other competent authority which, individually or in conjunction with all other such changesthe aggregate, whether has had or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect material adverse effect on the Business;PMSI's business as presently conducted; or (bh) Any cancellation any notice of any material debt violation, inquiry or claim owing to, investigation by any Governmental Entity that has had or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect material adverse effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing FacilityPMSI's business as presently conducted; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility;or (i) Any change in the manner any disposal or lapse of keeping booksany patent, accounts trademark, trade name or recordsservice mark xxxistration, accounting methods copyright, copyright registration or practices, standard costs, credit practices or collection or pricing policies used by the Business;any application therefor; or (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost compensation of raw materials other than such changes which have arisen in the Ordinary Course any of Business;PMSI's employees, officers or directors; or (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in arrangement by PMSI to do any of the transactions or events or require any Seller Entity to take any of the actions specified things described in paragraphs (a) through (l) abovethis Section 2.10.

Appears in 1 contract

Samples: Joint Venture Agreement (Molecular Simulations Inc)

Absence of Certain Changes. Since December 31Except as disclosed in Schedule 3.9, 2007 (except as provided below)of the Agreement Date, the Seller Entities Acquired Companies have conducted their business since the Business most recent Balance Sheet Date only in the Ordinary Course of Business. Without limiting the generality of the foregoing, and as of the Agreement Date, since the Most Recent Balance Sheet Date, except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement3.9, there has not beenbeen any event, occurrence or development that has had a Material Adverse Effect, and none of the Acquired Companies has: (a) Any change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of suffered any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction destruction, or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on any of the Transferred Assets Company or the BusinessSubsidiaries’ properties or assets (whether owned or leased) in excess of $250,000 in the aggregate; (gb) Any labor trouble adopted or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or proposed any amendment to any such existing agreement) with any officer, director or employee Organizational Document of any Seller Entity rendering services principally relating to Acquired Company; (c) acquired, sold, transferred, licensed or assigned, surrendered, waived, abandoned, released or otherwise disposed of any material right, power, claim debt, asset or property (tangible or intangible) of the Business other than Company, except in the Ordinary Course of Business; (hd) Except for employee turnover made any capital expenditure or committed to make any capital expenditure which exceeded $250,000; unless (i) undertaken in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) substantially consistent with respect planned capital expenditures contemplated by the 2014 budget; (e) mortgaged, pledged or subjected to Liens, other than Permitted Liens, any assets of the development and manufacture Acquired Companies, except pursuant to Material Contracts; (f) assumed, incurred or guaranteed any Indebtedness, other than any borrowings under any existing credit facility, or modified the terms of lateral flow immunoassay products and related products at any existing Indebtedness; (g) amended or modified any Material Contract or terminated any Material Contract; (h) made any material alteration in the Existing Facilitymanner of keeping the books, accounts, or records of any Acquired Company or in the accounting practices reflected therein, nor has any Acquired Company amended any Tax Returns; (i) Any change in the manner made any material Tax election, changed its method of keeping books, accounts Tax accounting or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Businesssettled any claim relating to Taxes; (j) Any change in created a new Benefit Plan, or any Seller Entity’s business relationship with any material supplierincrease or modification in, customer or other entity having business relations with such Seller Entity arising out termination of, relating any Benefit Plan, except as required to keep any such Benefit Plan in compliance with applicable Laws (including the Code or resulting from ERISA); (k) increased or changed the Business including compensation or benefits payable or to become payable by any material increase Acquired Company to any of its directors, officers, or notice thereof in the cost of raw materials other than such changes which have arisen employees, except in the Ordinary Course of Business; (kl) Any (i) promotional salesdeclared, discount activityset aside, deferred or accelerated revenue activity, including paid any rebate, discount dividend or other promotional programsdistribution with respect to the capital stock or equity of the Acquired Companies (other than from one Subsidiary to another Subsidiary or the Company or pursuant to any redemption, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension repurchase or other credit practicesacquisition or agreement to redeem, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue repurchase or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business acquire any such capital stock or materially inconsistent with past practiceequity); (lm) Any other transaction entered into by any Seller Entity that is individually redemption, split, combination or taken together with all such other transactions material reclassification of any capital stock of any Acquired Company; (n) paid any payments or discounts granted to the Business customers of any Acquired Company other than transactions in the Ordinary Course of Business; or (mo) Any material agreement or understanding agreed, whether in writing or otherwise, that would result in to do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Merger Agreement (Blackhawk Network Holdings, Inc)

Absence of Certain Changes. Since December 31, 2007 (except Except as provided below), set forth in Section 5.09 of -------------------------- the Seller Entities have conducted the Business only in the Ordinary Course of Business, SELLER Disclosure Letter and except as disclosed in Schedule 4.7 and except for changes in connection with required by, made necessary by reason of or contemplated by the transactions expressly contemplated under Transaction Documents or the Transactions, since the Balance Sheet Date through the date of this Agreement, there has not been: (a) Any change There has been no Material Adverse Effect, other than changes relating to the economy in general or the propertieschemical industry in general, assets, liabilities, business, condition (financial or otherwise), results of operations changes resulting from the announcement by SELLER of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Businesstransactions contemplated hereby; (b) Any cancellation The Companies have not incurred any Indebtedness that exceeds in the aggregate US$10,000,000, other than in the ordinary course of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businessbusiness; (c) Any mortgage, encumbrance or There has not been created any material Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on assets, tangible or intangible, of the Closing DateCompanies, other than Permitted Liens; (d) Any material obligation Other than any sale, transfer or liability lease made pursuant to any Transfer Contract, there has not been any sale, transfer or lease of any nature (as guarantor or otherwise with respect to assets of the obligations of others)Companies, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course ordinary course of Businessbusiness, in an aggregate amount in excess of US$10,000,000; (e) Any purchaseNo physical damage, sale restriction or other disposition, loss has been incurred by any Company that individually or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Businessaggregate would have a Material Adverse Effect; (f) Any damage, destruction Except for changes and write-ups associated with (i) the Continuing Affiliate Contracts or loss, whether or not covered by insurance, which could reasonably be expected to have (ii) the establishment and implementation of a Material Adverse Effect on the Transferred Assets or separate information system and a separate accounting process of the Business, there has not been any material change in the Tax or accounting methods or practices followed by any Company or any material change in depreciation or amortization policies or rates previously adopted or any write-up of inventory or other assets; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; There has not been (i) any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (manner in which any Company extends discounts or credits to customers except for any such changes made in the form ordinary course of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Businessbusiness, or (ii) any bonus payment material change in the manner or arrangement made to terms by which any Company collects its accounts receivable or otherwise deals with any of such officers, employees, agents or independent contractors customers other than in the Ordinary Course utilization by the Companies of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering collection services principally relating to the Business other than in the Ordinary Course of Businessprovided by Ernst & Young; (h) Except for employee turnover There has not been any material failure by any Company to pay U.S. Payables when due, other than in the Ordinary Course ordinary course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facilitybusiness; (i) Any change in The Companies have not liquidated or dissolved, consolidated with, or merged into or with, any other Person, or purchased or otherwise acquired all or substantially all of the manner assets of keeping books, accounts any Person (or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Businessof any division thereof); (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from The Companies have not decreased the annual spending of the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business;for research and development below historic levels; and (k) Any (i) promotional salesThere has not been any agreement, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in by any of the transactions or events or require any Seller Entity Company to take any of the actions specified restricted by any of clauses (b), (c), (d), (f), (g), (i) or (j) in paragraphs (a) through (l) abovethis Section 5.09.

Appears in 1 contract

Samples: Master Sale Agreement (RPP Capital Corp)

Absence of Certain Changes. Since December March 31, 2007 (2014, except as provided below), the Seller Entities have conducted the Business only identified and described in the Ordinary Course of BusinessSEC Filings, Acquiror has conducted its business in the ordinary course consistent with past practice and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change in the propertiesany Effect that, assets, liabilities, business, condition (financial individually or otherwise), results of operations of the Business which change by itself or in conjunction taken together with all other such changesEffects that have occurred prior to the Closing, whether or not arising in the Ordinary Course of Business, could would reasonably be expected to have a Material Adverse Effect on the BusinessAcquiror or its subsidiaries, taken as a whole; (b) Any cancellation any change in the consolidated assets, liabilities, financial condition or operating results of any material debt Acquiror from that reflected in Acquiror’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2014, except for changes in the ordinary course of business which, individually or claim owing toin the aggregate, or waiver of any material right ofwould not reasonably be expected to have a Material Adverse Effect on Acquiror and its subsidiaries, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businesstaken as a whole; (c) Any mortgageany declaration or payment of any dividend, encumbrance or Lien (other than a Permitted Lien) placed any authorization or payment of any distribution, on any of the Transferred Assets which will remain on the Closing Datecapital stock of Acquiror, or any redemption or repurchase of any securities of Acquiror; (d) Any any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insuranceinsurance to any assets or properties of Acquiror or its subsidiaries; (e) any waiver, not in the ordinary course of business, by Acquiror or any of its subsidiaries of a material right or of a material debt owed to it, other than inter-company debt; (f) any satisfaction or discharge of any lien, claim or Encumbrance or payment of any obligation by Acquiror or its subsidiaries, except in the ordinary course of business consistent with past practice and which could is not material to the assets, properties, financial condition, operating results or business of Acquiror; (g) any change or amendment to Acquiror’s Certificate of Incorporation or Bylaws; (h) the loss of the services of any executive officer (as defined in Rule 405 under the Securities Act) of Acquiror; or (i) the loss of any customer which, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material changeAcquiror and its subsidiaries, or the obtaining of information concerning taken as a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) abovewhole.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Glu Mobile Inc)

Absence of Certain Changes. Since December 31the date of the Balance Sheet, 2007 (except as provided below), the Seller Entities have conducted the Business only i) there has been no change in the Ordinary Course assets, liabilities or financial condition of Business, the Company and except as disclosed its Subsidiaries from that reflected in Schedule 4.7 and the Balance Sheet except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change ordinary course of business which in the properties, assets, liabilities, aggregate have not been materially adverse and (ii) none of the business, condition (financial condition, operations, property or otherwise), results of operations affairs of the Business which change Company and its Subsidiaries has been materially adversely affected by itself any occurrence or development, individually or in conjunction with all other such changesthe aggregate, whether or not arising insured against; provided, that operating losses in the Ordinary Course ordinary course of Businessbusiness subsequent to the date of the Balance Sheet shall not be considered as such a materially adverse occurrence or development. Since the date of the Balance Sheet, could reasonably be expected to have a Material Adverse Effect except as set forth on Schedule 3.2.9, neither the Business; Company nor any of its Subsidiaries has (a) issued any stock, bonds or other securities, (b) Any cancellation borrowed any amount or incurred any liabilities (absolute or contingent), other than liabilities incurred in the ordinary course of business and consistent with past practice and that do not exceed $100,000 in the case of any material debt or claim owing to, or waiver of any material right of, the Seller Entities one liability or any Affiliate arising fromseries of related liabilities, relating to or resulting from the Business; (c) Any mortgagedischarged or satisfied any Lien or paid any obligation or liability (absolute, encumbrance accrued or Lien (contingent), other than a Permitted Lien) placed on any of the Transferred Assets which will remain current liabilities reflected on the Closing Date; Balance Sheet, (d) Any material obligation declared, set aside or liability made any payment or distribution to shareholders or purchased or redeemed any shares of any nature (as guarantor its capital stock or otherwise with respect to the obligations of others)other securities, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchasemortgaged, sale pledged or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of otherwise subjected to a Lien any of the Transferred Assets its assets, tangible or intangible, other than in the Ordinary Course of Business; Liens for current taxes not yet due and payable and Immaterial Liens, (f) Any sold, assigned or transferred any of its tangible assets or cancelled any debts or claims, (g) sold, assigned or transferred any patents, trademarks, trade names, copyrights, trade secrets, permits, licenses, rights, Easements or other intangible assets, (h) suffered any material loss of property, or waived any rights of substantial value, whether or not in the ordinary course of business, (i) made any change in executive compensation, (j) entered into any transaction the value of which exceeds $100,000, (k) made capital expenditures, or commitments therefore, in excess of $100,000 in the aggregate, (l) suffered damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim casualty in excess of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change $50,000 in the compensation aggregate, (in the form of salariesm) surrendered, wageshad revoked or suspended or otherwise terminated or had terminated any license, incentive arrangements permit, Easement or otherwise) payable other approval, authorization or consent from any court, administrative agency or other governmental authority relating to become payable by any Seller Entity to any its business operations or construction of its officerssystems, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement (n) made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel manner of business or operations of the Company, (o) entered into any transaction except in the responsibilities ordinary course of business or reporting relationships of the employees (i) of the Business as otherwise contemplated hereby or (iip) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or commitment (m) Any material agreement or understanding whether in writing contingent or otherwise, that would result in ) to do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Series B Preferred Stock and Warrant Purchase Agreement (Huff Alternative Income Fund Lp)

Absence of Certain Changes. Since Except as set forth in Exhibit ------- 3.8, since December 31, 2007 (except as provided below)1996, the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there Business and the --- Xxxxxx Assets has not been:not (a) Any change suffered any material adverse change, whether or not caused by any deliberate act or omission of Seller, in the properties, assets, liabilities, business, its condition (financial or otherwise), results of operations of the Business which change by itself operations, assets, liabilities, business or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Businessprospects; (b) Any cancellation contracted for the purchase of any material debt capital assets having a cost in excess of $25,000 or claim owing to, or waiver paid any capital expenditures in excess of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business$25,000; (c) Any mortgage, encumbrance incurred or Lien (other than a Permitted Lien) placed on discharged any liabilities or obligations except in the ordinary course of the Transferred Assets which will remain on the Closing Datebusiness; (d) Any material obligation mortgaged, pledged or liability subjected to any security interest, lien, lease or other charge or encumbrance any of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of BusinessXxxxxx Assets; (e) Any purchase, sale suffered any damage or other dispositiondestruction to or loss of any Xxxxxx Assets (whether or not covered by insurance) that has materially and adversely affected, or any agreement or other arrangement for could materially and adversely affect, the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction acquired or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on disposed of any Xxxxxx Assets except in the Transferred Assets or the Businessordinary course of business; (g) Any labor trouble written up or dispute or claim written down the carrying value of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of BusinessXxxxxx Assets; (h) Except changed the costing system or depreciation methods of accounting for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing FacilityXxxxxx Assets; (i) Any change in the manner of keeping books, accounts waived any material rights or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Businessforgiven any material claims; (j) Any change in lost or terminated any Seller Entity’s business relationship with any material supplierXxxxxx employee, customer or other entity having business relations with such Seller Entity arising out ofsupplier, relating to the loss or resulting from the termination of which has materially and adversely affected, or could materially and adversely affect, Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of BusinessXxxxxx Assets; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including increased the compensation of any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments Xxxxxx employee except in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect ordinary course of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practicebusiness; (l) Any other transaction entered into by into, adopted or amended any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of BusinessCompensation Plan; or (m) Any entered into any other commitment or transaction or experienced any other event that is material agreement to this Agreement or understanding whether in writing or otherwise, that would result in to any of the other agreements and documents executed or to be executed pursuant to this Agreement or to the transactions contemplated hereby or events thereby, or require any Seller Entity to take any that has materially and adversely affected, or could materially and adversely affect, the condition (financial or otherwise), operations, assets, liabilities, business or prospects of the actions specified in paragraphs (a) through (l) aboveBusiness.

Appears in 1 contract

Samples: Asset Purchase Agreement (Stevens International Inc)

Absence of Certain Changes. Since December 31Except as Previously Disclosed or contemplated by this Agreement or the other Transaction Documents, 2007 since August 2, 2008 (except as provided belowthe "Balance Sheet Date"), the Seller Entities have Company has conducted the Business only its business in the Ordinary Course ordinary course of Businessbusiness consistent with past practice. Except as Previously Disclosed or contemplated by this Agreement or the other Transaction Documents, and except as disclosed in Schedule 4.7 and except for changes in connection with from the transactions expressly contemplated under Balance Sheet Date through the date of this Agreement, there (1) no fact(s), change(s), event(s), development(s) or circumstance(s) has or have occurred, arisen, come into existence or become known, which have had or are reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (2) the Company has not been: incurred any liabilities (a) Any change in the properties, assets, liabilities, business, condition (financial contingent or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising than trade payables and accrued expenses incurred in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, that could not reasonably be expected to have have, individually or in the aggregate, a Material Adverse Effect on Effect; (3) the Business; Company has not altered its method of accounting; (b4) Any cancellation the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any material debt agreements to purchase or claim owing toredeem any shares of its capital stock; (5) the Company has not (A) sold, assigned, transferred, abandoned, mortgaged, pledged or waiver of subjected to any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted LienLiens) placed on any of the Transferred Assets which will remain on the Closing Date; its material properties, tangible or intangible, or rights under any Material Contract or (dB) Any waived or cancelled any material obligation amounts of indebtedness or liability of any nature (as guarantor or otherwise with respect other obligations owed to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; Company; (e6) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course ordinary and usual course of Business; business consistent with past practice, the Company has not (fA) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; granted any material change, severance or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity termination pay to any director or officer of its officersthe Company, employees, agents or independent contractors rendering services principally relating to the Business, or (B) entered into any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any material employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships officer of the employees Company, (iC) materially increased benefits payable to any director or officer of the Business Company under any existing severance or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts termination pay policies or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Businessemployment agreements, or (ivD) change in credit extension materially increased the compensation, bonus or other credit practicesbenefits payable to directors or officers of the Company, including changes other than merit increases in credit limits and underwriting standards, salaries at regularly scheduled times in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent customary amounts consistent with past practice; practices; (l7) Any other transaction entered into by the Company has not amended any Seller Entity term of any outstanding security of the Company that is individually or taken together with all would materially increase the obligations of the Company under such other transactions material security; and (8) the Company has not issued any Equity Interests to any person, except (A) grants made and Previously Disclosed prior to the Business other than transactions in date hereof pursuant to existing Company Stock Plans; and (B) issuances of Common Stock upon the Ordinary Course exercise of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in Company Options. The Company does not have pending before the SEC any request for confidential treatment of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveinformation.

Appears in 1 contract

Samples: Investment Agreement (Gottschalks Inc)

Absence of Certain Changes. Since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not beenEffective Time: (a) Any change in there has not been any casualty loss or condemnation with respect to the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the BusinessAssets; (b) Any cancellation Seller has operated the Assets and the business of the Acquired Companies with respect to the Assets, in the ordinary course in accordance with recent past practice and with the JV Agreements, including any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businessvalid and outstanding budgets issued thereunder; (c) Any mortgageSeller has not transferred, encumbrance sold, mortgaged, pledged, hypothecated, encumbered or Lien (other than a Permitted Lien) placed on otherwise disposed of any of the Transferred Assets which will remain on Assets, except for (i) sales and dispositions of Hydrocarbons in the Closing Dateordinary course of business, (ii) sales and dispositions of equipment and materials that are surplus, obsolete or replaced, and (iii) other sales and dispositions of personal property individually not exceeding One Hundred Thousand Dollars ($100,000); (d) Any material obligation or liability of any nature (as guarantor or otherwise Seller has maintained, and if the operator thereof, operated the Assets in accordance with respect to the obligations of others)JV Agreements, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (le) Any other transaction entered into except those listed on Schedule 4.17(d), Seller has not committed to any single operation, or series of related operations, reasonably anticipated by Seller to require future capital expenditures by the owner of the Assets in excess of One Hundred Thousand dollars ($100,000) (net to Seller’s interest) or make any Seller Entity that is individually or taken together with all such other transactions material capital expenditures related to the Business other than transactions Assets in excess of One Hundred Thousand Dollars ($100,000) (net to Seller’s interest); (f) Seller has maintained insurance coverage on the Assets, in the Ordinary Course amounts and of Business; orthe types currently in force; (mg) Any Seller has given prompt written notice to Purchaser of any material agreement damage to or understanding whether in writing or otherwise, that would result in destruction of the any of the transactions Assets; and (h) Except with respect to four Qualified JV Employees, the information for which has been provided by Seller to Purchaser, Seller has not increased the compensation or events or require benefits of any Seller Entity Qualified JV Employees that Purchaser has the right to take any of the actions specified in paragraphs (a) through (l) aboveoffer employment.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Alpha Natural Resources, Inc.)

Absence of Certain Changes. (a) Since December 31, 2007 2023, there has occurred no event or development which, individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect. (b) Since December 31, 2023, (i) the Stockholders have operated the Acquired Companies in the Ordinary Course of Business and in compliance with all applicable Laws and to the extent consistent therewith, used its reasonable best efforts to preserve intact its current business organization, kept its physical assets in good working condition, excepting for normal wear and tear, kept available the services of its current officers and employees and preserved its relationships with customers, suppliers and others having business dealings with it to the end that its goodwill and ongoing business have not been impaired in any material respect, and (ii) except as provided below)for the matters set forth on Section 3.6(b) of the Disclosure Schedule, none of the Seller Entities have conducted Acquired Companies has taken any of the Business only following actions: (i) issued, redeemed, sold, pledged, disposed of, granted, transferred or encumbered any shares of capital stock of, or other Equity Securities in, any Acquired Company of any class, or securities convertible into, or exchangeable or exercisable for, any shares of such capital stock or other Equity Securities, or any options, warrants or other rights of any kind to acquire any shares of such capital stock or other Equity Securities or such convertible or exchangeable securities of any Acquired Company; (ii) split, combined or reclassified any of its Equity Securities, or declared, set aside or paid any dividend or other distribution (whether in cash, stock or property, or any combination thereof, and other than periodic distributions to pay Taxes) in respect of its Equity Securities; (iii) other than trade payables incurred in the Ordinary Course of Business, and except as disclosed created, incurred or assumed any indebtedness (including obligations in Schedule 4.7 and except respect of capital leases), assumed, guaranteed, endorsed or otherwise became liable or responsible (whether directly, contingently or otherwise) for changes in connection with the transactions expressly contemplated under this Agreementobligations of any other Person, there has not been:or made any loans, advances or capital contributions to, or investments in, any other Person; (aiv) Any change entered into, adopted or amended any Company Plan or any employment or severance agreement or arrangement, or increased in the propertiesany manner, assets, liabilities, business, condition (financial or otherwise), results outside of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected the compensation or benefits of any directors, officers or employees paid at an annual base compensation of $100,000 or greater, other than any increase to have a Material Adverse Effect such service provider’s base compensation that, when combined with all other increases to such service provider’s base compensation in the prior twelve (12) month period, did not exceed five percent (5%) of such service provider’s base compensation on the date of such increase or increases and was in the Ordinary Course of Business or paid, outside of the Ordinary Course of Business, any bonus or severance to its directors, officers or employees, or accelerated the vesting of, or payment of, any compensation under any Company Plan or hired or terminated (except for cause) any officers or any employees; (bv) Any cancellation acquired, sold, leased, licensed or disposed of any material debt assets or claim owing to, property (including any shares or waiver other Equity Securities of any material right of, the Seller Entities Subsidiary or any Affiliate arising fromcorporation, relating to partnership, association or resulting from the Business; (c) Any mortgageother business organization or division thereof), encumbrance or Lien (other than a Permitted Lien) placed on any purchases and sales of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations inventory and liabilities which are not Assumed Liabilities or were incurred supplies in the Ordinary Course of Business; (evi) Any purchase, sale mortgaged or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of pledged any of the Transferred Assets its property or assets or subjected any such property or assets to any Lien; (vii) discharged or satisfied any Lien or paid any obligation or liability other than in the Ordinary Course of Business; (fviii) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Businessamended its Governing Documents; (gix) Any labor trouble changed its accounting methods, principles or dispute practices, except insofar as may be required by a generally applicable change in GAAP; (x) (i) made, changed or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; revoked any material Tax election, (ii) settled or compromised any material claim, notice, audit report or assessment for Taxes, (iii) changed (or requested to any Governmental Entity to change) any material aspect of any method of accounting for Tax purposes, (iv) filed any Tax Return (other than an amended Tax Return) unless such Tax Return shall have been prepared in a manner consistent with past practice of the Acquired Companies; (v) filed any amended Tax Return, (vi) failed to file any Tax Return when due (or, alternatively, failed to file for available extensions) or failed to cause such Tax Returns when filed to be complete and accurate in all respects, (vii) failed to pay any amount of Taxes when due, (viii) entered into any closing agreement relating to Taxes, (ix) surrendered, compromised or forfeited any claim for a refund of Taxes, (x) filed any ruling request or made a voluntary Tax disclosure, amnesty filing or similar disclosure, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwisexi) payable or to become payable by any Seller Entity consented to any extension or waiver of its officersthe statute of limitations period applicable to any Tax claim or assessment; (xi) entered into, employeesamended, agents terminated, taken or independent contractors rendering services principally relating omitted to the Businesstake any action that would constitute a violation of or default under, or waived any bonus payment rights under, any Contract or arrangement made agreement of a nature required to be listed in Section 3.10, Section 3.11 or with Section 3.14 of the Disclosure Schedule; (xii) formed any of such officersSubsidiary; (xiii) purchased, employeessold, agents assigned, transferred, licensed, leased, abandoned or independent contractors other than in the Ordinary Course of Business; any entering into or amending otherwise disposed of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business Company Owned Intellectual Property other than in the Ordinary Course of Business; (hxiv) Except for employee turnover made or committed to make any capital expenditure in excess of $50,000 per item or $250,000 in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facilityaggregate; (ixv) Any change in the manner of keeping books, accounts instituted or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Businesssettled any Legal Proceeding; (jxvi) Any change in any Seller Entity’s business relationship with any material supplieradopted a plan of complete or partial liquidation, customer dissolution, merger, restructuring or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Businessrecapitalization; or (mxvii) Any material agreement agreed to take, authorize or understanding whether in writing or otherwise, that would result in approve any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing actions.

Appears in 1 contract

Samples: Stock Purchase Agreement (American Superconductor Corp /De/)

Absence of Certain Changes. Since December 31the date of the unaudited consolidated balance sheet of the Company and its Subsidiaries as of September 30, 2007 2016 (except the unaudited consolidated balance sheet as provided below)of September 30, 2016, the Seller Entities have conducted “Interim Balance Sheet”): (i) each of the Business only Company and its Key Subsidiaries has carried on and operated its business in all material respects in the Ordinary Course ordinary course of Business, business consistent with past practice; (ii) there has not been a Material Adverse Effect; (iii) the Company has maintained its business as a going concern; and except as disclosed in Schedule 4.7 and except for changes in connection with (iv) no dividend or distribution has been declared or paid by the transactions expressly contemplated under Company. As of the date of this Agreement, there the Company has no current plans to liquidate or wind-up any of its Key Subsidiaries. Since the date of the Interim Balance Sheet, the Company and its Key Subsidiaries have not beendone any of the following: (a) Any change in amended or modified the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the BusinessGoverning Documents; (b) Any cancellation of any material debt amended, modified, cancelled or claim owing to, or waiver of any material right of, terminated the Seller Entities or any Affiliate arising from, relating to or resulting from Debt Documents (as defined in the BusinessStockholders Agreement); (c) Any mortgagedeclared, encumbrance set aside or Lien paid any dividend or made any distribution, or agreed to declare, set aside or pay any dividend or make any distribution (other than a Permitted Lienwhether in cash or in kind) placed on with respect to its ownership interests, or redeemed, purchased, or otherwise acquired any of the Transferred Assets which will remain on the Closing Dateits ownership interests; (d) Any material obligation made any change in its accounting principles or liability practices or its method of any nature (application of such principles or practices, except as guarantor or otherwise with respect may be concurred to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Businessits independent public accountants; (e) Any purchasetaken any action that would cause any information, sale statements or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than disclosures contained in the Ordinary Course of BusinessInformation Package to be untrue, inaccurate or misleading, in any material respect; (f) Any damage, destruction or loss, whether or not covered by insurance, which could taken any action that would reasonably be expected to have result in a Material Adverse Effect on the Transferred Assets or the BusinessEffect; (g) Any labor trouble except as would not affect the information presented in the Financial Statements in any material respect, made or dispute or claim of unfair labor practices involving changed any Seller Entity Tax election, filed any Return, entered into any closing agreement with respect to the Business Taxes, settled any Tax claim, assessment or the related manufacturing operation at the Existing Facility; any material changedeficiency, or consented or agreed to any extension or waiver of the obtaining of information concerning a prospective change, limitation period with respect to the management a Tax claim, assessment or deficiency, surrendered any right to claim a refund of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the BusinessTaxes, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation changed an annual Tax accounting period or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee method of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business;Tax accounting; or (h) Except for employee turnover in the Ordinary Course of Business, committed to any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of for the transactions or events or require any Seller Entity Company to take any of the actions specified in paragraphs (a) through (l) abovethis Section 2.8.

Appears in 1 contract

Samples: Subscription Agreement (Laureate Education, Inc.)

Absence of Certain Changes. Since December 31, 2007 (except as provided below)1997, with respect to the Seller Entities have conducted the Business only in the Ordinary Course of BusinessCenter, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there Westlake has not beennot: (a) Any suffered any material adverse change in the propertiesits working capital, financial condition, assets, liabilities, businessbusiness or prospects, condition or suffered any material casualty loss (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Businessinsured); (b) Any cancellation made any change in its business or operations or in the manner of any material debt or claim owing toconducting its business, or waiver other than changes in the ordinary course of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businessbusiness; (c) Any mortgageincurred any obligations or liabilities (whether absolute, encumbrance accrued, contingent or Lien (otherwise and whether due or to become due), except items incurred in the ordinary course of business and consistent with past practice, or experienced any change in any assumptions or methods of calculating any bad debt, contingency or other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Datereserve; (d) Any material obligation paid, discharged or satisfied any claim, lien, encumbrance or liability of any nature (as guarantor or otherwise with respect to the obligations of others)whether absolute, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations otherwise and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable due or to become payable by any Seller Entity to any of its officersdue), employeesother than claims, agents or independent contractors rendering services principally relating to the Businessliens, encumbrances, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility;liabilities: (i) Any change which are reflected in the manner of keeping booksFinancial Information and which were paid, accounts discharged or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by satisfied since the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice date thereof in the cost ordinary course of raw materials other than such changes which have arisen in the Ordinary Course of Business;business consistent with past practice, or (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred which were incurred and paid, discharged or accelerated expense activitysatisfied since December 31, (iii) material reduction or elimination of expenses of or investments 1997 in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect ordinary course of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent business consistent with past practice; (e) written off as uncollectible any notes or accounts receivable or any portion thereof, except for immaterial write-offs made in the ordinary course of business consistent with past practice; (f) canceled any other debts or claims, or waived any rights, of substantial value; (g) sold, transferred or conveyed any of its properties or assets, except in the ordinary course of business consistent with past practice, other than its distribution to its partners of an aggregate undivided 57% interest in the Purchased Assets; (h) made any capital expenditures or commitments in excess of $10,000 in the aggregate for Asset Purchase Agreement/Page 4 -------------------------------------------------------------------------------- 5 replacements or additions to property, plant, equipment or intangible capital assets; (i) declared, paid or made or set aside for payment of, any distribution in respect of its outstanding partnership interests, other than distributions made in the ordinary course of business consistent with past practice, or directly or indirectly redeemed, purchased or otherwise acquired any of its partnership interests, other than its distribution to its partners of an aggregate undivided 57% interest in the Purchased Assets; (j) made any change in any method of accounting or accounting practice; (k) granted any increase in the compensation of any officer, employee or agent of Westlake who performs services for or on behalf of the Center, (including without limitation any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), other than increases in the ordinary course of business consistent with past practice, or adopted any such plan or other arrangement; and no such increase or the adoption of any such plan or arrangement, is planned or required; and (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding agreed, whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified action described in paragraphs (a) through (l) abovethis Section 4.7.

Appears in 1 contract

Samples: Asset Purchase Agreement (Amsurg Corp)

Absence of Certain Changes. Since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not been: (a) Any change Except as set forth in Section 3.7 of the Company Disclosure Schedule or as reflected on the Most Recent Unaudited Financial Statements, since the Balance Sheet Date, the Company has conducted their respective businesses in the propertiesordinary course and in a manner consistent with past practice, assetsand there has not been any event that has had, liabilitiesor would be reasonably expected to have, business, condition (financial or otherwise), results of operations of the Business which change by itself either individually or in conjunction with all other such changesthe aggregate, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business;Company. Without limiting the generality of the foregoing, except as set forth in Section 3.7 of the Company Disclosure Schedule, as reflected on the Most Recent Unaudited Financial Statements, or as expressly contemplated by this Agreement, since the Balance Sheet Date, the Company has not: ​ (bi) Any cancellation acquired, sold, leased, abandoned, allowed to lapse, licensed, transferred, mortgaged or assigned any material assets, tangible or intangible, other than sales of goods or services in the ordinary course of business consistent with past practice; ​ (ii) written down of the value of any material debt personal property or claim owing toother assets owned or used by the Company, including inventory and capital lease assets, except on account of depreciation and amortization in the ordinary course of business; ​ ​ (iii) incurred, assumed, guaranteed or discharged any Liability, including any Indebtedness or mortgages, or waiver of otherwise created or permitted to exist any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted LienLiens) placed on any of their respective assets, other than (except in the Transferred Assets which will remain on case of Indebtedness) in the Closing Date;ordinary course of business consistent with past practice; ​ (div) Any material obligation cancelled any debts or liability claims in excess of any nature (as guarantor or otherwise with respect $50,000 owed to the obligations Company or terminated, released, or waived any material rights or claims of others)the Company; ​ (v) acquired or sold, whether accruedassigned, absolutetransferred, contingent or otherwiseterminated, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out disposed of, relating or licensed from or to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchaseany Person, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets Intellectual Property other than in the Ordinary Course ordinary course of Businessbusiness; (fvi) Any damagematerially changed or modified any of the credit, collection or payment policies, procedures or practices of the Company; ​ (vii) committed to make any capital expenditure (or series of related capital expenditures) involving amounts that exceed $250,000 in the aggregate; ​ (viii) suffered any damages to or destruction or loss, of any tangible assets (whether or not covered by insurance), which could reasonably be expected involving amounts that exceed $100,000 in the aggregate; ​ (ix) modified any of their respective certificates of incorporation, bylaws or similar organizational documents; ​ (x) issued, sold or otherwise permitted to have a Material Adverse Effect become outstanding any shares of their respective capital stock, bonds, options or other securities of any type whatsoever of the Company, or split, combined, reclassified, repurchased or redeemed any such shares; ​ (xi) declared, set aside or paid any cash or non-cash dividend or made any cash or non-cash distribution in respect of any Equity Securities of the Company; ​ (xii) made any capital investment in, any loan to, or any acquisition of the securities or assets of any other Person other than acquisitions of inventory and supplies in the ordinary course of business consistent with past practice; ​ (xiii) failed to maintain in full force and effect insurance policies on their respective properties providing coverage and amounts of coverage comparable to the coverage and amounts of coverage provided under their policies of insurance in effect on the Transferred Assets or the Business;Balance Sheet Date; ​ (gxiv) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; made any change in the compensation (rate of compensation, commission, bonus or other direct or indirect remuneration payable, or agreed to pay, conditionally or otherwise, or established, adopted, amended, or terminated, any bonus, incentive, retention or other compensation, any change in control payment, deferred compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any employee, other than increases and payments in the form ordinary course of salaries, wages, incentive arrangements business and in a manner consistent with past practice in the compensation payable to employees (none of whom is a director or otherwiseofficer of the Company); ​ ​ ​ (xv) payable materially modified or to become payable by any Seller Entity to changed any of their respective business organizations or materially and adversely modified or changed their respective relationships with its officerssuppliers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development customers and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity others having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Businessthem; (kxvi) Any except as otherwise required by Law, entered into, amended, modified, varied, altered or otherwise changed any of the Plans; ​ (ixvii) promotional salesentered into, discount activitymodified, deferred terminated, waived, amended or accelerated revenue activityotherwise altered the terms or provisions of any Material Contract outside the ordinary course of business; ​ (xviii) settled or compromised any action, including suit or proceeding by or against the Company; ​ (xix) abandoned, permitted to lapse or failed to maintain in full force and effect any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the BusinessCompany Intellectual Property, or failed to take or maintain reasonable measures to protect the confidentiality of any Intellectual Property used by or for the Company in conducting their respective businesses; ​ (ivxx) change in credit extension made, revoked or other credit practiceschanged any Tax election, including changes in credit limits and underwriting standardschanged any annual Tax accounting period, in each casechanged any method of Tax accounting, which would have the effect of increasing the Revenue entered into any closing agreement with respect to any Tax, settled, conceded, compromised, or Pre-abandoned any Tax Profit set forth in the Purchase Price Financial Statements, in each case in claim or assessment or surrendered any right to claim a manner outside the Ordinary Course of Business Tax refund or materially inconsistent with past practicefiled any amended Tax Return; (lxxi) Any adopted a plan or agreement of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other transaction entered into by any Seller Entity that is individually material reorganization; or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (mxxii) Any material agreement authorized, agreed, resolved or understanding whether in writing or otherwise, that would result in committed to any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) above.foregoing. ​

Appears in 1 contract

Samples: Merger Agreement (Ideanomics, Inc.)

Absence of Certain Changes. Since December 31September 30, 2007 (2006 and except as provided below)set forth on Schedule 4.8, the Seller Entities Sellers have conducted the Polymers Business only in the Ordinary Course ordinary course consistent with past practices in all material respects and the Base Chemicals Business only in the ordinary course consistent with past practices in all material respects, taking into account repairs that are and have been ongoing at the XXX Facility. Without limiting the generality of Businessthe foregoing, and except as disclosed in Schedule 4.7 and except for changes in connection with since September 30, 2006 through the transactions expressly contemplated under this Agreement, there has not beenOriginal APA Date: (a) Any change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or there has not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of been any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Assets having a replacement cost of more than US$500,000 for any single loss or US$2,000,000 for all such losses; (b) except as expressly permitted pursuant to Section 6.1(m) or (n) or as required by applicable Law, the Sellers have not entered into, nor amended or modified, any Employment Agreements or Labor Agreements with a Business or the related manufacturing operation at the Existing Facility; any material changeEmployee, or the obtaining of information concerning a prospective change, with respect agreed to the management of Business; any change in increase the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity it to any of its officersthe Business Employees or agreed to increase the coverage or benefits available under any Employee Benefit Plan, employeescompany award, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to to, for or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of BusinessEmployees; (hc) Except for employee turnover in the Ordinary Course of Business, there has not been any material change by the Sellers in the personnel accounting principles, methods or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) policies with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing FacilityBusiness (except as may have been required by changes in applicable Law or by changes in GAAP); (id) Any change the Sellers have not mortgaged, pledged or otherwise subjected to any Lien (other than Permitted Liens, Liens representing capital lease obligations for equipment acquired in the manner ordinary course of keeping booksbusiness, accounts and Liens that will be released at or recordsprior to the Polymers Closing or the Base Chemicals Closing, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by as the Business; (jcase may be) Any change in any Seller Entity’s business relationship with any of the material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the BusinessAssets, or (iv) change in credit extension acquired any of the Assets or other credit practicessold, including changes in credit limits and underwriting standardsassigned, transferred, conveyed, leased or otherwise disposed of any of the Assets, except for those of the Assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of, in each case, which would in the ordinary course of business; (e) the Sellers have not canceled or compromised any material claim or amended, modified, canceled, terminated, relinquished, waived or released any Material Contract or right to the effect extent related to the Business or the Assets, except in the ordinary course of increasing business; and (f) the Revenue Sellers have not agreed, committed or Pre-Tax Profit entered into any understanding to do anything set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) abovethis Section 4.8.

Appears in 1 contract

Samples: Asset Purchase Agreement (Huntsman International LLC)

Absence of Certain Changes. Since December May 31, 2007 (except as provided below)2002, the Seller Entities have has conducted the Business only manufacture and sale of the Products in the Ordinary Course of Businessordinary course consistent with past practice and Seller, and except as disclosed in Schedule 4.7 and except for changes in connection with respect only to the transactions expressly contemplated under this Agreement, there has not beenPurchased Assets: (a) Any change has not created, incurred or assumed (i) any borrowings under capital leases, or (ii) any obligation which in any material way affect the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the BusinessPurchased Assets; (b) Any cancellation of has not changed in any material debt manner the compensation of, or claim owing agreed to provide additional benefits to, or waiver of enter into any material right ofemployment agreement with, the Seller Entities or any Affiliate arising from, relating to or resulting from the BusinessEmployee (as hereinafter defined); (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any has maintained insurance coverage in amounts adequate to cover the reasonably anticipated risks of the Transferred Assets which will remain on business conducted with the Closing DatePurchased Assets; (d) Any material obligation has not acquired or liability of agreed to acquire by merging or consolidating with, or by purchasing any nature (as guarantor assets or equity securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise with respect acquire or agree to acquire any assets, which acquisition is or would be material, individually or in the aggregate, to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business;Purchased Assets. (e) Any purchasehas not sold, sale disposed of or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of encumbered any of the Transferred Purchased Assets other than or licensed any Purchased Assets to any Person except for the sale of Inventory (as hereinafter defined) in the Ordinary Course normal course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (f) has not engaged in any special promotion which promotes the sale of Inventory with highly discounted terms; (g) with the exception of this Agreement, has not entered into any agreements or commitments relating to the Purchased Assets, except in the ordinary course of business; (h) has complied in all material respects with all laws and regulations applicable to the Purchased Assets; (i) has not entered into any agreement with any third party for the distribution of any of the Purchased Assets, except in the ordinary course of business; (j) has not changed or announced any change to the Products; (k) has not expanded the use of the Purchased Assets within the organization of Seller beyond any use consistent with Seller's past practices; (l) Any other transaction entered into by has not violated, amended or otherwise changed, in any Seller Entity that is individually way the terms of any of the Contracts; (m) has not commenced a lawsuit related to or taken together with all such other transactions material to involving the Business Purchased Assets other than transactions in (a) for the Ordinary Course routine collection of Businessbills; or (b) for a breach of this Agreement; or (mn) Any material made any agreement or understanding whether in writing or otherwise, that would result in to do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Asset Purchase Agreement (Digital Lightwave Inc)

Absence of Certain Changes. Since December 31Except as set forth in SECTION 4.12 OF THE COMPANY DISCLOSURE SCHEDULE, 2007 (except as provided below), since the Seller Entities have conducted Balance Sheet Date neither the Business only in the Ordinary Course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there has not beenCompany nor any Company Subsidiary has: (a) Any change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a suffered any Company Material Adverse Effect on or conducted its business except in the Businessordinary and usual course consistent with past practice; (b) Any cancellation incurred any Liabilities except non-material items incurred in the ordinary course of the business of the Company or the Company Subsidiary and consistent with past practice, none of which exceeds one hundred thousand dollars ($100,000) (counting Liabilities arising from one transaction or a series of similar transactions, and all periodic installments or payments under any material debt lease or claim owing toother agreement providing for periodic installments or payments, as a single Liability), or waiver increased, or experienced any change in any assumptions underlying or methods of calculating, any material right ofbad debt, the Seller Entities contingency or any Affiliate arising from, relating to other reserves or resulting from the Businessallowances; (c) Any mortgagepaid, encumbrance discharged or Lien (satisfied any Liability other than a Permitted Lien) placed on any the payment, discharge or satisfaction in the ordinary course of the Transferred Assets which will remain on business of the Closing Company or the Company Subsidiary and consistent with past practice of Liabilities reflected or reserved against in the Balance Sheet or incurred in the ordinary course of the business of the Company or the Company Subsidiary and consistent with past practice since the Balance Sheet Date; (d) Any material obligation permitted or liability allowed any of its properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any nature (as guarantor or otherwise with respect to the obligations of others)Lien, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are except for Liens for current Taxes not Assumed Liabilities or were incurred in the Ordinary Course of Businessyet due; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for written down the purchase, sale or other disposition value of any inventory (including write-downs by reason of shrinkage or xxxx-down) or written off as uncollectible any notes or accounts receivable, except for immaterial write-downs and write-offs in the ordinary course of the Transferred Assets other than in business of the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets Company or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development Company Subsidiary and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (f) cancelled any debt or waived any claim or right of substantial value; (g) sold, transferred, or otherwise disposed of any of its properties or assets (real, personal or mixed, tangible or intangible), except in the ordinary course of the business of the Company or the Company Subsidiary and consistent with past practice; (h) disposed of or permitted to lapse any right to the use of any Intellectual Property, or disposed of or disclosed to any Person, other than representatives of Parent, any trade secret, formula, process, know-how or other Intellectual Property not yet a matter of public knowledge; (i) granted any general 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, and no such increase is customary on a periodic basis or required by agreement or understanding; (j) made any single capital expenditure or commitment in excess of one hundred thousand dollars ($100,000) for additions to property, plant, equipment or intangible capital assets or made aggregate capital expenditures and commitments in excess of two hundred thousand dollars ($200,000) (on a consolidated basis) for additions to property, plant, equipment or intangible capital assets; (k) declared, paid or set aside for payment any dividend or other distribution in respect of its capital stock or redeemed, purchased or otherwise acquired, directly or indirectly, any shares of capital stock or other securities of the Company or any Company Subsidiary; (l) Any other transaction made any change in any method of Tax or GAAP accounting or accounting practice; (m) paid, loaned or advanced any amount to, or sold, transferred or leased any properties or assets (real, personal or mixed, tangible or intangible) to, or entered into any agreement or arrangement with, any of its officers or directors or any Affiliate or Associate of any, of its officers or directors, except for directors' fees, and compensation to officers at rates not exceeding the rates of compensation paid during the fiscal year ended September 30, 2000; (n) accelerated, terminated, made material modifications to, or cancelled, and no other party has accelerated, terminated, made material modifications to, or cancelled, any Company Agreement to which the Company is a party or by which it is bound except where such acceleration, termination, material modification or cancellation would not have had a Company Material Adverse Effect; (o) adopted or amended any Seller Entity that is individually Benefit Plan, entered into or taken together with all such other transactions material terminated any employment or consulting Company Agreement, paid any special bonus or incentive remuneration to the Business other than transactions any individual in the Ordinary Course Company's employ or service, entered into or implemented any severance or change in control benefit agreement or program with any such individual, or made any loans or extensions of Businesscredit to any such individual; or (mp) Any material agreement or understanding agreed, whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified action described in paragraphs (a) through (l) abovethis SECTION 4.12.

Appears in 1 contract

Samples: Merger Agreement (McGuire Acquisition Inc)

Absence of Certain Changes. Since December 31, 2007 (except Except as provided below), the Seller Entities have conducted the Business only may be disclosed in the Ordinary Course of BusinessExchange Act Documents, and except as disclosed in Schedule 4.7 and except for changes in connection with since the transactions expressly contemplated under this AgreementLatest 10-K, there neither the Company nor any Guarantor has not been: (a) Any change in the properties, assets, liabilities, business, condition (financial entered into any transaction or otherwise), results of operations of the Business which change by itself agreement that has or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could would be reasonably be expected likely to have a Material Adverse Effect on the Business; Company and its subsidiaries, taken as a whole. Since the Latest 10-K, there has not been any material change in the long-term debt of the Company or any Guarantor. Except as disclosed on the face of the balance sheet included in the Company’s Annual Report on Form 10-Q filed with the SEC on May 15, 2007 (b) Any cancellation the “Latest 10-Q”), the company and its Subsidiaries have no liabilities, absolute or contingent, other than those that have been incurred since March 31, 2007 in the ordinary course of business that are not, individually or in the aggregate, material to the Company and its Subsidiaries, taken as a whole. Since the emergence of the Company from bankruptcy protection on July 18, 2006, the Company has not taken any steps to seek protection pursuant to any bankruptcy law nor does the Company have knowledge that its creditors intend to initiate involuntary bankruptcy proceedings or knowledge of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating fact which would reasonably lead a creditor to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any do so. The Company is not as of the Transferred Assets which date hereof, and after giving effect to the transactions contemplated hereby will remain on the Closing Date; (d) Any material obligation or liability of any nature not be, Insolvent (as guarantor or otherwise with respect to the obligations defined below). For purposes of othersthis Section 3(d), whether accrued“Insolvent” means (i) the present fair saleable value of the Company’s assets is less than the amount required to pay the Company’s known liabilities and identified contingent liabilities, absolute(ii) the Company is unable to pay its debts and liabilities, subordinated, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations as such debts and liabilities which are not Assumed Liabilities become absolute and matured or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments the Company has unreasonably small capital with which to conduct the business in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that it is individually or taken together with all engaged as such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) abovebusiness is now conducted.

Appears in 1 contract

Samples: Purchase Agreement (Pliant Corpororation)

Absence of Certain Changes. Since December August 31, 2007 (except as provided below)1998, the Seller Entities there have conducted the Business only been no material changes in the Ordinary Course condition, financial or otherwise, of Businessany of the assets or any of the liabilities, and except as disclosed business, prospects or operations of Seller or the business of Seller, other than changes which in Schedule 4.7 and except for changes the aggregate have not been materially adverse to the business, finances or operations of Seller. Without limiting the foregoing, since August 31, 1998 other than in connection with the transactions expressly contemplated under this Agreement, there has not beenordinary course of business: (a) Any Seller has not materially altered the nature of the business of Seller as carried on or made any material change in the properties, assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Businessproducts and services it supplies; (b) Any cancellation of Seller has not borrowed or agreed to borrow any material debt funds or claim owing incurred, or assumed or become subject to, whether directly or waiver by way of guarantee or otherwise, any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others)for borrowed money, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were except payables incurred in the Ordinary Course ordinary course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development business and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (c) Seller has not paid, discharged or satisfied any claim, liability or obligation other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of liabilities or obligations reflected or reserved against in the Interim Balance Sheet or trade payables incurred in the ordinary course of business and consistent with past practice; (d) Seller has not permitted or allowed any of its property or assets (real, personal or mixed, tangible or intangible) to be subjected to any Lien of any kind; (e) Seller has not written down the value of any inventory or written off as uncollectible any notes or accounts receivable, except for write-downs and write-offs in the ordinary course of business and consistent with past practice, none of which is material; (f) Seller has not cancelled any debts or waived any claims or rights of substantial value, waived any statute of limitation or sold, transferred, or otherwise disposed of any of its properties or assets (real, personal or mixed, tangible or intangible), except sales of immaterial assets in the ordinary course of business and consistent with past practice; (g) Seller has not licensed or disposed of or permitted to lapse any rights to the use of any Seller Intellectual Property; (h) Seller has not granted any 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; (i) Seller has not made any capital expenditure or commitment therefor in excess of $50,000 individually or in the aggregate; (j) Seller has not paid, loaned or advanced any amount to, or sold, transferred or leased any properties or assets (real, personal or mixed, tangible or intangible) to, or entered into any agreement or arrangement with, any of its officers, directors or any Affiliate (as defined hereinafter) or associate of any of its officers, directors or stockholders; (k) Seller has not made any change in the accounting policies or practices of Seller; (l) Any Seller has not issued any shares of its capital stock or any other transaction entered into by securities or made any redemption or other acquisition of any capital stock of Seller Entity that is individually or taken together any declaration, setting aside, or payment of any dividend or distribution of any kind with all such other transactions material respect to any shares of capital stock of Seller except pursuant to the Business other than transactions in the Ordinary Course exercise of Business; orany outstanding Warrants and Options; (m) Any material agreement there have been no losses or understanding damage to any of Seller's assets due to fire or other casualty, whether or not insured, amounting to more than $50,000, in the aggregate; and (n) Seller has not agreed, whether in writing or otherwise, that would result in to do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Merger Agreement (Bea Systems Inc)

Absence of Certain Changes. Since December 31June 30, 2007 (except as provided below)2012, the Seller Entities and Raydex have conducted the Business only in the Ordinary Course ordinary course of business consistent with past practice and there have not been any changes in the financial condition or results of operations of the Business, and except as disclosed in Schedule 4.7 and except for any changes that have not resulted in, and would not reasonably be expected to result, in connection a Business Material Adverse Effect. Since June 30, 2012, neither the Seller (with respect to the transactions expressly contemplated under this Agreement, there has not beenBusiness or the Acquired Assets) nor Raydex has: (a) Any change in the properties, assets, liabilities, business, condition mortgaged or pledged any of its assets or properties or subjected them to any Encumbrance (financial or otherwiseexcept for Permitted Encumbrances), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of had any material debt or claim owing tocontract involving more than $250,000 accelerated, terminated, modified, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Businesscancelled; (c) Any mortgageincurred any liability involving more than $100,000 individually or $500,000 in the aggregate, encumbrance or Lien (other than a Permitted Lien) placed on any except liabilities incurred in the ordinary course of the Transferred Assets which will remain on the Closing Datebusiness consistent with past practice; (d) Any suffered any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or casualty loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Businessinsurance having an aggregate value of more than $250,000; (ge) Any labor trouble granted any license, sublicense, or dispute waiver of, or claim of unfair labor practices involving any Seller Entity covenant not to xxx based on, any rights under or with respect to the Business or the related manufacturing operation at the Existing Facility; any material changeDesignated Intellectual Property, other than licenses, sublicenses, waivers, or the obtaining of information concerning a prospective change, covenants granted under contracts with respect to the management of Business; any change customers in the compensation (in the form ordinary course of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (f) made any capital expenditures or capital additions or betterments in excess of an aggregate of $100,000 and outside the ordinary course of business; (g) except as set forth on Schedule 2.6 of the Disclosure Schedule, made or granted any bonus or any wage or compensation increase to any Employee or changed any other material term of employment of any Employees, in each case except in the ordinary course consistent with past practice; (h) adopted, amended or terminated any Employee Benefit Plan, in each case except in the ordinary course consistent with past practice; (i) had any actual employee strikes, work stoppages, slowdowns or lock outs relating to the Employees, entered into any collective bargaining agreement or other union or works council contract with respect to the Employees or materially modified the terms of any such existing agreement, or had any material change in its relations with the Employees or materially changed the number of the Employees; (j) made any change in its selling, pricing, advertising or personnel practices outside the ordinary course of business consistent with past practice; (k) made any material change in accounting methods or practices; (l) Any made or changed any Tax election or settled or compromised any material federal, state, local, or foreign Tax liability; (m) other transaction than in the ordinary course of business, entered into by any Seller Entity that is individually compromise or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course settlement of Businessany suit, action, claim or proceeding; or (mn) Any material entered into a written agreement or understanding whether in writing or otherwise, that would result in to do any of the transactions or events or require any Seller Entity to take any things described in the preceding paragraphs of the actions specified in paragraphs (a) through (l) abovethis Section 2.6.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Belden Inc.)

Absence of Certain Changes. Since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except Except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement5.12, since December 31, 2004, there has not beenoccurred any event or development that, individually or together with other such events, has had a Material Adverse Effect. Except as disclosed in Schedule 5.12, since December 31, 2004, the Business has been conducted only in the ordinary course consistent with past custom and practice, and has incurred no liabilities other than in the ordinary course of business consistent with past custom and practice. Without limitation of the foregoing and except as set forth on Schedule 5.12, since December 31, 2004: (a) Any change in the propertiesSeller has not, assetsto Seller’s Knowledge after reasonable investigation, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the business: (i) incurred any liabilities or obligations except current liabilities or obligations for trade payables in connection with the purchase of goods or services in the ordinary and usual course of business consistent with past custom and practice; (ii) paid, discharged or satisfied any liabilities other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice of liabilities reflected or reserved against in the Financial Statements or current liabilities incurred since December 31, 2004 in the ordinary and usual course of business consistent with past practice; (iii) permitted or allowed any of their properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any Encumbrances (other than Permitted Encumbrances); (iv) purchased any asset (whether or not in the ordinary and usual course of business consistent with past practice) for a cost in excess of $75,000; (v) modified, amended or terminated any Contract to the extent that it involves in excess of $75,000 or waived, released or assigned any material rights or claims under any Contract except in the ordinary course of business consistent with past practice. (vi) received notification that any client, customer or supplier who paid Seller or received from Seller at least $50,000 in revenue in 2004 or $20,000 in the five months ending May 31, 2005 will (i) stop or decrease in any respect the rate of business done with the Business, (ii) make any or seek to make any other alteration to its relationship with the Business or Buyer or (iii) seek to have any agreement, arrangement, contract or commitment amended or otherwise modified in a manner that has the effect of reducing the margins of the Business or Buyer or otherwise adversely affects the Business or Buyer; (vii) permitted any material insurance policy naming Seller as a beneficiary or a loss payee to be cancelled or terminated, except those that expired according to their terms; (viii) written down the value of any inventories or written off as uncollectible any accounts receivable, except in the ordinary course of business consistent with past practice; (ix) canceled any debts or waived any material claims or rights except in the ordinary course of business consistent with past practice; (x) except for obligations of others)Seller under existing Contracts, whether accruedmade, absoluteor permitted any other Person to make, contingent any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or paid or agreed or promised to pay, conditionally or otherwise, asserted any bonus, incentive, retention or unassertedother compensation, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from in respect of any officer, employee or consultant of Seller, or made or granted any increase in, or established, amended or terminated, any existing plan, program, policy or arrangement, including, without limitation, any Benefit Plan or arrangement, or adopted any new Benefit Plan or arrangement or entered into any new collective bargaining agreement or other union contract or arrangement or multiemployer plan that was not generally applicable to all of Seller’s employees; (xi) made, or directed any other Person to make, any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or paid or agreed or promised to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, to or in respect of any of the agents of Seller set forth on Schedule 5.12(xi); (xii) adopted or made any change in any method of financial or Tax accounting or reporting or financial or Tax accounting or reporting practice, except as required by GAAP, or made or changed any Tax elections; (xiii) conducted the cash management customs and practices (including the timing of collection of receivables and payment of payables and other current liabilities) and maintained the books and records of the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course ordinary and usual course of Businessbusiness consistent with past practice; (exiv) Any purchase, sale made any loans or other dispositionadvances to, or any agreement or other arrangement guarantees for the purchasebenefit of, sale or other disposition entered into any similar transaction with any employee, officer, director or shareholder of any of the Transferred Assets a Seller other than in the Ordinary Course ordinary and usual course of Businessbusiness consistent with past practice. (xv) borrowed any money (other than trade payables or other current expenses, all in the ordinary and usual course of business consistent with past practice) or issued any bonds, debentures, notes or other corporate securities evidencing money borrowed; (fxvi) Any suffered any extraordinary loss, damage, destruction or losscasualty loss or waived any rights of material value, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business;; and (gxvii) Any labor trouble agreed, in writing or dispute or claim otherwise, to take any of unfair labor practices involving any the foregoing actions. (b) Seller Entity has not with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility;: (i) Any change sold, transferred, or otherwise disposed of any of its properties or assets (real, personal or mixed, tangible or intangible), except for sales of assets or inventory in the manner ordinary and usual course of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (lii) Any sold, assigned, transferred, abandoned or permitted to lapse any Permits or any portion thereof, or any of the Intellectual Property or other transaction entered into by intangible assets, disclosed any Seller Entity that is individually material confidential information or taken together trade secret to any person or granted any license or sublicense of any rights under or with all such respect to any Intellectual Property or other transactions material to the Business other than transactions intangible assets; (iii) made any single capital expenditure or commitment in the Ordinary Course excess of Business$50,000 or made aggregate capital expenditures and commitments in excess of $100,000; or (miv) Any material agreement hired or understanding terminated any employee (whether or not in writing or otherwise, that would result the ordinary course of business) who has an annual salary in any excess of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) above$75,000.

Appears in 1 contract

Samples: Asset Purchase Agreement (Sirva Inc)

Absence of Certain Changes. Since Except as Previously Disclosed on Schedule 3.6, since December 31, 2007 (except as provided below), 2005 through the Seller Entities have conducted the Business only in the Ordinary Course date of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, the Business has been conducted in the ordinary course of business, and there has not beenbeen any event, occurrence, development or state of circumstances or facts which has had a Material Adverse Effect. In addition, except as Previously Disclosed on Schedule 3.6, since December 31, 2005 through the date of this Agreement, each Company has not: (a) Any change conducted its operations other than in the propertiesordinary course of business, including with respect to maintenance of working capital balances, incurrence of intercompany charges, collection of accounts receivable, payment of employee compensation, payment of accounts payable, repair and maintenance of properties and assets, liabilities, business, condition (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have a Material Adverse Effect on the Businesscash management practices and performance under Contracts generally; (b) Any cancellation of suffered any material debt theft, damage, destruction, casualty or claim owing to, or waiver of any material right of, loss to the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any Assets in amounts outside of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability ordinary course of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or lossbusiness, whether or not covered by insurance; (c) cancelled, which could reasonably be expected compromised, waived or released any right or claim, other than in the ordinary course of business (including customer credits and adjustments and lien waivers in the ordinary course of business); (d) borrowed any amount or incurred, assumed or become subject to have any Indebtedness in excess of $100,000 or subjected any portion of the Assets to any Encumbrance (other than Permitted Encumbrances); (e) sold, leased, licensed, sublicensed, assigned or transferred any portion of the Assets, or abandoned or permitted to lapse any Company Intellectual Property, other than (i) in the ordinary course of business or (ii) a transfer of Assets by the Seller or any of its Affiliates to either Company in order to transfer such Assets to the appropriate Company; (f) entered into, amended, terminated or cancelled any Material Adverse Effect on Contract other than in the Transferred Assets or the Businessordinary course of business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to materially varied its capital expenditures from the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change 2006 capital expenditure budget that was posted in Section 8 in the compensation (in data room for the form Transactions as of salariesDecember 11, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business2006; (h) Except for employee turnover entered into any employment Contract or collective bargaining agreement pertaining to Employees, written or oral, or modified the terms of any such existing Contract, in each case, outside the Ordinary Course ordinary course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facilitybusiness; (i) Any change adopted, amended, modified or terminated any bonus, profit-sharing, incentive, severance or other plan, program or arrangement for the benefit of any Employees (or taken any such action with respect to any other of the Company Employee Benefit Plan) other than in the manner ordinary course of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by business and other than with respect to employees of the BusinessSeller and its Affiliates generally; (j) Any made any material change in employment terms for any Seller Entity’s business relationship with Employees outside the ordinary course of business, including granting any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost base compensation of raw materials other than such changes which have arisen in any Employees outside the Ordinary Course ordinary course of Business;business; or (k) Any (i) promotional sales, discount activity, deferred committed or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material agreed to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Stock Purchase Agreement (United Rentals Inc /De)

Absence of Certain Changes. Since Except (x) for the transaction contemplated by or entered into by Seller in connection with the transactions contemplated by this Agreement (including the Reorganization) and (y) as and to the extent set forth in Section 2.6 of the Seller Disclosure Schedule, since December 31, 2007 2006, (except as provided below), A) the Seller Entities have has conducted the Business only in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, including but not limited to, (i) fabric and production commitments, (ii) inventory, (iii) scheduling and delivery, (iv) customer pricing and shipping arrangements and (v) employment practices, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreement, there (B) Seller has not beennot: (a) Any suffered any adverse change in the its business, customers, prospects (to Seller's knowledge), operations, properties, assets, liabilities, businessworking capital, condition (financial or otherwise), results of operations of the Business assets, properties or Liabilities which change by itself resulted in or in conjunction with all other such changes, whether or not arising in the Ordinary Course of Business, could reasonably be expected to have to, in each case, result, individually or in the aggregate, in a Material Adverse Effect on Effect, and there has not been any damage, destruction, loss or other event which resulted in or could reasonably be expected to, in each case, result, individually or in the Businessaggregate, in a Material Adverse Effect; (b) Any cancellation incurred any Liabilities except current Liabilities for trade or business obligations in connection with the purchase of any material debt goods or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred services in the Ordinary Course ordinary course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent consistent with past practice; (c) paid, discharged or satisfied any Liabilities other than the payment, discharge or satisfaction in the ordinary course of business and consistent with past practice of current Liabilities incurred in the ordinary course of business consistent with past practice; (d) permitted or allowed any of its properties or assets (real, personal or mixed, tangible or intangible) to be subjected to any Liens, except for Permitted Liens; (e) written down the value of any inventories or written off as uncollectible any accounts receivable, in either case, other than in the ordinary course of business consistent with past practice, and in amounts which are not, individually or in the aggregate, material; (f) cancelled any debts or waived any claims or rights; (g) sold, transferred, or otherwise disposed of any of its properties or assets (real, personal or mixed, tangible or intangible), except in the ordinary course of business consistent with past practice; (h) disposed of or permitted to lapse any Intellectual Property rights, or disposed of or disclosed to any Person, other than representatives of Buyer, any Intellectual Property rights not theretofore a matter of public knowledge; (i) made any change in the rate of compensation (except for routine annual merit or cost of living salary increases), commission, bonus or other direct or indirect remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, or made any addition to or other change in any retirement, welfare, fringe or severance benefit or vacation plan, to or in respect of any shareholder, director, officer, employee, broker, salesman, distributor or agent; (j) made any material change in its selling, purchasing, pricing, advertising or personnel practices; (k) instituted, settled or agreed to settle any litigation, action or proceeding by or before any Governmental Authority; (l) Any other transaction entered into by made any Seller Entity that is individually single capital expenditure or taken together with all such other transactions material commitment in excess of $25,000 for additions to the Business other than transactions property, plant, equipment or intangible capital assets or made aggregate capital expenditures and commitments in the Ordinary Course excess of Business$50,000 for additions to property, plant, equipment or intangible capital assets; (m) made any change in any method of financial or Tax accounting or reporting or financial or Tax accounting or reporting practice; or (mn) Any material agreement or understanding agreed, whether in writing or otherwise, that would result in any of the transactions or events or require any Seller Entity to take any of the actions specified action described in paragraphs (a) through (l) abovethis Section 2.6.

Appears in 1 contract

Samples: Purchase Agreement (Hartmarx Corp/De)

Absence of Certain Changes. (a) Since December 31January 3, 2007 1998 (except as provided belowthe "Balance Sheet Date"), the Seller Entities have conducted the Business only whether or not in the Ordinary Course ordinary course of Business, and except as disclosed in Schedule 4.7 and except for changes in connection with the transactions expressly contemplated under this Agreementbusiness, there has not been: (ai) Any occurred or arisen any change in or event affecting the properties, assets, liabilities, business, condition Assets or the Business (financial excluding matters relating to economic or otherwiseindustry conditions generally), results that has had or, to the knowledge of operations of the Business which change by itself or in conjunction with all other such changesSellers, whether or not arising in the Ordinary Course of Businessis reasonably likely to have, could reasonably be expected to have a Material Adverse Effect on Effect, or (ii) been any damage, destruction, loss or casualty to property or assets of the Business; (b) Any cancellation of any material debt or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (c) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could property or assets had an aggregate book value in excess of $250,000. Since January 3, 1998, Sellers have (v) maintained cash on hand in the owned Shops at levels reasonably be expected consistent with past practice, (w) maintained such quantities of supplies and inventory of the Business as have been maintained in the ordinary course of business of the Business reasonably consistent with past practice, (x) extended credit to have customers, collected accounts receivable and paid accounts payable and similar obligations in the ordinary course of business of the Business reasonably consistent with past practice, (y) funded obligations with respect to the Seller Benefit Plans on a Material Adverse Effect timely basis in the ordinary course of business of the Business reasonably consistent with past practice and (z) conducted the Business in the ordinary course on the Transferred Assets a basis reasonably consistent with past practice and not engaged in any new line of business or the Business; (g) Any labor trouble entered into any agreement, transaction or dispute activity or claim of unfair labor practices involving made any Seller Entity commitment with respect to the Business or except those in the related manufacturing operation at the Existing Facility; any material changeordinary course of business. (b) Except as set forth in SCHEDULE 3.8(b), or the obtaining of information concerning a prospective changesince January 3, 1998, there has not been with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business any liability or obligation (iiabsolute, accrued or contingent) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change incurred except in the manner ordinary course of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programsbusiness, (ii) deferred any guaranteed checks, notes or accelerated expense activityaccounts receivable which have been written off or reserved against as uncollectible, except bad debt reserves established in the ordinary course of business consistent with past practice, (iii) material reduction any write-down of the value of any asset or elimination investment on the books or records of expenses the Business in excess of $100,000 individually for any asset or investments investment or $500,000 in the Businessaggregate, or except for depreciation and amortization taken in the ordinary course of business consistent with past practice, (iv) change in any cancellation of any debts or waiver of any claims or rights (excluding credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth memos issued in the Purchase Price Financial Statements, ordinary course of business) except in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course ordinary course of Businessbusiness consistent with past practice and which in any event are not in excess of $50,000 individually or $250,000 in the aggregate (other than Excluded Liabilities), (v) any sale, transfer or other disposition of any properties or assets (real, personal or mixed, tangible or intangible), other than (A) Excluded Assets, (B) inventory held for sale in the ordinary course of business consistent with past practice or (C) other assets sold, transferred or otherwise disposed of in the ordinary course of business consistent with past practice and which do not exceed $50,000 in any single transaction or $250,000 in the aggregate, (vi) any capital expenditures or commitments in excess of $100,000 individually or $500,000 in the aggregate, (vii) any increase in the compensation of officers or employees listed on SCHEDULE 3.14 or hourly employees other than increases to hourly employees granted on a case by case basis which are immaterial in amount or nature, whether now or hereafter payable, (viii) any increase of any reserves for contingent liabilities, (ix) any termination or failure to renew any License; or (mx) Any material agreement any termination, renewal or understanding whether in writing amendment to any Assumed Contracts; (xi) any amendment to a Seller's charter or otherwise, that would result in by-laws; or (xii) any agreements to do any of the transactions or events or require any Seller Entity to take any of the actions specified in paragraphs (a) through (l) aboveforegoing.

Appears in 1 contract

Samples: Asset Purchase Agreement (Monro Muffler Brake Inc)

Absence of Certain Changes. Since December 31, 2007 (except as provided below), the Seller Entities have conducted the Business only in the Ordinary Course of Business, and except Except as disclosed in Schedule 4.7 and except for changes 3.8, since the Balance Sheet Date (or, in connection with the transactions expressly contemplated under this Agreementcase of clause (b) below, there has not been:since the Audited Balance Sheet Date): (a) Any the Acquired Companies have conducted their business only in the ordinary course consistent with past practices; (b) there has not been any change, event, or development that has had a Material Adverse Effect; (c) no Acquired Company has sold, leased, transferred, or assigned any of its material assets, other than in the ordinary course of business consistent with past practice; (d) no Acquired Company has cancelled, compromised, waived, or released any material right or claim; (e) no Acquired Company has granted any material license or sublicense of any rights under or with respect to any Intellectual Property other than in the ordinary course of business consistent with past practice; (f) no Acquired Company has made or authorized any change in the propertiesany Organizational Document of any of Acquired Company; (g) no Acquired Company has experienced any material damage, assetsdestruction, liabilities, business, condition or loss or eminent domain taking (financial or otherwise), results of operations of the Business which change by itself or in conjunction with all other such changes, whether or not arising covered by insurance) with respect to any of its material assets or material assets of the Business; (h) no Acquired Company nor Seller has (i) made any increase, whether conditionally or otherwise, in the Ordinary Course compensation of Businessany Service Provider, except any increase adopted in the ordinary course of business consistent with past practice in respect of the compensation of any non-officer Service Provider whose annual compensation does not exceed $150,000 after giving effect to such increase, or (ii) adopted any Benefit Plan or modified any Benefit Plan in any material respect, in each case, except as may be required by any Law or Contract; (i) no Acquired Company nor Seller has hired, engaged or terminated the employment or engagement of any Service Provider who will earn annual base compensation in excess of $150,000; (j) no Acquired Company nor Seller has negotiated, entered into, amended or extended any Contract with a labor union or other employee representative body covering any Service Provider; (k) no Acquired Company has made, changed or revoked any material Tax election or adopted or changed any material method of Tax accounting, prepared any material Tax Returns in a manner that is inconsistent with past practice with respect to the treatment of items on such Tax Returns, entered into any ruling request, closing agreement or similar agreement with respect to Taxes, settled and/or compromised any Tax liability, or consented to any claim or assessment relating to Taxes or waived the statute of limitations for any such claim or assessment other than as the result of extending the due date of any Tax Return, to the extent that any such action could reasonably be expected to have a Material Adverse Effect on increase the Business; (b) Any cancellation Tax liability of any material debt Acquired Company in any Tax period (or claim owing to, or waiver of any material right of, the Seller Entities or any Affiliate arising from, relating to or resulting from the Business; (cportion thereof) Any mortgage, encumbrance or Lien (other than a Permitted Lien) placed on any of the Transferred Assets which will remain on beginning after the Closing Date; (d) Any material obligation or liability of any nature (as guarantor or otherwise with respect to the obligations of others), whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown, incurred by the Seller Entities arising out of, relating to or resulting from the Business other than obligations and liabilities which are not Assumed Liabilities or were incurred in the Ordinary Course of Business; (e) Any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition of any of the Transferred Assets other than in the Ordinary Course of Business; (f) Any damage, destruction or loss, whether or not covered by insurance, which could reasonably be expected to have a Material Adverse Effect on the Transferred Assets or the Business; (g) Any labor trouble or dispute or claim of unfair labor practices involving any Seller Entity with respect to the Business or the related manufacturing operation at the Existing Facility; any material change, or the obtaining of information concerning a prospective change, with respect to the management of Business; any change in the compensation (in the form of salaries, wages, incentive arrangements or otherwise) payable or to become payable by any Seller Entity to any of its officers, employees, agents or independent contractors rendering services principally relating to the Business, or any bonus payment or arrangement made to or with any of such officers, employees, agents or independent contractors other than in the Ordinary Course of Business; any entering into or amending of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any officer, director or employee of any Seller Entity rendering services principally relating to the Business other than in the Ordinary Course of Business; (h) Except for employee turnover in the Ordinary Course of Business, any material change in the personnel or in the responsibilities or reporting relationships of the employees (i) of the Business or (ii) with respect to the development and manufacture of lateral flow immunoassay products and related products at the Existing Facility; (i) Any change in the manner of keeping books, accounts or records, accounting methods or practices, standard costs, credit practices or collection or pricing policies used by the Business; (j) Any change in any Seller Entity’s business relationship with any material supplier, customer or other entity having business relations with such Seller Entity arising out of, relating to or resulting from the Business including any material increase or notice thereof in the cost of raw materials other than such changes which have arisen in the Ordinary Course of Business; (k) Any (i) promotional sales, discount activity, deferred or accelerated revenue activity, including any rebate, discount or other promotional programs, (ii) deferred or accelerated expense activity, (iii) material reduction or elimination of expenses of or investments in the Business, or (iv) change in credit extension or other credit practices, including changes in credit limits and underwriting standards, in each case, which would have the effect of increasing the Revenue or Pre-Tax Profit set forth in the Purchase Price Financial Statements, in each case in a manner outside the Ordinary Course of Business or materially inconsistent with past practice; (l) Any other transaction entered into by any Seller Entity that is individually or taken together with all such other transactions material to the Business other than transactions in the Ordinary Course of Business; or (m) Any material agreement or understanding no Acquired Company has agreed, whether in writing or otherwise, that would result in to do any of the transactions foregoing; and (m) there has not occurred any action or events event that, had such action or require any Seller Entity to take event occurred after the date of this Agreement, would have breached any of the actions specified covenants set forth in paragraphs Section 5.1 (a) through (l) aboveother than Section 5.1(k)).

Appears in 1 contract

Samples: Equity Purchase Agreement (Bankrate, Inc.)

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