Absence of Certain Developments. Since December 31, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as set forth on Schedule 4.8 of the Disclosure Schedules or as contemplated by this Agreement, 2017 and other than as a result of and/or with respect to since the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Balance Sheet Date (a) suffered the Company has conducted its Business only in the Ordinary Course of Business, (b) there has occurred no event, condition, change, effect, occurrence, or development of a set of circumstances or facts relating to the Company that had or reasonably would be expected to have, individually or in the aggregate, a Material Adverse Effect and (c) the Company has not:
(i) authorized, transferred, issued, sold or suffered disposed of any shares of Common Stock or other securities or granted options, warrants, calls or other rights to purchase or otherwise acquire shares of Common Stock or other securities;
(ii) declared or paid a divided on, or made any other distribution in respect of, any shares of Common Stock;
(iii) effected any recapitalization, reclassification or like change in the capitalization of the Company;
(iv) acquired any real property or sold, assigned, licensed, transferred, conveyed, leased or otherwise disposed of any real property or amended, modified, extended, renewed or terminated any Lease or entered into any new Lease;
(v) acquired any material theft, damage, destruction properties or casualty loss that is not covered by insurance; assets;
(bvi) sold, leased, assigned, distributed, licensed, sublicensedtransferred, transferred conveyed, leased or otherwise encumbered disposed of any properties or assets, other than the non-exclusive license of Intellectual Property to customers in the Ordinary Course of Business, of the Company having a portion value individually in excess of its assets $10,000 or properties an aggregate value exceeding $50,000 (tangible or intangiblein each case an equivalent amount in any other currency), except for sales the purpose of inventory disposing of obsolete or services worthless assets or to the extent such properties or assets are replaced with like properties or assets of equivalent value;
(vii) sold, assigned, licensed, transferred, conveyed, abandoned or otherwise disposed of any Company Intellectual Property Rights, other than non- **** Confidential Treatment has been requested for certain redacted provisions of this exhibit. The redacted provisions are identified by asterisks and enclosed by brackets. The confidential portions have been filed separately with the Securities and Exchange Commission. exclusive licenses or abandonment of any non-material Registered Intellectual Property, in each case, in the ordinary course Ordinary Course of business to unaffiliated third Persons on an arm’s length basisBusiness;
(viii) waived any material rights under, or canceled without fair consideration entered into, any Contract of a type described in Section 4.12(a) (whether or not such Contract was in effect as of the date of this Agreement);
(ix) implemented or adopted any change in its accounting methods, policies, principles or procedures, except as required by Law or by GAAP;
(x) cancelled, settled, discharged or compromised any debt or claim or knowingly waived or released any material debts right of the Company, except for adjustments made to customer accounts receivable in the Ordinary Course of Business, none of which adjustments are in excess of $100,000, individually or claims owing to or held by it; in the aggregate;
(cxi) entered intointo any commitment for capital expenditures of the Company, other than as expressly required or authorized by the Company’s current budget as set forth in Schedule 4.8 of the Disclosure Schedules;
(xii) delayed or postponed the payment of accounts payable and other liabilities, accelerated accounts receivable and invoicing or product delivery outside the Ordinary Course of Business;
(xiii) incurred any Indebtedness or incurred or become subject to any material liability, except current liabilities incurred in the Ordinary Course of Business and liabilities under Contracts (other than liabilities for breach) entered into in the Ordinary Course of Business;
(A) materially increased the compensation or employee benefits provided to any Business Employee, director or other individual service provider of the Company, except in the Ordinary Course of Business, other than Company Closing Bonuses, or (B) adopted, amended or terminated any material Contract Company Benefit Plan, except to the extent required to comply with the requirements of applicable Law or License as requested by Purchaser or materially changed as contemplated by this Agreement;
(xv) made any business practice; (d) made, granted loans or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase advances to any current Person, except for advances to employees or former director, officer, employee or sales representative, group officers of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than the Company for expenses incurred in the ordinary course Ordinary Course of business Business;
(including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (hxvi) failed to make made or rescinded any material capital expenditures that were previously budgeted election relating to Taxes, settled or scheduled compromised any Proceeding relating to be madeTaxes; or
(ixvii) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingdo anything prohibited by this Section 4.8.
Appears in 1 contract
Samples: Purchase Agreement (TransUnion)
Absence of Certain Developments. Since December 31Other than the Company's issuance of the Option Shares to the Option Shareholders and the merger of E2 Consulting, 2017 LLC, a Texas limited liability company ("E2 Consulting") with and into the Company, since the date of the Latest Balance Sheet, the business of the Company has been operated in the ordinary course, consistent with past practices. As amplification and not limitation of the foregoing, since the date of the Latest Balance Sheet, other than as a result set forth on Section 5.11 of and/or with respect to the transactions contemplated hereby and/or previously disclosed to Disclosure Schedule, the Purchaser Company has not engaged in writing including any of the following acts which are not reflected in Financial Statements made available to Purchaser, neither the Business nor Latest Balance Sheet or any Purchased Assets has: appendices or notes thereto:
(a) suffered a Material Adverse Effect borrowed any amount or suffered incurred or become subject to any material theftliability or obligation in excess of $10,000 (whether absolute, damageaccrued, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred contingent or otherwise encumbered a portion of its assets and whether due or properties (tangible or intangibleto become due), except for sales of inventory or services (i) current liabilities incurred in the ordinary course of business consistent with past practices, and (ii) liabilities under contracts entered into in the ordinary course of business consistent with past practices;
(b) mortgaged, pledged or subjected to unaffiliated third Persons on an arm’s length basisany lien, charge or any other encumbrance, any of its assets, except (i) liens for current property taxes not yet due and payable, (ii) liens imposed by law and incurred in the ordinary course of business consistent with past practices for obligations not yet due to carriers, warehousemen, laborers, materialmen and the like, (iii) liens in respect of pledges or deposits under workers' compensation laws, or canceled without fair consideration any material debts or claims owing to or held by it; (iv) liens voluntarily created in the ordinary course of business consistent with past practices, all of which liens in clauses (i) through (iv) are less than $10,000 in the aggregate;
(c) entered intodischarged or satisfied any lien or encumbrance or paid any liability, amended or terminated any material Contract or License or materially changed any in each case with a value in excess of $10,000, other than current liabilities paid in the ordinary course of business practice; consistent with past practices;
(d) madesold, granted assigned, leased, licensed, transferred or promised any bonusotherwise disposed of (including, severancewithout limitation, retention or other incentive amount or any wage, salary, compensation or benefit increase transfers to any current or former director, officer, employee or sales representative, group of employees, individual service provider affiliates or consultant; shareholders) any tangible assets which, individually or in the aggregate, have a fair market value in excess of $5,000 or canceled any debts or claims, in each case, except in the ordinary course of business consistent with past practices;
(e) adoptedsold, entered intoassigned, amended leased, licensed, transferred or terminated otherwise disposed of (including, without limitation, transfers to any Planemployees, affiliates or shareholders) any patents, trademarks, trade names, copyrights, trade secrets or other intangible assets;
(f) disclosed to any person, other than as required by Law; Buyer or authorized representatives of Buyer or the Company, any proprietary confidential information, other than pursuant to confidentiality agreements prohibiting the use and further disclosure of such information, which agreements are identified on Section 5.11(f) of the Disclosure Schedule and are in full force and effect on the date hereof;
(fg) waived any rights of material value or suffered any extraordinary losses or adverse changes in collection loss experience;
(h) declared, set aside, paid any dividends or other distributions with respect to any shares of its capital stock or redeemed, purchased or otherwise acquired, directly or indirectly, any shares of its capital stock or options to purchase capital stock;
(i) issued, sold or transferred any of its equity securities, securities convertible into or exchangeable for its equity securities or warrants, options or other rights to acquire its equity securities, or any bonds or debt securities;
(j) taken any other action or entered into any other transaction other than in the ordinary course of business consistent with past practices, or entered into any transaction with any Insider (as defined in Section 5.22) other than the transactions contemplated by this Agreement;
(k) suffered any material theft, damage, destruction, casualty or loss of or to any property or properties owned or used by it, whether or not covered by insurance;
(l) made, granted, promised or announced any bonus or any Affiliate wage, salary or compensation increase to any director, officer, employee or consultant or made or granted any increase in any employee benefit plan or arrangement, or amended or terminated any existing employee benefit plan or arrangement, or adopted any new employee benefit plan or arrangement, or made any commitment or incurred any liability to any labor organization;
(m) made any single capital expenditure or commitment therefor in excess of $20,000;
(n) made any loans or advances to, or guarantees for the benefit of, any persons such that the aggregate amount of such loans, advances or guarantees at any time outstanding is in excess of $5,000;
(o) made charitable contributions or pledges which, individually or in the aggregate, exceed $5,000;
(p) made any change in accounting or tax principles or practices from those utilized in the preparation of the Financial Statements or the Returns referred to in Section 5.15(a);
(q) experienced any amendment, modification or termination of any Insider); (g) conducted existing, or entered into any new, contract, agreement, plan, lease, license, permit or franchise which is, either individually or in the aggregate, material to its cash management customs and practices business, operations, financial position or prospects other than in the ordinary course of business consistent with past practices;
(including r) experienced any labor dispute material to its business, operations, financial position or prospects;
(s) experienced any change in any assumption underlying or method of calculating, any bad debt, inventory, warranty, contingency or other reserve;
(t) written off as uncollectible any note or account receivable, or canceled any debts, other than in the ordinary course of business consistent with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); past practices;
(hu) failed to make any material capital expenditures that were previously budgeted replace or scheduled replenish supplies as such supplies may have been depleted from time to be made; (i) offered any discounts on any of time, use its products best efforts to collect accounts receivable, pay accounts payable or services shorten or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from lengthen the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid customary payment cycles for any of its products payables or servicesreceivables or otherwise manage its working capital accounts in the ordinary course of business consistent with past practices;
(v) that differ from experienced any write-down or write-up of (or failed to write-down or write-up in accordance with past practices) the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed value of any inventories, receivables or agreed to other assets, or revalued any of its assets not reflected in the foregoingLatest Balance Sheet;
(w) failed to maintain all material assets in accordance with good business practice and in good operating condition and repair, ordinary wear and tear excepted; or
(x) discontinued or altered, in any material respect, its advertising or promotional activities or its pricing and purchasing policies.
Appears in 1 contract
Samples: Stock Purchase Agreement (Health Fitness Corp /MN/)
Absence of Certain Developments. Since December 31Except for (i) the issuance of Series B Convertible Preferred Stock, 2017 Series C Stock, Series D Stock and 150,000 shares of Series A-III Convertible Preferred Stock of the Company, and the registration and other than rights granted by the Company in connection therewith, (ii) the increase in the number of shares of Common Stock available for issuance under the Company's stock option plan described in SCHEDULE 2.3 from 1,100,000 to 1,300,000, and the grant of stock options thereunder, (iii) the pending transactions described on SCHEDULE 2.3, and (iv) the anticipated amendment to the Certificate of Incorporation (which amendment may have become effective prior to the date of this Agreement) to increase the number of authorized shares of Common Stock and Preferred Stock as a result described in Section 2.3, since the date of and/or the Financial Statements, there has not been any:
(i) change in the authorized or issued capital stock of the Company; grant of any right to purchase shares of capital stock of the Company; issuance of any security convertible into capital stock of the Company; grant of any registration rights with respect to shares of capital stock of the transactions contemplated hereby and/or previously disclosed to Company; purchase, redemption, retirement, or other acquisition by the Purchaser Company of any shares of its capital stock; or the declaration or payment of any dividend or other distribution or payment in writing including in Financial Statements made available to Purchaser, neither respect of shares of capital stock of the Business nor any Purchased Assets has: Company;
(ii) amendment of (a) suffered a Material Adverse Effect the Certificate of Incorporation or suffered any material theftby-laws of the Company, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basisStockholders' Agreement, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered intoRegistration Rights Agreement;
(iii) adoption of, amended or terminated increase in the payments to or benefits under any material Contract or License or materially changed any business practice; (d) madeprofit sharing, granted or promised any bonus, severancedeferred compensation, retention savings, insurance, pension, retirement or other incentive amount employee benefit plan for or with any Company employees;
(iv) material change in the accounting methods used by the Company;
(v) entry into by the Company or any wageagreement, salaryarrangement, compensation understanding or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices commitment other than in the ordinary course of business business; or
(including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (hvi) failed to make any material capital expenditures that were previously budgeted substantial losses or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing waiver of any rights of its products material value, whether or services (including any terms and conditions that are ancillary to, or otherwise affect, not in the aggregate price paid for any ordinary course of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingbusiness.
Appears in 1 contract
Absence of Certain Developments. Since December 31the date of the Base Balance Sheet, 2017 the Company has conducted its business only in the ordinary course consistent with past practice and, except as set forth in Section 8.9 of the Disclosure Schedule and except as permitted under the MSA, there has not been:
(a) any material adverse change in the financial condition, properties, assets, liabilities, business or operations of the Company, which change by itself or in conjunction with all other than changes creates a material adverse change;
(b) any contingent liability incurred by the Company as a result of and/or guarantor or otherwise with respect to the transactions contemplated hereby and/or previously disclosed obligations of others or any cancellation of any debt or claim owing to, or waiver of any right of the Company;
(c) any mortgage, encumbrance or lien placed on any of the properties of the Company which remains in existence on the Execution Date or will remain on the Closing Date and the Acquisition Date (as defined in the MSA);
(d) any obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown (including without limitation, liabilities for taxes due or to become due or contingent or potential liabilities relating to services provided by the Purchaser Company, including without limitation, any claims or potential claims for malpractice, or the conduct of the business of the Company since the date of the Base Balance Sheet regardless of whether claims in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangiblerespect thereof have been asserted), except for sales of inventory or services incurred by the Company other than obligations and liabilities incurred in the ordinary course of business consistent with the terms of this Agreement (it being understood that claims in connection with services provided by the Company, including without limitation, malpractice claims, shall not be deemed to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group be incurred in the ordinary course of employees, individual service provider or consultant; business);
(e) adoptedany purchase, entered intosale or other disposition, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate agreement or other arrangement for the purchase, sale or other disposition, of any Insider); (g) conducted its cash management customs and practices of the properties or assets of the Company other than in the ordinary course of business;
(f) any damage, destruction or loss, whether or not covered by insurance, adversely affecting the properties, assets or business of the Company;
(including with respect to maintenance of working capital balancesg) any declaration, maintenance of inventory levels, collection of accounts receivable and setting aside or payment of accounts payable); any dividend by the Company, or the making of any other distribution in respect of the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of its own capital stock;
(h) failed any labor trouble or claim of unfair labor practices involving the Company; any change in the compensation payable or to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect become payable by the Company to any of its products respective officers, employees, agents or services independent contractors other than normal merit increases in accordance with terms and conditions that differ materially from the terms and conditions previously offered by Seller its usual practices, or any bonus payment or arrangement made to or with any of those officers, employees, agents or independent contractors;
(i) any change with respect to the Businessofficers or management of the Company; (j) changed any payment or discharge of a lien or liability of the Company which was not shown on the Base Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any material respect obligation or liability incurred by the Company to any of its officers, directors, stockholders or employees, or any loans or advances made by the Company to any of its respective officers, directors, stockholders or employees, except normal compensation and expense allowances payable to officers or employees;
(l) any change in accounting methods or practices, credit practices or collection policies used by the Company;
(m) any compensation paid by the Company to Shareholders in excess of Five Thousand Dollars ($5,000.00) in the aggregate;
(n) any capital expenditure by the Company in excess of Five Thousand Dollars ($5,000.00) in the aggregate;
(o) any borrowings or entering into any leases;
(p) any other transaction entered into by the Company other than transactions in the ordinary course of business; or
(q) any agreement or understanding whether in writing or otherwise, for the Company to take any of the terms and conditions with respect to the pricing of any of its products or services actions specified in paragraphs (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or servicesa) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or through (kp) committed or agreed to any of the foregoingabove.
Appears in 1 contract
Samples: Purchase Option Agreement (Sheridan Healthcare Inc)
Absence of Certain Developments. Since December Except as set forth on the ------------------------------- "Developments Schedule" attached hereto and except as expressly contemplated by --------------------- this Agreement, since August 31, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser1997, neither the Business Seller nor any Purchased Assets of its Subsidiaries has: :
(a) suffered any change that has had or could reasonably be expected to have a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is in excess of $50,000, to its assets, whether or not covered by insurance; insurance or suffered any substantial destruction of its books and records;
(b) redeemed or repurchased, directly or indirectly, any shares of capital stock or other equity security or declared, set aside or paid any dividends or made any other distributions (whether in cash or in kind) with respect to any shares of its capital stock or other equity security;
(c) issued, sold or transferred any equity securities, any securities convertible, exchangeable or exercisable into shares of its capital stock or other equity securities, or warrants, options or other rights to acquire shares of its capital stock or other of its equity securities;
(d) incurred or become subject to any liabilities, except liabilities incurred in the Ordinary Course of Business;
(e) subjected any portion of its properties or assets to any Lien (other than Permitted Encumbrances)
(f) sold, leased, assignedassigned or transferred (including, distributedwithout limitation, licensed, sublicensed, transferred transfers to Stockholders or otherwise encumbered any Insider) a portion of its assets or properties (tangible or intangible)assets, except for sales of inventory or services in the ordinary course Ordinary Course of business to unaffiliated third Persons on an arm’s length basisBusiness, or canceled without fair consideration any material debts or claims owing to or held by it; ;
(cg) sold, assigned, licensed or transferred (including, without limitation, transfers to Stockholders or any Insider) any Proprietary Rights owned by, issued to or licensed to it or disclosed any confidential information (other than pursuant to agreements requiring the disclosure to maintain the confidentiality of and preserving all its rights in such confidential information) or received any confidential information of any third party in violation of any obligation of confidentiality;
(h) suffered any extraordinary losses or waived any rights of material value;
(i) entered into, amended or terminated any material Contract lease, contract, agreement or License commitment, or taken any other action or entered into any other transaction other than in the Ordinary Course of Business;
(j) entered into any other material transaction, or materially changed any business practice; ;
(dk) made, made or granted or promised any bonus, severance, retention or other incentive amount bonus or any wage, salary, salary or compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employeesemployees or consultant or made or granted any increase in any employee benefit plan or arrangement, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Planexisting employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement;
(l) made any other change in employment terms for any of its directors, other than as required by Law; officers, and employees outside the Ordinary Course of Business;
(f) entered into any transaction with any Insider (or any Affiliate of any Insider); (gm) conducted its cash management customs and practices other than in the ordinary course Ordinary Course of business Business (including including, without limitation, with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable receivable, purchases of inventory and supplies, repairs and maintenance, payment of accounts payablepayable and accrued expenses, levels of capital expenditures and operation of cash management practices generally); ;
(hn) failed to make made any material capital expenditures or commitments for capital expenditures that were previously budgeted aggregate in excess of $20,000;
(o) made any loans or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary advances to, or otherwise affectguarantees for the benefit of, the aggregate price paid for any Person;
(p) made charitable contributions, pledges, association fees or dues in excess of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business$10,000; and/or or
(kq) committed or agreed to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31the Balance Sheet Date and except as otherwise required or expressly contemplated by this Agreement or as set forth on Section 4.7 of the Disclosure Schedules, 2017 (x) each Company has conducted its respective business activities (including the timing of, invoicing and collection of receivables and the accrual and payment of payables and other than as a result current liabilities) only in the Ordinary Course of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to PurchaserBusiness, neither the Business nor any Purchased Assets and (y) no Company has: :
(a) suffered any facts, events, circumstances, changes, developments, effects or conditions that, individually or in the aggregate, has had or would reasonably be expected to result in a Company Material Adverse Effect or Effect;
(b) suffered any loss or destruction of any material theft, damage, destruction or casualty loss that is not asset (other than those covered by insurance; );
(bc) sold, leased, assignedtransferred, distributeddisposed of, abandoned or assigned any of its assets that are material to the business of such Company as currently conducted, other than the sale of inventory in the Ordinary Course of Business, or mortgaged, pledged or subjected any asset to any Lien (other than Permitted Liens);
(d) made or permitted to be made any change in the Organizational Documents of a Company;
(e) transferred, issued, pledged, redeemed, sold or otherwise disposed of, or split, combined or reclassified the Shares, warrants, options or other equity interests of a Company or caused any similar change in capitalization with respect to the Shares or other equity interests of a Company or instruments or rights convertible into or exchangeable for equity interests of a Company;
(f) incurred or guaranteed any Indebtedness with a value in excess of $100,000;
(g) except for cash dividends paid in full at or prior to Closing, declared, set aside, made or paid any dividend or made any distribution (whether in cash or otherwise) with respect to the Shares;
(h) revoked or made a change (or made any request to any Governmental Authority to revoke or change) to its accounting methods, principles or practices, including, without limitation, the Inventory Past Practices;
(i) engaged in a merger, consolidation, reorganization, reclassification, liquidation, dissolution or similar transaction or filed a petition in bankruptcy under any provision of federal or state bankruptcy Law or consented to the filing of any bankruptcy petition against it under any similar Law;
(j) acquired (including by merger, consolidation, acquisition of equity interests or assets, or otherwise) any Person, any business or any division thereof;
(k) made any material increase in benefits or perquisites (except to the extent required pursuant to previously existing binding Contracts), or any increase in compensation in excess of $5,000 on a per annum basis payable to, or which could become payable to, any Seller, director, officer, Employee or Contractor of the Companies;
(l) hired, engaged, terminated or accepted of the resignation of any Employee or Contractor of the Companies whose annual compensation exceeds $75,000, or entered into (or amended) any severance or similar Contract with any Employee or Contractor of such Company, or entered into any employment or engagement Contract with any Employee or Contractor whose annual compensation exceeds $75,000;
(m) negotiated, modified, extended, terminated or entered into any collective bargaining agreement, or recognized or certified any labor union, works council, other labor organization, or group of employees as the bargaining representative for any employees of the Companies;
(n) failed to pay any wages or compensation due to any Employee or Contractor in any material respects, changed the exempt or nonexempt status of any Employee for purposes of the Fair Labor Standards Act and/or any comparable employment standards Law, or changed the employment or contractor classification of any Employee or Contractor;
(o) implemented or announced any employee layoffs, plant closings, or other personnel actions that require notice to be issued in compliance with the WARN Act;
(p) adopted a new plan or arrangement that would be a Company Benefit Plan or amended or modified any Company Benefit Plan;
(q) cancelled or terminated any Insurance Policy or otherwise failed to maintain any Insurance Policy;
(r) (i) sold, transferred, licensed, sublicensed, transferred abandoned, permitted to expire or lapse, conveyed, leased or otherwise encumbered a portion disposed of its assets or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basisany Company-Owned Intellectual Property, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed modified in any material respect any of the terms and conditions existing Contract or rights with respect to any Company-Owned Intellectual Property, other than non-exclusive licenses granted to customers in the pricing Ordinary Course of Business or (ii) disclosed any trade secrets or other confidential information to any Person other than pursuant to a written confidentiality and non-disclosure agreement entered into in the Ordinary Course of its products Business;
(s) (i) entered into any Contract that would constitute a Material Contract or services (including ii) materially amended, canceled, terminated or waive any terms and conditions material rights under any Material Contract;
(t) settled any Proceeding, other than a settlement that are ancillary to(i) does not involve non-monetary relief or (ii) is for cash consideration of value less than $50,000, or otherwise affect, in the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Businessaggregate; and/or or
(ku) committed or agreed to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Grocery Outlet Holding Corp.)
Absence of Certain Developments. Since December 31the date of the Balance Sheet, 2017 each Acquired Company has conducted the Business only in the ordinary course consistent with past practice and there has not been:
(a) any amendment of any Acquired Company’s Charter Documents;
(b) any Claim placed on any of the properties of any Acquired Company, other than Permitted Claims;
(c) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any properties or assets by the Acquired Companies, including any of their Intellectual Property Assets, involving the payment or receipt of more than $50,000 other than in the Ordinary Course of Business;
(d) any damage, destruction or loss of any material property, whether or not covered by insurance;
(e) any declaration, setting aside or payment of any dividend by any Acquired Company, or the making of any other distribution in respect of the share capital or other equity interest of any Acquired Company, any direct or indirect redemption, purchase or other acquisition by any Acquired Company of its own share capital or equity interests (other than repurchases of stock in accordance with the Company Stock Option Plan or applicable Contracts in connection with the termination of service of employees or other service providers); or any bonus payments made to any officers, managers or employees of any Acquired Company outside the Ordinary Course of Business or pursuant to the transactions contemplated by this Agreement;
(f) any claim of unfair labor practices involving any Acquired Company, or, except as contemplated by this Agreement, the Transaction Documents and as required by written contractual agreements in effect as of the date hereof, any material change in the base salary or wage payable or to become payable by any Acquired Company to any of its officers, managers or employees, or any bonus arrangements extending to periods after the Closing Date made to or with any of such officers, managers or employees or any establishment or creation of any employment, deferred compensation or severance arrangement or employee benefit plan with respect to such Persons, or the amendment of any of the foregoing, with the exception of offer letters for at-will employment and employment contracts for employees who reside in France, Germany and the United Kingdom;
(g) any resignation, termination or removal of any officer or key employee of any Acquired Company or material loss of personnel of any Acquired Company or material change in the terms and conditions of the employment of any Acquired Company’s officers, managers or key personnel;
(h) any payment or discharge of a result lien or liability of and/or the Acquired Companies that was not shown on the Balance Sheet or incurred in the Ordinary Course of Business thereafter;
(i) any contingent liability incurred by the Company as guarantor or otherwise with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor obligations of others or any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered cancellation of any material theft, damage, destruction debt or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basisclaim owing to, or canceled without fair consideration waiver of any material debts right of, any Acquired Company, including any write-off or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate compromise of any Insider); (g) conducted its cash management customs and practices accounts receivable, other than in the ordinary course Ordinary Course of business Business;
(including j) except for the indemnification rights reflected in the Acquired Companies’ Charter Documents, any obligation or liability incurred by any Acquired Company to any of its officers, managers, directors, stockholders, members or employees, or any loans or advances made by any Acquired Company to any of its officers, managers, directors, stockholders, members or employees, except normal compensation and expense allowances payable to officers, managers or employees in the Ordinary Course of Business;
(k) the incurrence of any long-term indebtedness for borrowed money, whether through the assumption or guarantee of obligations of any other Person or otherwise;
(l) any material change in accounting methods or practices of any Acquired Company, other than write-downs or write-offs as required by GAAP or in the Ordinary Course of Business;
(m) any initial Tax election, any change to any Tax election or any method of accounting methods for Tax purposes, any filing of an amended Tax Return, any settlement or other compromise of any Tax liability, claim or assessment, or agreement to an extension or waiver of the statute of limitations with respect to maintenance the assessment or determination of working capital balancesany amount of Taxes, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers closing agreement with respect to any Tax or the surrender of its products any right to claim a Tax refund;
(n) any loss, or services with terms and conditions to the knowledge of the Company, any development that differ materially from would reasonably be expected to result in a loss, of any Significant Suppliers or any Significant Customers of any Acquired Company;
(o) any amendment, modification, renewal or termination of, or waiver of any material right under, any Material Contract to which any Acquired Company is a party or by which it is bound, other than in the Ordinary Course of Business;
(p) any new arrangements (other than those entered into in the Ordinary Course of Business) relating to any royalty or similar payment based on the revenues, profits or sales volume of the Acquired Companies as a whole, whether as part of the terms and conditions previously offered of any Acquired Company’s share capital or other equity interests or by Seller any separate agreement;
(q) any transaction or agreement involving fixed price terms or fixed volume arrangements other than in the Ordinary Course of Business;
(r) any material change in the assets, liabilities, condition (financial or otherwise), properties, business or operations of the Acquired Companies that would reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect;
(s) any acceleration of customer renewal periods or offering of incentives to customers to renew their agreements with respect to any Acquired Company outside the Ordinary Course of Business; or
(jt) changed any agreement or understanding whether in any material respect writing or otherwise, for the Acquired Companies to take any of the terms and conditions with respect to the pricing of any of its products or services actions specified in clauses (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or servicesa) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or through (ks) committed or agreed to any of the foregoingabove.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as set forth on the "Developments Schedule" attached hereto or except as expressly contemplated by this Agreement, 2017 and other than as a result of and/or with respect to since the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to PurchaserLatest Balance Sheet, neither the Business Company nor any Purchased Assets of its Subsidiaries has: :
(a) suffered any change that has had or could reasonably be expected to have a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is in excess of $200,000, to its assets, whether or not covered by insurance; insurance or suffered any substantial destruction of its books and records;
(b) redeemed or repurchased, directly or indirectly, any shares of capital stock or other equity security or declared, set aside or paid any dividends or made any other distributions (whether in cash or in kind) with respect to any shares of its capital stock or other equity security;
(c) issued, sold or transferred any equity securities, any securities convertible, exchangeable or exercisable into shares of its capital stock or other equity securities, or warrants, options or other rights to acquire shares of its capital stock or other of its equity securities;
(d) discharged or satisfied any material Lien or encumbrance or paid any material obligation or liability, other than current liabilities paid in the ordinary course of business consistent with past custom and practice, or canceled, compromised, waived or released any right or claim;
(e) incurred or become subject to any liabilities, except liabilities incurred in the ordinary course of business consistent with past practice;
(f) subjected any portion of its properties or assets to any Lien (other than Permitted Encumbrances)
(g) sold, leased, assignedassigned or transferred (including, distributedwithout limitation, licensed, sublicensed, transferred transfers to the Stockholder or otherwise encumbered any Insider) a portion of its assets or properties (tangible or intangible)assets, except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basisconsistent with past practice, or canceled without fair consideration any material debts or claims owing to or held by it; ;
(ch) sold, assigned, licensed or transferred (including, without limitation, transfers to the Stockholder or any Insider) any Proprietary Rights owned by, issued to or licensed to it or disclosed any confidential information (other than pursuant to agreements requiring the disclosure to maintain the confidentiality of and preserving all its rights in such confidential information) or received any confidential information of any third party in violation of any obligation of confidentiality;
(i) entered into, amended or terminated any material Contract lease, contract, agreement or License commitment, or taken any other action or entered into any other transaction other than in the ordinary course of business consistent with past practice;
(j) entered into any other material transaction not in the ordinary course of business, or materially changed any business practice; ;
(dk) made, made or granted or promised any bonus, severance, retention or other incentive amount bonus or any wage, salary, salary or compensation or benefit increase to any current or former director, officer, key employee or sales representative, group of employeeskey employees or made or granted any increase in any employee benefit plan or arrangement, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Planexisting employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement, except as any such action is reflected in a Plan listed on the Benefit Plans Schedule or in any immaterial employee benefit plan, arrangement or program;
(l) made any other than as required by Law; change in employment terms for any of its directors, officers, and key employees outside the ordinary course of business consistent with past practice;
(f) entered into any transaction with any Insider (or any Affiliate of any Insider); (gm) conducted its cash management customs and practices other than in the ordinary course of business consistent with past practice (including including, without limitation, with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable receivable, purchases of inventory and supplies, repairs and maintenance, payment of accounts payable); (h) failed to make any material payable and accrued expenses, levels of capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any and operation of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoing.cash management practices generally);
Appears in 1 contract
Absence of Certain Developments. Since December 31the Balance Sheet Date, 2017 and other than as a result the Seller has operated the Business in the Ordinary Course of and/or with respect Business, subject to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaserterms of this Agreement, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices has incurred no Liabilities other than in the ordinary course Ordinary Course of Business (except for those incurred relating to this Agreement) and, except for the Liabilities incurred by Seller in connection with the transactions contemplated by this Agreement, there has not been:
(a) any Material Adverse Change, or the occurrence of any event that could reasonably be expected to result in a Material Adverse Change;
(b) any change, not disclosed in the Financial Statements, in the accounting methods, practices or principles or cash management practices of Seller;
(c) any revaluation by Seller of any of its assets, including without limitation the write-down or write-off of notes, accounts receivable or inventory, other than in the Ordinary Course of Business;
(d) any sale, assignment, transfer, distribution, mortgage or pledge of any of the properties or assets of Seller, except sales of inventory in the Ordinary Course of Business, or the placement of any Encumbrance on any of the properties or assets of Seller, excluding any Encumbrance, defect in title to, or default or breach of the terms of, the Assumed Contracts that may arise by the Parties having agreed that Seller shall assign, and the assignment of, the Assumed Contracts to Purchaser without having secured the consent, waiver, approval, authorization, declaration or filing from, or providing notice to, any Person regarding the assignment of the Assumed Contracts to Purchaser;
(e) any failure to use commercially reasonable efforts to preserve the Business, to keep available to the Business the services of its key employees and to preserve for the Business the goodwill of its suppliers, customers and others having business relations with it;
(f) except as set out on Schedule 2.6(j), any breach or default (or event that with notice or lapse of time would constitute a breach or default), acceleration, termination (or threatened termination), modification or cancellation of any Seller Contract by any party (including Seller), excluding any Encumbrance, defect in title to, or default or breach of the terms of, the Assumed Contracts that may arise by the Parties having agreed that Seller shall assign, and the assignment of, the Assumed Contracts to Purchaser without having secured the consent, waiver, approval, authorization, declaration or filing from, or providing notice to, any Person regarding the assignment of the Assumed Contracts to Purchaser;
(g) any contract that was entered into outside the Ordinary Course of Business of the Seller, consistent with respect to maintenance of working capital balancesSeller’s past practices, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); except for the transactions contemplated or necessitated by this Agreement;
(h) failed to make except as set forth on Schedule 2.6(h), any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products increase in the compensation payable or services or any promotions, rebates, coupons or special offers with respect to become payable by Seller to any of its products employees, including without limitation any bonuses; (ii) adoption, amendment or services with terms and conditions that differ materially from increase in the terms and conditions previously offered by coverage or benefits available under any Employee Benefit Plan or Benefit Arrangement or (iii) amendment or execution of any employment, deferred compensation, severance, consulting, non-competition, employee retention plan or similar agreement to which Seller with respect to is a party or involving an employee of Seller (other than employment terminable at will without penalty);
(i) any termination of employment (whether voluntary or involuntary) of, or receipt or expectation of receipt of any resignation by, any key employee of the Business; , or any termination of employment (whether voluntary of involuntary) of employees of the Business materially in excess of historical attrition in personnel;
(j) changed in except as set forth on Schedule 2.6(j), any material respect any of the terms transaction between Seller and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or a Related Party;
(k) committed any cancellations or agreed waivers of any claims or rights of the Seller of material value;
(l) any execution of capital leases by the Seller;
(m) any other transaction, agreement or commitment entered into or affecting the Business or the assets of Seller not made in the Ordinary Course of Business, excluding this Agreement and the transactions required to effectuate this Agreement; or
(n) any agreement or understanding to do, or resulting in, any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31January 2, 2017 and other than 2000, except as a result disclosed in the SEC Reports or in Section 2.6 of and/or the Schedule of Exceptions, there has been no: (a) event, occurrence or development with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered Company that has had a Material Adverse Effect Effect; (b) declaration or suffered payment of any material theftdividend or other distribution of the assets of the Company or any direct or indirect redemption, purchase or acquisition of any securities of the Company; (c) increase in compensation of any of the Company's officers, or the rate of pay of the Company's employees as a group, except as part of regular compensation increases in the ordinary course of business; (d) resignation or termination of employment of any officer or key employee of the Company; (e) change in the accounting methods or practices followed by the Company; (f) issuance of any stock, bonds, or other securities of the Company or options, warrants, or rights or agreements or commitments to purchase or issue such securities or grant such options, warrants or rights, except for those issuances pursuant to the exercise of options, warrants, or convertible securities outstanding at such date or as contemplated by the Transaction Documents; (g) damage, destruction or casualty loss that is loss, whether or not covered by insurance, materially and adversely affecting the properties, operation or business of the Company; (bh) soldacceleration or prepayment of any Debt of the Company or the refunding of any such Debt, leased(i) waiver by the Company of a valuable right or of a material Debt owed to it; (j) loans made by the Company to its employees, assignedofficers, distributedor directors, licensedother than advances of expenses made in the ordinary course of business; (k) labor organization activity or organized labor trouble; (l) sale, sublicensedtransfer, transferred or otherwise encumbered a portion lease of its assets or properties (tangible or intangible)any of the Company's assets, except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts mortgage or claims owing to pledge of or held by itlien imposed upon any of the Company's assets; (cm) entered into, amended notification by a material customer or terminated supplier of the Company of its intention to terminate its relationship with the Company; or (n) any other material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other transaction by the Company otherwise than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than for fair value in the ordinary course of business business. No event that would constitute an Event of Default (including with respect to maintenance of working capital balancesas defined in the Notes) has occurred, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted whether or scheduled to be made; (i) offered any discounts not continuing on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingdate hereof.
Appears in 1 contract
Absence of Certain Developments. Since December 31the date of the Base Balance Sheet and through the date of this Agreement, 2017 and other than the Company has conducted its business only in the ordinary course consistent with past practice and, except as a result set forth in Section 2.6 of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to PurchaserDisclosure Schedule, neither the Business nor any Purchased Assets has: there has not been:
(a) suffered any change in the assets, liabilities, financial condition, properties, business or operations of the Company, which change by itself or in conjunction with all other such changes, whether or not arising in the ordinary course of business, has had or could be reasonably likely to have a Material Adverse Effect on the Company;
(b) any mortgage, lien or suffered other encumbrance placed on any of the properties of the Company, other than purchase money liens and liens for taxes not yet due and payable;
(c) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any properties or assets (other than raw material theftand goods for resale) by the Company, including any of its Intellectual Property Rights (as defined in Section 2.11), involving the payment or receipt of more than $50,000;
(d) any damage, destruction or casualty loss that is loss, whether or not covered by insurance; , that has had or could be reasonably likely to have a Material Adverse Effect on the Company;
(be) soldany declaration, leasedsetting aside or payment of any dividend by the Company, assignedor the making of any other distribution in respect of the capital stock of the Company, distributedor any direct or indirect redemption, licensed, sublicensed, transferred purchase or otherwise encumbered a portion other acquisition by the Company of its assets own capital stock;
(f) any resignation, termination or properties removal of any officer of the Company;
(tangible g) any material change in accounting methods or intangible)practices, collection policies, pricing policies or payment policies of the Company other than such changes required by GAAP that have been disclosed to Harbor;
(h) any amendment or termination of any material contract or agreement to which the Company is a party or by which it is bound;
(i) any amendment to the Company Charter or Company Bylaws;
(j) any write-off as uncollectible of any notes or accounts receivable, except for sales of inventory or services write-offs in the ordinary course of business to unaffiliated third Persons on an arm’s length basisand consistent with past practice;
(k) except for the transactions contemplated by this Agreement, or canceled without fair consideration any material debts change in the rate of compensation of any officers or claims owing employees (including any such change pursuant to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severancepension, retention profit-sharing or other incentive amount plan or commitment) or any wage, salary, agreement to change the compensation payable or benefit increase to become payable to any current officer or former director, officer, employee or sales representative, group employee;
(l) any cancellation of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (debts or any Affiliate waiver or lapse of any Insider)claims or rights of substantial value; or
(gm) conducted its cash management customs and practices other than any agreement or understanding whether in writing or otherwise, for the ordinary course of business (including with respect Company to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect take any of the terms and conditions with respect to the pricing of any of its products or services actions specified in paragraphs (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or servicesa) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or through (kl) committed or agreed to any of the foregoingabove.
Appears in 1 contract
Samples: Stock Purchase Agreement (Harbor Acquisition Corp.)
Absence of Certain Developments. Since December 31, 2017 and other than as a result of and/or with respect to 2005, the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither Companies have conducted the Business nor any Purchased Assets has: only in the ordinary course consistent with their past practices and, except as set forth in Schedule 2.7, there has not been any:
(a) suffered a Material Adverse Effect to the Knowledge of Seller, change in the assets, liabilities, financial condition, properties, business or suffered any material theftoperations of the Companies, damagewhich change by itself or in conjunction with all other such changes, destruction whether or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services arising in the ordinary course of business business, has had or would reasonably be expected to unaffiliated third Persons on an arm’s length basishave a Material Adverse Effect;
(b) declaration, setting aside or payment of any dividend or other distribution (whether of cash, in kind or securities) with respect to, or canceled any direct or indirect redemption, purchase or acquisition of, any of the capital stock of the Companies, or any issuance or sale by the Companies of any shares of its capital stock, including, without fair consideration limitation, any material debts in kind distribution of accounts receivable, inventory or claims owing to or held by it; other assets of the Companies;
(c) entered into, amended waiver or terminated release of any material Contract right of the Companies or License cancellation or materially changed discharge of any business practice; (d) madematerial debt or claim held by the Companies, granted or promised excluding any bonus, severance, retention write-off or other incentive amount or any wagecompromise of accounts receivable, salaryin each case, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business consistent with past practice;
(including d) loss, destruction or damage to any property which would have a Material Adverse Effect, whether or not covered by insurance;
(e) acquisition or disposition, or any agreement or other arrangement for the acquisition or disposition of, any material assets or properties of the Companies, excluding the sale of inventory in the ordinary course of business consistent with past practice;
(f) material increase, direct or indirect, or other change in the compensation or benefits paid or payable to, or pay any bonus to, any officer, director, employee, independent contractor or agent of the Companies (other than salary, wage and/or commission increases in the ordinary course of business consistent with the Companies’ past practices) or any establishment or creation of any employment, deferred compensation, change in control, or severance agreement or employee benefit plan with respect to maintenance of working capital balancessuch Persons or the amendment to, maintenance of inventory levelsor modification or termination of, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products the foregoing;
(g) loss of key personnel of the Companies, or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from material change in the terms and conditions previously offered by Seller with respect to of the Business; employment of the Companies’ key personnel;
(h) incurrence or refinancing of any indebtedness, mortgage, encumbrance or placement of any Lien on any properties or assets of the Companies, other than Liens for Taxes not yet due and payable or being contested in good faith;
(i) change in accounting methods or practices, collection or credit policies, pricing policies, reserve policies, revenue recognition policies or payment policies;
(j) changed in payment or discharge of a Lien or material liability of the Companies outside the ordinary course of business;
(k) entering into, amendment or termination of any material respect contract or agreement to which any Company is a party or by which it is bound;
(l) amendment to the Certificates of Incorporation or Bylaws of the Companies;
(m) incurrence of capital expenditures, other than in the ordinary course of business consistent with the Companies’ past practices; or
(n) to the Seller’s Knowledge, any agreement or understanding, whether in writing or otherwise, by the Companies or any other Person that would result in any of the terms and conditions with respect foregoing transactions or events or require the Companies to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to take any of the foregoingforegoing actions.
Appears in 1 contract
Absence of Certain Developments. Since December 31the Balance Sheet Date, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser Company has operated in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any all material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services respects in the ordinary course of business to unaffiliated third Persons on an arm’s length basisconsistent with past practice, and there has been no: (a) event, circumstance or condition, which has had, or canceled without fair consideration would reasonably be expected to have, a Material Adverse Effect; (b) declaration, setting aside or payment of any material debts dividend or claims owing other redemption or distribution with respect to or held by itthe shares of the Company; (c) entered intoissuance of shares or options, amended warrants or terminated any material Contract or License or materially changed any business practicerights to acquire shares of the Company; (d) madeloss, granted destruction or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase damage in excess of $50,000 to any current Asset of the Company, whether or former director, officer, employee or sales representative, group of employees, individual service provider or consultantnot insured; (e) adoptedincurrence, entered intoguarantee, amended assumption, acceleration or terminated prepayment of any Plan, other than as required Indebtedness or the refunding of any such Indebtedness by Lawthe Company; (f) entered into any transaction with any Insider (employment contract or any Affiliate collective bargaining agreement, written or oral, or modified the terms of any Insider)such contract or agreement; (g) conducted granted any increase in the base compensation of any of its cash management customs and practices directors, officers, or employees outside the ordinary course of business; (h) adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other than plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other benefit plan); (i) made any other change in employment terms for any of its directors, officers, or employees outside the ordinary course of business; (j) waiver of any right of the Company with a value in excess of $50,000, or settlement or release of any Proceeding or Claim; (k) loan, advance or extension of credit by the Company, except for advances for reimbursable travel expenses made in the ordinary course of business (including consistent with respect past practice, or capital contribution to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable)or investment in any Person by the Company; (hl) failed to make acquisition, disposition, lease, license or transfer of any Asset of the Company involving more than $50,000 (or any Contract therefor), or any other material transaction by the Company other than for fair value and in the ordinary course of business consistent with past practice; (m) material capital expenditures that were previously budgeted or scheduled to be madeexpenditure outside of the ordinary course of business consistent with past practice; (n) (i) offered sale, license, sublicense, assignment, abandonment, allowance to lapse, dedication to the public domain, pledge, encumber, disposal of or transfer of any discounts on Owned Intellectual Property, other than non-exclusive licenses granted in the ordinary course of business consistent with past practice, or (ii) disclosure of any trade secrets or proprietary Source Code to a third party, other than pursuant to a valid and binding confidentiality agreement or other binding obligation of its products or services or any promotionsconfidentiality the Company entered into in the ordinary course of business consistent with past practice; (o) Lien created by the Company, rebates, coupons or special offers with respect to any of its products properties or services with terms and conditions that differ materially from Assets, except for Permitted Liens; (p) acceleration, termination, modification or cancellation of any Contract (or series of related Contracts) involving more than $50,000 to which the terms and conditions previously offered Company is a party or by Seller with respect which the Company is bound and, to the BusinessKnowledge of the Sellers, no Person has notified the Company that it intends to take any such action; (jq) changed change in any accounting methods, principles or practices used in preparing the Financial Statements or to the working capital policies applicable to the Company, except as required by GAAP; (r) material respect any write-down or write-up of the terms and conditions with respect to the pricing value of any Asset of its products or services (including any terms and conditions that are ancillary tothe Company, or otherwise affect, write-off of any accounts receivable or notes receivable or any portion thereof; or (s) commitment on behalf of the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect Company to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as set forth on Section 3.06 of the Disclosure Schedules, 2017 and since the date of the Latest Balance Sheet through the date hereof, there has not been any Material Adverse Effect and, other than as a result of and/or in connection with respect to the transactions contemplated hereby and/or previously disclosed to Pre-Closing Reorganization, the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Company has not:
(a) suffered a Material Adverse Effect incurred or suffered guaranteed any material theft, damage, destruction or casualty loss that is not covered by insurance; Indebtedness (other than incremental Indebtedness under revolving lines of credit in existence as of the date hereof);
(b) soldmortgaged, leased, assigned, distributed, licensed, sublicensed, transferred pledged or otherwise encumbered a subjected to any Lien (other than Permitted Liens) any portion of its assets Assets;
(c) sold, assigned or properties (transferred any portion of its tangible or intangible)Assets, except for other than sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basisand sales, assignments or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; transfers of Assets that do not exceed $10,000 in the aggregate;
(d) madewritten off as uncollectible any notes or accounts receivable, granted except write offs in the ordinary course of business consistent with past practice;
(e) acquired by merger or promised any bonusconsolidation with, severanceor by purchase of a business line, retention business, substantial portion of the assets (other than in the ordinary course of business) or stock or other incentive amount equity interests of any business or any Person in a single transaction or a series of related transactions;
(f) adopted any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consented to the filing of any bankruptcy petition against it under any similar Law;
(g) sold, assigned or transferred any Intellectual Property owned by the Company, except in the ordinary course of business;
(h) issued, sold or transferred any of its equity securities, convertible or exchangeable securities or securities containing any equity features or changed the Company’s authorized or issued capital stock, other than the Transferred Interests in connection with the Pre-Closing Reorganization;
(i) made any capital investment in, or any loan in excess of $10,000 to, any Person;
(j) made any material deviation from any historical accounting principle, procedure or practice followed by the Company or in the method of applying any such principle, procedure or practice;
(k) announced or implemented any reduction in force, layoff, early retirement program, severance program or other program or effort concerning the termination of employment of employees of the Company (other than routine employee terminations), made or granted any bonus or any wage, salary, salary or compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business to any employee of the Company who earns less than $50,000 in annual base compensation or adopted, amended, terminated or modified any Benefit Plan other than as legally required, except for the Employee Transaction Bonuses;
(including l) entered into any contract, agreement, lease or license requiring the payment of more than $100,000 on an annual basis, excluding any purchase orders in the ordinary course of business;
(m) accelerated, terminated, modified or cancelled any contract, agreement, lease, agreement or license requiring the payment of more than $100,000 on an annual basis to which the Company is a party or by which it is bound, outside of the ordinary course of business consistent with past practice;
(n) made any non-cash distribution with respect to maintenance of working capital balancesits equity securities or redeemed, maintenance of inventory levelspurchased, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on otherwise acquired any of its products equity securities;
(o) made any capital expenditures or services commitments therefor, other than in the ordinary course of business, for such capital expenditures or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions commitments therefor that are ancillary toreflected in the Company’s capital expenditure budget for the fiscal year ending December 31, 2021 or that do not exceed $10,000 in the aggregate; or
(p) authorized any of, or otherwise affectcommitted, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed resolved or agreed to take any of of, the foregoingforegoing actions.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Universal Corp /Va/)
Absence of Certain Developments. Since December 31Except as set forth on Section 5.6 of the Company Disclosure Schedules, 2017 and other than as a result from the date of and/or with respect the Stub Period Balance Sheet to the transactions contemplated hereby and/or previously disclosed to date of this Agreement, the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Company and each of its Subsidiaries (a) suffered has conducted its respective businesses substantially in the Ordinary Course of Business, (b) used commercially reasonable efforts to preserve their respective businesses and customers, (c) extended credit to customers, collected accounts receivable and paid accounts payable and similar obligations substantially in the Ordinary Course of Business and (d) not engaged in any new line of business. Without limiting the generality of the foregoing, except as set forth on Section 5.6 of the Company Disclosure Schedule, from the date of the Stub Period Balance Sheet:
(a) there has not been a Material Adverse Effect or suffered Effect;
(b) there has not been any material theft, damage, destruction or casualty loss that is not to the property or assets of the Company or any of its Subsidiaries, except for any such damage, destruction or loss covered by insurance; insurance (bsubject to the payment of deductibles), exceeding in the aggregate $250,000;
(c) soldthere has not been any declaration, leasedsetting aside or payment of any dividend or other distribution of Cash, assignedCash Equivalents or other property in respect of any shares of Company Capital Stock or other equity securities of the Company or its Subsidiaries or any repurchase, distributedredemption or other acquisition by the Company or its Subsidiaries of any outstanding shares of Company Capital Stock or other equity securities of, licensedor other ownership interest in, sublicensedthe Company or its Subsidiaries other than distributions from a Company Subsidiary to the Company or another Company Subsidiary;
(d) neither the Company nor any of its Subsidiaries has entered into any employment or severance agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by it to any of the Company’s or its Subsidiaries’ officers or employees other than in the Ordinary Course of Business or as required by applicable law;
(e) there has not been any change by the Company or its Subsidiaries in accounting or Tax reporting principles, transferred methods or otherwise encumbered policies, except insofar as was required by a portion change in GAAP or law;
(f) neither the Company nor any of its Subsidiaries has made or rescinded any election relating to Taxes or settled or compromised any claim relating to Taxes;
(g) neither the Company nor any of its Subsidiaries has entered into, amended, modified or consented to the termination of any Listed Contract, except for amending or modifying any customer contract in the Ordinary Course of Business to provide for additional sales, or created, amended, waived, modified or consented to the termination of any material rights of any of Company or any of its Subsidiaries thereunder;
(h) neither the Company nor any of its Subsidiaries has failed to promptly pay and discharge current liabilities, except in the Ordinary Course of Business, for amounts not in excess of $100,000 or where disputed in good faith;
(i) neither the Company nor any of its Subsidiaries has made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any holder of Company Capital Stock or any director, officer, partner, stockholder, or affiliate of any holder of Company Capital Stock;
(j) neither the Company nor any of its Subsidiaries has (i) mortgaged, pledged or subjected to any Lien (other than licenses to intellectual property granted in the Ordinary Course of Business) any of its assets or properties (tangible ii) acquired any material assets or intangiblesold, assigned, transferred, conveyed, leased or otherwise disposed of any material assets of the Company or any of its Subsidiaries, except in the case of clause (ii), except for sales assets acquired, sold, assigned, transferred, conveyed, leased or otherwise disposed of inventory or services in the ordinary course Ordinary Course of business to unaffiliated third Persons on an arm’s length basis, Business;
(k) neither the Company nor any of its Subsidiaries has discharged or canceled without fair consideration satisfied any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider Lien (or paid any Affiliate of any Insider); (gliability) conducted its cash management customs and practices other than except in the ordinary course Ordinary Course of business Business;
(including with respect to maintenance l) neither the Company nor any of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed its Subsidiaries has made or committed to make any material capital expenditures that were previously budgeted in excess of $100,000 individually or scheduled to be made; $250,000 in the aggregate;
(im) offered any discounts on neither the Company nor any of its products Subsidiaries has granted any license or services sublicense of any rights under or any promotions, rebates, coupons or special offers with respect to any of its products intellectual property rights owned by the Company or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services Subsidiaries except in the Ordinary Course of Business;
(including any terms and conditions that are ancillary to, or otherwise affect, n) neither the aggregate price paid for Company nor any of its products Subsidiaries has instituted or servicessettled any legal proceeding resulting in a loss of revenue in excess of $100,000 in the aggregate;
(o) that differ from there has been no merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction involving the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed Company or agreed to any of its Subsidiaries, and no creation of any new subsidiary by the foregoingCompany or any of its Subsidiaries; and
(p) none of the Company or any of its Subsidiaries has agreed, committed, arranged or entered into any understanding to do anything set forth in this Section 5.6.
Appears in 1 contract
Absence of Certain Developments. Since December 31the Balance Sheet Date:
(a) there has not been any damage, 2017 and other than as a result of and/or destruction or loss, whether or not covered by insurance, with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; property and assets of Seller;
(b) soldSeller has not made any change in the rate of compensation, leasedcommission, assignedbonus or other direct or indirect remuneration payable, distributedor paid or agreed or orally promised to pay, licensedconditionally or otherwise, sublicensedany bonus, transferred incentive, retention or otherwise encumbered a portion other compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of its assets any director, officer, employee, distributor or properties (tangible or intangible)agent of Seller, except for sales of inventory or services other than increases in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, consistent with past practice in the base salaries of employees of Seller other than officers or canceled without fair consideration any material debts or claims owing to or held by it; senior managers;
(c) Seller has not entered intointo any employment, deferred compensation, severance or similar agreement (nor amended or terminated any material Contract or License or materially changed any business practice; such agreement);
(d) madethere has not been any change by Seller in accounting or Tax reporting principles, granted methods or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; policies;
(e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) Seller has not conducted its cash management customs and practices business other than in the ordinary course of business consistent with past practice;
(including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); f) Seller has not entered into (1) any Contract that is not an Included Contract or (2) any other material transaction;
(g) Seller has not hired any employees or engaged independent contractors;
(h) Seller has not materially breached any Included Contract or materially amended any Included Contract;
(i) Seller has not failed to promptly pay and discharge current Liabilities except where disputed in good faith in an appropriate manner;
(j) Seller has not mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of Seller except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business consistent with past practice;
(k) Seller has not discharged or satisfied any Lien, or paid any obligation or Liability, except in the ordinary course of business consistent with past practice and which, in the aggregate, are not material to Seller;
(l) Seller has not canceled or compromised any debt or claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with past practice and which, in the aggregate, are not material to the Company;
(m) Seller has not made or committed to make any material capital expenditures that were previously budgeted or scheduled to be made; capital additions or improvements;
(in) offered Seller has not entered into any discounts on prepaid services transactions with any of its products customers or otherwise accelerated revenue recognition or the sales of its services or for periods prior to any promotions, rebates, coupons or special offers with respect to Closing hereunder;
(o) Seller has not amended any of its products Organizational Documents;
(p) Seller has not issued any equity securities or services with terms and conditions that differ materially from the terms and conditions previously offered by any securities exercisable or exchangeable for or convertible into equity securities of Seller;
(q) Seller with respect to the Business; (j) changed has not declared or made any dividend or distribution, in any material respect any of the terms and conditions with respect to the pricing of cash or in kind, or repurchased any of its products equity securities; and
(r) Seller has not entered into any agreements to do or services (including perform in the future any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect actions referred to the Business; and/or (k) committed or agreed to any in this Section 3.8 which have not been consummated as of the foregoingdate hereof.
Appears in 1 contract
Samples: Asset Purchase Agreement (XTL Biopharmaceuticals LTD)
Absence of Certain Developments. Since December March 31, 2017 and 1998, there has been no (i) change or event which could reasonably be expected to have a Subsidiary Material Adverse Effect (other than general trends or new laws, rules, or regulations applicable to similarly situated companies), (ii) declaration, setting aside or payment of any dividend or other distribution with respect to the capital stock of the Contributed Subsidiaries, (iii) issuance of capital stock or options, warrants or rights to acquire capital stock (other than the rights granted to the Company hereunder), (iv) material loss, destruction or damage to any property of the Contributed Subsidiaries, whether or not insured, (v) except as a result of and/or with respect the new bank credit facility referred to in Section 8.7, acceleration or prepayment of any indebtedness for borrowed money or capital leases or the transactions contemplated hereby and/or previously disclosed to refunding of any such indebtedness, (vi) labor trouble involving the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect Contributed Subsidiaries or suffered any material theftchange in their personnel or the general terms and conditions of employment of key employees, damage(vii) waiver of any valuable right in favor of the Contributed Subsidiaries, destruction (viii) loan or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred extension of credit to any officer or otherwise encumbered a portion employee of its assets ZGNA or properties (tangible any Contributed Subsidiary other than advances for travel-related expenses and similar advances to officers and employees of ZGNA or intangible), except for sales of inventory or services Contributed Subsidiaries in the ordinary course of business to unaffiliated third Persons on an arm’s length basisbusiness, (ix) acquisition, material writedown or write-off for accounting purposes, or canceled without fair consideration disposition of any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider assets (or any Affiliate contract or arrangement therefor), (x) redemption or repurchase of any Insider); (g) conducted its cash management customs and practices capital stock of any Contributed Subsidiary, or any other material transaction by the Contributed Subsidiaries otherwise than for fair value in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary tobusiness, or otherwise affect, (xi) termination of an agreement or arrangement which would be a Subsidiary Key Agreement or Instrument if in effect on the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingdate hereof.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2017 and other than as a result of and/or with respect to Except for the transactions contemplated hereby and/or previously disclosed to by this Agreement, the Purchaser in writing including in Financial Statements made available to PurchaserValley Sale, neither or as otherwise set forth on SCHEDULE 3.13 hereto, since the Balance Sheet Date, the Company has conducted the Business nor any Purchased Assets has: only in the Ordinary Course of Business and has not:
(a) suffered a Material Adverse Effect Except for the Valley Sale, the transfer to Xxxxxx X. Xxxxxxxx set forth in Section 5.8 hereof, and the Company's transfer of its interest in Switch 2000, LLC, sold, leased, assigned or suffered otherwise transferred any material theftproperties or assets, or disposed of or permitted to lapse any rights in Intellectual Property owned or used by the Company, other than in the Ordinary Course of Business, or organized any new business entity or acquired any equity securities, assets, properties, or business of any Person or any equity or ownership interest in any business or merged with or into or consolidated with any other Person;
(b) Suffered, sustained or incurred any material loss or waived or released any material right or claim, whether or not in the Ordinary Course of Business;
(c) Suffered, sustained or incurred any material damage, destruction or casualty loss that is to any material properties or assets, whether or not covered by insurance; ;
(bd) soldExcept for the early payment of its Debt Instruments, leasedengaged in any transaction not in the Ordinary Course of Business;
(e) Except for cellular phones purchased for lease to customers, assignedmade any capital expenditure (or series of related capital expenditures) exceeding $10,000;
(f) Subjected any of its properties or assets to any Encumbrance, distributedwhether or not in the Ordinary Course of Business;
(g) Issued any note, licensedbond or other debt security, sublicensedcreated, transferred incurred or assumed any indebtedness for borrowed money or capitalized lease obligation or otherwise encumbered a portion incurred any material Liability, except current Liabilities incurred in the Ordinary Course of Business;
(h) Other than the early payment of its assets Debt Instruments, and except as contemplated by this Agreement, discharged or properties (tangible satisfied any Encumbrance, or intangible)paid any material Liability, except for sales other than current Liabilities shown on the Company's balance sheet as of inventory or services the Balance Sheet Date, and current Liabilities incurred in the ordinary course Ordinary Course of business Business since the Balance Sheet Date;
(i) Other than transactions not ordinarily or presently characterized as dividends or distributions, such as payment of professional fees, declared, set aside or paid a dividend or made any other distribution with respect to unaffiliated third Persons on an arm’s length basisany class or series of capital stock of the Company, or canceled without fair consideration directly or indirectly redeemed, purchased or otherwise acquired any material debts shares of any class or claims owing series of the Company's capital stock;
(j) Increased the salary, wage or other compensation or level of benefits payable or to become payable by the Company to any of its officers, directors, employees or agents other than in the Ordinary Course of Business;
(k) Loaned money to any Person or guaranteed any loan to or held by it; Liability of any Person, whether or not in the Ordinary Course of Business;
(cl) entered intoExcept as described in the Schedules hereto, amended or terminated any material of the Operating Contracts (as hereinafter defined), except in the Ordinary Course of Business;
(m) Changed accounting methods or practices (including, without limitation, any change in depreciation, amortization or cost accounting policies or rates);
(n) Suffered, sustained or incurred any Material Adverse Change in the properties, assets, Liabilities, revenues, income, business, operations, results of operations or financial condition of the Company;
(o) Received notice from any customer, supplier, vendor, Governmental Body or any other Person which would, with substantial certainty, give rise to or result in a Material Adverse Effect on the Company;
(p) Delayed or postponed the payment of accounts payable or other Liabilities outside of the Ordinary Course of Business;
(q) Entered into any employment Contract or License collective bargaining agreement, written or materially changed oral, or modified the terms of any business practice; (d) made, granted existing such Contract or promised any bonus, severance, retention agreement or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered intoamended, amended modified or terminated any PlanBenefit Plan for the benefit of any of the Company's directors, officers and employees;
(r) Except for the name change to RGI Group, Inc., made any change or amendment in its articles of incorporation, bylaws, or other than as required governing instruments;
(s) Issued or sold any securities; acquired, directly or indirectly, by Lawredemption or otherwise, any securities; (f) reclassified, split-up or otherwise changed any such equity security; or granted or entered into any transaction with any Insider (options, warrants, calls or any Affiliate commitments of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including kind with respect thereto; and/or
(t) Entered into any Contract to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31the Balance Sheet Date, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Company has not:
(a) suffered a Material Adverse Effect taken any action which requires the approval of the Board of Governors pursuant to Section 7.18 or Section 7.19 of the LLC Agreement, unless Company has obtained the approval required by such Sections of the LLC Agreement and/or this Agreement, as applicable;
(b) discharged or satisfied any Indebtedness or other liability, other than current liabilities paid in the ordinary course of the Business;
(c) waived any rights of material value;
(d) suffered any material theft, damage, destruction or casualty loss that is of or to any Company Assets, whether or not covered by insurance; ;
(be) soldmade any material modification, leasedwaiver, assignedchange, distributedamendment, licensedrelease, sublicensedrescission, transferred accord and satisfaction or otherwise encumbered a portion termination of, or with respect to, any material term, condition or provision of its assets or properties any Contract, other than (tangible or intangible), except for sales of inventory or services i) in the usual and ordinary course of business the Business and that could not reasonably be expected to unaffiliated third Persons on an arm’s length basisresult in a Material Adverse Effect, or canceled (ii) any satisfaction by performance in accordance with the terms thereof in the usual and ordinary course of the Business;
(f) suffered any labor disputes or disturbances including, without fair consideration limitation, the filing of any petition or charge of discrimination with the Equal Employment Opportunity Commission (or any State equal employment opportunity Governmental Body) or any petition or charge of unfair labor practices with the National Labor Relations Board;
(g) suffered any material debts adverse change in its relationships with its equipment lessors, vendors, processors, re-sellers, distributors, dealers, independent sales agents, maintenance service providers, customers or claims owing to or held by it; Vault Cash providers;
(ch) entered intointo or modified any employment, amended severance or terminated similar agreements or arrangements with, or granted any material Contract bonuses, salary increases, severance or License termination pay to, any of its officers, employees or materially consultants or taken any action with respect to the granting of any bonuses, salary increases, severance or termination pay or with respect to any other increase in employment related benefits;
(i) changed any business practiceof its methods of accounting or accounting practices in any respect; or
(d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (fj) entered into any transaction with any Insider (Contract to do or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect undertake to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect do any of the terms and conditions with respect to foregoing (other than the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingTransaction Documents).
Appears in 1 contract
Absence of Certain Developments. Since December 31the date of the Latest Unaudited Statement, 2017 there has not been any Material Adverse Effect, and other than since that date, except as a result set forth on Schedule 4(f), the Company has conducted its operations in the ordinary course of and/or with respect to business, and, without limiting the transactions contemplated hereby and/or previously disclosed to generality of the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: foregoing:
(a) suffered a Material Adverse Effect or suffered any material theftthe Company has not transferred, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributedallowed to lapse or expire, licensed, sublicensed, transferred or otherwise encumbered a portion disposed of any of its properties or assets or properties (tangible or intangibleincluding any Company Intellectual Property), except for other than sales of inventory or services for fair consideration in the ordinary course of business or the retirement of supplies, equipment or other assets due to unaffiliated third Persons on an arm’s length basiswear, obsolescence, upgrade or replacement, or canceled without fair consideration other assets having a value in the aggregate of not more than $75,000;
(b) the Company has not sold, transferred, assigned, exclusively licensed, or otherwise disposed of any material debts or claims owing of its rights to or held by it; Owned Company Intellectual Property;
(c) entered intothe Company has not abandoned or withdrawn, amended or permitted the lapse, cancellation, expiration, or refusal of any Company Registered Intellectual Property (except for expiration of Company Registered Intellectual Property in accordance with the applicable statutory period);
(d) the Company has not terminated any material Contract agreement (or License or materially changed any business practice; (dseries of related agreements) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group outside the ordinary course of employees, individual service provider or consultant; business;
(e) adoptedexcept in connection with the Co-Packer Sales Agreement, entered intono party (including the Company) has accelerated, amended terminated or terminated modified any Planmaterial agreement or other arrangement (or series of related agreements or arrangements) to which the Company is a party or by which the Company is bound and, other than as required by Law; to the Knowledge of the Company, no party intends to take any such action;
(f) entered into the Company has not compromised any transaction with any Insider right or claim (or any Affiliate series of any Insider); related rights or claims) either involving more than $150,000 or outside the ordinary course of business;
(g) conducted the Company has not experienced any material damage or loss (whether or not covered by insurance) to its cash management customs and practices property;
(h) the Company has not (A) made any material change to its pricing, discount, allowance, warranty or return policies, or (B) agreed to any material pricing, discount, allowance, warranty or return terms with any customer, vendor, distributor or supplier, other than in the ordinary course of business business; Stock Purchase Agreement – Clever/KAC
(i) except as otherwise provided in Schedule 4(f)(viii), the Company has not
(A) granted any material increase in or accelerated the compensation or benefits paid or payable to any of their current or former employees or other service providers whose annual base compensation exceeds $150,000, (B) granted any severance, retention or termination pay to, or entered into or amended any severance, retention, bonus, termination, employment, consulting, or change in control agreement with, any of its current or former employees or other service providers, or (C) except as required by applicable laws, adopted, amended or terminated any Plan;
(j) the Company has not made, changed or revoked any material Tax election (other than in the ordinary course of business) or changed any material Tax accounting method or Tax accounting period, or amended any Tax Return, settled any Tax claim or assessment, or consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment;
(k) the Company has conducted in all material respects its cash management protocols (including the collection of receivables, payment of payables, capital expenditures and pricing and credit practices) in the ordinary course of business consistent with past practice;
(l) the Company has not declared, set aside or paid any dividend or distribution with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); its securities;
(hm) failed to make the Company has not entered into any material capital expenditures that were previously budgeted settlement, conciliation or scheduled similar agreement, the performance of which will involve payment after the execution date of this Agreement;
(n) the Company has not borrowed any amount or incurred or become subject to be made; any material liabilities, except current Indebtedness and other liabilities incurred in the ordinary course of business or consistent with past practice;
(io) offered the Company has not made any discounts on loan to, or entered into any other transaction with, any of its products directors, officers or services employees, except for transactions occurring at arms’- length;
(p) materially delayed or postponed the payment of any accounts payable or commissions or any promotions, rebates, coupons other accrued liability or special offers with respect obligation or accelerated the collection of (or discounted) any accounts or notes receivable other than in the ordinary course of business; and
(q) the Company has not committed to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Clever Leaves Holdings Inc.)
Absence of Certain Developments. Since December 31the date of the 2009 Unaudited Balance Sheet, 2017 the Company and other than the Subsidiaries have operated their businesses in the ordinary course consistent with past practice, and there have not been any Events that have had, or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. Except as a result set forth on the attached Developments Schedule, since the date of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser2009 Unaudited Balance Sheet, neither the Business Company nor any Purchased Assets Subsidiary has: :
(a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is (whether or not covered by insurance; ) from fire or other casualty to its tangible property;
(b) soldrevalued any of their respective assets, leased, assigned, distributed, licensed, sublicensed, transferred including writing off notes or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices accounts receivable other than in the ordinary course of business in amounts that are not, individually or in the aggregate, material to the business of the Company or the Subsidiaries;
(including c) made any capital expenditures or commitments therefor involving amounts that exceed $20,000 per expenditure or commitment or $50,000 in the aggregate for all such expenditures and commitments;
(d) sold, leased, licensed, mortgaged (or otherwise granted an Encumbrance, other than a Permitted Encumbrance, with respect to), abandoned, assigned or transferred any of its material tangible or intangible assets;
(e) cancelled, waived, compromised or released any rights or claims involving amounts that exceed $20,000 in the aggregate;
(f) made any investment in or loan to maintenance any Person, or acquired any business, securities, assets or Person, by merger or consolidation, purchase or sale of working capital balancessubstantial assets or equity interests, maintenance or by any other manner, in a single transaction or a series of related transactions other than acquisitions of inventory levelsand supplies in the ordinary course of business consistent with past practice;
(g) issued, collection granted, sold or otherwise permitted to become outstanding any capital stock, membership interests or other equity interests of accounts receivable and payment the Company or any of accounts payable); the Subsidiaries, or any rights, subscriptions, warrants, options, conversion rights or agreements of any kind to purchase or otherwise acquire, or phantom shares or similar securities related to, any such capital stock, membership interests or other equity interests, or split, combined, reclassified, repurchased or redeemed any shares of capital stock, membership interests or other equity interests of the Company or any of the Subsidiaries, or any rights, subscriptions, warrants, options, conversion rights or agreements of any kind to purchase or otherwise acquire, or phantom shares or similar securities related to, any such capital stock, membership interests or other equity interests;
(h) failed to make any material capital expenditures that were previously budgeted materially modified or scheduled to be made; changed its business organization or materially and adversely modified or changed its relationship with its suppliers, customers and others having business relations with it;
(i) offered received any discounts on notice or communication (x) terminating, suspending, or reducing in any of its products material respect, or services specifying an intention to terminate, suspend or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed reduce in any material respect in the future, or otherwise reflecting a material adverse change in, the business relationship between any material supplier or customer and the Company or any of the terms and conditions Subsidiaries or (y) of any design, manufacturing or other defects, latent or otherwise, with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affectdeficiencies in the quality of, the aggregate price paid for any Product;
(j) adopted a plan or agreement of its products complete or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or other material reorganization;
(k) committed incurred, assumed, guaranteed or discharged any liability, including any Indebtedness (excluding the Buyer Promissory Note and the Convertible Notes), other than (except in the case of Indebtedness) in the ordinary course of business consistent with past practice;
(l) canceled, compromised, knowingly waived or released any right or claim (or series of related rights and claims) under contracts listed on the Contracts Schedule or Intellectual Property Schedule;
(m) modified its certificate of incorporation or bylaws or similar organizational documents or any Investor Agreement;
(n) made any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or agreed to pay or accelerate payment or vesting of, conditionally or otherwise, any bonus, incentive, retention or other compensation, any equity-based compensation award, change in control payment, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any employee or director;
(o) except as otherwise required by Law, entered into, amended, modified, varied, altered or otherwise changed any of the Company Plans or Company Employee Agreements;
(p) changed its accounting principles, practices or methods except as required or permitted by Law or United States generally accepted accounting principles;
(q) recalled, or became aware of any recall, of any Products;
(r) materially modified the terms of any Company Option (or modified in any respect the terms of vesting thereof), any Company Warrant or the Convertible Notes; or
(s) authorized, or agreed in writing to, any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (International Rectifier Corp /De/)
Absence of Certain Developments. Since December 31Except as set forth on the attached Developments Schedule or as otherwise expressly contemplated herein, 2017 and other than as a result of and/or since March 9, 2015, Seller has not, with respect to the transactions contemplated hereby and/or previously disclosed to Business or the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Assets:
(a) suffered a Material Adverse Effect discharged or suffered satisfied any material theftLien or paid any material liability, damage, destruction or casualty loss that is not covered by insurance; other than current liabilities paid in the Ordinary Course of Business;
(b) mortgaged, pledged, subjected to or allowed to exist any Lien on any of the Purchased Assets;
(c) sold, leased, assigned, distributed, licensed, sublicensedleased, transferred or otherwise encumbered a portion disposed of any of its assets or properties (tangible or intangible)assets, except for sales of inventory or services in the ordinary course Ordinary Course of business to unaffiliated third Persons on an arm’s length basisBusiness, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; ;
(d) madesold, granted assigned, licensed, transferred or promised otherwise disposed of any bonus, severance, retention Business Intellectual Property or other incentive amount intangible assets (including abandoning or permitting the lapse of any wageBusiness Intellectual Property), salary, compensation or benefit increase failed to protect or maintain in full force and effect any Business Intellectual Property (including disclosing any trade secrets or confidential or proprietary information to any current or former directorPerson other than Buyer and Buyer's representatives, officer, employee or sales representative, group of employees, individual service provider or consultant; agents and attorneys);
(e) adopted, entered into, amended made any capital expenditures or terminated any Plan, commitments therefor (other than as capital expenditures required by Lawthe Business and previously disclosed in writing to Buyer) in excess of $5,000 in the aggregate;
(1) borrowed any money or issued or exchanged any notes or other evidences of any indebtedness for borrowed money or (2) incurred or become subject to any material liability or obligation (except for any material liability or obligation for Excluded Liabilities or current liabilities incurred in the Ordinary Course of Business and liabilities under contracts entered into in the Ordinary Course of Business);
(g) made any loans or advances to, or guarantees for the benefit of, any Person, except for advances made to employees in the Ordinary Course of Business pursuant to written employee policies disclosed to Buyer;
(h) suffered any extraordinary losses or waived any rights of material value (whether or not in the Ordinary Course of Business) or suffered any damage, destruction, theft or casualty loss to its tangible assets in excess of $5,000 (individually or in the aggregate) whether or not covered by insurance; or
(fi) entered into any material transaction with any Insider not in the Ordinary Course of Business (or any Affiliate series of any Insider); (g) conducted its cash management customs and practices other than transactions which in the ordinary course aggregate are material and not in the Ordinary Course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payableBusiness); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31the Balance Sheet Date, 2017 and other than except as a result of and/or with respect to the transactions set forth on Schedule 3.6, or as specifically contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaserby this Agreement, neither the Business nor any Purchased Assets has: there has not been:
(a) suffered any event having a Material Adverse Effect on the Business or suffered the properties, assets, rights, prospects, liabilities, authorizations or condition (financial or otherwise) of the Acquired Companies or relations with their customers, agents, employees or creditors;
(b) any material theft, damage, destruction or casualty loss that is (whether or not covered by insurance; ) having a Material Adverse Effect on the Business;
(bc) soldany change in the authorized capital of Whirlaway or its outstanding securities or any change in the ownership of Whirlaway’s capital stock including any change in ownership or any grant of any subscriptions, leasedoptions, assignedwarrants, distributedcalls, licensedconversion rights, sublicensedcommitments or other interests in Whirlaway stock;
(d) any declaration or payment of any dividend or distribution in respect of Whirlaway’s capital stock or any direct or indirect purchase, transferred or otherwise encumbered redemption or other acquisition or retirement of any of the capital stock of Whirlaway except reasonable amounts distributed to Shareholder to pay his tax obligations due to Whirlaway’s status as a portion subchapter “S” corporation;
(e) any increase in the compensation, bonus, sales commissions or fees payable or to become payable by any Acquired Company to any of its assets directors, officers, employees, consultants or properties (tangible or intangible)agents, except for ordinary and customary bonuses and salary increases for employees (which are other than officers, directors, consultants or agents) in accordance with past practice and reflected in the books and records of such Acquired Company;
(f) any work interruptions, labor grievances or claims filed;
(g) any sale or transfer, or any agreement to sell or transfer, any assets, property or rights of any Acquired Company to any person or entity (other than the sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basisor other dispositions of used and/or obsolete equipment, which do not exceed Twenty-Five Thousand U.S. Dollars ($25,000 U.S.), individually, or canceled without fair consideration Fifty Thousand U.S. Dollars ($50,000 U.S.), in the aggregate);
(h) any material debts new or claims renegotiated indebtedness or any cancellation, or agreement to cancel, any indebtedness or other obligation owing to or held by it; (c) entered intoany Acquired Company, amended or terminated including any material Contract or License or materially changed indebtedness of Affiliates of any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any PlanAcquired Company, other than as required by Law; (f) entered into any transaction the negotiation and adjustment of bills made in the course of good faith disputes with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than customers in the ordinary course of business (including and in a manner consistent with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; past practice;
(i) offered any discounts on plan, agreement or arrangement granting any preferential rights to purchase or acquire any interest in any of its products the assets, property or services rights of any Acquired Company or requiring consent of any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect party to the Business; transfer and assignment of any such assets, property or rights;
(j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products purchase or services (including any terms and conditions that are ancillary toacquisition of, or otherwise affectagreement, plan or arrangement to purchase or acquire, any property, rights or assets other than inventories and the aggregate price paid for any of its products or services) that differ from purchases made and indebtedness incurred in connection with the terms and conditions previously offered by Seller with respect to the Business; and/or CNC Machines Debt;
(k) committed any waiver of any rights or agreed claims of any Acquired Company, other than the negotiation and adjustment of invoices in the course of good faith disputes with customers in the ordinary course of business and in a manner consistent with past practice;
(l) any amendment or termination (other than by expiration at the end of its term) of any Contract, agreement, lease, license, permit or other right to which any Acquired Company is a party;
(m) any transaction or conduct by any Acquired Company outside the ordinary course of its business;
(n) any cancellation or termination of any contract with a customer or client prior to the foregoingscheduled termination date which individually or in the aggregate accounted for Fifty Thousand U.S. Dollars ($50,000 U.S.) of sales during the prior fiscal year;
(o) any changes in accounting methods or practices (including, without limitation, any change in depreciation or amortization methods or rates); or
(p) any other distribution of property or assets by any Acquired Company.
Appears in 1 contract
Samples: Stock Purchase Agreement (Nn Inc)
Absence of Certain Developments. Since December 31, 2017 2016, (i) there has not been any Material Adverse Effect and other than (ii) the Company has conducted its business in the ordinary and usual course consistent with past practices. Except as a result set forth in Section 3.7 of and/or the Schedules or as otherwise contemplated by this Agreement, since the Recent Balance Sheet Date through the Closing Date, there has not occurred any of the following with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor Company or any Purchased Assets has: of its Subsidiaries:
(a) suffered a Material Adverse Effect amendment to its Certificate of Incorporation, Articles of Incorporation, bylaws, operating agreement or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; other organizational documents;
(b) soldincurrence of any Funded Indebtedness or mortgage, leasedpledge or imposition of any Lien;
(c) loans or advances to, assignedguarantees for the benefit of, distributedor any investments in, licensedany Person;
(d) cancellation, sublicensedwaiver, transferred release, settlement, assignment or otherwise encumbered compromise of any debts or any claims or rights of material value;
(e) merger or consolidation with, or purchase of material assets of, or other acquisition of the business of, any Person outside the Ordinary Course of Business;
(f) damage or destruction affecting a material portion of its assets or properties properties;
(tangible g) sale, transfer, lease or intangible), except for sales other disposition of inventory or services any material assets other than in the ordinary course Ordinary Course of business to unaffiliated third Persons on an arm’s length basisBusiness;
(h) complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization, or canceled without fair consideration adoption of a plan therefor;
(i) change of its fiscal year or of its accounting policies, procedures or methodologies;
(j) except in the Ordinary Course of Business, (i) acceleration of sales into a current period or deferral of any sales into a future period, (ii) delay or postponement of the repair or maintenance of any properties or assets, or (iii) variance in any inventory purchase practices in any material debts respect from past practices;
(k) issuance of any capital stock or claims owing other ownership interests or issuance or becoming a party to any subscriptions, warrants, rights, options, convertible securities or held by it; other agreements or commitments of any character relating to its issued or unissued capital stock or its other equity securities, if any, or grant any stock appreciation or similar rights;
(cl) entered intodeclaration or payment of any dividend or making of any other distribution to its stockholders or members in respect of its capital stock or other ownership interests or redeem, amended repurchase or terminated otherwise reacquire any material Contract shares of its capital stock or License or materially changed any business practice; other ownership interests;
(dm) made, granted revoked or promised changed any bonusmaterial Tax election, severancefiled any material amended Tax Return, retention entered into any closing agreement, or other incentive amount settled any material Tax claim or any wageassessment;
(n) except for normal increases in the Ordinary Course of Business, salary, increase in the compensation or benefit increase benefits payable to any officers, directors or employees;
(o) grant of rights to severance or termination pay to, or entrance into any employment, consulting or severance agreement with, any current or former directorofficers, officerdirectors, employee employees or sales representativeindependent contractor;
(p) establishment, group of employees, individual service provider or consultant; (e) adopted, entered entrance into, amended or terminated amendment, modification or termination of, any PlanEmployee Benefit Plans, other than except as required by applicable Law; (f) entered into any transaction , in connection with any Insider (or any Affiliate the renewal of any Insider); insurance contract or as required by the terms of any Employee Benefit Plan or collective bargaining agreement;
(gq) conducted its cash management customs and practices other than except as set forth in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material Company’s 2017 budget for capital expenditures that were previously budgeted (as amended or scheduled to be made; (i) offered any discounts on any of its products or services or any promotionssupplemented through the date hereof), rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing incurrence of any single capital expenditure in excess of its products $200,000; or
(r) agreement or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect commitment to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as set forth on the "Developments Schedule" or any other schedule attached hereto and except as expressly contemplated by this Agreement, 2017 and other than as a result of and/or with respect to since May 30, 1997, the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Company has not:
(a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is in excess of $100,000, to its assets, whether or not covered by insurance; , or of $10,000 to its assets if not covered by insurance, or suffered any substantial destruction of the Company's books and records;
(b) except for the transfer of the Excluded Assets described in the last sentence of Section 4.2, redeemed or repurchased, directly or indirectly, any shares of capital stock or other equity security or declared, set aside or paid any dividends or made any other distributions (whether in cash or in kind) with respect to any shares of its capital stock or other equity security;
(c) issued, sold or transferred any equity securities, any securities convertible, exchangeable or exercisable into shares of its capital stock or other equity securities, or warrants, options or other rights to acquire shares of its capital stock or other equity securities of the Company;
(d) subjected any portion of its properties or assets to any Lien;
(e) sold, leased, assignedassigned or transferred (including, distributedwithout limitation, licensed, sublicensed, transferred transfers to the Sellers or otherwise encumbered any Insider) a portion of its assets or properties (tangible or intangible)assets, except for sales and leases of inventory or services in the ordinary course Ordinary Course of business to unaffiliated third Persons on an arm’s length basisBusiness, or canceled without fair consideration any material debts or claims owing to or held by it; ;
(cf) sold, assigned, licensed or transferred (including, without limitation, transfers to the Sellers or any Insider) any Proprietary Rights owned by, issued to or licensed to the Company or disclosed any confidential information (other than pursuant to agreements requiring the disclosure to maintain the confidentiality of and preserving all rights of the Company in such confidential information) or received any confidential information of any third party in violation of any obligation of confidentiality;
(g) suffered any extraordinary and uninsured losses or waived any rights of material value;
(h) entered into, amended or terminated any material Contract lease, contract, agreement or License commitment, or taken any other action or entered into any other transaction other than in the Ordinary Course of Business;
(i) materially changed any significant business practice; ;
(dj) made, made or granted or promised any bonus, severance, retention or other incentive amount bonus or any wage, salary, salary or compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employeesemployees or consultant or made or granted any increase in any employee benefit plan or arrangement, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Planexisting employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement;
(k) made any other change in employment terms for any of its directors, other than as required by Law; officers, and employees outside the Ordinary Course of Business;
(f) entered into any transaction with any Insider (or any Affiliate of any Insider); (gl) conducted its cash management customs and practices other than in the ordinary course Ordinary Course of business Business (including including, without limitation, with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable receivable, purchases of inventory and supplies, repairs and maintenance, payment of accounts payablepayable and accrued expenses, levels of capital expenditures and operation of cash management practices generally); ;
(hm) failed to make made any material capital expenditures or commitments for capital expenditures that were previously budgeted are outside the Ordinary Course of Business;
(n) made any loans or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary advances to, or otherwise affectguarantees for the benefit of, the aggregate price paid for any Persons; or
(o) changed (or authorized any change) in its articles of its products incorporation or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingby- laws.
Appears in 1 contract
Absence of Certain Developments. Since December 31the date of the Latest Balance Sheet and through the date of this Agreement, 2017 and other than as a result of and/or with respect there has occurred (i) no fact, event, circumstance, effect or change which has had or would be reasonably expected to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered have a Material Adverse Effect or suffered (ii) any loss, destruction, damage or eminent domain taking (in each case, whether or not insured) affecting the Company Group or its property or assets in excess of $50,000 in the aggregate. Except as set forth on Section 6.6 of the Disclosure Schedules, since the date of the Latest Balance Sheet, neither the Company Group nor any of its Subsidiaries has:
(a) engaged in any material thefttransaction that was not in the Ordinary Course of Business;
(b) made any change in its accounting or tax methods, damageprinciples or practices except as required by GAAP or by any Law;
(c) declared or paid any non-cash dividend;
(i) entered into any employment, destruction deferred compensation, severance or casualty loss that is not covered by insurancesimilar agreement except any employment agreement providing compensation of less than $125,000 per annum; (bii) provided or agreed to provide any material increase in the compensation payable, or to become payable, by the Company Group or any of its Subsidiaries to any of its employees, directors, managers or officers; or (iii) provided or agreed to provide any new benefits or increase in the coverage or benefits available under any Benefit Plan for its employees, agents or representatives, other than, with respect to the immediately preceding clauses (ii) and (iii), increases, payments or provisions which are made pursuant to a pre-existing contractual obligation or are required by Law or any applicable collective bargaining agreements of the Company Group or any of its Subsidiaries or are made in connection with annual reviews and are consistent with past practice and experience;
(e) issued or sold, or entered into any Contract for the issuance or sale, of any shares, or securities convertible into or exercisable for shares, in the capital stock of the Company Group or any of its Subsidiaries;
(f) granted any Encumbrance on or over any material property or assets, other than Permitted Encumbrances;
(g) amended its constituent documents, by-laws or other organizational documents;
(h) adopted a plan or agreement of liquidation, dissolution, restructuring, amalgamation, merger, consolidation, restructuring, recapitalization or other reorganization;
(i) issued any note, bond or other debt security or incurred or guaranteed any Indebtedness, other than in the Ordinary Course of Business;
(j) entered into or consummated any transaction involving the acquisition of the business, shares, assets or other properties of any other Person, other than in the Ordinary Course of Business;
(k) sold, leased, assigned, distributed, licensed, sublicensed, transferred licensed or otherwise encumbered a portion disposed of its any material amount of assets or properties (tangible or intangible), except property for sales consideration in excess of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan$50,000, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate to customers of any Insider); (g) conducted its cash management customs and practices other than the Business in the ordinary course Ordinary Course of business Business;
(including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (jl) changed in any material respect respect, terminated or discontinued any operations;
(m) except as may be required as a result of a change in Law or in GAAP, written up or written down any assets;
(n) without limiting the generality of the foregoing, taken any action that would have been prohibited by Section 4.3 if it had been taken after the date hereof and prior to the Closing Date; or
(o) entered into any Contract to do any of the terms and conditions with respect things referred to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingelsewhere in this Section 6.6.
Appears in 1 contract
Absence of Certain Developments. Since December 31the date of the Interim Balance Sheet, 2017 and other than except (i) as a result of and/or otherwise set forth in Schedule 4.8 hereto or (ii) as otherwise expressly contemplated by this Agreement, the Seller has not with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Business:
(a) suffered except to comport to GAAP (as requested by Buyer) changed its accounting methods or practices (including any change in depreciation or amortization policies or rates) or revalued any of its assets;
(b) borrowed any amount under existing lines of credit or otherwise or incurred or become subject to any indebtedness, except as reasonably necessary for the ordinary operation of the Business and in a Material Adverse Effect manner and in amounts that are in keeping with the historical practice of the Seller;
(c) sold, assigned, transferred, mortgaged, pledged or subjected to any Encumbrance, any material tangible assets, properties, or rights of the Seller, except as incurred in the ordinary course of business consistent with the past practices of the Seller;
(d) sold, assigned or transferred (including without limitation transfers to any employees, Members or Affiliates of the Seller) any material patents, trademarks, trade names, copyrights, trade secrets or other material intangible assets, or disclosed any material proprietary or confidential information to any person other than Buyer, except in the ordinary course of business;
(e) materially changed the pricing set or charged by the Seller to its customers or lessees or agreed to any such material change;
(f) released any material Encumbrance related to any Receivable or canceled, waived or compromised any material right, claim or debt;
(g) suffered any material theft, damage, destruction or casualty loss that is of or to any property or properties owned or used by it, whether or not covered by insurance; insurance or suffered any Material Adverse Change;
(bh) soldincreased the annualized level of compensation of or granted any bonuses, leasedbenefits or other forms of direct or indirect compensation to any employee, assignedofficer, distributeddirector or consultant, licensedexcept in the ordinary course of business, sublicensedor terminated, transferred amended or otherwise encumbered a portion modified any plans for the benefit of its assets or properties (tangible or intangible)employees, except in the ordinary course of business;
(i) made any material loans or advances to, or guarantees for sales of inventory or services the benefit of, any Persons, except in the ordinary course of business consistent with past practice;
(j) engaged or agreed to unaffiliated third Persons engage in any extraordinary transactions or distributions, made any distribution of assets to any of the Members by way of dividend, return on an arm’s length basiscapital, repurchase of stock or otherwise, or canceled without fair consideration taken any material debts other action or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any other transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including and in accordance with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable past custom and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoing.practice;
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as set forth on Schedule 4.17 attached hereto and except as expressly contemplated by this Agreement, 2017 and other than as a result since the date of and/or with respect to the transactions contemplated hereby and/or previously disclosed to Last Balance Sheet, the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Company has not:
(a) suffered any material adverse change in the business, assets or properties of Company or in the financial condition or results of operations of the Company, other than changes occurring in the ordinary course of business consistent with past practice or resulting from business or economic downturns not reasonably in the control of Company (which have not, either alone or in the aggregate, had a Material Adverse Effect material adverse effect on the business, assets or properties of Company or its financial condition or results of operations) or suffered any material theft, damage, destruction or casualty loss that is to any material assets, whether or not covered by insurance; , or suffered any material destruction of its books and records;
(b) made any distributions (whether in cash or in kind) to any Shareholders;
(c) issued, sold or transferred or repurchased or redeemed any interest in the Company or any rights to acquire any interest in the Company (except for the forfeiture of the Series C warrants by Capital Cities Capital and the repurchase or redemption of the Series C preferred stock held by Capital Cities Capital in exchange for cancellation of media credits previously contributed to the Company by Capital Cities Capital);
(d) incurred or become subject to any material liabilities, except liabilities incurred in the ordinary course of business consistent with past practice;
(e) subjected any portion of its properties or assets to any lien (other than Permitted Liens) which will not be discharged as of the Closing;
(f) sold, leased, assignedassigned or transferred (including, distributedwithout limitation, licensedtransfers to the shareholders, sublicensed, transferred or otherwise encumbered a portion officers and directors) any of its assets or properties (tangible or intangible)assets, except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basisconsistent with past practice or in connection with replacement of equipment or as otherwise contemplated by this Agreement, or canceled without fair consideration any material debts or claims owing to or held by it; ;
(cg) sold, assigned, licensed or transferred (including, without limitation, transfers to the shareholders, officers and directors) any material proprietary rights owned by, issued to or licensed to it or disclosed any confidential information (other than pursuant to agreements requiring the disclosure to maintain the confidentiality of and preserving all its rights in such confidential information);
(h) suffered any extraordinary losses or waived any rights of material value;
(i) entered into, amended or terminated any material Contract lease, contract, agreement or License commitment, or taken any other action or entered into any other transaction other than in the ordinary course of business consistent with past practice;
(j) entered into any other material transaction, or materially changed any business practice; ;
(dk) made, made or granted or promised any bonus, severance, retention or other incentive amount bonus or any wage, salary, salary or compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employeesemployees or consultant (except in the ordinary course of business consistent with past practice) or made or granted any increase in any employee benefit plan or arrangement, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Planexisting employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement, except as contemplated by this Agreement;
(l) made any other than as required by Law; change in employment terms for any of its directors, officers, and employees outside the ordinary course of business consistent with past practice;
(f) entered into any transaction with any Insider (or any Affiliate of any Insider); (gm) conducted its cash management customs and practices other than in the ordinary course of business consistent with past practice (including including, without limitation, with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable receivable, purchases of inventory and supplies, repairs and maintenance, payment of accounts payablepayable and accrued expenses, levels of capital expenditures and operation of cash management practices generally); ;
(hn) failed to make made any material capital expenditures or commitments for capital expenditures that were previously budgeted aggregate in excess of $50,000, other than as contemplated by the Company s current budget for capital expenditures (which is included in Schedule 4.17 attached hereto);
(o) made any loans or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary advances to, or otherwise affectguarantees for the benefit of, the aggregate price paid for any person;
(p) made charitable contributions, pledges, association fees or dues in excess of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business$5,000; and/or or
(kq) committed or agreed to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as set forth on the Disclosure Schedule and except as expressly contemplated by this Agreement, 2017 and other than as a result of and/or with respect to since June 30, 2009, the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Seller has not:
(a) suffered any change that has had or could reasonably be expected to have, individually, a Material Adverse Effect or suffered any material theft, damage, destruction destruction, or casualty loss that is in excess of $100,000.00, to its assets, whether or not covered by insurance; , or suffered any substantial destruction of books and records that are Purchased Assets;
(b) subjected any portion of the Purchased Assets to any material Lien, other than Permitted Liens or other than in the Ordinary Course of Business;
(c) sold, leased, assigned, distributedor transferred (including, licensedwithout limitation, sublicensed, transferred or otherwise encumbered transfers to any Insider) a material portion of its assets or properties (any tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basisPurchased Assets, or canceled without fair consideration any material debts or claims owing to or held by it; it relating to the Purchased Assets or other than in the Ordinary Course of Business;
(cd) entered into any material transaction with an Insider or an Affiliate not in the Ordinary Course of Business;
(e) sold, assigned, licensed, or transferred (including, without limitation, transfers to any Insider) any material Proprietary Rights owned by, issued to, or licensed to the Seller or disclosed any material confidential information (other than pursuant to agreements requiring the disclosure to maintain the confidentiality of and preserving all rights of the Seller in such confidential information) or, to the Seller’s knowledge, received any material confidential information of any third party in violation of any material obligation of confidentiality;
(f) suffered any extraordinary losses or waived any rights of material value not reflected in the Financial Statements;
(g) entered into, amended amended, or terminated any material Contract lease, material contract, material agreement, or License material commitment, or taken any other material action or entered into any other material transaction other than in the Ordinary Course of Business;
(h) entered into any other material transaction, or materially changed any business practice; ;
(di) madeExcept in the Ordinary Course of Business, granted paid or promised increased any bonusbonuses, salaries, or other compensation to any shareholder, director, non-employee officer, or employee or consultant or entered into any employment, severance, retention or other incentive amount similar contract or agreement with any wage, salary, compensation or benefit increase to any current or former director, officer, employee consultant or sales representative, group of employees, individual service provider or consultant; employee;
(ej) adopted, entered intoor materially increased the payments to or benefits under, amended any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or terminated any Plan, other than as required by Law; (f) entered into any transaction employee benefit plan for or with any Insider employees of the Seller;
(k) made any material loans or material advances to, material guarantees for the benefit of, or any Affiliate of material investments in any Insider); Person;
(gl) conducted its cash management customs and practices other than in the ordinary course Ordinary Course of business Business (including including, without limitation, with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable receivable, purchases of supplies, repairs and maintenance, payment of accounts payablepayable and accrued expenses, levels of capital expenditures and operation of cash management practices generally); ;
(hm) failed to make made any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any material commitments for capital expenditures except in the Ordinary Course of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; or
(jn) changed made a material change in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingaccounting methods.
Appears in 1 contract
Samples: Asset Purchase Agreement (Custom Restaurant & Hospitality Group, Inc.)
Absence of Certain Developments. Since December 31Except as set forth on Section 3.7 of Schedule III, 2017 and other than as a result of and/or with respect to since January 1, 2022, the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Company Group has not:
(a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; Effect;
(b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion failed to (i) conduct the Business and operations of its assets or properties (tangible or intangible), except for sales of inventory or services the Company Group in the ordinary course of business consistent with past practices, (ii) preserve intact its present business operations, organization, goodwill and present lines of business, (iii) maintain in effect all of its Governmental Licenses, (iv) keep available the services of its directors, officers and Key Employees, (v) maintain satisfactory relationships with its customers, lenders, lessors, suppliers and other Persons having material business relationships with it (including through ordinary course renewals, negotiations with and amendments to unaffiliated third Persons on an arm’s length basis, such relationships) or canceled without fair consideration any material debts or claims owing to or held by it; (vi) manage its working capital (including the timing of collection of accounts receivable and of the payment of accounts payable and the management of inventory) in the ordinary course of business consistent with past practice;
(c) entered intosuffered any extraordinary casualty loss or other interruption in the business or operations of the Company Group, amended or terminated except for any material Contract or License or materially changed any business practicesuch casualty loss covered by insurance; or
(d) sold, disposed, leased, assigned, licensed or transferred any of its material assets or any portion thereof (other than sales of Intellectual Property, inventory or obsolete assets or assets with no book value and prepayment of Indebtedness using Cash) or subject any of the foregoing to any Lien, except for Permitted Liens;
(e) sold, disposed, leased, subleased, assigned, licensed, sublicensed, or otherwise transferred, disposed of, or abandoned or permitted to lapse, failed to take any action necessary to maintain, enforce or protect, or created or incurred any Lien (other than Permitted Liens) on, any Owned Intellectual Property or Licensed Intellectual Property (other than non-exclusive licenses granted in the ordinary course of business);
(f) made, granted or promised any bonus, severance, retention or other incentive amount bonus or any wage, salary, compensation wage or benefit salary increase to any current or former directorService Provider other than (i) routine or annual wage increases in the ordinary course of business consistent with past custom and practice to current employees of the Company Group with annual base compensation of $150,000 or less (provided that such increases do not exceed 3% in the aggregate), officeror (ii) pursuant to the express terms of any Employee Plan listed on Section 3.17(i) of Schedule III entered into prior to the date of this Agreement;
(g) granted any severance, employee change in control, retention or sales representativesimilar bonuses or payments to any current or former Service Provider or granted any equity or equity-based awards to, group or discretionarily accelerated the vesting, exercisability or payment of employeesany such awards held by, individual service provider any current or consultant; former Service Provider;
(eh) terminated the employment of any Service Provider (other than any termination of the employment of (A) any Service Provider with base compensation of $ 150,000 or less in the ordinary course of business consistent with past practice or (B) any Service Provider for cause);
(i) hired or engaged any Service Provider, except for Service Providers hired or engaged in the ordinary course of business consistent with past practice whose annual base compensation is $150,000 or less;
(j) adopted, entered into, amended or terminated any PlanEmployee Plan or any collective bargaining or similar agreement;
(k) (A) issued, sold, authorized, granted, redeemed, repurchased, acquired or permitted the transfer of any of its securities, securities convertible into Equity Interests, (B) split, combined or reclassified any of its equity securities, (C) amended the terms of any of its Equity Interests, or (D) purchased Equity Interests of another Person;
(l) declared, set aside, authorized or paid any dividends, or made any distributions or other payments in respect of its Equity Interests, other than as required by Law; (fA) entered into intercompany dividends solely among the Company and the Subsidiaries and (B) cash dividends and distributions with record dates and payment dates prior to the Closing;
(m) failed to maintain its books of accounts in the usual, regular and ordinary manner on a basis consistent with prior periods;
(n) failed to take any transaction action necessary to maintain, enforce or protect any of its material Intellectual Property;
(o) created, incurred, assumed or guaranteed any Indebtedness either involving more than $250,000 or outside of the ordinary course of business consistent with any Insider past practices, except for borrowing from banks (or similar financial institutions) necessary to fund capital expenditures or working capital in a manner consistent with the Company’s and its Subsidiaries’ budget for capital expenditures and ordinary working capital requirements;
(p) made any Affiliate loans, advances or capital contributions to, or investments in, any other Person other than contributions to the Company’s wholly owned Subsidiaries in the ordinary course of business;
(q) (A) acquired (by merger, consolidation, acquisition of stocks or assets or otherwise), directly or indirectly, any Insider); (g) conducted its cash management customs and practices assets, properties or businesses, other than in the ordinary course of business consistent with past practices, (including B) entered into, terminated, modified, amended or made any waiver in respect of any joint venture, partnership or other similar arrangement, (C) entered into any new line of business or abandoned or discontinued any existing line of business or (D) adopted any plan of merger, consolidation, reorganization, liquidation or dissolution or file a petition in bankruptcy under any provisions of federal or state bankruptcy law or consent to the filing of any bankruptcy petition against it;
(r) (A) entered into, terminated, modified or amended in any material respect, or made any waiver in respect of, any Material Contract or any Contract that would have constituted a Material Contract if entered into prior to the date hereof, other than renewals and amendments in the ordinary course of business or (B) waived any rights or claims of material value;
(s) cancelled or terminated any insurance policy or caused any of the coverage thereunder to lapse without replacing such insurance policy with a policy with substantially similar coverage;
(A) made any change in any material policy or practice regarding extensions of credit, acceptance of customer deposits, prepayments, sales, recognition of deferred revenue, collections, establishment of reserves for uncollected amounts, receivables or payment of accounts with respect to maintenance its business or accelerate or delay the payment or receipt of working capital balancesany payables or receivables outside of the ordinary course of business, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (hB) failed to make made any material capital expenditures that were previously budgeted change in cash management practices or scheduled (C) made any material change in the manner in which discounts, rebates or credits are extended to be made; or warranties are granted to customers;
(iu) offered any discounts on any except in the ordinary course of its products business or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in a manner not inconsistent in any material respect with past practices, changed any annual accounting period, or, except in so far as may be required by a change in GAAP or applicable law, adopted or changed any accounting method;
(v) made, revoked or changed any material Tax election; change any Tax accounting period; adopted or changed any method of accounting for Tax purposes; failed to timely pay or remit any material Tax; settled, compromised, surrendered or otherwise abandoned any claim, audit, action, suit, proceeding, examination or investigation in respect of material Taxes; surrendered any right to claim a material refund of Taxes; amended any material Tax Return; entered into any closing agreement or similar agreement with a Taxing Authority; applied for or requested any Tax ruling or consent or requested to waive or extend any statute of limitations in respect of Taxes;
(w) amended or authorized the amendment of (whether by merger, consolidation or otherwise) the Company Organizational Documents;
(x) authorized capital expenditures in excess of $250,000, in the aggregate, other than capital expenditures set forth in a budget established prior to the date of this Agreement in the ordinary course of business;
(y) entered into any new lease, sublease, or other occupancy agreement in respect of real property or materially amended, modified, terminated, entered into, renewed or extended any Real Property Lease, other than in the ordinary course of business;
(z) adopted a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
(aa) instituted, settled or compromised (or threatened in writing or offered in writing to institute, settle or compromise) any Action (A) involving or against any member of the terms Company Group (other than settlements in the ordinary course solely for monetary damages not in excess of $250,000 and conditions with respect paid prior to the pricing Closing (and for the avoidance of doubt, not involving any (x) equitable relief or material limitations on the conduct of its products the Company Group or services (including any terms and conditions that are ancillary to, y) findings of fact or otherwise affect, admissions of culpability or wrongdoing by the aggregate price paid for any of its products Company Group)) or services(B) that differ from the terms and conditions previously offered by Seller with respect relates to the Businesstransactions contemplated by this Agreement;
(bb) engaged in any material new line of business or terminated or materially modified any existing line of business; and/or or
(kcc) committed agreed or agreed commit to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31the Balance Sheet Date to and including the Agreement Date, 2017 except in connection with (a) the authorization, preparation, negotiation, execution or performance of this Agreement, the Transaction Documents and other than as a result the consummation of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect and thereby or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) soldas set forth on Schedule 3.13, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services x) the Group Companies have operated in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any all material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than respects in the ordinary course of business (including except for taking such actions as were required to comply with respect COVID-19 Measures), (y) there has been no Company Material Adverse Effect and (z) the Group Companies have not taken any of the following actions:
(a) cancelled any third party debt owed to maintenance such Group Company;
(b) (i) made any loans, advances or capital contributions to or investments in any Person (except for travel or other expense advances made in the ordinary course of working capital balancesbusiness) or (ii) purchased debt securities of any other Person;
(c) acquired or agreed to acquire by merging or consolidating with, maintenance or by purchasing a substantial portion of inventory levelsthe assets of, collection or by any other manner, directly or indirectly, any Person or division thereof or equity interest therein;
(d) sold, leased, licensed, transferred or otherwise disposed of accounts receivable or created, incurred, encumbered or subjected to any Lien (other than Permitted Liens) any of its material properties, equity interests or Assets, other than obsolete or unsalable Assets or Assets with de minimis or no book value, and payment other than non-exclusive licenses of accounts payable); Intellectual Property in the ordinary course of business;
(he) failed made or agreed to make any material capital expenditures that were previously budgeted outside of the ordinary course of business;
(f) made any material change to its accounting methods, principles or scheduled to be made; practices, except as required by GAAP or applicable Laws;
(g) discontinued any material line of business or dissolved or wound up such Group Company;
(h) settled any Proceeding;
(i) offered suffered any discounts on complete loss or destruction or material damage to any material Asset of its products such Group Company;
(j) except as required by applicable Law, made or services changed any material Tax election, changed an annual Tax accounting period, adopted or changed any promotionsmaterial Tax accounting method, rebatesfiled any amended material Tax Return, coupons or special offers entered into any closing agreement (as described under Section 7121 of the Code) with respect to any Tax, settled any Tax claim or assessment relating to such Group Company, surrendered any right to claim a refund of its products Taxes, or services with consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to such Group Company;
(k) terminated, materially modified or cancelled any Contract which, if in full force and effect on the Agreement Date, would be considered a “Material Contract” hereunder;
(l) materially increased the base compensation or materially changed the employment or service terms and conditions that differ of any director, officer, employee, consultant or other service provider of any Group Company outside the ordinary course of business;
(m) adopted, materially from amended or terminated any bonus, profit sharing, incentive, severance or other Company Plan, except (i) as expressly contemplated by Section 6.10, (ii) as required by applicable Laws, or (iii) amendment or termination of employment agreements or offer letters in the terms and conditions previously offered by Seller ordinary course of business; or
(n) entered into any Contract with respect to, or committed to the Business; (j) changed in any material respect Person to take, any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingforegoing actions.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (E2open Parent Holdings, Inc.)
Absence of Certain Developments. Since December 31the Balance Sheet Date, 2017 and other than as a result of and/or Seller has not in each case, with respect to the transactions contemplated hereby and/or previously disclosed to Restaurants or the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets hasAssets: 12
(a) borrowed any amount or incurred or become subject to any liability in excess of $5,000, except (i) current liabilities incurred in the ordinary course of business and (ii) liabilities under contracts entered into in the ordinary course of business;
(b) mortgaged, pledged or subjected to any lien, charge or any other encumbrance, any of the Assets except (i) liens for current property taxes not yet due and payable, (ii) liens imposed by law and incurred in the ordinary course of business for obligations not yet due to carriers, warehousemen, laborers, materialmen and the like, (iii) liens in respect of pledges or deposits under workers' compensation laws, (iv) liens set forth in Schedule 2.15(b) attached hereto, or (v) items shown on Title Commitments.;
(c) discharged or satisfied any lien or encumbrance or paid any liability, in each case with a value in excess of $5,000, other than current liabilities paid in the ordinary course of business;
(d) sold, assigned or transferred (including, without limitation, transfers to any employees, affiliates or shareholders) any tangible assets of the Restaurants (except the sale/leaseback of the DeLand Restaurant) or canceled any debts or claims, in each case, except in the ordinary course of business;
(e) sold, assigned or transferred (including, without limitation, transfers to any employees, affiliates or shareholders) any Intellectual Property or other intangible assets used in or held for use with respect to the Restaurants;
(f) disclosed, to any person other than Buyer and authorized representatives of Buyer, any proprietary confidential information of the Business or otherwise related to the Restaurants or the Assets, other than pursuant to (i) reports and filings required under the Securities Act of 1933, as amended, and rules and regulations promulgated thereunder, (ii) the Securities and Exchange Act of 1934, as amended, and rules and regulations promulgated thereunder, or (iii) a confidentiality agreement prohibiting the use or further disclosure of such information, which agreement is identified in Schedule 2.15(f) attached hereto and is in full force and effect on the date hereof;
(g) waived any rights of material value or suffered a Material Adverse Effect any extraordinary losses or adverse changes in collection loss experience, whether or not in the ordinary course of business or consistent with past practice;
(h) taken any other action or entered into any other transaction other than in the ordinary course of business and in accordance with past custom and practice, or entered into any 13 transaction with any "insider" (as defined in Section 2.16 hereof) other than employment arrangements otherwise disclosed in the schedules to this Agreement;
(i) suffered any material theft, damage, destruction or casualty loss that is of or to any property or properties owned or used by it in connection with the Restaurants, whether or not covered by insurance; ;
(bj) soldmade or granted any bonus or any wage, leased, assigned, distributed, licensed, sublicensed, transferred salary or otherwise encumbered a portion of its assets compensation increase to any officer or properties (tangible employee or intangible), except for sales of inventory or services consultant other than in the ordinary normal course of business to unaffiliated third Persons on an arm’s length basisconsistent with past practices, or canceled without fair consideration made or granted any material debts increase in any employee benefit plan or claims owing to arrangement, or held by it; (c) entered into, amended or terminated any material Contract existing employee benefit plan or License arrangement, or materially changed adopted any business practice; (d) made, granted new employee benefit plan or promised arrangement or made any bonus, severance, retention commitment or other incentive amount or incurred any wage, salary, compensation or benefit increase liability to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultantlabor organization; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or or
(k) committed made any single capital expenditure or agreed to any commitment therefor in excess of the foregoing$5,000, except as shown Schedule 2.15(k) attached hereto.
Appears in 1 contract
Samples: Asset Purchase Agreement (Eaco Corp)
Absence of Certain Developments. Since December 31November 30, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible)2001, except for sales of inventory or services as set forth in the Disclosure Schedule, each Acquired Company has conducted its business only in the ordinary course of business and no Acquired Company has, except where such action or event would not reasonably be expected to unaffiliated third Persons have a Material Adverse Effect on an arm’s length basisthe Acquired Companies, or canceled without fair consideration taken as a whole:
(a) issued any material debts or claims owing to or held by it; (c) entered intostock, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention bonds or other incentive amount corporate securities or any wageright, salaryoptions or warrants with respect thereto;
(b) borrowed any amount, compensation obtained any letters of credit or benefit increase incurred or become subject to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than Liabilities except Liabilities incurred in the ordinary course of business consistent with past practices;
(including c) discharged or satisfied any Lien or paid any obligation or Liability, other than current Liabilities paid in the ordinary course of business and other than current federal income tax liabilities;
(d) declared or made any payment or distribution of cash or other property to shareholders with respect to maintenance its stock, or purchased or redeemed any shares of working its capital balancesstock;
(e) mortgaged or pledged any of its assets or properties, maintenance or subjected them to any Lien, except Liens for current property taxes not yet due and payable;
(f) sold, leased, subleased, assigned or transferred any of inventory levelsits assets or properties, collection except in the ordinary course of accounts receivable and payment of accounts payable); business consistent with past practices, or canceled any debts or claims;
(g) made any changes in any employee compensation, severance or termination agreement, commitment or transaction other than routine salary increases consistent with past practice;
(h) failed to make entered into any material capital expenditures that were previously budgeted transaction or scheduled to be made; modified any existing transaction (the aggregate consideration for which is in excess of $100,000);
(i) offered suffered any discounts on any damage, destruction or casualty loss, whether or not covered by insurance, in excess of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; $100,000;
(j) changed made any capital expenditures, additions or improvements or commitments for the same, except those made in the ordinary course of business which in the aggregate do not exceed $100,000;
(k) entered into any material respect transaction or conducted business operations, including the incurrence of any Indebtedness, outside the ordinary course of the terms its business or inconsistent with its past practices;
(l) made any change in its accounting methods or practices or ceased making accruals for taxes, obsolete inventory, doubtful or uncollectible accounts, vacation and conditions other customary accruals consistent with respect its past practices;
(m) ceased reserving cash to the pricing pay taxes, principal and interest on borrowed funds, and other customary expenses and payments;
(n) caused to be made any reevaluation of any of its products assets or services properties;
(including o) caused to be entered into any terms and conditions that are ancillary toamendment or termination of any material lease, customer or otherwise affect, the aggregate price paid for supplier contract or other material contract or agreement to which it is a party;
(p) made any material change in any of its products business policies, including, without limitation, advertising, distributing, marketing, pricing, purchasing, personnel, sales, returns, budget or servicesproduct acquisition or sale policies;
(q) terminated or failed to renew, or received any written threat (that differ from was not subsequently withdrawn) to terminate or fail to renew, any contract or other agreement that is or was material to its business or its financial condition;
(r) permitted to occur or be made any other event or condition of any character which has had, or could reasonably be expected to result in, a Material Adverse Effect on the terms and conditions previously offered by Seller with respect Acquired Companies taken as a whole;
(s) waived any rights material to the Businessits business or its financial condition;
(t) made any illegal payment or rebates; and/or or
(ku) committed or agreed entered into any agreement to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since Seller has not, except as set forth in Schedule 3.7 hereto, since December 31, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: 1995:
(a) suffered a change or development in the business, financial condition, operating results, earnings, assets, customer, supplier, employee and sales representative relations or financing arrangements of the Business which has had, or is likely to have, a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; Effect;
(b) sold, leased, assigned, distributed, licensed, sublicensed, transferred borrowed any amount or otherwise encumbered a portion issued or exchanged any notes or other evidences of its assets any indebtedness for borrowed money or properties incurred or become subject to any obligations or liabilities (tangible whether absolute or intangiblecontingent), except for sales of inventory or services current liabilities incurred in the ordinary course of business consistent with past practice and liabilities under contracts entered into in the ordinary course of business consistent with past practices;
(c) discharged or satisfied any Lien involving indebtedness exceeding $50,000 or paid any obligation or liability, other than liabilities paid in the ordinary course of business, or prepaid any amount of indebtedness for borrowed money;
(d) mortgaged, pledged or subjected to unaffiliated third Persons on an arm’s length basisany Lien any portion of its properties or assets with a value in excess of $50,000;
(e) sold, leased, assigned or transferred (including, without limitation, transfers to any employees or Affiliates of Seller) any tangible assets (other than Inventory in the ordinary course of business), Proprietary Rights or other intangible assets, or canceled without fair consideration any material debts or claims owing to or held by it; , or, to its knowledge, disclosed any proprietary confidential information to any Person, other than disclosures of such information to Buyer and its Affiliates and representatives or in the ordinary course of business pursuant to appropriate confidentiality agreements;
(cf) suffered any theft, damage, destruction or casualty loss to its tangible assets exceeding $75,000, whether or not covered by insurance;
(g) entered into, amended or terminated any material Contract lease, contract, agreement or License commitment, or materially taken any other action or entered into any other transaction other than in the ordinary course of business and in accordance with past custom and practice, or entered into any transaction with any Insider (as defined in Section 3.17 below) (other than with Affiliates of SCP or SCP Pool in the ordinary course of business and in accordance with past custom and practice), or changed any business practice; (d) madepractice or manner of dealing with any customer, granted or promised any bonussupplier, severancesubcontractor, retention Insider, sales representative, or other incentive amount person or entity with whom Seller engages in any business activity, or entered into any other material transaction, whether or not in the ordinary course of business;
(h) entered into any employment contract or collective bargaining agreement, written or oral, or changed the employment terms for any employee or agent or made or granted any bonus or any wage, salary, salary or compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employeesemployees or consultant or made or granted any increase in any employee benefit plan or arrangement, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Planexisting employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement, except for normal compensation increases or bonuses consistent with past practice;
(i) conducted its business (including the collection of receivables, purchase of inventory, payment of payables, incurrence of capital expenditures, and maintenance and repair of assets) other than as required by Law; in the usual and ordinary course of business in accordance with past custom and practice;
(fj) made any capital expenditures (or commitments therefor) that aggregate in excess of $75,000;
(k) made any loans or advances to, or guarantees for the benefit of, any persons;
(l) delayed or postponed in a material way the payment of accounts payable and other liabilities;
(m) entered into any lease of capital equipment or real estate involving rental in excess of $50,000 per annum;
(n) made any charitable contributions or pledges in excess of $10,000 in the aggregate; or
(o) entered into any other transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices that is material to the Business other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingbusiness.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2017 Except for the execution and other than as a result delivery of and/or with respect to this Agreement and the transactions contemplated hereby and/or previously disclosed to hereby, since the Purchaser date of the Most Recent Balance Sheet, the Company and each of its Subsidiaries have conducted their business only in writing including the Ordinary Course of Business, and from the date of the Most Recent Balance Sheet until the date hereof, except as set forth in Financial Statements made available to PurchaserSection 2.8 of the Company Disclosure Schedule, neither the Business nor any Purchased Assets has: there has not been:
(a) suffered a Material Adverse Effect or suffered any material theftchange in the assets, liabilities, financial condition or operating results from those reflected in the Company Financial Statements;
(b) any damage, destruction or casualty loss that is loss, whether or not covered by insurance; , materially and adversely affecting the assets, properties, condition (b) soldfinancial or otherwise), leasedoperating results, assignedbusiness, distributed, licensed, sublicensed, transferred operations or otherwise encumbered a portion affairs of the Company or any of its Subsidiaries;
(c) any waiver, cancellation or modification by the Company or any of its Subsidiaries of a material right or of a material debt owed to it;
(d) any loss or any condition or development that could reasonably be expected to result in the loss of any material supplier, customer, distributor or account of the Company or any of its Subsidiaries;
(e) any change or amendment to a Material Contract (as defined below), except for changes or amendments which are expressly provided for or disclosed in this Agreement;
(f) any loans or guarantees made by the Company or any of its Subsidiaries to or for the benefit of its Employees, Workers, officers or directors, or any members of their immediate families, other than travel advances or other advances made in the Ordinary Course of Business;
(g) any declaration, setting aside or payment or other distribution in respect of any of the Company’s capital stock, or any direct or indirect redemption, purchase or other acquisition of any such stock by the Company;
(h) any incurrence of indebtedness for borrowed money by the Company or any of its Subsidiaries for money borrowed individually in excess of $100,000 annually or in excess of $250,000 in the aggregate;
(i) entering into any employment, severance or similar agreement (or amendment of any such agreement) or agreement to increase the compensation or any benefits payable to or being provided to any of the Company’s or any of its Subsidiaries’ directors, officers, Employees, Workers, agents or representatives, in each case, other than normal agreements or increases in the Ordinary Course of Business and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Company or any such Subsidiary and (B) changes to Employee Programs required by applicable Law;
(j) any sale, assignment or transfer of any patents, trademarks, copyrights, trade secrets, intangible assets or properties other Company Intellectual Property Assets (as defined below) or grant of exclusive license with respect thereto;
(k) any resignation or termination of employment of any Key Employee (the Company has not been notified, orally or in writing of any such impending resignation or termination of employment);
(l) any change by the Company or any of its Subsidiaries in any collection, payment, accounting or tax reporting principles, methods or policies;
(m) entering by the Company or any of its Subsidiaries into any material transaction or agreement or change in the conduct of their respective businesses or operations other than in the Ordinary Course of Business;
(n) any failure by the Company or any of its Subsidiaries to promptly pay and discharge current liabilities, except where disputed in good faith by appropriate proceedings;
(o) any mortgage, pledge or subjection to any Lien on any of the assets (tangible or intangible)) of the Company or any of its Subsidiaries, or acquisition of any assets or the sale, assignment, transfer, conveyance, lease or other disposition of any assets of the Company or any of its Subsidiaries, except for sales assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of inventory or services in the ordinary course Ordinary Course of business to unaffiliated third Persons on an armBusiness;
(p) the Company’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation of its Subsidiaries’ making or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed committing to make any material capital expenditures that were previously budgeted or scheduled capital additions or improvements in excess of $100,000 individually or $250,000 in the aggregate;
(q) any act, event or condition of any character which would be reasonably likely to be maderesult in a Company Material Adverse Effect; or
(ir) offered any discounts on agreement by the Company or any of its products or services or any promotions, rebates, coupons or special offers with respect Subsidiaries to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31the date of the Base Balance Sheet, 2017 the Company has conducted its business only in the ordinary course consistent with past practice and, except as set forth in Section 8.9 of the Disclosure Schedule and except as permitted under the MSA, there has not been:
(a) any material adverse change in the financial condition, properties, assets, liabilities, business or operations of the Company, which change by itself or in conjunction with all other than changes creates a material adverse change;
(b) any contingent liability incurred by the Company as a result of and/or guarantor or otherwise with respect to the transactions contemplated hereby and/or previously disclosed obligations of others or any cancellation of any debt or claim owing to, or waiver of any right of the Company;
(c) any mortgage, encumbrance or lien placed on any of the properties of the Company which remains in existence on the Execution Date or will remain on the Closing Date and the Acquisition Date (as defined in the MSA);
(d) any obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, known or unknown (including without limitation, liabilities for taxes due or to become due or contingent or potential liabilities relating to services provided by the Purchaser Company, including without limitation, any claims or potential claims for malpractice, or the conduct of the business of the Company since the date of the Base Balance Sheet regardless of whether claims in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangiblerespect thereof have been asserted), except for sales of inventory or services incurred by the Company other than obligations and liabilities incurred in the ordinary course of business consistent with the terms of this Agreement (it being understood that claims in connection with services provided by the Company, including without limitation, malpractice claims, shall not be deemed to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group be incurred in the ordinary course of employees, individual service provider or consultant; business);
(e) adoptedany purchase, entered intosale or other disposition, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate agreement or other arrangement for the purchase, sale or other disposition, of any Insider); (g) conducted its cash management customs and practices of the properties or assets of the Company other than in the ordinary course of business;
(f) any damage, destruction or loss, whether or not covered by insurance, adversely affecting the properties, assets or business of the Company;
(including with respect to maintenance of working capital balancesg) any declaration, maintenance of inventory levels, collection of accounts receivable and setting aside or payment of accounts payable); any dividend by the Company, or the making of any other distribution in respect of the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of its own capital stock;
(h) failed any labor trouble or claim of unfair labor practices involving the Company; any change in the compensation payable or to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect become payable by the Company to any of its products respective officers, employees, agents or services independent contractors other than normal merit increases in accordance with terms and conditions that differ materially from the terms and conditions previously offered by Seller its usual practices, or any bonus payment or arrangement made to or with any of those officers, employees, agents or independent contractors;
(i) any change with respect to the Business; officers or management of the Company;
(j) changed any payment or discharge of a lien or liability of the Company which was not shown on the Base Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any material respect obligation or liability incurred by the Company to any of its officers, directors, stockholders or employees, or any loans or advances made by the Company to any of its respective officers, directors, stockholders or employees, except normal compensation and expense allowances payable to officers or employees;
(l) any change in accounting methods or practices, credit practices or collection policies used by the Company;
(m) any compensation paid by the Company to Shareholders in excess of Five Thousand Dollars ($5,000.00) in the aggregate;
(n) any capital expenditure by the Company in excess of Five Thousand Dollars ($5,000.00) in the aggregate;
(o) any borrowings or entering into any leases;
(p) any other transaction entered into by the Company other than transactions in the ordinary course of business; or
(q) any agreement or understanding whether in writing or otherwise, for the Company to take any of the terms and conditions with respect to the pricing of any of its products or services actions specified in paragraphs (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or servicesa) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or through (kp) committed or agreed to any of the foregoingabove.
Appears in 1 contract
Samples: Purchase Option Agreement (Sheridan Healthcare Inc)
Absence of Certain Developments. Since December 31, 2017, there has not been any Material Adverse Effect. Except as set forth on the Developments Schedule or except as expressly contemplated by this Agreement, from December 31, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaserdate hereof, neither the Business Company nor any Purchased Assets of its Subsidiaries has: :
(a) suffered a Material Adverse Effect mortgaged or suffered pledged any of its material theftassets, damage, destruction or casualty loss that is not covered by insurance; except Permitted Liens;
(b) sold, assigned, exchanged, transferred, leased, assigned, distributed, licensed, sublicensed, transferred licensed or otherwise encumbered disposed of, or agreed to sell, assign, exchange, transfer, lease, license or otherwise dispose of, any of its material assets;
(c) issued, sold or transferred any of its equity securities, securities convertible into its equity securities or warrants, options or other rights to acquire its equity securities, or other Ownership Interests, or any bonds or debt securities, or authorized or effected any recapitalization, reclassification, equity split or like change in its capitalization;
(d) (i) acquired or agreed to acquire in any manner (whether by merger or consolidation, the purchase of an equity interest in or a material portion of its the assets of or properties otherwise) any business or any corporation, partnership, joint venture interest, association or other business organization or division thereof or any other Person, or (tangible or intangibleii) acquired any material assets, other than, in the case of this clause (ii), except for sales the acquisition of inventory or services assets in the ordinary course of business to unaffiliated third Persons on an arm’s length basisconsistent with past practice;
(e) declared, set aside, or canceled without fair consideration paid any material debts dividend or claims owing distribution with respect to its Ownership Interests (other than cash dividends and distributions from a Subsidiary to the Company or held by it; another Subsidiary) or repurchased, redeemed or acquired any of its Ownership Interests;
(cf) made any capital expenditures in excess of $250,000 in the aggregate or commitments therefor, except for such capital expenditures or commitments that are reflected in the current budget, a true and correct copy of the portion of which deals with capital expenditures or commitments is attached hereto on subsection (f) of the Developments Schedule;
(g) made any loan to, or entered into any other transaction with, any of its directors, officers or their respective Affiliates or other Related Persons (other than Seller), other than employee compensation (for the avoidance of doubt, not including any loan) and routine travel and business expense advances to current employees of the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;
(h) entered into, amended or terminated any material Contract or License or materially changed any business practice; Affiliate Agreement;
(d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (fi) entered into any transaction employment contract with payments exceeding $200,000 per year, or materially modified the terms of any such existing contract or agreement with payments exceeding $200,000;
(i) recognized any labor organization for purposes of collective bargaining or entered into any collective bargaining agreement or other agreement with any Insider labor organization, or (ii) implemented any reduction in force of any group of employees of the Company or any Affiliate of its Subsidiaries;
(k) except as required by Law or the terms of any InsiderPlan (i) agreed to pay or granted any pension, retirement allowance, severance or termination pay to any employee or other Service Provider (for the avoidance of doubt, with respect to any Service Provider, the last remaining payment owed under the terms of a consulting agreement with such Service Provider entered into in the ordinary course of business consistent with past practices that is due after the end of the term of such Service Provider’s service relationship that is for services already performed by such Service Provider during the last service period under such consulting agreement shall not be deemed to be severance or termination pay for purposes of this representation); , (gii) conducted made any material change to the key management structure of the Company or any of its cash management customs and practices Subsidiaries, including the hiring of additional officers or the termination of existing officers, (iii) other than in the ordinary course of business consistent with past practice, granted or announced any incentive awards (including other than equity-based awards) or benefits payable by the Company or any of its Subsidiaries to any of their employees or Service Providers (other than non-material increases in compensation or benefits resulting from routine changes to welfare benefit programs), (iv) adopted, amended or terminated or materially increased the benefits under any Plans, or (v) taken any action to accelerate any payment or benefit or the funding of any payment or benefit, payable or to be provided to any of its directors, officers, employees or Service Providers;
(l) entered into, amended or terminated any collective bargaining agreement or other contract, agreement or arrangement with a union or works council;
(m) commenced, discharged, satisfied, or otherwise settled any material Proceeding;
(n) except as required by GAAP, materially changed any of its accounting principles or practices or revalued, wrote up, wrote down or wrote off the book value of any material asset;
(o) to the extent solely applicable to the Company and its Subsidiaries and not with respect to maintenance the Seller Group (i) changed any annual Tax accounting period or method of Tax accounting, (ii) amended any material Tax Return, (iii) entered into any closing agreement with a taxing authority, (iv) settled any material Tax claim, audit or assessment with a taxing authority, (v) made any material Tax election or prepared any material Tax Return in each case in a manner that is materially inconsistent with the past practices of the Company or its Subsidiaries with respect to the treatment of items on prior Tax Returns, (vi) incurred any material liability for Taxes other than in the ordinary course of business consistent with past practice, (vii) filed any past-due Tax Return or filed any Tax Return in each case in a jurisdiction where the Company or its Subsidiaries did not file a Tax Return of the same type in the immediately preceding Tax period or (viii) filed a claim for refund of Taxes with respect to the income, operations or property of the Company and its Subsidiaries;
(p) adopted a plan of liquidation, arrangement, dissolution, merger, consolidation, or other reorganization;
(q) made any change to the Company Certificate of Incorporation or Company Bylaws or the Organizational Documents of any of the Company’s Subsidiaries;
(r) managed its working capital balancesother than in the ordinary course of business consistent with past practices in all material respects (including (i) not deferring, maintenance delaying or postponing the payment of inventory levelsaccounts payable or other Liabilities or obligations other than in the ordinary course of business consistent with past practices, and (ii) not accelerating the collection of accounts receivable and payment other than in the ordinary course of accounts payablebusiness consistent with past practices); ;
(hs) failed increased, or made any commitment to make increase, the compensation, incentive arrangements, or other benefits to any material capital expenditures that were previously budgeted officer, director, employee or scheduled to be made; (i) offered any discounts on other Service Provider of the Company or any of its products or services or Subsidiaries, other than increases in the ordinary course of business for non-executive employees with annual base salary of less than $200,000 and for increases in number of hours provided by any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the BusinessService Provider; or
(j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (kt) committed or agreed to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Amag Pharmaceuticals Inc.)
Absence of Certain Developments. Since December 31the Most Recent Balance Sheet Date, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: has been conducted in the Ordinary Course of Business and, except for the matters disclosed in Schedule 3.8:
(a) suffered a Material Adverse Effect Seller has not (i) made any declaration, setting aside or suffered payment of any material theftdividend or other distribution with respect to, damageor any repurchase, destruction redemption or casualty loss that is not covered by insurance; (b) soldother acquisition of, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion any of its assets capital stock or properties other Equity Interests (tangible other than distributions of cash and redemptions funded solely with cash) or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; (cii) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) madeperformed, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with with, or for the benefit of, any Insider (stockholder or any Affiliate of any Insiderof them (other than payments made to officers, directors and employees in the Ordinary Course of Business); ;
(gb) conducted its cash management customs and practices There has been no material loss, destruction, damage or eminent domain taking (in each case, whether or not insured) affecting the Business or any Acquired Asset;
(c) Seller has not increased the Compensation payable or paid or altered the timing or methods of such payments, whether conditionally or otherwise, to (i) any employee, consultant or agent other than in the ordinary course Ordinary Course of business Business, (ii) any director or officer or (iii) any stockholder or any Affiliate of any stockholder;
(d) Seller has not entered into or amended any Contractual Obligation providing for the employment or consultancy of any Person on a full-time, part-time, consulting or other basis or otherwise providing Compensation or other benefits to any officer, director, employee or consultant;
(e) Seller has not (i) made any change in its methods of accounting or accounting practices (including with respect to maintenance reserves) or (ii) changed its policies or practices with respect to paying payables or billing and collecting receivables;
(f) Seller has not made, changed or revoked any Tax election, elected or changed any method of working capital balancesaccounting for Tax purposes, maintenance settled any Action in respect of inventory levelsTaxes or entered into any Contractual Obligation in respect of Taxes with any Governmental Authority;
(g) Seller has not terminated or closed any facility, collection of accounts receivable and payment of accounts payable); business or operation;
(h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; Seller has not (i) offered adopted or amended any discounts on any of its products or services or any promotionsCompany Plan, rebates, coupons or special offers (ii) except in accordance with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by thereof as in effect on the Most Recent Balance Sheet Date, increased any benefits under any Company Plan, or (iii) altered the timing or method of any payments under any Company Plan;
(i) Seller with respect to the Business; has not written up or written down any Acquired Asset, or revalued its inventory;
(j) changed in Seller has not entered into any material respect Contractual Obligation to do any of the terms and conditions with respect things referred to elsewhere in this Section 3.8;
(k) Except in the Ordinary Course of Business, Seller has not consented to the pricing sale, assignment, exclusive license or transfer to any third party of any of its products tangible or services intangible assets (including any terms Intellectual Property) owned by, and conditions that are ancillary to, material to the Business of Seller;
(l) Seller has not failed to pay any fee or otherwise affecttake any reasonable action necessary to maintain and protect its right, title and interest in and to the aggregate price paid for Acquired Intellectual Property, including in response to any of its products or servicesactions taken by a Governmental Authority;
(m) Seller has not received any notice from any third party (including any manufacturing party) that differ from such third party is the terms and conditions previously offered by Seller with respect to the Businessowner or purported owner of any Acquired Intellectual Property; and/or and
(kn) committed No event or agreed to any of the foregoingcircumstance has occurred which constitutes a Material Adverse Effect.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as set forth on the attached Developments Schedule, 2017 and other than as a result since the date of and/or with respect the Latest Balance Sheet, (i) there have not been any events, changes, occurrences or circumstances that, individually or in the aggregate, have had or would reasonably be expected to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered have a Material Adverse Effect or suffered and (ii) the Company and its Subsidiaries have conducted their respective businesses in the Ordinary Course of Business in all material respects. Except as set forth on the Developments Schedule and except as expressly contemplated by this Agreement, since the date of the Latest Balance Sheet, neither the Company nor any of its Subsidiaries has engaged in any material thefttransaction that was not in the Ordinary Course of Business. Without limiting the generality of the foregoing, damageand except as set forth on the Developments Schedule and except as expressly contemplated by this Agreement, destruction since the date of the Latest Balance Sheet, neither the Company nor any of its Subsidiaries has:
(a) amended or casualty loss that is not covered by insurance; modified its certificate of incorporation or bylaws (or equivalent organizational documents);
(b) soldissued, leased, assigned, distributed, licensed, sublicensed, transferred sold or otherwise encumbered a portion delivered any of its assets capital stock or properties (tangible any options, warrants, convertible or intangible)exchangeable securities, except for sales subscriptions, rights, stock appreciation rights, calls or commitments of inventory or services in the ordinary course of business any kind with respect to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; its capital stock;
(c) entered into, amended or terminated modified any employment or consulting agreement which provides for annual base compensation in excess of $50,000 (except for compensation increases and decreases in the Ordinary Course of Business) or which is not terminable at will with no further liability or material Contract increase in the coverage or License benefits available under any (or create any new) Plan (other than any employment or consulting agreement as set forth in this Section 5.06(c)) or otherwise materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered intomodified, amended or terminated any PlanPlan except as may be required to comply with applicable Law;
(d) entered into or modified any collective bargaining agreement, side letter, representation or neutrality agreement, representation or election agreement, or other Contract with any labor union or other representative of the employees of the Company or of any of its Subsidiaries;
(e) declared, set aside, paid or made any dividend or other distribution or payment to its stockholders with respect to any shares of its capital stock or other securities or ownership interests or any repurchase, redemption or other acquisition of any outstanding share of its capital stock or other securities or ownership interest;
(f) adopted a plan of liquidation, dissolution, bankruptcy, merger, consolidation or other reorganization;
(g) made any change in its accounting methods, principles or practices, other than in a manner consistent with GAAP;
(h) made any loan or advance to any of its officers, directors, employees or consultants (other than in the Ordinary Course of Business) or made any loan, advance, capital contribution or investment in any Person (other than the Company or any of its wholly owned Subsidiaries) or paid any fees or expenses to any Stockholder or any director, officer, partner, stockholder or Affiliate of any Stockholder;
(i) made or modified any commitment to pay severance to any of its officers, directors, employees or consultants;
(j) made or committed to make any capital expenditures or capital additions or betterments in excess of $250,000 in any one case or $750,000 in the aggregate;
(k) incurred any indebtedness for borrowed money (other than indebtedness that will be Funded Indebtedness at the time of Closing);
(l) made any acquisition of all or any material part of the assets, properties, capital stock or business of any other Person, other than purchases of inventory in the Ordinary Course of Business;
(m) incurred any damage, destruction or loss, whether or not covered by insurance, with respect to its property and assets having a replacement cost of more than $50,000 for any single loss or $100,000 for all such losses;
(n) other than in the Ordinary Course of Business, failed to promptly pay and discharge material current liabilities except where disputed in good faith;
(o) canceled or compromised any debt or claim or amended, canceled, terminated, relinquished, waived or released any Contract or right which is material to the Company and its Subsidiaries taken as required by Lawa whole;
(p) been named as a defendant in, instituted or settled any Proceeding where the amount at issue was in excess of $100,000;
(i) made any change in the Tax reporting or accounting principles, practices or policies, including with respect to (A) depreciation or amortization policies or rates or (B) the payment of accounts payable or the collection of accounts receivable, (ii) settled or compromised any Tax liability, (iii) made, changed or rescinded any Tax election, (iv) surrendered any right in respect of Taxes, (v) amended any Tax Return or (vi) consented to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; or
(fr) entered into any transaction with any Insider Contract to do anything set forth in clauses (or any Affiliate a) through (q) of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingthis Section 5.06.
Appears in 1 contract
Absence of Certain Developments. Since Seller has not, except as set forth in Schedule 4.7 hereto, since December 31, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: 1995:
(a) suffered a change or development in the business, financial condition, operating results, earnings, assets, customer, supplier, employee and sales representative relations or financing arrangements of the Business which has had, or is likely to have, a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; Effect;
(b) sold, leased, assigned, distributed, licensed, sublicensed, transferred borrowed any amount or otherwise encumbered a portion issued or exchanged any notes or other evidences of its assets any indebtedness for borrowed money or properties incurred or become subject to any obligations or liabilities (tangible whether absolute or intangiblecontingent), except for sales of inventory or services current liabilities incurred in the ordinary course of business consistent with past practice and liabilities under contracts entered into in the ordinary course of business consistent with past practices;
(c) discharged or satisfied any Lien involving indebtedness exceeding $100,000 or paid any obligation or liability, other than liabilities paid in the ordinary course of business, or prepaid any amount of indebtedness for borrowed money;
(d) mortgaged, pledged or subjected to unaffiliated third Persons on an arm’s length basisany Lien any portion of its properties or assets with a value in excess of $100,000;
(e) sold, leased, assigned or transferred (including, without limitation, transfers to any employees or Affiliates of Seller) any tangible assets (other than Inventory in the ordinary course of business), Proprietary Rights or other intangible assets, or canceled without fair consideration any material debts or claims owing to or held by it; , or, to its knowledge, disclosed any proprietary confidential information to any Person, other than disclosures of such information to Buyer and its Affiliates and representatives or in the ordinary course of business pursuant to appropriate confidentiality agreements;
(cf) suffered any theft, damage, destruction or casualty loss to its tangible assets exceeding $150,000, whether or not covered by insurance;
(g) entered into, amended or terminated any material Contract lease, contract, agreement or License commitment, or materially taken any other action or entered into any other transaction other than in the ordinary course of business and in accordance with past custom and practice, or entered into any transaction with any Insider (as defined in Section 4.18 below) (other than with Affiliates of Great Lakes or Bio-Lab in the ordinary course of business and in accordance with past custom and practice), or changed any business practice; (d) madepractice or manner of dealing with any customer, granted or promised any bonussupplier, severancesubcontractor, retention Insider, sales representative, or other incentive amount person or entity with whom Seller engages in any business activity, or entered into any other material transaction, whether or not in the ordinary course of business;
(h) entered into any employment contract or collective bargaining agreement, written or oral, or changed the employment terms for any employee or agent or made or granted any bonus or any wage, salary, salary or compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employeesemployees or consultant or made or granted any increase in any employee benefit plan or arrangement, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Planexisting employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement, except for normal compensation increases or bonuses consistent with past practice;
(i) conducted its business (including the collection of receivables, purchase of inventory, payment of payables, incurrence of capital expenditures, and maintenance and repair of assets) other than as required by Law; in the usual and ordinary course of business in accordance with past custom and practice;
(fj) made any capital expenditures (or commitments therefor) that aggregate in excess of $150,000;
(k) made any loans or advances to, or guarantees for the benefit of, any persons;
(l) delayed or postponed in a material way the payment of accounts payable and other liabilities;
(m) entered into any lease of capital equipment or real estate involving rental in excess of $50,000 per annum;
(n) made any charitable contributions or pledges in excess of $10,000 in the aggregate; or
(o) entered into any other transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices that is material to the Business other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingbusiness.
Appears in 1 contract
Absence of Certain Developments. Since December 31the date of the Latest Balance Sheet, 2017 there has not been any Material Adverse Effect. Except as set forth on Schedule 4.06, since the date of the Latest Balance Sheet, the Company Group has been operated in the ordinary course of business, and no member of the Company Group has:
(a) amended or modified its certificate of formation, bylaws, or other organizational or similar governing documents;
(b) transferred, issued, reissued or sold, or authorized the transfer, issuance, reissuance or sale of, any of its equity interests (including, for the avoidance of doubt, incentive equity);
(c) declared, set aside or paid any dividend or other distribution of assets in respect of any of its equity interests;
(d) adjusted, split, combined, recapitalized, subdivided or reclassified any of its equity interests;
(e) subjected any portion of its properties or assets that are material to the Company Group, taken as a whole, to any Lien, except for Permitted Liens;
(f) sold, assigned or transferred any portion of its assets that are material to the Company Group, taken as a whole, except in the ordinary course of business;
(g) sold, assigned, transferred, leased, licensed, abandoned, disposed of, or permitted to lapse (other than patents expiring at the end of their statutory term and not as a result of and/or with respect any act or omission by the Company Group, including failure by the Company Group to pay any required maintenance fees) any Owned Intellectual Property;
(i) materially increased the transactions contemplated hereby and/or previously disclosed compensation payable or to become payable by it to any member of the Purchaser Company Group’s employees, directors, officers, individual independent contractors or other individual service providers whose annual base compensation is in writing including in Financial Statements made available excess of $100,000 after giving effect to Purchasersuch increase, neither (ii) other than any change arising from the Business nor any Purchased Assets has: (a) suffered annual renewal of a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services Plan in the ordinary course of business consistent with past practice that resulted in no more than a de minimis increased cost to unaffiliated third Persons on an arm’s length basisthe Company Group, made, adopted, established, modified, terminated, or canceled without fair consideration granted any material debts increase under any current (or claims owing former) Plan (or any Contract, practice, policy, program, fund, agreement or arrangement that would be a Plan under this Agreement), or (iii) accelerated or committed to accelerate the funding, payment or held by it; (c) entered intovesting of any compensation, amended or terminated any material Contract or License or materially changed any business practice; (d) madetransaction, granted or promised any bonusretention, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase benefits to any current or former employee, director, officer, employee individual independent contractors or sales representative, group of employees, other individual service provider or consultant; (e) adopted, entered into, amended or terminated any Planprovider, other than as required pursuant to the terms of an existing Plan so long as such Plan has been disclosed as of the date of this Agreement to the Buyer on a Schedule to this Agreement;
(i) acquired (including by Law; (fmerger) entered into any transaction with any Insider (the capital stock, assets or any Affiliate division of any Insider); other Person;
(gj) conducted its cash management customs and practices other than made any loans or advances to, investment in, or guarantees for the benefit of, any Persons (except to employees in the ordinary course of business business);
(including with respect k) except in the ordinary course of business, sold, transferred, leased, subleased, exclusively licensed or otherwise of any properties or assets having an aggregate value in excess of $200,000;
(l) made or committed to maintenance make any capital expenditure in an aggregate amount in excess of working $250,000, except as set forth in the Company’s capital balancesexpenditure budget provided to the Buyer, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) or failed to make any material capital expenditures that were previously budgeted expenditure set forth in such budget;
(m) initiated, canceled, compromised or scheduled settled any Action;
(n) amended any material Tax Return or filed any material Tax Return in a manner inconsistent with the past practice of the Company Group;
(o) hired or engaged, or terminated (other than for cause) the employment or engagement of any employee, director, officer, individual independent contractor or other individual service provider whose annual base compensation exceeds (or will exceed, or prior to be made; termination, did exceed) $150,000;
(ip) offered negotiated, modified, amended, extended or entered into any discounts on any of its products or services collective bargaining agreement or any promotionsother labor-related contract with any Union, rebates, coupons or special offers with respect to recognized or certified any Union or group of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in employees of any material respect any member of the terms and conditions with respect to Company Group as the pricing of bargaining representative for such employees;
(q) taken any of its products action that would constitute a “mass layoff” or services (including any terms and conditions that are ancillary to“plant closing” within the meaning of, or that could otherwise affecttrigger notice requirements or Liability under the WARN Act;
(r) dissolved, the aggregate price paid for wound-up or liquidated;
(s) entered into, amended, renewed, waived, or terminated any of its products Contract with a Related Party;
(t) acquired any real property; or
(u) agreed or services) that differ from the terms and conditions previously offered by Seller with respect committed to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (GPB Holdings II, LP)
Absence of Certain Developments. Since December 31, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: 2021:
(a) suffered a Material Adverse Effect none of the Transferred Companies or suffered their Subsidiaries has sold, leased or disposed of, or subjected to any Lien (other than Permitted Liens), any of its tangible or intangible assets, other than sales, leases or dispositions that are immaterial to the Transferred Companies or their Subsidiaries, or canceled or released any material theftdebt or material claim held by it other than in the Ordinary Course of Business;
(b) none of the Transferred Companies or their Subsidiaries have (i) made any loan or advance to any Person, other than advances to employees for business expenses to be incurred in the Ordinary Course of Business or transactions with customers on credit in the Ordinary Course of Business, or (ii) applied for, assented or attested to (or permit a deemed assent or attestation by failure to act) or accepted any financial assistance under the CARES Act or similar Law;
(c) there has been no theft of, or material damage, destruction or casualty loss that is to, (i) any asset of any Transferred Company or its Subsidiaries necessary to the operation of its business, whether or not covered by insurance; , or (bii) soldany of the books and records of any Transferred Company or its Subsidiaries;
(d) none of the Transferred Companies or their Subsidiaries have terminated any Contract that would be a Material Contract if in existence as of the date hereof, leasedother than with respect to terminations or expirations of any such Contracts in accordance with their terms;
(e) none of the Transferred Companies or their Subsidiaries have made any material change in its accounting methods or policies (including in its cash management practices and its practices) with respect to collection of accounts receivable, assignedestablishment of accruals and reserves (including for bad debt and deferred revenue), distributedinventory control, licensedprepayment of expenses and acceptance of customer deposits), sublicensedunless such change was required by GAAP;
(f) none of the Transferred Companies or their Subsidiaries have made, transferred or committed to make, capital expenditures for any property outside of the Ordinary Course of Business or in excess of $100,000 in the aggregate;
(g) none of the Transferred Companies or their Subsidiaries have declared, set aside or paid any cash or equity dividend or other constructive or deemed distribution in respect of any of their equity securities, or otherwise encumbered made payment to any Seller or any of their respective Affiliates in such Person’s capacity as a portion of its assets Seller;
(h) except as required under any Plan or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basisContract, or canceled without fair consideration any material debts to comply with applicable Law, none of the Transferred Companies or claims owing to or held by it; (c) entered intotheir Subsidiaries have adopted, amended amended, modified, or terminated any material Contract employment agreement, independent contractor agreement, consulting agreement, staffing agreement or License or materially changed any business practice; (d) madearrangement for the services of temporary H:815039 25 employees, granted or promised any bonus, severance, retention collective bargaining agreement or other agreement for the payment of any wages, incentive amount or severance;
(i) none of the Transferred Companies or their Subsidiaries have effectuated any reduction in force, early retirement program or other voluntary or involuntary employment termination program or otherwise implemented any employee layoff, in each case, not in compliance with the Worker Adjustment and Retraining Notification Act or any wagesimilar state, salarylocal or foreign Law, compensation including Federal Labor Law in Mexico;
(j) none of the Transferred Companies or benefit increase their Subsidiaries have (i) accelerated or delayed the collection of notes or accounts receivable in advance of or beyond the dates when the same would have been collected in the Ordinary Course of Business or (ii) delayed or accelerated the payment of any account payable or other liability beyond or in advance of the dates when the same would have been paid in the Ordinary Course of Business;
(k) none of the Transferred Companies or their Subsidiaries have made any acquisition, by means of merger, recapitalization, consolidation or purchase of all or substantially all of the assets of a Person or other similar transaction, or any disposition of assets or securities of any other Person;
(l) except as provided on Section 3.8(l) of the Disclosure Schedule, there has been no Proceeding involving or relating to any current Transferred Company or former directorits Subsidiaries (or any of their businesses or assets), officerand there has been no loss, employee expiration or sales representativerevocation of any Permit;
(m) no Transferred Company has deferred any employee-side payroll Taxes under the CARES Act; and
(n) there has been no authorization, group approval, agreement or commitment made by any Transferred Company or its Subsidiaries to do any of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, the foregoing other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than contemplated in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingthis Agreement.
Appears in 1 contract
Absence of Certain Developments. Since From December 31, 2017 and other than as a result of and/or with respect 2015 to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to PurchaserEffective Date, neither the Business nor any Purchased Assets has: (a) suffered a no Material Adverse Effect or suffered any material thefthas occurred, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services and the Companies and the Subsidiary have conducted their respective businesses in the ordinary course of business to unaffiliated third Persons consistent with past practice. Except as set forth in Section 3.08 of the Disclosure Schedule, between December 31, 2015 and the Effective Date, neither of the Companies nor the Subsidiary has:
(a) except as disclosed on an arm’s length basisthe Most Recent Financial Statements, experienced any change in its premium or other revenues, claims or other costs, including IBNR, or canceled without fair consideration relations with any material debts Governmental Authority or claims owing any of its Enrollees, Providers, payors, employees, agents, underwriters or others, that would result in any adverse effect on the financial conditions and results of operations of the Companies that, taken individually, would reasonably be expected to entail a Liability or held by it; Loss in excess of ;
(cb) entered intoamended its Governing Documents;
(i) declared, amended set aside, made or terminated paid any material Contract dividend or License other distribution or materially changed payments (whether in cash, stock or property or any business practice; combination thereof) in respect of any of its shares of capital stock or (ii) redeemed or otherwise acquired any of its shares of capital stock, issued any new capital stock or granted any Person any right or option to acquire any shares of capital stock;
(d) made(i) merged or consolidated with any business or any corporation, granted or promised any bonuspartnership, severancelimited liability company, retention association or other incentive amount business organization or division thereof, (ii) acquired any wageassets or other properties from any Person, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business consistent with past practice or (including iii) made any investments in any Persons, except in the ordinary course of business consistent with respect past practice, or otherwise made any loans, advances or capital contributions to maintenance any Persons;
(e) sold, leased, licensed or otherwise transferred any assets or properties of working capital balancesany Company or the Subsidiary, maintenance other than in the ordinary course of inventory levelsbusiness consistent with past practice;
(f) adopted a plan of complete or partial liquidation, collection dissolution, merger, consolidation, recapitalization or other reorganization or taken any action for the appointment of accounts receivable a receiver, administrator, trustee or similar officer;
(g) entered into, amended, renewed or terminated any Material Contract (or any Contract that would have been required to be listed in Section 3.09(a) of the Disclosure Schedule) other than (i) in order to comply with applicable Legal Requirements or (ii) if a termination, resulting from the expiration of the contract’s stated term, and payment no Person has accelerated, terminated, modified or cancelled or waived any right under any such Contract or given written notice of accounts payable); its intent to do so;
(h) failed except as required by applicable Legal Requirement, (i) increased the base salary of, or paid any bonuses or other compensation to make (including, without limitation, any severance or termination pay to), any employee, director or officer of such Company or the Subsidiary, as applicable, other than in the ordinary course of business consistent with past practice, or (ii) entered into, adopted or amended, in any material respect, any Employee Benefit Plan in any manner that established, increased or accelerated the vesting of the compensation of any employee, director or officer of such Company or the Subsidiary, as applicable;
(i) authorized, or made any commitment with respect to, any single capital expenditure that is in excess of or capital expenditures that were previously budgeted are, in the aggregate, in excess of
(j) experienced any damage, destruction or scheduled to be made; casualty loss (iwhether or not covered by insurance) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products assets in excess of
(k) compromised or services with terms settled any Action other than (i) de minimis claims not exceeding in value and conditions that differ materially from the terms and conditions previously offered by Seller (ii) settlements with respect to which the Business; amounts to be paid are funded in full by insurance;
(jl) changed in instituted any material respect change in its internal controls over financial reporting or accounting practices or methods or cash management practices, except as required by applicable Legal Requirement or GAAP;
(m) made or revised any of material Tax election or settled or compromised any Tax Liability;
(n) instituted any change in its internal controls over financial reporting that has materially affected, or is reasonably likely to materially affect, such Company’s or the terms and conditions with respect to Subsidiary’s, as applicable, internal controls over financial reporting;
(o) accelerated the pricing of any collection of its products accounts receivable or services (including any terms and conditions that are ancillary to, delayed or otherwise affect, deferred the aggregate price paid for any payment of its products enrollee claims, accrued liabilities, accounts payable, expenses or servicesother items, in each case other than in the ordinary course of business consistent with past practice; or
(p) that differ from the terms and conditions previously offered by Seller with respect entered into any agreement or commitment, whether oral or written, to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement
Absence of Certain Developments. Since December 31, 2017 and 1998, Prolab has conducted its business only in the ordinary course consistent with past practice and, except as set forth in Section 3.09 of the Disclosure Schedule, there has been: (i) no change in the condition, financial or otherwise, of Prolab or in the assets, liabilities, properties or business of Prolab which change by itself or in conjunction with all other than as such changes, whether or not arising in the ordinary course of business, has had a result Material Adverse Effect; (ii) no mortgage, encumbrance or lien placed on any of and/or the properties of Prolab or any of its Subsidiaries; (iii) no declaration, setting aside or payment of any dividend or other distribution with respect to, or any direct or indirect redemption or acquisition of, any shares of any capital stock of any class of Prolab or any options, warrants or other rights to acquire, or securities convertible into or exchangeable for, any such capital stock; (iv) no waiver or cancellation of any debt or claim held by Prolab; (v) no incurrence or modification of any contingent liability with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaserobligations of others, neither the Business nor and no incurrence or modification of any Purchased Assets has: (a) suffered a Material Adverse Effect other contingent or suffered any material theft, damage, destruction fixed obligations or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), liabilities except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by itand consistently with past practices; (cvi) entered intono increase, amended direct or terminated indirect, in the compensation paid or payable to any material Contract officer, director, employee, agent or License or materially changed any stockholder other than salary increases in the ordinary course of business consistent with past practice; (dvii) madeno material loss, granted destruction or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase damage to any current property of Prolab, whether or former director, officer, employee or sales representative, group of employees, individual service provider or consultantnot insured; (eviii) adopted, entered into, amended no notice of any claim of unfair labor practices or terminated any Plan, other than as required by Lawlabor dispute or work stoppage involving Prolab and no change in senior executives of Prolab or; (fix) entered into no acquisition or disposition of any transaction with any Insider assets (or any Affiliate of contract or arrangement therefor) nor any Insider); (g) conducted its cash management customs and practices other transaction by Prolab other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable)business; (hx) failed no obligation or liability incurred by Prolab to make any material capital expenditures of their respective officers, directors, stockholder or employees, or any loans or advances made by Prolab to any of their respective officers, directors, stockholders or employees, except normal compensation and expense allowances payable to officers or employees; (xi) no change in accounting methods or practices, credit practices or collection policies used by Prolab; and (xii) no agreement or understanding whether in writing or otherwise, that were previously budgeted would result in any of the transactions or scheduled events or require Prolab to be made; take any of the actions specified in paragraphs (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; through (jxi) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingabove.
Appears in 1 contract
Absence of Certain Developments. Since December 31the date of the Latest Balance Sheet, 2017 and other than as a result the businesses of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services Companies have been conducted in the ordinary course and in substantially the same manner as previously conducted and the Companies have made all reasonable efforts consistent with past practices to preserve the relationships of business to unaffiliated third Persons on an arm’s length basisthe Companies and Seller with payroll processing customers, or canceled without fair consideration suppliers and others with whom the Companies deal and there has not been:
(i) any material debts adverse change in the business, assets, operations, properties, financial position, results of operations, prospects or claims owing to or held by it; contingent liabilities of the Companies (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate assets disposed of any Insidersince the date of the Latest Balance Sheet that have not been included on the Latest Balance Sheet); (gii) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and any declaration or payment of accounts payable)any dividends or any other distributions to or at the direction of Seller whether or not upon or in respect of any shares of capital stock of any of the Companies; (hiii) failed to make any material capital expenditures that were previously budgeted recapitalization, reclassification, stock dividend, stock split or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers like change in capitalization with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the BusinessCompanies; (jiv) changed in any material respect acquisition on behalf of any of the terms and conditions with respect to the pricing Companies by merger or consolidation with, or by purchase of a substantial portion of assets of, or by any other manner, any business or any corporation, partnership, association or other Person or division thereof or any acquisition on behalf of any of its products the Companies of any assets which are material, individually or services (including any terms and conditions that are ancillary toin the aggregate, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the BusinessCompanies, taken as a whole; and/or (kv) committed sale, lease or agreed to other disposition of any of the foregoing.Companies, or assets of any of the Companies, which are material, individually or in the aggregate, to the Companies, taken as a whole (other than assets not included on the Latest Balance Sheet);
Appears in 1 contract
Samples: Stock Purchase Agreement (Computer Outsourcing Services Inc)
Absence of Certain Developments. Since December 31the Most Recent Balance Sheet Date, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: has been conducted in the Ordinary Course of Business and, except for the matters disclosed on Schedule 3.6:
(a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; no Seller has amended its Organizational Documents;
(b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered no Seller has permitted any of the Acquired Assets to become subject to an Encumbrance other than a portion of its assets or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; Permitted Encumbrance;
(c) entered intothere has been no (i) material loss, amended destruction, damage or terminated eminent domain taking (in each case, whether or not insured) affecting the Purchased Business or any material Contract Acquired Asset or License (ii) shutdown or materially changed maintenance of any business practice; Facility, converting equipment, foam extruding or foam forming equipment outside of the Ordinary Course of Business;
(d) madeno Seller has increased the Compensation payable or paid, granted whether conditionally or promised any bonusotherwise, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former directorOffer Employee, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course Ordinary Course of business Business and other than any Compensation paid to a stockholder of any of the Sellers;
(e) no Seller has (i) made any material change in its methods of accounting or accounting practices (including with respect to maintenance of working capital balancesreserves) except as required by GAAP or (ii) materially changed its policies or practices with respect to paying payables or billing and collecting receivables;
(f) no Seller has terminated or closed any Facility or business included within the Purchased Business;
(g) no Seller has written up or written down any Acquired Asset which is material to the Business, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); or revalued its inventory;
(h) failed no Seller has entered into any Contractual Obligation to make do any material capital expenditures that were previously budgeted or scheduled of the things referred to be madeelsewhere in this Section 3.6; and
(i) offered any discounts on any of its products no event or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingcircumstance has occurred which has had a Material Adverse Effect.
Appears in 1 contract
Samples: Asset Purchase Agreement (Cellu Tissue Holdings, Inc.)
Absence of Certain Developments. Since December 31April 30, 2017 and other than 2007, Seller has conducted its business only in the ordinary course consistent with past practice and, except as a result otherwise set forth in Section 3.9 of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to PurchaserDisclosure Memorandum, neither the Business nor any Purchased Assets has: there has not been:
(a) suffered a Material Adverse Effect any adverse change in the financial condition, properties, assets, liabilities, business or suffered operations of Seller;
(b) any cancellation of any material theftdebt or claim owing to, or waiver of any material right of, Seller.
(c) any material mortgage, encumbrance or lien placed on any of the properties of Seller which remains in existence on the date hereof or will remain on the Closing Date;
(d) any significant obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, since the date of the Most Recent Balance Sheet, incurred by Seller;
(e) any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any of the significant properties or assets of Seller other than purchases and sales of inventory items in the ordinary course of business;
(f) any damage, destruction or casualty loss that is of a significant amount of Seller properties or assets, whether or not covered by insurance; ;
(bg) soldany declaration, leasedsetting aside or payment of any dividend by Seller or the making of any other distribution in respect of the capital stock of Seller or any direct or indirect redemption, assigned, distributed, licensed, sublicensed, transferred purchase or otherwise encumbered a portion other acquisition by Seller of its assets own capital stock;
(h) other than repayment in full of all obligations under the Comerica Agreements and the release of all liens held by Comerica in and to any asset of the Seller, any payment or properties (tangible discharge of a material lien or intangible), except for sales liability of inventory Seller which was not shown on the Most Recent Balance Sheet or services incurred in the ordinary course of business thereafter;
(i) any obligation or liability incurred by Seller to unaffiliated third Persons on an arm’s length basisany of its officers, directors, stockholders or employees, including any increases in compensation, or canceled without fair consideration any material debts loans or claims owing to or held advances made by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase Seller to any current of its officers, directors, stockholders or former director, officer, employee or sales representative, group of employees, individual service provider except normal compensation and expense allowances or consultant; advances payable to directors, officers or employees;
(ej) adopted, any change in accounting methods or practices of Seller;
(k) any other transaction entered into, amended or terminated any Plan, into by Seller other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than transactions in the ordinary course of business and the transactions contemplated by this Agreement;
(including with respect l) any change in financial performance from budget or operating plans; or
(m) any agreement or understanding whether in writing or otherwise, for Seller to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect take any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or servicesactions specified in Section 3.9(a) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (kthrough 3.9(l) committed or agreed to any of the foregoingabove.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2017 From the Most Recent Balance Sheet Date through the date of this Agreement and other than in the Ordinary Course of Business consistent with past practice, there has not been any:
(a) event, occurrence or development that has had, or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) material change in any method of accounting or accounting practice for the Business, except as a result of and/or required by GAAP or as disclosed in the notes to the Financials;
(c) material change in cash management practices and policies, practices and procedures with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser collection of accounts receivable, establishment of reserves for uncollectible accounts receivable, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(d) entry into any Contract that would constitute a Disclosed Contractual Obligation;
(e) incurrence, assumption or guarantee of any indebtedness for borrowed money in writing including in Financial Statements made available to Purchaser, neither connection with the Business nor any Purchased Assets has: except unsecured current obligations and Liabilities incurred in the Ordinary Course of Business consistent with past practice;
(af) suffered a Material Adverse Effect transfer, assignment, sale or suffered other disposition of any material theft, assets shown or reflected in the Most Recent Balance other than in the Ordinary Course of Business;
(g) material damage, destruction or casualty loss that is loss, or any material interruption in use, of any material assets of the Company necessary for the Company to conduct the Business as presently conducted, whether or not covered by insurance; ;
(bh) soldacceleration, leasedtermination, assignedmaterial modification to or cancellation of any Disclosed Contractual Obligation or material Permit;
(i) capital expenditures in excess of $50,000;
(j) other than Permitted Encumbrances, distributedimposition of any Encumbrance upon any of the Company’s assets in excess of $25,000;
(i) grant of any bonuses, licensedwhether monetary or otherwise, sublicensedor increase in any wages, transferred salary, severance, pension or otherwise encumbered other compensation or benefits in respect of any current or former employees, officers, directors, independent contractors or consultants of the Business with annual salaries in excess of $100,000, other than as provided for in any written agreements or required by applicable Law, (ii) change in the terms of employment for any employee of the Business or any termination of any employees for which the aggregate costs and expenses exceed $25,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee, officer, director, consultant or independent contractor of the Business;
(l) hiring or promoting any person as or to (as the case may be) an officer or hiring or promoting any employee below officer except to fill a portion vacancy in the ordinary course of its business;
(m) adoption, modification or termination of any: (i) employment, severance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant of the Business with an annual salary in excess of $100,000, (ii) Employee Plan, except as required by Applicable Law, or (iii) collective bargaining or other agreement with a Union, in each case whether written or oral;
(n) any loan to (or forgiveness of any loan to), or entry into any other transaction with, any current or former directors, officers or employees of the Business;
(o) adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Applicable Law;
(p) purchase, lease or other acquisition of the right to own, use or lease any property or assets in connection with the Business for an amount in excess of $25,000, individually (in the case of a lease, per annum) or properties $75,000 in the aggregate (tangible or intangiblein the case of a lease, for the entire term of the lease, not including any option term), except for sales purchases of inventory Inventory or services supplies in the ordinary course of business consistent with past practice;
(q) any Contract to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect do any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary toforegoing, or otherwise affect, the aggregate price paid for any of its products action or services) omission that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to would result in any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither Reference Balance Sheet Date: (i) each Seller has conducted the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services only in the ordinary course of business to unaffiliated third Persons on an arm’s length basisconsistent with past practices; and (ii) there has not been any event, change, occurrence or circumstance that has had, or canceled without fair consideration is reasonably likely to have, individually or in the aggregate, a Material Adverse Effect. Except as contemplated by this Agreement or as set forth on Schedule 3.8, since the Reference Balance Sheet Date, no Seller has:
(a) incurred any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any PlanDebt, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than trade accounts payable in the ordinary course of business consistent with past practices;
(including b) changed any accounting principles, methods or practices, or the manner each such Seller keeps its books and records, or its practices with respect regard to maintenance the booking of working capital balancessales, maintenance of inventory levelsreceivables, payables or accrued expenses or materially altered its payment or collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; practices;
(i) offered granted any discounts on severance, continuation or termination pay to any of its products director, officer, shareholder or services employee; (ii) entered into any employment, deferred compensation or other similar agreement (or any promotionsamendment to any such existing agreement) with any director, rebatesofficer, coupons shareholder or special offers with respect employee; (iii) increased, amended, or changed compensation, bonus or other benefits payable or potentially payable to current or former directors, officers, shareholders or employees, other than that as may be required by Law; (iv) adopted any new or changed the terms of any existing bonus, pension, insurance, health or other benefit plan; or (v) represented to any employee or former employee that Seller, Purchaser or any other Person would continue to maintain or implement any benefit or would continue to employ such employee after the Closing Date;
(d) suffered any damage, destruction or loss (whether or not covered by insurance) to any of its products material properties or services assets or disposed of any assets other than inventory in the ordinary course of business consistent with past practices;
(e) except in the ordinary course of business consistent with past practices and levels, granted customers of the Business any rebates, price concessions, discounts or allowances, materially altered its pricing or payment terms and conditions that differ materially or agreed to any material reduction in discounts received from suppliers or any material increase in the terms and conditions previously offered by Seller price of raw materials;
(f) made any declaration, setting aside or payment of any non-cash dividend or other distribution with respect to to, or any repurchase, redemption or other acquisition of, any of its capital stock or other equity interests;
(g) purchased, leased or otherwise acquired (whether by merger, consolidation or other business combination, purchase of securities, purchase of assets or otherwise) any material portion of the Business; business or assets of any other Person;
(h) made, changed or revoked any material Tax election, elected or changed any material method of accounting for Tax purposes, settled any Legal Proceeding in respect of Taxes or entered into any Contract in respect of Taxes with any Governmental Body;
(i) terminated or closed any facility, business or operation;
(j) changed in any material respect written up or down any of its material properties or assets or materially revalued any of its inventory or altered its inventory management or valuation policies or practices;
(k) cancelled, waived or compromised any Debt, right or claim having a value of more than $10,000 (individually) or an aggregate value in excess of $25,000;
(l) sold, assigned, transferred or granted any Intellectual Property, entered into any settlement regarding the terms and conditions with respect breach or infringement of any Intellectual Property, or taken any action (or failed to take any action) that has resulted in, or would reasonably be likely to result in, the pricing loss, lapse, abandonment, invalidity or enforceability of any of its products Intellectual Property;
(m) made any capital expenditures or services capital additions or betterments in excess of an aggregate of $25,000;
(including n) made any terms and conditions that are ancillary topurchase commitment outside the ordinary course of business consistent with past practice, or otherwise affectmade any advances to any Person, other than to employees in the aggregate price paid for any ordinary course of its products or services) that differ from the terms and conditions previously offered by Seller business consistent with respect to the Businesspast practice; and/or or
(ko) committed or agreed to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except for the transactions contemplated by this Agreement or as otherwise set forth on Schedule 3.12 hereto, 2017 since the respective Balance Sheet Dates, (i) there has not been any development or combination of developments affecting the Companies which, to Sellers’ Knowledge, has had, or is likely to have, a Material Adverse Effect, and (ii) the Companies have conducted the Business in the Ordinary Course of Business and (iii) since their respective Balance Sheet Dates there has not been:
(a) a change in the Companies’ authorized or issued capital; grant of any stock option or right to purchase shares of capital stock or other securities of the Companies; issuance of any security convertible into such capital stock or other securities; grant of any registration rights; purchase, redemption, retirement, or other acquisition by the Companies of any shares of any such capital stock or other securities; or declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock or other securities;
(b) payment or increase by the Companies of any bonuses, salaries, or other compensation to any stockholder, member, partner, director, limited liability company manager, officer, or employee, except payments or increases granted or agreed to be made in the Ordinary Course of Business consistent with past practices;
(c) adoption of, or increase in the payments to or benefits under, any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee Benefit Plan for or with any employees of the Companies;
(d) loss of the employment, services or benefits of any officers or management level employees, excepting the resignation of the Companies’ current board of directors;
(e) a loan to, or entering into any other transaction with, any of the directors, officers, and employees of the Companies except in the Ordinary Course of Business consistent with past practice;
(f) damage to, destruction or other loss of, condemnation, taking or other proceeding against, any asset or property of the Companies, whether or not covered by insurance;
(g) incurrence of any indebtedness or other liability (whether known or unknown, absolute, accrued, fixed, contingent, liquidated, unliquidated or otherwise, and whether due or to become due), except for liabilities included in the Permitted Liabilities;
(h) disposal of, abandonment or permitted lapse of any rights to the use of any Intellectual Property, or disposal of or disclosure, or permitted disclosure (except as necessary in the conduct of its business), to any Person other than representatives of Purchaser, any trade secret, formula, or similar information not theretofore a matter of public knowledge;
(i) cancellation of any debts or waiver of any claims or rights other than in the Ordinary Course of Business consistent with past practice;
(j) payment, discharge or satisfaction of any claim, Liability or obligation other than the payment, discharge or satisfaction of claims, Liabilities and obligations incurred in the Ordinary Course of Business and consistent with past practice;
(k) (i) prepayment of any obligation having a fixed maturity of more than ninety (90) days from the date such obligation was issued or incurred, or (ii) failure to pay when due, any account payable, or sought the extension of the payment date of any account payable;
(l) a writing off as uncollectible any notes or accounts receivable;
(m) entry into, termination of, amendment of, or receipt of notice of termination of any Contract or transaction involving a result total commitment by or to the Companies of and/or at least $25,000;
(n) a sale, lease, or other disposition of any asset or property of the Companies (except the sale of inventory in the Ordinary Course of Business consistent with past practice);
(o) creation of an Encumbrance on any asset or property of the Companies;
(p) execution of any agreement that materially limits or restricts the Companies from engaging or competing in any line of business or in any geographic area or location;
(q) execution of any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing employment contract or agreement or adopted, amended, modified or terminated any Benefit Plan;
(r) any change or amendment in its articles of incorporation or bylaws;
(s) an issuance or sale of any securities; acquired, directly or indirectly, by redemption or otherwise; or a grant or arrangement regarding any options, warrants, calls or commitments of any kind with respect thereto;
(t) any capital expenditure exceeding $25,000;
(u) any Liabilities, except Liabilities included in the Permitted Liabilities, to which the Companies have incurred or become subject to, or have agreed to incur or become subject to,
(v) a sale, assignment, transfer, conveyance, lease or other disposition of any material assets or properties of the Companies, except in the Ordinary Course of Business;
(w) execution of any other material transaction, contract or commitment outside of the Ordinary Course of Business, except with respect to the transactions contemplated hereby and/or previously disclosed by this Agreement;
(x) any work stoppage with respect to the Purchaser in writing including in Financial Statements made available Business or obtained knowledge of any threatened or anticipated work stoppage;
(y) any material damage or loss to Purchaser, neither the its Business nor any Purchased Assets has: (a) suffered that would have a Material Adverse Effect Effect;
(z) any change in its method of accounting;
(aa) any Proceedings instituted or suffered settled; or
(bb) either directly or indirectly, a performance, or failure to perform, any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services act which would result in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, creation or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate imposition of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts Encumbrance on any of its products the properties or services assets of the Companies, or any promotions, rebates, coupons or special offers with respect otherwise adversely affect the marketability of the Companies’ title to any of its products properties or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any assets, outside of the terms and conditions with respect to the pricing Ordinary Course of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since Except as set forth on Schedule 4.6, since December 31, 2017 2015, Seller has operated and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither conducted the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services only in the ordinary course of business in all material respects and has not experienced or suffered any Material Adverse Effect. Without limiting the foregoing, except as set forth on Schedule 4.6, Seller has not with respect to unaffiliated third Persons on an arm’s length basisitself, the Business, the Purchased Assets, and the Assumed Liabilities:
(a) (i) other than in the ordinary course of business, paid trade or account payables or delayed or postponed the payment of any trade or accounts payable or commissions or any other Liability or (ii) agreed or negotiated with any party to extend the payment date of any trade or accounts payable or commission or any other Liability or (iii) accelerated the collection of (or discounted) any accounts or notes receivable (whether billed or unbilled) or any deferred revenue or taken any actions or omitted to take any actions with the intent or the purpose of satisfying the Target Working Capital as of the Closing;
(b) instituted or permitted any material change in the conduct of the Business, or any material change in its method of purchase, sale, lease, management, marketing, promotion or operation;
(c) sold, leased, assigned or transferred any of its tangible assets (including the Purchased Assets), except in the ordinary course of business, or canceled without fair consideration any material debts or claims owing to or held by it; ;
(cd) entered intosold, assigned, licensed or sublicensed (other than non-exclusive licenses or sublicenses to customers in the ordinary course of business), transferred or encumbered any Intellectual Property Rights or other intangible assets, disclosed any proprietary confidential information to any Person (other than Buyer and Buyer’s representatives, agents, attorneys and accountants, and other than Persons that have signed or are bound by confidentiality or nondisclosure agreements for the benefit of Seller), or abandoned or permitted to lapse any Intellectual Property Rights;
(e) made or granted any bonus or any wage or salary increase to any employee (except as required by any Employee Plan or, in the case of non-officer employees, consistent with past practice), or made or granted any increase in any employee benefit plan or arrangement, or amended or terminated any Employee Plan or adopted any Employee Plan;
(f) incurred any Indebtedness or incurred or become subject to any material Contract Liability, except current Liabilities incurred in the ordinary course of business and Liabilities under contracts entered into in the ordinary course of business;
(g) suffered any extraordinary Losses or License waived any rights of material value, whether or not in the ordinary course of business;
(h) suffered any damage, destruction or casualty loss to its tangible assets (including the Purchased Assets) in excess of $100,000, whether or not covered by insurance;
(i) made any capital expenditures or commitments therefore that aggregate in excess of $100,000;
(j) made any change in any method of accounting or accounting policies, other than those required by GAAP which have been disclosed in writing to Buyer;
(k) entered into any other material transaction, whether or not in the ordinary course of business, or materially changed any business practice; or
(dl) madeauthorized any of, granted or promised committed or agreed to take any bonusof, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Planthe foregoing actions, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingexpressly contemplated hereby.
Appears in 1 contract
Samples: Asset Purchase Agreement (Heidrick & Struggles International Inc)
Absence of Certain Developments. Since December 31September 30, 2017 and other than 2000 Target has conducted its business only in the ordinary course consistent with past practice and, except as a result otherwise set forth in Section 3.9 of and/or the Target Disclosure Schedule, there has not been:
(a) any material change in the financial condition, properties, assets, liabilities, business or operations of Target;
(b) any material contingent liability incurred by Target as guarantor or otherwise with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor obligations of others or any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered cancellation of any material theftdebt or claim owing to, damageor waiver of any material right of, destruction Target.
(c) any material mortgage, encumbrance or casualty loss that is not covered lien placed on any of the properties of Target which remains in existence on the date hereof or will remain on the Closing Date;
(d) any material obligation or liability of any nature, whether accrued, absolute, contingent or otherwise, asserted or unasserted, since the date of the Most Recent Balance Sheet, incurred by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services Target other than obligations and liabilities incurred in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held and not prohibited by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group the terms of employees, individual service provider or consultant; this Agreement;
(e) adoptedany purchase, entered intosale or other disposition, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate agreement or other arrangement for the purchase, sale or other disposition, of any Insider); (g) conducted its cash management customs and practices of the material properties or assets of Target other than in the ordinary course of business or as contemplated by this Agreement;
(including with respect to maintenance f) any damage, destruction or loss of working capital balancesTarget properties or assets, maintenance of inventory levelswhether or not covered by insurance;
(g) any declaration, collection of accounts receivable and setting aside or payment of accounts payable); any dividend by Target or the making of any other distribution in respect of the capital stock of Target or any direct or indirect redemption, purchase or other acquisition by Target of its own capital stock;
(h) failed to make any material capital expenditures that were previously budgeted labor trouble or scheduled material claim of unfair labor practices involving Target; any material change in the compensation payable or to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect become payable by Target to any of its products officers or services employees other than normal merit increases in accordance with terms and conditions that differ materially from the terms and conditions previously offered by Seller its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees;
(i) any material change with respect to the Business; officers of Target;
(j) changed any payment or discharge of a material lien or liability of Target which was not shown on the Most Recent Balance Sheet or incurred in the ordinary course of business thereafter;
(k) any obligation or liability incurred by Target to any of its officers, directors, shareholders or employees, including any material respect increases in compensation, or any loans or advances made by Target to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to directors, officers or employees;
(l) any change in accounting methods or practices of Target;
(m) any other material transaction entered into by Target other than transactions in the ordinary course of business; or
(n) any agreement or understanding whether in writing or otherwise, for Target to take any of the terms and conditions with respect to the pricing of any of its products or services actions specified in paragraphs (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or servicesa) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or through (km) committed or agreed to any of the foregoingabove.
Appears in 1 contract
Absence of Certain Developments. Since December 31the Interim Balance Sheet Date, 2017 and there has been no (a) event, circumstance or condition, which has had, or would reasonably be expected to have, a Material Adverse Effect; (b) declaration, setting aside or payment of any dividend or other than as a result of and/or redemption or distribution with respect to the transactions contemplated hereby and/or previously disclosed shares of the Company or the Company Subsidiary; (c) issuance of shares or options, warrants or rights to acquire shares of the Purchaser in writing including in Financial Statements made available to Purchaser, neither Company or the Business nor any Purchased Assets has: Company Subsidiary; (ad) suffered a Material Adverse Effect or suffered any material theft, damagean uninsured loss, destruction or casualty loss that is not covered by insurancedamage in excess of $200,000 to any Asset of the Company or the Company Subsidiary; (be) soldincurrence, leasedguarantee, assignedacceleration or prepayment of any material Indebtedness or the refunding of any such material Indebtedness; (f) material change in personnel of the Company or the Company Subsidiary, distributedor the salaries, licensedterms or conditions of their employment; (g) waiver of any right with a value in excess of $200,000; (h) loan or extension of credit to any director, sublicensed, transferred officer or otherwise encumbered a portion employee of its assets the Company or properties (tangible or intangible)the Company Subsidiary, except for sales of inventory or services advances for reimbursable travel expenses made in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business consistent with past practice; (di) madeacquisition, granted disposition or promised lease of any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other Asset involving more than as required by Law; (f) entered into any transaction with any Insider $200,000 (or any Affiliate of Contract therefor), or any Insider); (g) conducted its cash management customs other material transaction by the Company or the Company Subsidiary otherwise than for fair value and practices other than in the ordinary course of business (including consistent with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable)past practice; (hj) failed to make sale, assignment transfer, exclusive license or other disposal of any patents, patent applications, trademarks, copyrights, trade secrets or other material capital expenditures that were previously budgeted Intellectual Property rights or scheduled to be madeother material intangible Assets; (ik) offered any discounts on any mortgage, pledge, transfer of its products a security interest in, or services Lien, created by the Company or any promotionsthe Company Subsidiary, rebates, coupons or special offers with respect to any of its products properties or services with terms and conditions that differ materially from Assets, except Liens for Taxes not yet due or payable; (l) acceleration, termination, modification or cancellation of any Contract (or series of related Contracts) involving more than $200,000 to which the terms and conditions previously offered Company or the Company Subsidiary is a party or by Seller with respect which the Company or the Company Subsidiary is bound and, to the BusinessKnowledge of the Seller, no Person has notified the Company or the Company Subsidiary that it intends to take any such action; (jm) changed in any material respect adverse claims, complaints or performance problems or product recalls related to any vehicle worked on or serviced by the Company or the Company Subsidiary; (n) any change in accounting methods, principals, or practices used in preparing the Financial Statements; (o) material write-down or write-up of the terms and conditions with respect to the pricing value of any Asset of its products the Company or services (including any terms and conditions that are ancillary tothe Company Subsidiary, or otherwise affect, write-off of any accounts receivable or notes receivable or any portion thereof; or (p) commitment on behalf of the aggregate price paid for any of its products Company or services) that differ from the terms and conditions previously offered by Seller with respect Company Subsidiary to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Clean Energy Fuels Corp.)
Absence of Certain Developments. Since December 31the date of the Latest Balance Sheet, 2017 (i) except as set forth on Schedule 3.07, the Company and its Subsidiaries have conducted their businesses, in all material respects, in the ordinary course consistent with past practices and (ii) there has not been any Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth on Schedule 3.07 or as expressly contemplated by this Agreement, from the date of the Latest Balance Sheet until the date of this Agreement neither the Company nor any of its Subsidiaries has:
(a) amended or modified its certificate of incorporation or bylaws (or equivalent organizational or governance documents);
(b) split, combined, capitalized or reclassified any Capital Stock (or other than as a result equity-linked interests), or issued any other securities in respect of, in lieu of and/or or in substitution for shares of Capital Stock (or other equity-linked interests);
(c) issued, delivered, sold, disposed or pledged any of its shares of, or authorized the same in respect of, capital stock, any voting securities or any other equity interests or any options, warrants, convertible or exchangeable securities, subscriptions, rights, stock appreciation rights, other equity-based compensation, calls or commitments with respect to such securities of any kind, or granted phantom stock or other similar rights with respect to any of the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaserforegoing;
(d) created, neither the Business nor incurred, assumed or guaranteed any Purchased Assets has: Indebtedness other than (ax) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business pursuant to unaffiliated third Persons on an armthe Company’s length basisexisting revolving credit facilities, or canceled without fair consideration (y) pursuant to arrangements solely among or between the Company and one or more of its direct or indirect wholly owned Subsidiaries or solely among or between its direct or indirect wholly owned Subsidiaries;
(e) announced, implemented or effected any reduction-in-force, lay-off or other program resulting in the termination of employment of employees, in each case, that would trigger the WARN Act;
(f) (i) made or granted any material debts cash compensation increase to any former or claims owing to current officer, employee, consultant or held by it; independent contractor (cincluding new hires) entered intoreceiving (before or after such increase) total compensation in excess of $150,000 per annum, (ii) materially increased the benefits under any Plan, (iii) adopted, amended or terminated any material Contract Plan (including any plan, policy or License or materially changed other arrangement that would be a Plan if it were in existence as of the date of this Agreement), (iv) granted any business practice; (d) made, granted or promised any bonus, additional rights to severance, retention retention, change of control or termination pay or the acceleration of vesting or other incentive amount or any wagebenefits, salary, compensation or benefit increase to any current or former directorformer, officerofficer or employee of the Company or any of its Subsidiaries, employee (v) made any loans or sales representativeadvances to, group of employeesguarantees for the benefit of, individual service provider or consultant; any investments in, any Persons or (evi) adopted, entered into, amended modified or terminated any Plancollective bargaining agreement or collective bargaining relationship (in each case, except for increases in benefits under existing Plans or other than compensation policies in the ordinary course of business or as otherwise required by Law);
(g) adopted a plan of liquidation, dissolution, merger, consolidation or other reorganization;
(h) subjected, or permitted to be subjected, any portion of its assets that is material to the Company and its Subsidiaries taken as a whole to any Lien, except for Permitted Liens;
(i) made any change in its accounting methods that would be material to the Company and its Subsidiaries taken as a whole, except as may be required by Law or GAAP, or made or changed any election relating to income Taxes that would be material to the Company and its Subsidiaries taken as a whole, except as required by GAAP, the Code or applicable Law; ;
(fj) entered into made any transaction with acquisition of all or substantially all of the assets, capital stock or business of any Insider other Person, whether by merger, stock or asset purchase;
(k) sold, leased, licensed, assigned, transferred, abandoned, allowed the loss or lapse or otherwise disposed of (whether by merger, stock or asset sale or otherwise) any of the Company’s or any Affiliate Subsidiary’s assets, rights, securities, properties, interests or businesses, except for (A) assets, securities, properties, interests or businesses with a fair market value or replacement cost (whichever is higher) not in excess of $1,000,000 in the aggregate or not otherwise material to the Company’s or any of its Subsidiaries’ business, (B) dispositions of obsolete assets in the ordinary course of business consistent with past practice, and (C) licenses of Intellectual Property granted by the Company or any of its Subsidiaries in the ordinary course of business consistent with past practice;
(l) made any material change in any of its policies or practices with respect to the payment of accounts payable or accrued expenses or the collection of the accounts receivable or other receivables, including any acceleration or deferral of the payment or collection thereof (whether on account of the Transactions or otherwise) or other working capital policies or practices; or delayed payment of any Insider); (g) conducted its cash management customs and practices accounts payable or accelerated collection of accounts receivable, in each case other than in the ordinary course of business consistent with past practice; or waived any right or cancelled or compromised any debt or claim, other than in the ordinary course and in an amount, individually or in the aggregate, not greater than $250,000, or made any other material change in its cash management policies or practices or in its accounting methods, principles or practices, in each case;
(including with respect m) suffered any damage, destruction or loss, or any interruption in use, of any assets or property (whether or not covered by insurance), whether on account of fire, flood, riot, strike, act of God or otherwise, that exceeded $1,000,000 or suffered any other change that is, or would reasonably be expected to maintenance of working result in, a Material Adverse Effect;
(n) incurred, assumed, guaranteed, modified, renewed, refinanced, cancelled, compromised or suffered to exist or committed to incur, assume, guarantee, modify, renew, refinance, cancel or compromise any capital balancesexpenditure or any obligation or Liability outside the ordinary course in an amount that exceeds $250,000, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products the foregoing in an aggregate amount that exceeds $1,000,000;
(o) commenced, settled or services compromised, or agreed to settle or compromise, any promotionsproceeding, rebatesother than settlements or compromises involving solely money damages not in excess of $250,000;
(p) made any declaration or payment of, coupons or special offers set aside funds for, any dividend or other distribution with respect to any of its products the capital stock of the Company or services with terms and conditions that differ materially from any securities convertible into such shares, or subscriptions, rights, warrants or options to acquire any such shares, or convertible securities or other Capital Stock;
(q) made any loans or advances to any Persons, except to employees in the terms and conditions previously offered by Seller with respect ordinary course of business; or
(r) agreed to the Business; (j) changed take, whether orally or in writing, or entered into any material respect letter of intent or similar document in contemplation of taking, any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingforegoing actions.
Appears in 1 contract
Samples: Merger Agreement (Trimble Inc.)
Absence of Certain Developments. Since Except as set forth on the “Absence of Certain Developments Schedule” attached hereto as Schedule 3.9, since December 31, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser2023, neither (1) each Company Group Member has conducted the Business nor in the Ordinary Course of Business, and (2) no Company Group Member has taken any Purchased Assets has: of the following actions:
(a) suffered a Material Adverse Effect (i) borrowed or suffered agreed to borrow any money or otherwise incurred any indebtedness for borrowed money or (ii) assumed, guaranteed or otherwise become liable or responsible for any indebtedness for borrowed money of any Person other than any Company Group Member;
(b) discharged or satisfied, or agreed to discharge or satisfy, any indebtedness for borrowed money or Lien or paid any material theftLiability, damageother than current Liabilities paid in the Ordinary Course of Business;
(c) mortgaged, destruction pledged or casualty loss that is not covered by insurance; subjected to any Lien (bother than Permitted Liens) any portion of the Company Assets;
(d) sold, leased, assignedsubleased, distributedassigned or transferred, licensedagreed to sell, sublicensedlease, transferred sublease, assign or otherwise encumbered a portion transfer or abandoned or permitted to lapse or expire any of its assets or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, Company Assets or canceled without fair consideration any material debts or claims owing to or held by itsuch Company Group Member;
(e) sold, assigned, transferred, licensed, abandoned or permitted to lapse any patents, trademarks, trade names, copyrights, Confidential Information or other material intangible Company Assets or Proprietary Rights or licensed to any other Person any Proprietary Rights, in each case other than nonexclusive licenses granted in the Ordinary Course of Business;
(f) (i) granted, or agreed to grant, any increase in the compensation payable to or the benefits provided to any of its current or former employees, officers, directors or other individual service providers, in each case other than in the Ordinary Course of Business; (cii) entered intogranted, or agreed to grant, any severance or termination pay to any of its current or former employees, officers, directors or other individual service providers; (iii) adopted, established, instituted, amended or terminated any Employee Benefit Plan or made any material Contract determinations or License or materially changed interpretations with respect to any business practiceEmployee Benefit Plan, in each case other than as required by applicable Law; (div) accelerated the time of payment, vesting or funding of any compensation or benefits under any Employee Benefit Plan; (v) granted any new awards or benefits under any Employee Benefit Plan or increased the coverage or benefits available under any Employee Benefit Plan other than in the Ordinary Course of Business; (vi) entered into any third-party Contract with respect to any Employee Benefit Plan (including Contracts for the provision of services to such Employee Benefit Plan, including benefits administration) that (A) requires a payment or aggregate payments by such Company Group Member in excess of One Hundred Thousand Dollars ($100,000) and (B) is not terminable at will by such Company Group Member for any reason without advance notice having a term of greater than one (1) year that is not terminable on thirty (30) days’ notice or less; (vii) made, granted agreed to make, or promised forgiven any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase loan to any current or former employee, officer, director or other individual service provider (but excluding loans made in the Ordinary Course of Business through a Company Group Member’s qualified retirement plan or in accordance with the loan policy of such Employee Benefit Plan); (viii) waived or released any confidentiality, noncompetition, nonsolicitation, nondisclosure, nondisparagement or other restrictive covenant obligation of any current or former employees, officers, directors or other individual service providers of such Company Group Member; (ix) hired any employee, officer, director or other individual service provider of any Company Group Member with an annual compensation in excess of Two Hundred Thousand Dollars ($200,000); or (x) implemented or announced any material reduction in labor force or mass layoffs, furlough, reduction to terms and conditions of employment or other event affecting in whole or in part any site of employment, facility, operating unit or employee that would result in Liability of such Company Group Member under the WARN Act or similar applicable Laws;
(g) made, or agreed to make, any capital expenditures or capital commitments in excess of One Hundred Thousand Dollars ($100,000) in one or a series of transactions or commitments therefor;
(h) made, or agreed to make, any loans or advances to or for the benefit of any Person;
(i) suffered any damage, destruction or casualty loss to any material Company Assets, whether or not covered by insurance;
(j) amended its Constituent Documents;
(k) issued, transferred, pledged, encumbered, sold or otherwise disposed of any of its Equity interests, or granted any Options or other rights to purchase any debt or Equity Interests of (or economic benefit or similar right to or derived from the economic benefits and rights occurring to the holders of such Equity Interests) any Company Group Member, or split, combined or subdivided the Equity Interests of any Company Group Member;
(l) made any investment in any other Person (other than a Company Group Member);
(m) commenced, threatened, instituted, settled, released, waived or compromised any pending or threatened Proceeding involving (i) payments by any Company Group Member in respect of such Proceeding in excess of One Hundred Thousand Dollars ($100,000) or (ii) any relief other than money damages, which if decided against any Company Group Member would be materially adverse to such Company Group Member, its Company Assets or the Business;
(n) made any material change in any method of accounting or accounting practice used in preparing the Company Statements, except as required by GAAP;
(o) directly or indirectly engaged in any transaction, arrangement or Contract with any director, officer, employee manager, member, partner, direct or sales representativeindirect equityholder or other insider or Affiliate of any Seller or Company Group Member, group in each case outside of employeesthe Ordinary Course of Business or except as described in the Affiliated Transactions Schedule;
(p) merged or consolidated with, individual service provider or consultant; purchased substantially all of the Assets or businesses of, or Equity Interests in, any other Person;
(eq) adopted, (i) entered into, executed, terminated (other than terminations based on the expiration without any affirmative action by such Company Group Member), materially modified, materially altered, materially amended, extended (outside the Ordinary Course of Business) or canceled or (ii) affirmatively waived, assigned or released any material rights or material claims under, in each case, any Lease or Company Contract, in each case other than employment-related Contracts entered into in the Ordinary Course of Business;
(r) made or changed any material Tax election, changed any annual Tax accounting period, adopted or changed any Tax accounting method, filed any amended Tax Return, entered into any closing agreement with a Governmental Authority in respect of Taxes, settled any Tax claim with a Governmental Authority or assessment of Taxes proposed by a Governmental Authority relating to such Company Group Member, surrendered any right to claim a refund of Taxes, or consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to such Company Group Member;
(s) entered into, modified or extended any CBA or recognized any Contract with a Union;
(t) changed the principal line of business of such Company Group Member;
(u) canceled or terminated any Planinsurance policy naming such Company Group Member as a beneficiary or a loss payable payee unless the same was replaced with one (1) or more insurance policies providing coverage substantially similar in scope and terms;
(v) adopted a plan of complete or partial liquidation, dissolution, restructuring, recapitalization, reclassification, distribution, equity split or other than as required by Law; reorganization of such Company Group Member;
(fw) entered into any transaction with any Insider (or any Affiliate accelerated the payment of any Insider); material accounts receivable or delayed the payment of any material accounts payable, in each case, of such Company Group Member;
(gx) conducted its cash management customs and practices other than in the ordinary course of business made any change to any Company Group Member’s (including i) pricing, discount, credit, billing, allowance or return policies with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and customers or (ii) purchase or payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers policies with respect to any of its products or services with terms vendors and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Businesssuppliers; or
(j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (ky) committed or agreed in writing to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31the Balance Sheet Date, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Seller has not:
(a) borrowed any amount or incurred or become subject to any liability except (i) current liabilities incurred in the ordinary course of business and (ii) liabilities under contracts entered into in the ordinary course of business;
(b) mortgaged, pledged or subjected to any lien, charge or any other encumbrance, any of the Assets except (i) liens for current property taxes not yet due and payable, (ii) liens imposed by law and incurred in the ordinary course of business for obligations not yet due to carriers, warehousemen, laborers, material-men and the like, or (iii) liens in respect of pledges or deposits under workers' compensation laws;
(c) discharged or satisfied any lien or encumbrance or paid any liability, other than current liabilities paid in the ordinary course of business;
(d) sold, assigned or transferred (including, without limitation, transfers to any employees, affiliates or shareholders) any tangible assets of the Business or canceled any debts or claims, in each case, except in the ordinary course of business;
(e) sold, assigned or transferred (including, without limitation, transfers to any employees, affiliates or shareholders) any patents, trademarks, trade names, copyrights, trade secrets or other intangible assets used in or held for use in the Business;
(f) disclosed, to any person other than Buyer and authorized representatives of Buyer, any proprietary confidential information of the Business or otherwise related to the Assets;
(g) waived any rights of material value or suffered a Material Adverse Effect any extraordinary losses or adverse changes in collection loss experience, whether or not in the ordinary course of business or consistent with past practice;
(h) taken any other action or entered into any other transaction other than in the ordinary course of business and in accordance with past custom and practice, or entered into any transaction with any "insider" (as defined in Section 4.21 hereof);
(i) suffered any material theft, damage, destruction or casualty loss that is of or to any property or properties owned or used by it in connection with the Business, whether or not covered by insurance; ;
(bj) soldmade or granted any bonus or any wage, leased, assigned, distributed, licensed, sublicensed, transferred salary or otherwise encumbered a portion of its assets compensation increase to any officer or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basisemployee, or canceled without fair consideration consultant or made or granted any material debts increase in any employee benefit plan or claims owing to arrangement, or held by it; (c) entered into, amended or terminated any material Contract existing employee benefit plan or License arrangement, or materially changed adopted any business practice; (d) made, granted new employee benefit plan or promised arrangement or made any bonus, severance, retention commitment or other incentive amount or incurred any wage, salary, compensation or benefit increase liability to any current labor organization;
(k) made any single capital expenditure or former director, officer, employee commitment therefore in excess of $1,000;
(l) made any loans or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary advances to, or otherwise affectguarantees for the benefit of, the aggregate price paid for any of its products persons; or
(m) made any charitable contributions or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingpledges.
Appears in 1 contract
Absence of Certain Developments. Since December 31the date of the 2012 Balance Sheet, 2017 there has not been a Material Adverse Effect. Except as set forth on the Developments Schedule and other than except as a result expressly contemplated by this Agreement, since the date of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser2012 Balance Sheet, neither the Business Company nor any Purchased Assets of its Subsidiaries has: (a) suffered a Material Adverse Effect effected any recapitalization, reclassification, unit or suffered stock dividend, unit or stock split or like change in its capitalization; 15 (b) amended its certificate of formation or articles of incorporation or bylaws or limited liability company agreement (or equivalent organizational documents), or any Equity Agreement; (c) mortgaged, pledged or subjected to any Lien, any material theftportion of its assets, damage, destruction or casualty loss that is not covered by insuranceexcept Permitted Liens; (bd) (i) sold, leased, assigned, distributed, licensed, sublicensed, transferred assigned or otherwise encumbered a transferred any material portion of its assets or properties (tangible or intangible)assets, except for other than sales of inventory or services products in the ordinary course of business to unaffiliated third Persons on an arm’s length basisconsistent with past practice, or canceled without fair consideration (ii) acquired any material debts assets other than supplies in the ordinary course of business consistent with past practice or claims owing to or held by itas contemplated in the capital expenditures budget attached hereto in the Capital Expenditures Schedule; (ce) sold, assigned, transferred, licensed or otherwise disposed of any material Company Intellectual Property; (f) allowed to lapse or abandoned any material Company Intellectual Property; (g) issued, sold or otherwise transferred any Company Securities or Subsidiary Securities, or amended any term of any Subsidiary Security; (h) made any material investment in, or any material loan to, any other Person (other than a wholly-owned Subsidiary of the Company); (i) declared, set aside, or paid any dividend or made any distribution with respect to its equity securities (whether in cash or in kind) or redeemed, purchased or otherwise acquired any of Company Securities or Subsidiary Securities, except for (i) dividends or distributions made by the Company’s wholly-owned Subsidiaries to their respective parents and (ii) repurchases of Units from current or former employees, consultants, directors or managers of the Company or its Subsidiaries consistent with past practice and in an aggregate amount not exceeding $250,000; (j) made any capital expenditures or commitments therefor, except in the ordinary course of business and as contemplated in its existing capital expenditures budget; (k) made any loan to, or entered into any other transaction with, any of its directors or officers, other than the advancement of expenses in the ordinary course of business consistent with past practice; (l) (i) terminated, entered into, established, adopted, amended, modified or materially increased benefits under or made new grants or awards under, any Plan, or any trust agreement related thereto, (ii) taken any action to accelerate the vesting or exercisability of any unvested units, (iii) granted or increased any material severance or termination pay to any employee of the Company or any of its Subsidiaries or (iv) entered into any material employment agreement (or materially amended any existing employment agreement) with any employee of the Company or any of its Subsidiaries; 16 (m) increased compensation payable to any existing employee of the Company or any of its Subsidiaries, other than in connection with promotions in the ordinary course of business; (n) established, adopted or amended any collective bargaining agreement; (o) created, incurred, assumed or suffered to exist or otherwise become liable with respect to any Indebtedness other than (i) Indebtedness owed to the Company or any wholly-owned Subsidiary of the Company, (ii) any draw-down of funds under its revolving credit facilities in the ordinary course of business consistent with past practice, (ii) letters of credit issued under its credit facilities in the ordinary course of business consistent with past practice or (iii) Indebtedness for borrowed money incurred to replace, renew, extend, refinance or refund any Indebtedness existing on the date of this Agreement and in amounts not materially in excess of such existing Indebtedness; (p) entered into, amended or terminated modified in any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended respect or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider Material Contract (or any Affiliate of any Insiderother contract which, had it not been so amended, modified or terminated, would have constituted a Material Contract); (g) conducted its cash management customs and practices , other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable)business; (hq) failed changed the Company’s method of accounting, except as required by concurrent changes in GAAP, as agreed to make by its independent public accountants; (r) settled, or offered or proposed to settle, any material capital expenditures that were previously budgeted litigation, investigation, arbitration, proceeding or scheduled to be made; (i) offered any discounts on other claim involving or against the Company or any of its products Subsidiaries; or services (s) agreed, resolved or any promotions, rebates, coupons or special offers with respect committed to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement
Absence of Certain Developments. Since December 31Except as set forth on the Developments Schedule, 2017 since the date of the Latest Balance Sheet, the Company and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services Subsidiaries have conducted their business only in the ordinary course of business to unaffiliated third Persons in a manner consistent with past practice and there has not been any event or circumstance that has had a Material Adverse Effect. Except as set forth on an arm’s length basisthe Developments Schedule and except as expressly contemplated by this Agreement, since the date of the Latest Balance Sheet, there has not been, occurred or canceled without fair consideration arisen any of the following:
(a) any capital expenditure or commitment by the Company or any Subsidiary exceeding $200,000 individually or $1,000,000 in the aggregate not provided for in the Company's 2006 capital expenditure budget (the "2006 Capital Budget");
(b) except as required by GAAP or applicable Law, any material debts change to the Company's or claims owing to any of its Subsidiaries' accounting policies or held procedures or a revaluation by it; the Company or any Subsidiary of any of its assets, properties or business;
(c) entered intoany acquisition or disposition by the Company or any of its Subsidiaries of any asset or property (excluding capital expenditures and excluding obsolete/slow moving inventory) having a value in excess of $100,000, amended or terminated any material Contract or License or materially changed any outside the ordinary course of business practice; consistent with past practices;
(d) made, granted or promised any bonus, severance, retention or other incentive amount entry by the Company or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered its Subsidiaries into any material transaction with any Insider (that would result in payments by or to the Company or any Affiliate of any Insider); (g) conducted its cash management customs and practices Subsidiaries in excess of $100,000 per annum, other than in the ordinary course of business consistent with past practice;
(e) any Lien on any material assets or properties, tangible or intangible, other than in the ordinary course of business consistent with past practice except for Liens for Taxes not yet delinquent;
(f) any waiver, release or assignment of rights or cancellation of debt in excess of $50,000;
(g) any issuance or sale, or contract to issue or sell, by the Company of any shares of Common Stock or other capital stock or securities convertible into, or exercisable or exchangeable for, shares of Common Stock or other capital stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(h) any declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Common Stock, or any split, combination or reclassification in respect of any shares of Common Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Common Stock, or any direct or indirect repurchase, redemption or other acquisition by the Company of any shares of Common Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(i) any increase (whether in cash, stock or property) in the base salary or other compensation payable or to become payable by the Company or any Subsidiary to any of their respective officers, directors or employees (except in the case of officers and employees for annual or periodic increases made in the ordinary course of business consistent with past practices not exceeding $2,500 individually or $25,000 in the aggregate), (ii) any adoption of, or (except as required by Law) amendment materially increasing payments to or benefits under, any savings, insurance, pension, retirement or other employee benefit plan, or (iii) the declaration, payment or commitment or obligation of any kind for the payment by the Company or any Subsidiary of a severance payment, termination payment, bonus, profit sharing, deferred compensation or other additional salary or compensation to any such Person, other than (x) pursuant to the terms of any existing written agreement or plan or (y) annual or periodic increases made in the ordinary course of business consistent with the Company's or such Subsidiary's past practice, not exceeding $2,500, individually or $25,000 in the aggregate;
(j) any incurrence by the Company or any of its Subsidiaries of any material obligations or material liabilities, whether absolute, accrued, contingent or otherwise (including without limitation, liabilities as guarantor or otherwise with respect to maintenance obligations of working capital balancesothers), maintenance other than obligations and liabilities incurred in the ordinary course of inventory levelsbusiness consistent with past practice and other than obligations or liabilities imposed expressly under this Agreement;
(k) the commencement, collection settlement, notice or, to the knowledge of accounts receivable and payment the Company, threat of accounts payable); any lawsuit or proceeding or other investigation against the Company or any Subsidiary or seeking damages in excess of $100,000 per occurrence or $250,000 in the aggregate, seeking any equitable or injunctive relief;
(hl) failed any damage to make or destruction or loss of any material capital expenditures that were previously budgeted asset or scheduled to be made; property of the Company or any Subsidiary not covered by insurance with an aggregate value in excess of $100,000;
(m) termination (or written notice of planned termination) of (i) offered any discounts on contract or agreement with any customers of the Company or its Subsidiaries representing, in the aggregate, $500,000 or more of the consolidated revenues of the Company during the twelve months ended December 31, 2005 or (ii) any contract or agreement pursuant to which the Company or any of its products Subsidiaries is or services was licensed to use any Licensed Intellectual Property material to, or necessary for the conduct of, the business of the Company and Subsidiaries;
(n) any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller material malfunction with respect to the Business; IT Systems that has not been remedied or replaced in all material respects;
(jo) changed in any event that could reasonably be expected to prevent or materially delay the performance of the Company's obligations pursuant to this Agreement or the consummation of the Merger by the Company;
(p) any amendment to the Company Charter Documents;
(q) any material respect Tax election, any change in annual Tax accounting period, any adoption or change of any method of Tax accounting, filing of an amended Tax Return, execution of a closing agreement, settlement of a Tax claim or assessment, the surrender of any right to claim a Tax refund, consent to the extension or waiver of the terms and conditions with respect limitations period applicable to any Tax claim or assessment, the pricing taking or the omission to take any other action, if any such action or omission would have the effect of materially increasing the Tax liability or reducing any Tax Asset, of the Company, any of its products Subsidiaries, Purchaser or services (including any terms and conditions that are ancillary toaffiliate of Purchaser. For purposes of this Agreement, "Tax Asset" shall mean any net operating loss, net capital loss, investment Tax credit, or otherwise affectany other credit or Tax attribute which could reduce Taxes (including, the aggregate price paid for any of its products or services) that differ from the terms without limitation, deductions and conditions previously offered by Seller with respect credits related to the Businessalternative minimum Taxes); and/or (k) committed or agreed to any of the foregoing.and
Appears in 1 contract
Absence of Certain Developments. Since December 31the date of the Interim Financials, 2017 and other than as a result the Business has been conducted in the Ordinary Course of and/or Business and, with respect to the transactions contemplated hereby and/or previously Business, except for the matters disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets hasSchedule 3.9: EXHIBIT 2.1
(a) suffered a Material Adverse Effect The Sellers have not entered into, or suffered performed, any material thefttransaction with, damageor for the benefit of, destruction or casualty loss that is not covered by insurance; any Affiliates of the Sellers (other than payments made to officers, directors and employees in the Ordinary Course of Business);
(b) soldThere has been no material loss, leaseddestruction, assigneddamage or eminent domain taking (in each case, distributed, licensed, sublicensed, transferred whether or otherwise encumbered a portion of its assets not insured) affecting the Business or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; Acquired Asset;
(c) Other than in the Ordinary Course of Business, the Sellers have not (i) increased the Compensation owed, payable or paid, whether conditionally or otherwise, to any Business Service Provider or Former Business Service Provider, (ii) made any material loan or advance to any Business Service Provider or Former Business Service Provider or forgiven or discharged in whole or in part any material loan or advance to any such Person; or (iii) hired or engaged, or terminated the employment or engagement of, any Business Service Provider or Former Business Service Provider.
(d) The Sellers have not entered into or amended any agreement or contract providing for the employment or engagement or termination thereof of any Person on a full-time or part-time basis, as an employee, independent contractor or otherwise providing Compensation to any Business Service Provider or Former Business Service Provider;
(e) The Sellers have not (i) made any material change in their methods of accounting or accounting practices (including with respect to reserves) or (ii) changed their policies or practices with respect to paying payables or billing and collecting receivables;
(f) The Sellers have not terminated or closed any facility, business or operation;
(g) The Sellers have not written up or written down any Acquired Asset, or revalued their Inventory;
(h) Except in the Ordinary Course of Business, the Sellers have not entered into or consented to the sale, assignment, license, conveyance or transfer to any third party of any tangible or intangible assets (including any Intellectual Property) of the Business;
(i) The Sellers have not failed to pay any fee or otherwise take any reasonable action necessary to maintain and protect its right, title and interest in and to the Owned IP, including in response to any actions taken by a Governmental Authority; EXHIBIT 2.1
(j) The Sellers have not received any notice from any third party (including any manufacturing party) that such third party is the owner or purported owner of any Owned IP or that any Owned IP is invalid, unenforceable or has been misused;
(k) Except as disclosed on Schedule 3.11.2, the Sellers have not entered into, amended or terminated any material Contract lease or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount sublease of real property or any wage, salary, compensation renewals thereof in connection with the Business;
(l) No event or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultantcircumstance has occurred which constitutes a Material Adverse Effect; and
(em) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) The Sellers have not entered into any transaction with any Insider (Contract or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect agreement to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect do any of the terms and conditions with respect things referred to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingelsewhere in this Section 3.9.
Appears in 1 contract
Absence of Certain Developments. Since Except as set forth on the attached DEVELOPMENTS SCHEDULE, since December 31, 2017 and other than as a result of and/or with respect to 1999, the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Company has not:
(a) suffered a Material Adverse Effect issued any notes, bonds or suffered other debt securities or any material theftcapital stock or other equity securities or any securities or rights convertible, damage, destruction exchangeable or casualty loss that is not covered by insurance; exercisable into any capital stock or other equity securities;
(b) sold, leased, assigned, distributed, licensed, sublicensed, transferred borrowed any amount or otherwise encumbered a portion of its assets incurred or properties (tangible or intangible)become subject to any material liabilities, except for sales of inventory or services commercial loan borrowing and current liabilities incurred in the ordinary course of business and consistent with past practice;
(c) discharged or satisfied any material Lien or paid any material obligation or liability, other than current liabilities or commercial loan borrowings paid in the ordinary course of business;
(d) declared, set aside or made any payment or distribution of cash (including so-called "tax distributions") or other property to unaffiliated third Persons on an arm’s length basisany of its shareholders with respect to such shareholder's capital stock or otherwise, or purchased, redeemed or otherwise acquired any shares of its capital stock or other equity securities (including any warrants, options or other rights to acquire its capital stock or other equity);
(e) mortgaged or pledged any of its properties or assets or subjected them to any Lien, except for Permitted Liens;
(f) sold, assigned, transferred, leased, licensed or otherwise encumbered any of its tangible assets, except in the ordinary course of business consistent with past practice, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); claims;
(g) conducted sold, assigned, transferred, leased, licensed or otherwise encumbered any Intellectual Property Rights, disclosed any proprietary confidential information to any Person (other than to Buyer and its cash management customs Affiliates and practices other than in the ordinary course of business (including consistent with respect past practice in circumstances in which it has imposed reasonable confidentiality restrictions), or abandoned or permitted to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); lapse any Intellectual Property Rights;
(h) failed made or granted any bonus or any wage or salary increase to make any material capital expenditures that were previously budgeted employee or scheduled group of employees (other than any wage or salary increase to be made; any employee of the Company whose annual compensation is less than $50,000 in the ordinary course of business and consistent with past practice and except as required by pre-existing contracts described on the attached CONTRACTS SCHEDULE), or made or granted any increase in any employee benefit plan or arrangement, or amended or terminated any existing employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement;
(i) offered suffered any discounts on extraordinary losses or waived any rights of its products material value (whether or services not in the ordinary course of business or any promotions, rebates, coupons or special offers consistent with respect to any past practice) in excess of its products or services with terms and conditions that differ materially from $25,000 in the terms and conditions previously offered by Seller with respect to the Business; aggregate;
(j) changed made capital expenditures or commitments therefor that amount in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or more than $25,000;
(k) committed delayed or postponed the payment of any accounts payable or commissions or any other liability or obligation or agreed or negotiated with any party to extend the payment date of any accounts payable or commissions or any other liability or obligation or accelerated the collection of (or discounted) any accounts or notes receivable;
(l) made any loans or advances to, guaranties for the benefit of, or any Investments in, any Person (other than advances to the Company's employees in the ordinary course of business consistent with past practice);
(m) made any charitable contributions or pledges exceeding in the aggregate $5,000 or made any political contributions;
(n) suffered any damage, destruction or casualty loss exceeding in the aggregate $25,000, whether or not covered by insurance;
(o) made any change in any method of accounting or accounting policies or made any write-down in the value of its inventory that is material or that is other than in the usual, regular and ordinary course of business consistent with past practice or reversed any accruals (whether or not in the ordinary course of business or consistent with past practice);
(p) made any Investment in or taken any steps to incorporate any Subsidiary;
(q) amended its articles of incorporation, by-laws or other organizational documents;
(r) entered into any agreement or arrangement prohibiting or restricting it from freely engaging in any business or otherwise restricting the conduct of its business anywhere in the world;
(s) taken any action or failed to take any action that has, had or would reasonably be expected to have the effect of accelerating to pre-Closing periods sales to the trade or other customers that would otherwise be expected to occur after the Closing;
(t) entered into any contract other than in the ordinary course of business consistent with past practice, entered into any other material transaction, whether or not in the ordinary course of business or consistent with past practice, or materially changed any business practice; or
(u) agreed, whether orally or in writing, to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31, 2017 and other than as a result the date of and/or with respect to the Latest Balance Sheet until the date hereof (but excluding the effect of any of the transactions specifically contemplated hereby and/or previously disclosed to hereby), the Purchaser Company has conducted its business in writing including in Financial Statements made available to Purchaserthe usual and ordinary course consistent with past practice, neither and during such period the Business nor any Purchased Assets has: Company has not:
(a) suffered a any Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is in excess of $10,000, individually or in the aggregate, to its assets (whether owned, leased or used), whether or not covered by insurance; insurance or suffered any substantial destruction of its books and records;
(b) redeemed or repurchased, directly or indirectly, any shares of capital stock or other equity security or declared, set aside or paid any dividends or made any other distributions (whether in cash or in kind) with respect to any shares of its capital stock or other equity security;
(c) issued, sold or transferred any equity securities, any securities convertible, exchangeable or exercisable into shares of its capital stock or other equity securities, or warrants, options or other rights to acquire shares of its capital stock or other of its equity securities;
(d) incurred or become subject to any Indebtedness, except Indebtedness incurred in the ordinary course of business consistent with past practice and not exceeding $10,000, individually or in the aggregate;
(e) forgiven or canceled any debts or claims, waived any rights or discharged or satisfied any Lien, or paid any Indebtedness, other than current liabilities in the ordinary course of business;
(f) subjected any portion of its properties or assets to any Lien;
(g) sold, leased, assignedassigned or transferred (including, distributedwithout limitation, licensed, sublicensed, transferred or otherwise encumbered transfers to the Seller) a material portion of its assets or properties (tangible or intangible)assets, except for sales of inventory and sales or services trades of obsolete equipment in the ordinary course of business consistent with past practice;
(h) sold, assigned, licensed or transferred any proprietary rights owned by, issued to unaffiliated or licensed to it or disclosed any confidential information (other than pursuant to agreements requiring the recipient to maintain the confidentiality of such confidential information) or solicited any confidential information of any third Persons on an arm’s length basisparty in violation of any obligation of confidentiality;
(i) materially changed its financial or tax accounting principles or methods, credit policies or practices, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any other business practice; ;
(dj) made, made or granted or promised any bonus, severance, retention or other incentive amount bonus or any wage, salary, salary or compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employeesemployees or consultant or made or granted any increase in any employee benefit plan (if any) or arrangement, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than existing employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement or as required by applicable Law; ;
(fk) entered into made any transaction with other change in employment terms for any Insider of its directors, officers and employees, including any change to termination and severance pay payable or to become payable to such persons;
(or any Affiliate of any Insider); (gl) conducted its cash management customs and practices other than in the ordinary course of business consistent with past practice;
(including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (hm) failed to make made any material capital expenditures that were previously budgeted loans or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary advances to, or otherwise affectguarantees for the benefit of (except endorsements in the ordinary course of business or advances to employees for travel expenses, the aggregate price paid for in each case consistent with past practice) any of its products or servicesPerson;
(n) that differ from the terms and conditions previously offered by Seller with respect waived any significant rights relating to the Business; and/or business of the Company;
(ko) committed changed (or agreed authorized any change) in its articles of incorporation or by-laws;
(p) committed, either orally or in writing, to do any of the foregoing; or
(q) (i) made any a material election relating to Taxes or revoked any election relating to material Taxes other than in the ordinary course of business; (ii) settled or compromised any Action, audit or controversy relating to material Taxes; (iii) changed any methods of reporting income or deductions for any income, franchise or other material Tax purposes or any annual Tax accounting period; (iv) filed any amended Tax Returns; (v) entered into any Tax allocation agreement, Tax sharing agreement or closing agreement relating to any material Tax (excluding agreements entered into in the ordinary course of business the primary purpose of which does not relate to Taxes); or (vi) surrendered any right to claim a Tax refund.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as set forth on Schedule 4.8, 2017 and other than as a result of and/or with respect to since the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Last Fiscal Year End:
(a) suffered no Seller nor any Company has sold, leased, transferred, assigned or otherwise conveyed any of the assets of any Company, tangible or intangible, other than for a Material Adverse Effect fair consideration in the Ordinary Course of Business;
(b) no Company has entered into any Contract (or suffered series of related Contracts) involving more than $50,000 that is outside the Ordinary Course of Business;
(c) no Person (including Sellers or any Company) has accelerated, suspended, terminated, modified, amended or canceled any Contract (or series of related Contracts) involving more than $50,000 to which any Company is a party or by which it is bound;
(d) other than in the Ordinary Course of Business, no Encumbrance has been imposed on any asset of any Company;
(e) no Company has made any capital expenditure (or series of related capital expenditures) outside the Ordinary Course of Business or made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans or acquisitions);
(f) no Company has delayed, postponed or accelerated the payment of accounts payable or other liabilities or the receipt of accounts receivable except in the Ordinary Course of Business;
(g) no Company has canceled, compromised, waived or released any material theftright or claim (or series of related rights or claims) except in the Ordinary Course of Business;
(h) there has been no change made, or authorized to be made, in the Organizational Documents of any Company;
(i) no Company has experienced any damage, destruction or casualty loss that is (whether or not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion in excess of its assets or properties (tangible or intangible), except for sales of inventory or services $50,000 in the ordinary course of business aggregate to unaffiliated third Persons on an arm’s length basisits assets;
(j) no Company has made any loan to, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any other transaction with with, any Insider (Seller, any Business Employee or any Company’s directors, officers, agents or independent contractors, or any Affiliate of the foregoing;
(k) no Company has made any Insider); (g) conducted its cash management customs and change in accounting principles, policies or practices other than from those utilized in the ordinary course preparation of the Annual Financial Statements;
(l) to Sellers’ Knowledge, no complaint or investigation against any Company has been commenced by any Governmental Entity and no other event has occurred which calls into question any Governmental Authorization necessary for such Company to conduct its business and to own and operate such Company’s assets;
(including with respect to maintenance of working capital balancesm) no Material Adverse Effect has occurred;
(n) no Company has received any notice from any customer, maintenance of inventory levelssupplier, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services user, subscriber, vendor, Governmental Entity or any promotionsother Person, rebates, coupons the result of which could reasonably be expected to materially impact the business or special offers with respect to any operations of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing Companies;
(o) no Company has issued, sold or otherwise disposed of any of its products Ownership Interests, or services granted any Ownership Interests, including any options, warrants or other rights to purchase or obtain (including any terms and conditions that are ancillary toupon conversion, exchange or otherwise affect, the aggregate price paid for exercise) any of its products Ownership Interests;
(p) no Company has (i) made any settlement of or servicescompromised any Tax liability, adopted, changed or revoked any Tax election or Tax method of accounting, made any new Tax election or adopted any new Tax method of accounting; (ii) surrendered any right to claim a refund of Taxes; (iii) consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment; (iv) amended any Tax Return or entered into any closing agreement related to Taxes; or (v) taken any other action that differ from would have the terms and conditions previously offered by Seller effect of increasing the Tax liability of any Company for any Tax period (or portion thereof) beginning after the Closing Date;
(q) no Company has declared, set aside or paid any dividend or made any distribution with respect to its Ownership Interests (whether in cash or in kind) or redeemed, purchased or otherwise acquired any of its Ownership Interests or split, combined or reclassified any of its Ownership Interests;
(r) except as part of the requirements of the Closing, no Company has discharged or satisfied any Encumbrance or paid any liability, other than current liabilities paid in the Ordinary Course of Business;
(s) except as required by applicable Law, no Company has adopted or terminated or made any amendment or modification to any Plans;
(t) no Company has taken any action outside of the Ordinary Course of Business, except for actions explicitly permitted or required by this Agreement; and/or and
(ku) no Seller nor any Company has committed or agreed (in writing or otherwise) to take any of the foregoingactions described in this Section 4.8.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Genius Brands International, Inc.)
Absence of Certain Developments. Since December 31the date of the latest Audited Financial Statements, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor there has not been any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction destruction, loss or casualty loss that is to property or assets of the Companies and the Company Subsidiaries with a value in excess of $50,000, whether or not covered by insurance; (b) sold. Except as set forth on the attached Developments Schedule and except as expressly contemplated by this Agreement, leasedsince the date of the latest Audited Financial Statements, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of each Company and Company Subsidiary has conducted its assets or properties (tangible or intangible), except for sales of inventory or services respective businesses in the ordinary course of business and consistent with past practice and no Company or Company Subsidiary has:
(a) borrowed any amount or incurred or become subject to unaffiliated third Persons on an arm’s length basisany liabilities (other than liabilities incurred in the ordinary course of business, liabilities under contracts entered into in the ordinary course of business and borrowings from banks (or canceled without fair consideration similar financial institutions) necessary to meet ordinary course working capital requirements);
(b) mortgaged, pledged or subjected to any material debts or claims owing to or held by it; Lien, any portion of its assets, except Permitted Liens;
(c) entered intosold, amended assigned or terminated transferred any material Contract or License or materially changed any business practice; portion of its tangible assets, except in the ordinary course of business;
(d) madesold, granted assigned or promised transferred any bonusIntellectual Property, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group except in the ordinary course of employees, individual service provider or consultant; business;
(e) suffered any material extraordinary losses or waived any rights of material value;
(f) issued, sold or transferred any of its capital stock or other equity securities, securities convertible into its capital stock or other equity securities or warrants, options or other rights to acquire its capital stock or other equity securities, any bonds or debt securities;
(g) made any material capital expenditures or commitments that aggregate in excess of $50,000, other than capital expenditures made in accordance with the Projections;
(h) changed any of the accounting policies, practices or procedures of the Seller and its Subsidiaries except as required by GAAP;
(i) made any political contributions or made any bribes, kickback payments or other illegal payments;
(j) amended or modified its charter or bylaws;
(k) declared any dividend-in-kind, pay or set aside for payment any dividend-in-kind or other distribution of property or assets (other than cash);
(i) increased the compensation or fringe benefits of any Company Employee (except for increases in salary or wages in the ordinary course of business consistent with past practice), (ii) granted any severance or termination pay to any Company Employee except in the ordinary course of business consistent with past practice and not greater than $25,000 to any individual, (iii) loaned or advanced money or other property to any Company Employee, (iv) established, adopted, entered into, amended or terminated any Plan, collective bargaining agreement (other than as may be required by Lawthe terms of an existing Plan or collective bargaining agreement, or as may be required by applicable law or in order to qualify under Sections 401 and 501 of the Code), or (v) granted any equity or equity-based awards to any Company Employee;
(m) settled or compromised any suit, claim, proceeding or dispute or threatened suit, claim, proceeding or dispute if such settlement or compromise would result in (i) an injunction or similar relief or (ii) an obligation to pay an amount after Closing the liability for which would not appear in the Preliminary Closing Statement; and
(fn) made or changed any material Tax election, changed any annual Tax accounting period, changed any material method of Tax accounting or filed for any change in accounting method, filed any material amended Tax Return, entered into any transaction with closing agreement relating to Taxes, waived or extended the statute of limitations in respect of material Taxes, settled any Insider (Tax claim or assessment or surrendered any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect right to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid claim for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoinga Tax refund.
Appears in 1 contract
Absence of Certain Developments. Since December 31the date of the Latest Balance Sheet, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither Company has conducted the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business consistent with past practice and there has not occurred any event or development that, individually or in the aggregate, has had or would reasonably be expected to unaffiliated third Persons on an arm’s length basishave a Material Adverse Effect. Since the date of the Latest Balance Sheet, the Company has not:
(a) sold, leased, licensed (as licensor), abandoned, fail to maintain, assigned, disposed of or canceled without fair consideration any material debts or claims owing transferred (including transfers to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount the Company or any wage, salary, compensation of its employees or benefit increase to Affiliates) any current of its assets (whether tangible or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Planintangible), other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than the Company Products in the ordinary course of business consistent with past practice;
(b) mortgaged, pledged or subjected to any Lien any portion of its properties or assets, other than Permitted Liens;
(c) made, committed to make or authorized any capital expenditure in excess of $25,000.00;
(d) acquired (including with respect by merger, consolidation, license or sublicense) any interest in any Person or a substantial portion of the assets or business of any Person, or otherwise acquired any material assets of any Person;
(e) incurred any Indebtedness or assumed, guaranteed or endorsed the obligations of any Person;
(f) entered into, amended, modified, accelerated, extended, renewed or terminated any Contract that would be deemed a Material Contract if such Contract had not been terminated;
(g) issued, sold, pledged, disposed of, encumbered or transferred any equity securities, securities convertible, exchangeable or exercisable into equity securities, or warrants, options or other rights to maintenance acquire equity securities, of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); the Company;
(h) failed to make waived, released, assigned, settled or compromised any material capital expenditures that were previously budgeted rights or scheduled to be made; claims, or any litigation or arbitration in excess of $25,000.00;
(i) offered disclosed any discounts on any of its products trade secrets (including source code for the Company Software) or services or any promotions, rebates, coupons or special offers with respect other proprietary and confidential information to any of its products Person that is not subject to any confidentiality or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; non-disclosure agreement;
(j) changed in any material respect any amended or modified the organizational documents of the terms and conditions with respect Company;
(i) hired, engaged, furloughed, reduced the working schedule of or terminated any employee, consultant or director or other service provider of the Company (together, the “Service Providers”), (ii) paid, announced, promised or granted, whether orally or in writing, any increase in or establishment of (as applicable) any compensation or benefits payable or provided to any current or former Service Provider (or his or her eligible dependents), including any increase or change pursuant to any Plan (except as required by any applicable Law), (iii) accelerated the pricing vesting or payment of any of its products compensation or services benefits under any Plan, (including iv) entered into, adopted, terminated or materially amended any terms and conditions that are ancillary toPlan, or otherwise affect(v) entered into any loan or extended any credit to any current or former Service Provider;
(l) made, changed or revoked any Tax election; settled or compromised any claim, notice, audit report or assessment in respect of Taxes; changed any annual Tax accounting period; adopted or changed any method of Tax accounting; filed any amended Tax Return; entered into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax (excluding customary Tax indemnification provisions in commercial Contracts not primarily relating to Taxes); surrendered any right to claim a Tax refund; or consented to any extension or waiver of the aggregate price paid for statute of limitations period applicable to any of its products Tax claim or servicesassessment; or
(m) that differ from the terms and conditions previously offered by Seller with respect agreed or committed to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as set forth on the ------------------------------- "Developments Schedule" attached hereto and except as expressly contemplated by ---------------------- this Agreement, 2017 and other than as a result since the date of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to PurchaserLatest Balance Sheet, neither the Business Seller nor any Purchased Assets has: of its Subsidiaries has (in each case, to the extent related to the Division):
(a) suffered any change that has had or could reasonably be expected to have a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is in excess of $50,000, to its assets, whether or not covered by insurance; insurance or suffered any substantial destruction of its books and records;
(b) redeemed or repurchased, directly or indirectly, any shares of capital stock or other equity security or declared, set aside or paid any dividends or made any other distributions (whether in cash or in kind) with respect to any shares of its capital stock or other equity security;
(c) issued, sold or transferred any equity securities, any securities convertible, exchangeable or exercisable into shares of its capital stock or other equity securities, or warrants, options or other rights to acquire shares of its capital stock or other of its equity securities;
(d) incurred or become subject to any liabilities, except liabilities incurred in the Ordinary Course of Business;
(e) subjected any portion of its properties or assets to any Lien (other than Permitted Encumbrances)
(f) sold, leased, assignedassigned or transferred (including, distributedwithout limitation, licensed, sublicensed, transferred transfers to Stockholders or otherwise encumbered any Insider) a portion of its assets or properties (tangible or intangible)assets, except for sales of inventory or services in the ordinary course Ordinary Course of business to unaffiliated third Persons on an arm’s length basisBusiness, or canceled without fair consideration any material debts or claims owing to or held by it; ;
(cg) sold, assigned, licensed or transferred (including, without limitation, transfers to Stockholders or any Insider) any Proprietary Rights owned by, issued to or licensed to it or disclosed any confidential information (other than pursuant to agreements requiring the disclosure to maintain the confidentiality of and preserving all its rights in such confidential information) or received any confidential information of any third party in violation of any obligation of confidentiality;
(h) suffered any extraordinary losses or waived any rights of material value;
(i) entered into, amended or terminated any material Contract lease, contract, agreement or License commitment, or taken any other action or entered into any other transaction other than in the Ordinary Course of Business;
(j) entered into any other material transaction, or materially changed any business practice; ;
(dk) made, made or granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase bonus to any current or former director, officer, employee or sales representative, group of employeesemployees or consultant other than in the Ordinary Course of Business, individual service provider or made or granted any wage, salary or compensation increase to any director, officer, employee or sales representative, group of employees or consultant; (e) adopted, entered intoor made or granted any increase in any employee benefit plan or arrangement, or amended or terminated any Planexisting employee benefit plan or arrangement, or adopted any new employee benefit plan or arrangement (in each case, other than as required by Law; increases in premiums in the Ordinary Course of Business);
(fl) entered into made any transaction with other change in employment terms for any Insider of its directors, officers, and employees outside the Ordinary Course of Business;
(or any Affiliate of any Insider); (gm) conducted its cash management customs and practices other than in the ordinary course Ordinary Course of business Business (including including, without limitation, with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable receivable, purchases of inventory and supplies, repairs and maintenance, payment of accounts payable); (h) failed to make any material payable and accrued expenses, levels of capital expenditures and operation of cash management practices generally);
(n) except as set forth on the attached "Capital Expenditures -------------------- Schedule," made any capital expenditures or commitments for capital expenditures -------- that were previously budgeted aggregate in excess of $20,000;
(o) made any loans or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary advances to, or otherwise affectguarantees for the benefit of, the aggregate price paid for any Person;
(p) made charitable contributions, pledges, association fees or dues in excess of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business$10,000; and/or or
(kq) committed or agreed to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December Except for the transactions contemplated by this Agreement, since October 31, 2017 and other than as a result 2020, neither SamCo nor MII Life’s Spending Account Business has:
(a) sold, assigned or otherwise transferred any Accounts, or disposed of and/or or permitted to lapse any rights in any Permit owned, purported to be owned or used by such Seller primarily with respect to its Spending Account Business, other than in the transactions contemplated hereby and/or previously disclosed to Ordinary Course of Business, or acquired any Accounts outside of the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; Ordinary Course of Business;
(b) (i) disposed of, sold, leased, assigned, distributedtransferred, licensed, sublicensedabandoned, transferred granted, pledged, encumbered, dedicated to the public domain or otherwise encumbered a portion of its assets or properties (tangible or intangible)permitted to lapse any rights in any Owned Intellectual Property, except for sales of inventory or services other than non-exclusive licenses granted in the ordinary course Ordinary Course of business to unaffiliated third Persons on an arm’s length basisBusiness, or canceled without fair consideration (ii) disclosed any material debts Trade Secrets or claims owing Source Code to a third party, other than pursuant to a valid and binding confidentiality agreement or held by it; other binding obligation of confidentiality that MII Life or SamCo entered into in the Ordinary Course of Business;
(c) suffered, sustained or incurred any material Loss related to the Accounts or waived or released any material right or claim related to the Accounts, in each case whether or not in the Ordinary Course of Business;
(d) engaged in any transaction related to the Purchased Accounts not in the Ordinary Course of Business;
(e) subjected any of the Acquired Assets to any Encumbrance (other than Permitted Encumbrances);
(f) waived, released, instituted, settled or agreed to settle any Proceeding;
(g) failed to keep in full force and effect insurance in amount and scope of coverage consistent with past practice;
(h) received notice from any customer, Governmental Body or any other Person, or any group thereof, which is reasonably expected to be material to the Spending Account Business;
(i) (i) acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, directly or indirectly, any Person or business or any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof, or (ii) entered into, into any Contract with respect to any of the foregoing;
(j) materially amended any Assumed Contract or terminated any material Contract related to the Spending Account Business or License waived, released or materially assigned any material rights or claims thereunder;
(k) changed or modified existing credit, collection or payment policies, procedures and practices;
(l) made any business practice; (d) madematerial change to its accounting methods, granted principles or promised any bonuspractices or to the working capital policies applicable to the Spending Account Business, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than except as required by LawGAAP; or
(fm) entered into taken any transaction with action or omitted to take any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than action that would result in the ordinary course occurrence of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoing.
Appears in 1 contract
Samples: Asset and Unit Purchase Agreement (Healthequity, Inc.)
Absence of Certain Developments. Since December 31the Company Balance Sheet Date:
(i) there has not been any Material Adverse Change nor has there occurred any event which is reasonably likely to result in a Material Adverse Change;
(ii) there has not been any damage, 2017 and other than as a result of and/or destruction or loss, whether or not covered by insurance, with respect to the transactions contemplated hereby and/or previously disclosed property and assets of the Company having a replacement cost of more than $10,000 for any single loss or $10,000 for all such losses;
(iii) 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 the Company or any repurchase, redemption or other acquisition by the Company of any outstanding shares of capital stock or other securities of, or other ownership interest in, the Company;
(iv) the Company has not, and never has since its inception, had any employees;
(v) there has not been any change by the Company in accounting or tax reporting principles, methods or policies;
(vi) the Company has not entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(vii) the Company has not failed to promptly pay and discharge current liabilities except where disputed in good faith by appropriate proceedings;
(viii) the Purchaser in writing including in Financial Statements Company has not made available any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to Purchaserany Shareholder or any Affiliate of any Shareholder;
(ix) the Company has not mortgaged, neither the Business nor pledged or subjected to any Purchased Assets has: (a) suffered a Material Adverse Effect Lien any of its assets, or suffered acquired any material theft, damage, destruction assets or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributedtransferred, licensedconveyed, sublicensed, transferred leased or otherwise encumbered a portion disposed of its any assets or properties (tangible or intangible)of the Company, except for sales assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basisconsistent with past practice;
(x) the Company has not discharged or satisfied any Lien, or canceled without fair consideration paid any material debts obligation or claims owing to liability (fixed or held by it; (c) entered intocontingent), amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Company;
(including xi) the Company has not canceled or compromised any debt or claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of business consistent with respect past practice and which, in the aggregate, would not be material to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); the Company;
(hxii) failed the Company has not made or committed to make any material capital expenditures that were previously budgeted or scheduled to be made; capital additions or betterments in excess of $10,000 individually or $10,000 in the aggregate;
(ixiii) offered any discounts on any of its products the Company has not instituted or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in settled any material respect any of Legal Proceeding; and
(xiv) the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or Company has not agreed to any of the foregoingdo anything set forth in this Section 3.9.
Appears in 1 contract
Samples: Share Exchange Agreement (Caring Products International Inc)
Absence of Certain Developments. Since December 31, 2017 and other than as a result of and/or with respect to Except for the transactions contemplated hereby and/or previously disclosed by this Agreement or as set forth in the Schedules to this Agreement, since the Purchaser Balance Sheet Date, the Partnership has conducted its business only in writing including the ordinary course and in Financial Statements made available to Purchaserconformity with good business practice. Without limiting the generality of the foregoing, neither except as set forth on SCHEDULE 3.8 attached hereto, the Business nor any Purchased Assets has: Partnership has not since the Balance Sheet Date:
(a) sold, leased, transferred or otherwise disposed of, or mortgaged or pledged, or imposed or suffered a Material Adverse Effect to be imposed any Encumbrance other than Permitted Encumbrances on, any of its assets reflected on the Current Financial Statements or any assets acquired after the Balance Sheet Date, except for sales of inventory in the ordinary course of its business consistent with past practices.
(b) granted any bonus or other special compensation or increased the compensation or benefits payable or to become payable to the System Manager, any Partners' Committee members or officers or instituted any increase in or otherwise amended any profit sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other employee benefit plan;
(c) suffered any material theft, damage, destruction or casualty loss that is (whether or not covered by insurance; ) or condemnation or other taking which materially and adversely affects its assets, properties or business;
(bd) soldcanceled without payment in full or compromised any claims, leasednotes, assignedloans, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion obligations or other material right of its assets or properties (tangible or intangible), value receivable from any Person except for sales of inventory or services in the ordinary course of its business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; consistent with past practices;
(e) adoptedsold, entered intoassigned or transferred any copyrights, amended trademarks, trade names, patents, licenses or terminated any Plan, other than as required by Law; intangible assets;
(f) entered into any transaction with any Insider (issued or authorized the issuance of additional partnership interests or any Affiliate of options, warrants or rights to acquire any Insider); partnership interests;
(g) conducted its cash management customs except to comply with the Partnership's Budget, made or suffered any amendment or termination of any agreement, contract, commitment or lease, involving more than $50,000 to which it is or was a party, beneficiary or designee or by which it is or was bound or canceled, modified or waived any debts owed to or claims held by it (including the settlement of any claims or litigation) or waived any right in each case having material value and practices other than except in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); business;
(h) failed incurred any indebtedness for borrowed money to make any material capital expenditures that were previously budgeted Seller, an Affiliate of any Seller or scheduled to be made; any other Person;
(i) offered any discounts on any other than in connection with the purchase of equipment in the ordinary course of its products business consistent with past practices or services in accordance with the Budget, created, incurred, guaranteed or assumed any promotions, rebates, coupons indebtedness for borrowed money or special offers with respect to entered into any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; capitalized leases;
(j) changed in delayed payment of any material respect any of account payable or other material liability beyond its due date or the terms and conditions with respect to date when such liability would have been paid in the pricing of any ordinary course of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller business consistent with respect to the Business; and/or past practices;
(k) except as permitted by Section 5.12, declared, set aside or paid or made any distribution (whether in cash, equity or other property) to the Sellers in respect of the Partnership Interests or any Indebtedness of the Partnership to any Seller or an Affiliate of any Seller;
(l) purchased, redeemed, called for purchase or redemption or otherwise acquired any Partnership Interests or any other securities; or
(m) agreed, committed to do, authorized or agreed entered into any agreement or understanding to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31the Balance Sheet Date, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of Company has conducted its assets or properties (tangible or intangible), except for sales of inventory or services business in the ordinary course of business to unaffiliated third Persons and there has not been: a Material Adverse Effect; any Encumbrance placed on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Planthe properties of the Company, other than as required statutory liens for taxes not yet due and payable; any purchase, sale or other disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any properties or assets by Lawthe Company, including any of its Intellectual Property Assets, involving the payment or receipt of more than US$5,000; (f) entered into any transaction damage, destruction or loss, whether or not covered by insurance; any declaration, setting aside or payment of any dividend by the Company, or the making of any other distribution in respect of the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of its own capital stock; any labor trouble or claim of unfair labor practices involving the Company, any change in the compensation payable or to become payable by the Company to any of its officers, directors or employees other than normal merit increases to employees in accordance with its usual practices, or any bonus payment or arrangement made to or with any Insider (of such officers, directors or employees or any Affiliate establishment or creation of any Insider)employment, deferred compensation or severance arrangement or employee benefit plan with respect to such persons or the amendment of any of the foregoing; (g) conducted its cash management customs any resignation, termination or removal of any officer or director of the Company or material loss of personnel of the Company or material change in the terms and practices conditions of the employment of any of the Company’s officers, directors or key personnel; any payment or discharge of a material lien or liability of the Company which was not shown in the Financial Statements or incurred in the ordinary course of business since the Balance Sheet Date; any contingent liability incurred by the Company as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, the Company, including any write-off or compromise of any accounts receivable other than in the ordinary course of business (including consistent with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable)past practice; (h) failed to make any material capital expenditures that were previously budgeted obligation or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect liability incurred by the Company to any of its products officers, directors, stockholders or services with terms employees, or any loans or advances made by the Company to any of its officers, directors, stockholders or employees, except normal compensation and conditions expense allowances payable to officers or employees in the ordinary course of business; any change in accounting methods or practices, collection policies, pricing policies or payment policies of the Company; any loss, or any known development that differ materially from could reasonably be expected to result in a loss, of any significant Supplier, Customer, Distributor or account of the Company; any amendment or termination of any Contract to which the Company is a party or by which it is bound; any arrangements relating to any royalty or similar payment based on the revenues, profits or sales volume of the Company, whether as part of the terms and conditions previously offered of the Company’s capital stock or by Seller with respect any separate agreement; any transaction or agreement involving fixed price terms or fixed volume arrangements; any other transaction entered into by the Company other than transactions in the ordinary course of business; any amendment to the BusinessCompany’s Charter Documents; (j) changed or any agreement or understanding, whether in any material respect writing or otherwise, for the Company to take any of the terms and conditions with respect to the pricing of any of its products or services actions specified in paragraphs (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or servicesa) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or through (kq) committed or agreed to any of the foregoingabove.
Appears in 1 contract
Samples: Stock Purchase Agreement (China Technology Development Group Corp)
Absence of Certain Developments. Since December 31the date of the 2012 Balance Sheet, 2017 there has not been a Material Adverse Effect. Except as set forth on the Developments Schedule and other than except as a result expressly contemplated by this Agreement, since the date of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser2012 Balance Sheet, neither the Business Company nor any Purchased Assets of its Subsidiaries has: :
(a) suffered a Material Adverse Effect effected any recapitalization, reclassification, unit or suffered stock dividend, unit or stock split or like change in its capitalization;
(b) amended its certificate of formation or articles of incorporation or bylaws or limited liability company agreement (or equivalent organizational documents), or any Equity Agreement;
(c) mortgaged, pledged or subjected to any Lien, any material theftportion of its assets, damage, destruction or casualty loss that is not covered by insurance; except Permitted Liens;
(bd) (i) sold, leased, assigned, distributed, licensed, sublicensed, transferred assigned or otherwise encumbered a transferred any material portion of its assets or properties (tangible or intangible)assets, except for other than sales of inventory or services products in the ordinary course of business to unaffiliated third Persons on an arm’s length basisconsistent with past practice, or canceled without fair consideration (ii) acquired any material debts assets other than supplies in the ordinary course of business consistent with past practice or claims owing as contemplated in the capital expenditures budget attached hereto in the Capital Expenditures Schedule;
(e) sold, assigned, transferred, licensed or otherwise disposed of any material Company Intellectual Property;
(f) allowed to lapse or held abandoned any material Company Intellectual Property;
(g) issued, sold or otherwise transferred any Company Securities or Subsidiary Securities, or amended any term of any Subsidiary Security;
(h) made any material investment in, or any material loan to, any other Person (other than a wholly-owned Subsidiary of the Company);
(i) declared, set aside, or paid any dividend or made any distribution with respect to its equity securities (whether in cash or in kind) or redeemed, purchased or otherwise acquired any of Company Securities or Subsidiary Securities, except for (i) dividends or distributions made by it; the Company’s wholly-owned Subsidiaries to their respective parents and (cii) repurchases of Units from current or former employees, consultants, directors or managers of the Company or its Subsidiaries consistent with past practice and in an aggregate amount not exceeding $250,000;
(j) made any capital expenditures or commitments therefor, except in the ordinary course of business and as contemplated in its existing capital expenditures budget;
(k) made any loan to, or entered into any other transaction with, any of its directors or officers, other than the advancement of expenses in the ordinary course of business consistent with past practice;
(l) (i) terminated, entered into, established, adopted, amended, modified or materially increased benefits under or made new grants or awards under, any Plan, or any trust agreement related thereto, (ii) taken any action to accelerate the vesting or exercisability of any unvested units, (iii) granted or increased any material severance or termination pay to any employee of the Company or any of its Subsidiaries or (iv) entered into any material employment agreement (or materially amended any existing employment agreement) with any employee of the Company or any of its Subsidiaries;
(m) increased compensation payable to any existing employee of the Company or any of its Subsidiaries, other than in connection with promotions in the ordinary course of business;
(n) established, adopted or amended any collective bargaining agreement;
(o) created, incurred, assumed or suffered to exist or otherwise become liable with respect to any Indebtedness other than (i) Indebtedness owed to the Company or any wholly-owned Subsidiary of the Company, (ii) any draw-down of funds under its revolving credit facilities in the ordinary course of business consistent with past practice, (ii) letters of credit issued under its credit facilities in the ordinary course of business consistent with past practice or (iii) Indebtedness for borrowed money incurred to replace, renew, extend, refinance or refund any Indebtedness existing on the date of this Agreement and in amounts not materially in excess of such existing Indebtedness;
(p) entered into, amended or terminated modified in any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended respect or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider Material Contract (or any Affiliate of any Insiderother contract which, had it not been so amended, modified or terminated, would have constituted a Material Contract); (g) conducted its cash management customs and practices , other than in the ordinary course of business business;
(including with respect q) changed the Company’s method of accounting, except as required by concurrent changes in GAAP, as agreed to maintenance of working capital balancesby its independent public accountants;
(r) settled, maintenance of inventory levelsor offered or proposed to settle, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted litigation, investigation, arbitration, proceeding or scheduled to be made; (i) offered any discounts on other claim involving or against the Company or any of its products Subsidiaries; or
(s) agreed, resolved or services or any promotions, rebates, coupons or special offers with respect committed to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Campbell Soup Co)
Absence of Certain Developments. Since December 31the date of the Latest Balance Sheet through the date of this Agreement, 2017 except as set forth on Section 3.07 of the Company Disclosure Letter, none of the Company Entities have, and other than as a result of and/or no Seller with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets Company Entities has: :
(a) suffered a Material Adverse Effect (i) commenced or suffered instituted any Action, or (ii) settled any Action or threatened Action or contractual dispute involving the payment by or on behalf of any Company Entity of monetary damages in excess of $100,000 in the case of any individual settlement or $500,000 in the aggregate in the case of all such settlements during such period, or otherwise involving any material theft, damage, destruction equitable or casualty loss that is not covered by insurance; injunctive relief or other material obligations or restrictions binding on any Company Entity (excluding customary confidentiality requirements and similar administrative obligations);
(b) acquired any Person, by merger or consolidation or by purchase of assets or equity interests or otherwise, in a single transaction or series of transactions (other than in the acquisition of assets in the ordinary course of business);
(c) declared, set aside or made any payment or distribution of property to the Company’s equityholders with respect to such equityholder’s equity securities (other than tax distributions), or purchased, redeemed or otherwise acquired any equity securities (other than related to the repurchase of equity (or equity in an Affiliate) held by an employee or service provider of the Company or a Subsidiary in connection with the termination of employment or service);
(d) sold, assigned, leased, licensed or otherwise transferred any of its material tangible assets;
(e) sold, transferred, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered licensed to a portion of its assets third party any Intellectual Property Rights owned or properties purported to be owned by a Company Entity (tangible or intangible), except for sales of inventory or services other than non-exclusive licenses granted in the ordinary course of business consistent with past practice to unaffiliated third Persons on an arm’s length basiscustomers and end users of the products and services of the Company Entities);
(f) changed or amended any data privacy or information security practices in any manner that is adverse to the business of the Company Entities, except as required by applicable Law;
(g) except for actions taken (i) in the ordinary course of business, (ii) pursuant to the terms of any Employee Benefit Plan or canceled without fair consideration (iii) in accordance with applicable Law, established, materially amended, terminated or adopted any material debts Employee Benefit Plan (or claims owing to or held by it; (c) entered intoany plan, amended or terminated any material policy, program, Contract or License or materially arrangement that would constitute a material Employee Benefit Plan if it were in existence on the date hereof);
(h) changed any business practice; annual accounting period, adopted or changed any method of accounting or accounting policies or principles theretofore adopted or followed, except as required by GAAP or applicable Law;
(di) made, granted made capital expenditures or promised commitments therefor that exceed $750,000 in the aggregate (other than with respect to capitalized software and labor);
(j) incurred any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any PlanIndebtedness for borrowed money, other than as required any borrowings made by Law; any Company Entity under any Credit Facility;
(fk) entered into made any transaction with any Insider (loans or advances to, guarantees for the benefit of or any Affiliate of investments in any Insider); Person (g) conducted its cash management customs and practices other than another Company Entity), other than advances of expenses to employees of the Company Entities in the ordinary course of business consistent with past practice and the applicable policies of the Company Entities);
(including with respect to maintenance of working capital balancesl) made (other than in the ordinary course), maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make changed or revoked any material capital expenditures that were previously budgeted Tax election, adopted or scheduled changed any tax accounting method or accounting period, filed any amended income Tax Return (or material non-income Tax Return), entered into any Tax closing agreement, surrendered any right to be made; claim a refund of Taxes, requested or consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment other than automatic extensions requested or obtained in the ordinary course, changed the U.S. federal income tax classification of any Company Entity, or settled, or intentionally compromised in writing, any material Tax claim or assessment relating to any Company Entity;
(i) offered any discounts on any of its products materially increased or services agreed to increase the compensation or any promotions, rebates, coupons or special offers with respect benefits payable to any of its products directors, managers, officers, individual service providers or services any other employees, except (A) as may be required under existing Employee Benefit Plans, or applicable Law or (B) in connection with terms and conditions that differ materially from general merit based increases as are granted in the terms and conditions previously offered by Seller ordinary course of business consistent with respect past practice or (ii) hired any new employees or engaged any new individual independent contractors or terminated (other than for cause) any employees or individual independent contractors, in either case, at an annual base salary or fee (as applicable) in excess of $200,000;
(n) amended or otherwise modified its Organizational Documents or changed entity type or jurisdiction of incorporation or organization;
(o) issued, sold, pledged, transferred, disposed of or otherwise subjected to any Lien (other than a Permitted Lien or Liens arising under the Securities Act or applicable securities Laws) any equity securities of the Company or any of its Subsidiaries, or any options, warrants, convertible securities or other rights of any kind to acquire any such equity securities, or any other equity or ownership interest in any Company Entity;
(p) reclassified, combined, split, subdivided or redeemed, or purchased or otherwise acquired, directly or indirectly, any of its equity securities or ownership interest (other than related to the Business; repurchase of equity (jor equity in an Affiliate) changed held by an employee or service provider of the Company or a Subsidiary in connection with the termination of employment or service);
(q) adopted a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of any Company Entity;
(r) intentionally waived, released, amended or relinquished in writing any material respect claim or material right of any of the terms and conditions with respect Company Entities, or cancelled or intentionally compromised in writing any material debts owed to any Company Entity (other than, in each case, in the pricing ordinary course of business);
(s) failed to maintain any material insurance policies of any of its products the Company Entities;
(t) intentionally cancelled, surrendered or services (including failed to renew any terms and conditions that are ancillary tomaterial Permit, or otherwise affect, the aggregate price paid for intentionally allowed any material Permit held by any of its products the Company Entities to expire;
(u) entered into any material new line of business or servicesterminated any existing material line of business; or
(v) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Tradeweb Markets Inc.)
Absence of Certain Developments. Since December 31, 2017 2007, Seller has operated itself and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither its Subsidiaries and conducted the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services only in the ordinary course of business and has not experienced or suffered any Material Adverse Effect. Without limiting the foregoing, except as set forth on Schedule 4.6, Seller has not with respect to unaffiliated third Persons on an arm’s length basisitself, its Subsidiaries, the Business, the Purchased Assets, and the Assumed Liabilities:
(a) paid trade or account payables other than in the ordinary course of business or, delayed or postponed the payment of any trade or accounts payable or commissions or any other liability or litigation or agreed or negotiated with any party to extend the payment date of any trade or accounts payable or commission or any other liability or obligation or accelerated the collection of (or discounted) any accounts or notes receivable (whether billed or unbilled) or any deferred revenue or taken any actions or omitted to take any actions with the intent or the purpose of satisfying the Net Working Capital target as of the Closing;
(b) instituted or permitted any material change in the conduct of the Business, or any material change in its method of purchase, sale, lease, management, marketing, promotion or operation;
(c) sold, leased, assigned or transferred any of its tangible assets (including the Purchased Assets), except in the ordinary course of business, or canceled without fair consideration any material debts or claims owing to or held by it; ;
(cd) entered intosold, assigned, licensed, sublicensed, transferred or encumbered any material Proprietary Rights or other intangible assets, disclosed any proprietary Confidential Information to any Person (other than Buyer and Buyer’s representatives, agents, attorneys and accountants, and other than Persons that have signed or are bound by confidentiality or nondisclosure agreements for the benefit of Seller), or abandoned or permitted to lapse any material Proprietary Rights;
(e) made or granted any bonus or any wage or salary increase to any employee or group of employees (except as required by pre-existing contracts or, in the case of non-officer employees, consistent with past practice, and except for bonuses to be paid by Seller in recognition of the consummation of the transaction contemplated by this Agreement), or made or granted any increase in any employee benefit plan or arrangement, or amended or terminated any existing employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement;
(f) incurred any Indebtedness or incurred or become subject to any material Contract liability, except current liabilities incurred in the ordinary course of business and liabilities under contracts entered into in the ordinary course of business;
(g) suffered any extraordinary Losses or License waived any rights of material value, whether or not in the ordinary course of business;
(h) suffered any damage, destruction or casualty loss to its tangible assets (including the Purchased Assets) in excess of $100,000, whether or not covered by insurance;
(i) made any capital expenditures or commitments therefore that aggregate in excess of $100,000;
(j) made any change in any method of accounting or accounting policies, other than those required by GAAP which have been disclosed in writing to Buyer; or
(k) except for the redemption or cross-purchase of the interests of those Members and other Persons identified on Schedule 4.6 prior to Closing, entered into any other material transaction, whether or not in the ordinary course of business, or materially changed any business practice; or
(dl) madeauthorized any of, granted or promised committed or agreed to take any bonusof, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Planthe foregoing actions, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingexpressly contemplated hereby.
Appears in 1 contract
Absence of Certain Developments. Since December 31the Balance Sheet Date, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of Company has conducted its assets or properties (tangible or intangible), except for sales of inventory or services business in the ordinary course of business to unaffiliated third Persons and there has not been:
(a) a Material Adverse Effect;
(b) any Encumbrance placed on an arm’s length basisany of the properties of the Company, or canceled without fair consideration any material debts or claims owing to or held by it; other than statutory liens for taxes not yet due and payable;
(c) entered intoany purchase, amended sale or terminated other disposition, or any material Contract agreement or License other arrangement for the purchase, sale or materially changed other disposition, of any business practice; properties or assets by the Company, including any of its Intellectual Property Assets, involving the payment or receipt of more than US $5,000;
(d) madeany damage, granted destruction or promised any bonusloss, severance, retention whether or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; not covered by insurance;
(e) adoptedany declaration, entered intosetting aside or payment of any dividend by the Company, amended or terminated the making of any Planother distribution in respect of the capital stock of the Company, or any direct or indirect redemption, purchase or other than as required acquisition by Law; the Company of its own capital stock;
(f) entered into any transaction labor trouble or claim of unfair labor practices involving the Company, any change in the compensation payable or to become payable by the Company to any of its officers, directors or employees other than normal merit increases to employees in accordance with its usual practices, or any bonus payment or arrangement made to or with any Insider (of such officers, directors or employees or any Affiliate establishment or creation of any Insider); employment, deferred compensation or severance arrangement or employee benefit plan with respect to such persons or the amendment of any of the foregoing;
(g) conducted its cash management customs any resignation, termination or removal of any officer or director of the Company or material loss of personnel of the Company or material change in the terms and practices conditions of the employment of any of the Company’s officers, directors or key personnel;
(h) any payment or discharge of a material lien or liability of the Company which was not shown in the Financial Statements or incurred in the ordinary course of business since the Balance Sheet Date;
(i) any contingent liability incurred by the Company as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, or waiver of any material right of, the Company, including any write-off or compromise of any accounts receivable other than in the ordinary course of business consistent with past practice;
(including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (hj) failed to make any material capital expenditures that were previously budgeted obligation or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect liability incurred by the Company to any of its products officers, directors, stockholders or services with terms employees, or any loans or advances made by the Company to any of its officers, directors, stockholders or employees, except normal compensation and conditions expense allowances payable to officers or employees in the ordinary course of business;
(k) any change in accounting methods or practices, collection policies, pricing policies or payment policies of the Company;
(l) any loss, or any known development that differ materially from could reasonably be expected to result in a loss, of any significant Supplier, Customer, Distributor or account of the Company;
(m) any amendment or termination of any Contract to which the Company is a party or by which it is bound;
(n) any arrangements relating to any royalty or similar payment based on the revenues, profits or sales volume of the Company, whether as part of the terms and conditions previously offered of the Company’s capital stock or by Seller with respect any separate agreement;
(o) any transaction or agreement involving fixed price terms or fixed volume arrangements;
(p) any other transaction entered into by the Company other than transactions in the ordinary course of business;
(q) any amendment to the Business; Company’s Charter Documents;
(jr) changed any agreement or understanding, whether in any material respect writing or otherwise, for the Company to take any of the terms and conditions with respect to the pricing of any of its products or services actions specified in paragraphs (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or servicesa) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or through (kq) committed or agreed to any of the foregoingabove.
Appears in 1 contract
Samples: Stock Purchase Agreement (China Technology Development Group Corp)
Absence of Certain Developments. Since December 31Except as set forth on the Developments Schedule, 2017 since the date of the Latest Balance Sheet, there has not been any Material Adverse Effect. Without limiting the generality of the foregoing, and other than except as a result set forth on the Developments Schedule and except as expressly contemplated by this Agreement, since the date of and/or the Latest Balance Sheet, the Company has not:
(a) amended or modified the Company's articles of incorporation or bylaws;
(b) issued or sold any of its capital stock or any options, warrants, convertible or exchangeable securities, subscriptions, rights, stock appreciation rights, calls or commitment of any kind with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; capital stock;
(c) entered into, amended or terminated modified any material Contract or License or materially changed any business practice; employment agreement which provides for base annual compensation in excess of $140,000;
(d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction contract or other agreement with any Insider labor union;
(e) adopted a plan of liquidation, dissolution, merger, consolidation or other reorganization;
(f) made any Affiliate of any Insider); change in its accounting methods, principles or practices;
(g) conducted made any loan or advance to any of its cash management customs and practices officers, directors, employees or consultants (other than in the ordinary course of business (including consistent with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); past practice) or made any other loan or advance;
(h) failed made any commitment to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect pay severance to any of its products officers, directors, employees or services with terms and conditions that differ materially from consultants;
(i) made any capital expenditures in excess of $10,000 in any one case or $30,000 in the terms and conditions previously offered by Seller with respect to the Business; aggregate;
(j) changed in incurred any indebtedness for borrowed money (other than indebtedness that will be Funded Indebtedness at the time of Closing);
(k) made any acquisition of all or any material respect any part of the terms and conditions with respect assets, properties, capital stock or business of any other Person;
(l) sold, leased, transferred or assigned any asset, other than for fair consideration in the ordinary course of business or made any distributions of any assets (cash or otherwise) to the pricing of any of its products Affiliates;
(m) sold, leased, transferred or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for assigned any of its products assets, tangible or servicesintangible, other than the sale or transfer of inventory or immaterial assets for fair consideration in the ordinary course of business;
(n) that differ from the terms and conditions previously offered by Seller with respect entered into any contract or agreement (or series of reasonably related contracts or agreements, each of which materially relates to the Businessunderlying transaction as a whole) involving more than $25,000 or that cannot be terminated without penalty on less than six months' notice, in each case other than customer contracts entered into in the ordinary course of business;
(o) accelerated, terminated, modified or cancelled any contract or Permit (or series of reasonably related contracts or Permits) involving more than $5,000 annually to which the Company is a party or by which it or its assets is bound, and the Company has not received notice that any other party to such a contract or Permit (or series of reasonably related contracts or Permits) has accelerated, terminated, modified or cancelled the same;
(p) delayed or postponed the payment of accounts payable and other liabilities, accelerated the collection of accounts receivable, in either case outside the ordinary course of business, or altered any accounting method or practice;
(q) canceled, compromised, waived or released any right or claim (or series of related rights or claims) or any indebtedness (or series of related indebtedness) owed to it and tracked, using the Company Accounting Principles, on the Latest Balance Sheet, in any case involving more than $5,000;
(r) made, rescinded or changed any Tax election, changed any Tax accounting period, adopted or changed any accounting method, filed any amended Tax Return, entered into any closing agreement, settled any Tax claim, assessment or liability, surrendered any right to claim a refund of Taxes, consented to any extension or waiver of the limitation 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;
(s) had any legal action or proceeding commenced nor, to the Company's Knowledge, threatened or anticipated relating to or affecting the Company, the business conducted by the Company or any asset owned or used by it;
(t) suffered (i) any loss of any material customer, distribution channel, sales location or source of supply of raw materials, inventory, utilities or contract services or the receipt of any notice that such a loss may be pending, or (ii) any occurrence, event or incident related to the Company outside of the ordinary course of business; and/or or (ku) committed or agreed to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31September 30, 2017 and other than as a result of and/or with respect to 2007, the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither Companies have conducted the Business nor any Purchased Assets has: only in the ordinary course consistent with their past practices and, except as set forth in Schedule 5.5 and except as contemplated by this Agreement, there has not been any:
(a) suffered a Material Adverse Effect change in the assets, liabilities, financial condition, properties, business or suffered operations of any material theftof the Companies, damagewhich change by itself or in conjunction with all other such changes, destruction whether or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services arising in the ordinary course of business business, has had or would reasonably be expected to unaffiliated third Persons on an arm’s length basishave a Material Adverse Effect;
(b) declaration, setting aside or payment of any dividend or other distribution (whether of cash, in kind or securities) with respect to, or canceled any direct or indirect redemption, purchase or acquisition of, any of the shares of any of the Companies, or any issuance or sale by the Companies of any shares, including, without fair consideration limitation, any material debts in kind distribution of accounts receivable, inventory or claims owing to or held by it; other assets of any of the Companies;
(c) entered into, amended waiver or terminated release of any material Contract right of any of the Companies or License cancellation or materially changed discharge of any business practice; (d) madematerial debt or claim held by any of the Companies, granted or promised excluding any bonus, severance, retention write-off or other incentive amount or any wagecompromise of accounts receivable, salaryin each case, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business consistent with past practice;
(including d) loss, destruction or damage to any property which would, or would reasonably be expected to, have a Material Adverse Effect, whether or not covered by insurance;
(e) acquisition or disposition, or any agreement or other arrangement for the acquisition or disposition of, any material assets or properties of the any of the Companies, excluding the sale of inventory in the ordinary course of business consistent with past practice;
(f) material increase, direct or indirect, or other change in the compensation or benefits paid or payable to, or pay any bonus to, any officer, director, employee, independent contractor or agent of any of the Companies (other than salary, wage and/or commission increases in the ordinary course of business consistent with the Companies’ past practices) or any establishment or creation of any employment, deferred compensation, change in control, or severance agreement or employee benefit plan with respect to maintenance of working capital balancessuch Persons or the amendment to, maintenance of inventory levelsor modification or termination of, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to the foregoing;
(g) loss of key personnel of any of its products the Companies, or services with terms and conditions that differ materially from material change in the terms and conditions previously offered by Seller with respect to of the Business; employment of the key personnel of any of the Companies;
(h) incurrence or refinancing of any indebtedness, mortgage, encumbrance or placement of any Encumbrance on any properties or assets of any of the Companies, other than Encumbrances for Taxes not yet due and payable or being contested in good faith;
(i) change in accounting methods or practices, collection or credit policies, pricing policies, reserve policies, revenue recognition policies or payment policies;
(j) changed in any payment or discharge of a lien or material respect liability of any of the terms and conditions with respect Companies outside the ordinary course of business;
(k) entering into, amendment or termination of any material contract or agreement to which any Company is a party or by which it is bound;
(l) amendment to the pricing Articles of Incorporation or Bylaws of any of its products the Companies, other than in compliance with Section 8.3 hereof;
(m) incurrence of capital expenditures, other than in the ordinary course of business consistent with the Companies’ past practices; or
(n) any agreement or services (including any terms and conditions that are ancillary tounderstanding, whether in writing or otherwise affectotherwise, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingCompanies or any other Person that would result in any of the foregoing transactions or events or require any of the Companies to take any of the foregoing actions.
Appears in 1 contract
Absence of Certain Developments. Since December 31the date of the latest balance sheet included in the Unaudited Contributed Businesses Financial Statements, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services NAI Contributed Businesses have been conducted in the ordinary course of business consistent with past practice, and, except to unaffiliated third Persons on an arm’s length basisthe extent reflected or otherwise disclosed in the NAI Disclosure Schedule, there has not been:
(a) any material adverse change in the business, assets, results of operation or condition (financial or otherwise) of the NAI Contributed Businesses (without regard to changes resulting from macroeconomic or general industry conditions) (a "Publications Material Adverse Change"), and there has not occurred any event which is reasonably likely to result in a Publications Material Adverse Change;
(b) any declaration, setting aside, or canceled without fair consideration payment of any material debts dividend or claims owing distribution (other than of cash) to NAI or held any of its affiliates, or any direct or indirect redemption, retirement, purchase or other acquisition by it; any NAI Contributed Entity of any of its capital stock or other securities or options, warrants or other rights to acquire capital stock;
(c) entered intoany increase in salary, amended or terminated any material Contract or License or materially changed any business practice; (d) madewage, granted or promised any bonus, severance, retention benefit or other incentive amount remuneration payable or any wage, salary, compensation or benefit increase to become payable to any current or former officer, director, officer, employee or sales representativeagent of any of the NAI Contributed Businesses or any increase in any bonus or severance payment or arrangement made to, group of employees, individual service provider for or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (of its officers, directors, employees or agents or any Affiliate grant of a supplemental retirement plan or program or special remuneration for any officer, director, employee or agent of any Insider); (g) conducted its cash management customs and practices of the NAI Contributed Businesses, in each case other than in the ordinary course of business and consistent with past practice (including with respect to maintenance regular annual salary and performance bonus increases);
(d) any sale, lease or other transfer or disposition of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any asset of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to NAI Contributed Businesses;
(e) any change in accounting methods, practices or policies (including any change in depreciation or amortization policies or rates) by any of the pricing NAI Contributed Businesses or any revaluation by any of the NAI Contributed Businesses of any of its products assets;
(f) any material modification or services change to any material contract by any of the NAI Contributed Businesses, other than in the ordinary course of business;
(including g) any terms written waiver or written release of any right or claim of substantial value by any of the NAI Contributed Businesses;
(h) any payment, discharge or satisfaction of any material claim, liability or obligation by any of the NAI Contributed Businesses, other than the payment, discharge or satisfaction in the ordinary course of business and conditions that are ancillary toconsistent with past practice of liabilities reflected or reserved against in its balance sheet as of March 31, 1998 referred to in Section 6(b) or otherwise affect6(e) above (the "Latest Balance Sheet") or incurred since the date of such balance sheet in the ordinary course of business and consistent with past practice and other than scheduled repayments of indebtedness reflected on the Latest Balance Sheet;
(i) any issuance or sale of capital stock or other securities or membership or other ownership interests, exchangeable or convertible securities, options, warrants, puts, calls or other rights to acquire capital stock or other securities or other ownership interests of any of the aggregate price paid NAI Contributed Entity;
(j) any guarantee by any NAI Contributed Entity of any indebtedness for borrowed money, except for guarantees of public indebtedness, which will terminate as of the Closing;
(k) any delay in the payment of any trade or other payables other than in the ordinary course of business and consistent with past practice; or
(l) any agreement by NAI or any of its products affiliates or services) that differ from any of the terms and conditions previously offered by Seller with respect NAI Contributed Businesses to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Tele Communications Inc /Co/)
Absence of Certain Developments. Since December 31the date of the latest balance ------------------------------- sheet (the "UVSG Latest Balance Sheet") included in the UVSG Commission Filings, 2017 the business of UVSG and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services subsidiaries has been conducted in the ordinary course of business consistent with past practice, and, except to unaffiliated third Persons on an arm’s length basisthe extent reflected or otherwise disclosed in the UVSG Disclosure Schedule, or canceled without fair consideration there has not been:
(a) any material debts adverse change in the business, assets, results of operation or claims owing condition (financial or otherwise) of UVSG and its subsidiaries (without regard to changes resulting from macroeconomic or held by it; general industry conditions) (a "UVSG Material Adverse Change"), and there has not occurred any event which is reasonably likely to result in a UVSG Material Adverse Change;
(b) any sale, lease or other transfer or disposition of any material asset of UVSG or its subsidiaries;
(c) entered intoany declaration, amended setting aside, or terminated payment of any material Contract stock dividend or License distribution (other than of cash) to TCI or materially changed any business practice; of its affiliates, or any direct or indirect redemption, retirement, purchase or other acquisition by UVSG of any of its capital stock or other securities or options, warrants or other rights to acquire capital stock;
(d) madeany change in accounting methods, granted practices or promised policies (including any bonus, severance, retention change in depreciation or other incentive amount amortization policies or rates) by any of UVSG and its subsidiaries or any wage, salary, compensation revaluation by UVSG or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; its subsidiaries of any of their respective assets;
(e) adopted, entered into, amended any material modification or terminated change to any Planmaterial contract by UVSG or any of its subsidiaries, other than as required by Law; in the ordinary course of business;
(f) entered into any transaction with written waiver or written release of any Insider (right or claim of substantial value by UVSG or any Affiliate of any Insider); its subsidiaries;
(g) conducted any payment, discharge or satisfaction of any material claim, liability or obligation by UVSG or any of its cash management customs subsidiaries, other than the payment, discharge or satisfaction in the ordinary course of business and practices consistent with past practice of liabilities reflected or reserved against in its Latest Balance Sheet or incurred since the date of such balance sheet in the ordinary course of business and consistent with past practice and other than scheduled repayments of indebtedness reflected on the Latest Balance Sheet;
(h) any issuance or sale of capital stock or other securities or membership or other ownership interests, exchangeable or convertible securities, options, warrants, puts, calls or other rights to acquire capital stock or other securities or other ownership interests of UVSG;
(i) any delay in the payment of any trade or other payables other than in the ordinary course of business and consistent with past practice; or
(including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (hj) failed to make any material capital expenditures that were previously budgeted agreement by UVSG or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect affiliates to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as set forth on the ------------------------------- "Developments Schedule" attached hereto and except as expressly contemplated by --------------------- this Agreement, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchasersince June 30, 1999, neither the Business Company nor any Purchased Assets of its Subsidiaries has: :
(a) suffered any change (other than a change generally affecting companies having similar lines of business as the Company) that has had or could reasonably be expected to have a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is in excess of $50,000, to its assets, whether or not covered by insurance; insurance or suffered any substantial destruction of the its books and records;
(b) redeemed or repurchased, directly or indirectly, any Partnership Interests or declared, set aside or paid any dividends or made any other distributions (whether in cash or in kind) with respect to any Partnership Interests;
(c) issued, sold or transferred any Partnership Interests, or any securities convertible, exchangeable or exercisable into Partnership Interests or other equity securities, or warrants, options or other rights to acquire Partnership Interests or any kind of equity interest in the Company or its Subsidiaries;
(d) incurred or become subject to any liabilities, except liabilities incurred in the Ordinary Course of Business or contemplated by this Agreement;
(e) subjected any portion of its properties or assets to any Lien (except Permitted Encumbrances or those arising in the Ordinary Course of Business);
(f) sold, leased, assignedassigned or transferred (including, distributedwithout limitation, licensed, sublicensed, transferred transfers to any Seller or otherwise encumbered any Insider) a portion of its tangible assets or properties (tangible or intangible)that are material to the Company, except for sales of inventory or services leases, rentals, assignments or transfers made in the ordinary course Ordinary Course of business to unaffiliated third Persons on an arm’s length basisBusiness, or canceled without fair consideration any material debts or claims owing to or held by it; ;
(cg) sold, assigned, licensed or transferred (including, without limitation, transfers to any Seller or any Insider) any Proprietary Rights owned by, issued to or licensed to the Company or any of its Subsidiaries (except for transactions contemplated by this Agreement) or disclosed any confidential information (other than pursuant to agreements requiring the disclosure to maintain the confidentiality of and preserving all rights of the Company and its Subsidiaries in such confidential information) or to its Knowledge, received any confidential information of any third party in violation of any obligation of confidentiality binding upon the Company;
(h) suffered any extraordinary losses or waived any rights of material value;
(i) incurred any indebtedness for borrowed money (other than indebtedness to finance its working capital needs);
(j) entered into, amended or terminated any material Contract lease, contract, agreement or License commitment, or entered into any other transaction, other than in the Ordinary Course of Business or as contemplated under this Agreement;
(k) entered into any other material transaction, or materially changed any fundamental business practice; ;
(dl) made, made or granted or promised any bonus, severance, retention or other incentive amount bonus or any wage, salary, salary or compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employeesemployees or consultant or made or granted any increase in any employee benefit plan or arrangement, individual service provider in each case, other than in the Ordinary Course of Business, or consultant; (e) adopted, entered into, amended or terminated any Planexisting employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement;
(m) made any other change in employment terms for any of its directors, other than as required by Law; officers, and employees outside the Ordinary Course of Business;
(fn) entered into any transaction with any Insider (incurred material inter-company charges or any Affiliate of any Insider); (g) conducted its cash management customs and practices practices, in each case, other than in the ordinary course Ordinary Course of business Business (including including, without limitation, with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable receivable, purchases of inventory and supplies, repairs and maintenance, and payment of accounts payablepayable and accrued expenses); ;
(ho) failed to make made any material capital expenditures or commitments for capital expenditures that were previously budgeted aggregate in excess of $150,000;
(p) made any loans or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary advances to, or otherwise affectguarantees for the benefit of, any Persons;
(q) made charitable contributions or pledges, in each case other than in the Ordinary Course of Business or those that do not in the aggregate price paid for exceed $20,000;
(r) changed (or authorized any change) in its certificate of its products limited partnership, Partnership Agreement, articles of incorporation or servicesby-laws; or
(s) that differ from the terms and conditions previously offered by Seller with respect agreed or committed to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Samples: Purchase Agreement (National Equipment Services Inc)
Absence of Certain Developments. Since December 31the Reorganization Plan Confirmation Date: (i) each Company has conducted its business in the Ordinary Course of Business; and (ii) there has not been any event, 2017 change, occurrence, development or circumstance that has had, or is reasonably likely to have, individually or in the aggregate, a Material Adverse Effect. Except as contemplated by this Agreement or as set forth on Schedule 4.8, since the Reorganization Plan Confirmation Date, the Companies have not, and other than as a result of and/or solely with respect to Section 4.8(c), the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Parent and its Subsidiaries have not:
(a) suffered a Material Adverse Effect or suffered incurred any material theftDebt, damage, destruction or casualty loss that is not covered by insurance; other than Debt with respect to which the Companies shall be released from all liability at Closing;
(b) soldchanged any material accounting principles, leased, assigned, distributed, licensed, sublicensed, transferred methods or otherwise encumbered a portion of its assets or properties practices (tangible or intangibleexcept to the extent required by GAAP), except for sales of inventory or services the manner in the ordinary course of business to unaffiliated third Persons on an arm’s length basiswhich it keeps its books and records, or canceled without fair consideration any material debts its practices with regard to the booking of sales, receivables, payables or claims owing to accrued expenses or held by it; materially altered its payment or collection practices;
(c) entered into(i) granted any severance, amended continuation or terminated termination pay to any material Contract or License or materially changed any business practiceBusiness Employee; (dii) madeentered into any employment, granted or promised any bonusconsulting, severance, retention deferred compensation or other incentive amount similar agreement (or any wageamendment to any such existing agreement) with any Business Employee; (iii) increased, salaryamended, compensation or benefit increase changed compensation, bonus or other benefits payable or potentially payable to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any PlanBusiness Employee, other than that as may be required by Law; (iv) adopted any new, or changed the terms of, any existing bonus, pension, insurance, health or other benefit plan in which any Business Employee participates; or (v) represented to any Business Employee or former Business Employee that the Parent or its Subsidiaries, the Purchaser or any other Person would continue to maintain or implement any benefit or would continue to employ such employee after the Closing Date;
(d) suffered any damage, destruction or loss (whether or not covered by insurance) to any of its material properties or material assets in an aggregate amount in excess of $250,000 or disposed of any material assets other than inventory in the Ordinary Course of Business;
(e) Agreed to any material reduction in discounts received from suppliers;
(f) made any declaration, setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption or other acquisition of, any of the Interests or other equity interests of the Companies;
(g) purchased, leased or otherwise acquired (whether by merger, consolidation or other business combination, purchase of securities, purchase of assets or otherwise) any material portion of the business or assets of any other Person;
(h) made, changed or revoked any material Tax election, elected or changed any material method of accounting for Tax purposes, settled any Legal Proceeding in respect of a material amount of Taxes or entered into any transaction Contract in respect of Taxes with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices Governmental Body, in each case other than in the ordinary course Ordinary Course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; Business;
(i) offered any discounts on except in the Ordinary Course of Business, written up or down any of its products material properties or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; assets;
(j) changed cancelled, waived or compromised any Debt owing to, or right or claim held by, the Companies having a value of more than $50,000 (individually) or an aggregate value in excess of $250,000;
(k) sold, assigned, transferred or granted any rights to any material respect Intellectual Property, entered into any settlement regarding the breach or infringement of the terms and conditions with respect any material Intellectual Property, or taken any action (or, to the pricing Seller’s Knowledge, failed to take any action) that has resulted in, or would reasonably be likely to result in, the loss, lapse, abandonment, invalidity or enforceability of any of its products or services material Intellectual Property; or
(including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (kl) committed or agreed to do any of the foregoingforegoing (to the extent any such commitment or agreement remains effective on the date of this Agreement).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (BBQ Holdings, Inc.)
Absence of Certain Developments. Since December 31, 2017 2014, Sellers have operated and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither conducted the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services only in the ordinary course of business in all material respects and have not experienced or suffered any Material Adverse Effect. Without limiting the foregoing, except as set forth on Schedule 4.6, each Seller has not with respect to unaffiliated third Persons on an arm’s length basisitself, the Business, the Purchased Assets, and the Assumed Liabilities:
(i) other than in the ordinary course of business, paid trade or account payables or delayed or postponed the payment of any trade or accounts payable or commissions or any other liability or litigation, or (ii) other than in the ordinary course of business, agreed or negotiated with any party to extend the payment date of any trade or accounts payable or commission or any other liability or obligation, or (iii) accelerated the collection of (or discounted) any accounts or notes receivable (whether billed or unbilled) or any deferred revenue or taken any actions or omitted to take any actions with the intent or purpose of satisfying the Target Working Capital as of the Closing;
(b) instituted or permitted any material change in the conduct of the Business, or any material change in its method of purchase, sale, lease, management, marketing, promotion or operation;
(c) sold, leased, assigned or transferred any of its tangible assets (including the Purchased Assets), except in the ordinary course of business, or canceled without fair consideration any material debts or claims owing to or held by it; ;
(cd) entered intosold, assigned, licensed, sublicensed, transferred or encumbered any Intellectual Property Rights or other intangible assets other than in the ordinary course of business, disclosed any proprietary confidential information to any Person (other than Buyers and Buyers’ representatives, agents, attorneys and accountants, and other than Persons that have signed or are bound by confidentiality or nondisclosure agreements for the benefit of Sellers), or abandoned or permitted to lapse any Intellectual Property Rights;
(e) made or granted any bonus or any wage or salary increase to any employee (except as required by any Employee Plan or, in the case of non-officer employees, consistent with past practice), or made or granted any material increase in any employee benefit plan or arrangement, or amended or terminated any Employee Plan or adopted any Employee Plan;
(f) incurred any Indebtedness or incurred or become subject to any material Contract Liability, except current Liabilities incurred in the ordinary course of business and Liabilities under contracts entered into in the ordinary course of business;
(g) suffered any extraordinary Losses or License waived any rights of material value, in each case in excess of $100,000, whether or not in the ordinary course of business;
(h) suffered any damage, destruction or casualty loss to its tangible assets (including the Purchased Assets) in excess of $100,000, whether or not covered by insurance;
(i) made any capital expenditures or commitments therefore that aggregate in excess of $100,000;
(j) made any material change in any method of accounting or accounting policies, other than those required by GAAP which have been disclosed in writing to Buyers;
(k) entered into any other material transaction, other than in the ordinary course of business, or materially changed any business practice; or
(dl) madeauthorized any of, granted or promised committed or agreed to take any bonusof, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Planthe foregoing actions, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingexpressly contemplated hereby.
Appears in 1 contract
Samples: Asset Purchase Agreement
Absence of Certain Developments. Since December 31Except as set forth on Section 5H of the Disclosure Schedule or expressly contemplated by this Agreement, 2017 since the date of the Latest Balance Sheet, (i) neither the Company nor any Subsidiary has suffered an event which would have a Material Adverse Effect, (ii) the businesses of the Company and the Subsidiaries have been operated only in the Ordinary Course of Business, (iii) there has not been any material loss of, or material reduction in the amount of business done with, or any threat or such material loss or reduction by, any key customer of the Company or any Subsidiary, or any material loss or threatened loss of any source of supply for goods or services to the Company or any Subsidiary that is material to its business and (iv) neither the Company nor any Subsidiary has taken any of the following actions:
(a) amended its certificate of incorporation or by-laws;
(b) (w) split, combined or reclassified any of its respective capital stock, (x) declared, set aside or paid any dividend or other than as a result of and/or distribution payable in cash, stock or property with respect to the transactions contemplated hereby and/or previously disclosed its capital stock, (y) issued or sold any additional shares of, or securities convertible into or exchangeable for, or options, warrants, calls, commitments or rights of any kind to the Purchaser in writing including in Financial Statements made available to Purchaseracquire, neither the Business nor shares of its capital stock, or (z) redeemed, purchased or otherwise acquired directly or indirectly any Purchased Assets has: capital stock;
(ac) suffered a Material Adverse Effect or suffered any material theft(x) acquired, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensedleased or disposed of any property, transferred or otherwise encumbered a portion including real property and Intellectual Property (except in the Ordinary Course of its assets or properties (tangible or intangibleBusiness), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (fy) entered into any commitment or transaction with any Insider (which individually or in the aggregate would be material to the Company or any Affiliate of the Subsidiaries;
(d) (w) incurred or assumed any Insider); Indebtedness in excess of $500,000 in the aggregate, (x) made any material loans, advances or capital contributions to, or investments in, any other Person, (y) pledged or otherwise encumbered shares of capital stock, or (z) mortgaged or pledged any of its material assets, or create any Liens with respect thereto;
(e) (x) acquired (by merger, consolidation, acquisition of stock or assets, or otherwise) any Person or division thereof or any equity interest therein, (y) entered into any contract or agreement which would be material to the Company and the Subsidiaries, or (z) authorized any new capital expenditure or expenditures which, in the aggregate, are in excess of $500,000;
(f) changed any of the accounting methods used unless required by GAAP;
(g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted adopted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed amended in any material respect any collective bargaining agreement;
(h) filed any amended Tax Return, surrendered any right to claim a refund of Taxes or take any similar action, or omitted to take any action relating to the filing of any Tax Return or the payment of any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent, or other action or omission would have the effect of increasing the present or future tax liability or decreasing any present or future Tax asset of the terms and conditions with respect Company, Purchaser or any Affiliate of Purchaser; or
(i) authorized or entered into an agreement, whether in writing or otherwise, to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to do any of the foregoingactions prohibited above.
Appears in 1 contract
Absence of Certain Developments. Since the Balance Sheet Date (and, with respect to clauses (a), (e), (f) and (p), December 31, 2017 and other than as 2003):
(a) there has not been any Seller Material Adverse Change nor has there occurred any event which is reasonably likely to result in a result of and/or Seller Material Adverse Change;
(b) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the transactions contemplated hereby and/or previously disclosed property and assets of the Company;
(c) no Seller has made any change in the rate of compensation, 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, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any director, officer, employee, distributor or agent of the Purchaser in writing including in Financial Statements made available to PurchaserCompany, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services other than increases in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, consistent with past practice in the base salaries of employees of the Company other than officers or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; senior managers;
(d) madeno Seller has entered into any employment, granted deferred compensation, severance or promised similar agreement (nor amended any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; such agreement);
(e) adoptedthere has not been any change by any Seller in accounting or Tax reporting principles, entered into, amended methods or terminated any Plan, other than as required by Law; policies;
(f) entered into any transaction no Seller has conducted its business other than in the ordinary course consistent with any Insider (or any Affiliate of any Insider); past practice;
(g) conducted its cash management customs and practices no Seller has entered into (1) any Material Contract that is not an Included Contract or (2) any other material transaction;
(h) no Seller has hired employees or engaged independent contractors to provide services for clients of Sellers other than in the ordinary course of business consistent with, and at a level consistent with, past practice;
(including i) no Seller has materially breached any Included Contract or materially amended any Included Contract;
(j) no Seller has failed to promptly pay and discharge current Liabilities except where disputed in good faith in an appropriate manner;
(k) no Seller has made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of such Seller other than intercompany transactions in the ordinary course of business consistent with past practice;
(l) no Seller has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of such Seller except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business consistent with past practice;
(m) no Seller has discharged or satisfied any Lien, or paid any obligation or Liability, except in the ordinary course of business consistent with past practice and which, in the aggregate with respect to maintenance all Sellers, would not be material to the Company;
(n) no Seller has canceled or compromised any debt or claim or amended, canceled, terminated, relinquished, waived or released any Contract or right except in the ordinary course of working capital balancesbusiness consistent with past practice and which, maintenance of inventory levelsin the aggregate with respect to all Sellers, collection of accounts receivable and payment of accounts payable); would not be material to the Company;
(ho) failed no Seller has made or committed to make any material capital expenditures that were previously budgeted or scheduled capital additions or improvements in excess of $25,000 individually or $50,000 in the aggregate with respect to be made; all Sellers;
(ip) offered no Seller has entered into any discounts on prepaid services transactions with any of its products customers or otherwise accelerated revenue recognition or the sales of its services or for periods prior to any promotions, rebates, coupons or special offers with respect to Closing hereunder;
(q) no Seller has amended any of its products Organizational Documents;
(r) no Seller has issues any shares of its capital stock or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any security exercisable or exchangeable for or convertible into shares of the terms and conditions with respect to the pricing capital stock of any of its products or services Seller; and
(including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or servicess) that differ from the terms and conditions previously offered by no Seller with respect to the Business; and/or (k) committed or has agreed to any of the foregoingdo anything set forth in this Section 3.8.
Appears in 1 contract
Absence of Certain Developments. Since December 31the Balance Sheet Date, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser Company has not in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: each case:
(a) borrowed any amount or incurred or become subject to any Liability except (i) current Liabilities incurred in the Ordinary Course of Business and (ii) Liabilities under contracts entered into in the Ordinary Course of Business;
(b) mortgaged, pledged or subjected to any Lien, on any of its assets except: (i) Liens for current property taxes not yet due and payable, (ii) Liens in respect of pledges or deposits under workers’ compensation laws, or (iii) Liens set forth in Schedule 4.8(b);
(c) discharged or satisfied any Lien or paid any Liability other than current Liabilities paid in the Ordinary Course of Business;
(d) sold, leased, assigned or transferred (including, without limitation, transfers to any employees, affiliates or shareholders) any assets or canceled any debts or claims, in each case, other than for a fair consideration in the Ordinary Course of Business;
(e) sold, leased, licensed, sublicensed, assigned or transferred (including, without limitation, transfers to any employees, affiliates or shareholders) any Intellectual Property;
(f) disclosed, to any Person other than Buyer and authorized representatives of Buyer and Sellers, any proprietary Confidential Information of the Business or otherwise related to the Company’s assets, other than pursuant to a confidentiality agreement prohibiting the use or further disclosure of such information, which agreement is identified in Schedule 4.8(f) and is in full force and effect on the date hereof;
(g) waived any rights of material value or suffered a Material Adverse Effect any extraordinary losses or adverse changes in collection loss experience, whether or not in the Ordinary Course of Business or consistent with past practice;
(h) taken any other action or entered into any other transaction other than in the Ordinary Course of Business and in accordance with past custom and practice, or, entered into any transaction with any Insider or Affiliate;
(i) suffered any material theft, damage, destruction or casualty loss that is of or to any property or properties owned or used by it in connection with the Business, whether or not covered by insurance; , in excess of $100,000;
(bj) sold, leased, assigned, distributed, licensed, sublicensed, transferred made or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration granted any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount bonus or any wage, salary, salary or compensation or benefit increase to any current officer or, except in the Ordinary Course of Business, to any employee, or former directorconsultant or made any commitment or incurred any Liability to any labor organization;
(k) made any single capital expenditure or commitment therefor (or series of related capital expenditures) either in excess of $100,000 or outside the Ordinary Course of Business;
(l) made any loans or advances to, officeror guarantees for the benefit of, employee or sales representativeany Person, group of employees, individual service provider or consultant; except for travel expenses to employees up to $10,000 per Person;
(e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (fm) entered into any transaction with any Insider agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) either involving more than $100,000 or outside the Ordinary Course of Business;
(n) accelerated, terminated, modified, or cancelled any Affiliate agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses), and to the Sellers’ Knowledge, no other party has done any of the foregoing, involving more than $100,000 to which the Company is a party or by which the Company is bound;
(o) made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans, and acquisitions) either involving more than $100,000 or outside the Ordinary Course of Business;
(p) delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business;
(q) cancelled, compromised, waived, or released any right or claim (or series of related rights and claims) either involving more than $100,000 or outside the Ordinary Course of Business;
(r) made or authorized any change in the articles of incorporation or bylaws of the Company;
(s) issued, sold, or otherwise disposed of any Insider); (g) conducted of its cash management customs and practices capital stock, or granted any options, warrants, or other than in the ordinary course of business rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(t) declared, set aside, or paid any dividend or made any distribution with respect to maintenance of working its capital balancesstock (whether in cash or in kind) or redeemed, maintenance of inventory levelspurchased, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on otherwise acquired any of its products capital stock;
(u) entered into or services terminated any employment contract or collective bargaining agreement, written or oral, or modified the terms of any promotionsexisting such contract or agreement, rebatesentered into any collective bargaining relationship, coupons or special offers made any other change in employment terms for any of its directors or officers;
(v) adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan);
(w) implemented any employee layoffs that could implicate the Worker Adjustment and Retraining Notification Act of its products 1988, as amended, or services with terms and conditions that differ materially from any similar state, local, or non-U.S. law, regulation, or ordinance (collectively the terms and conditions previously offered by Seller with respect “WARN Act”);
(x) made or pledged to make any charitable or other capital contribution outside the Ordinary Course of Business; or
(jy) changed in any material respect committed to do any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingforgoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as set forth on Schedule 4.8 attached hereto (the “Developments Schedule”) and except as expressly contemplated by this Agreement, 2017 and other than as a result since the date of and/or with respect to the transactions contemplated hereby and/or previously disclosed to Latest Balance Sheet, the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Company has not:
(a) suffered a Material Adverse Effect material adverse change in the business or suffered any financial condition or operating results or earnings or assets or customer, supplier, employee and sales representative relations, taken in the aggregate, or business condition or financing arrangements of the Company and there has been no material theft, damage, destruction or casualty loss that is or damage to the assets of the Company (whether or not covered by insurance; );
(b) soldredeemed or repurchased, leaseddirectly or indirectly, assignedany shares of capital stock or declared, distributed, licensed, sublicensed, transferred set aside or otherwise encumbered a portion paid any dividends or made any other distributions with respect to any shares of its assets capital stock;
(c) issued, sold or properties transferred any notes, bonds or other debt securities or any equity securities, securities convertible, exchangeable or exercisable into equity securities, or warrants, options or other rights to acquire equity securities, of the Company;
(tangible d) borrowed any amount or intangible)incurred or become subject to any liabilities, except for sales of inventory or services trade payables incurred in the ordinary course of business to unaffiliated third Persons on an arm’s length basisconsistent with past practice;
(e) discharged or satisfied any lien or encumbrance or paid any obligation or liability, or canceled prepaid any amount of indebtedness for borrowed money, other than those discharged, satisfied, paid or prepaid in the ordinary course of business;
(f) mortgaged, pledged or subjected to any Lien any portion of its properties or assets;
(g) sold, leased, assigned or transferred (including transfers to Seller or any employees or affiliates of the Company) a portion of its tangible assets, except sales of inventory in the ordinary course of business consistent with past practice, or cancelled without fair consideration any material debts or claims owing to or held by it; ;
(ch) sold, assigned, licensed or transferred (including without limitation transfers to Seller or any employees or affiliates of the Company) any Proprietary Rights (as defined in Section 4.14) or disclosed any confidential information other than pursuant to agreements preserving all rights of the Company in such confidential information or, to the Company’s knowledge, received any written confidential information of any third party in violation of any obligation of confidentiality;
(i) suffered any extraordinary losses or waived in writing any rights of significant value, whether or not in the ordinary course of business or consistent with past custom and practice;
(j) suffered any theft, damage, destruction or casualty loss in excess of $10,000 per incident and $40,000 in the aggregate, to its tangible assets, whether or not covered by insurance or suffered any substantial destruction of the Company’s books and records;
(k) entered into, amended or terminated any material Contract lease, contract, agreement or License commitment, whether oral or materially changed written (any “Contract”), or taken any other action or entered into any other transaction other than in the ordinary course of business and in accordance with past custom and practice; , or entered into any transaction with any insider (das defined in Section 4.22);
(l) made, made or granted or promised any bonus, severance, retention or other incentive amount bonus or any wage, salary, salary or compensation or benefit increase to any current or former director, officer, employee or sales representativeconsultant or made or granted any increase in any employee benefit plan or arrangement, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Planexisting employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement, other than as required by Law; except in the ordinary course of business, consistent with past practices;
(f) entered into any transaction with any Insider (or any Affiliate of any Insider); (gm) conducted its cash management customs and practices other than in the usual and ordinary course of business in accordance with past custom and practice;
(including with respect to maintenance of working n) made any capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material expenditures or commitments for capital expenditures that were previously budgeted aggregate in excess of $40,000;
(o) made any loans or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary advances to, or otherwise affectguarantees for the benefit of, any persons, except for advances made to employees not in excess of $15,000 in the aggregate price paid for aggregate;
(p) made any charitable contributions, pledges, association fees or dues;
(q) entered into any lease of capital equipment or real estate involving rental in excess of $15,000 per annum; or
(r) changed or authorized any change in its products articles of incorporation or services) that differ from the terms and conditions previously offered by-laws, except as expressly required by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingSection 2.1(l).
Appears in 1 contract
Samples: Purchase Agreement (Nutraceutical International Corp)
Absence of Certain Developments. Except, in each case, as contemplated by this Agreement or as set forth on Schedule 5.8:
(a) Since December 31the Balance Sheet Date, 2017 there has not been any event, change, occurrence or circumstance that has had, and other than as no state of facts or circumstances exists or has occurred that would have, a result Material Adverse Effect;
(b) Without limiting the generality of and/or Section 5.8(a), since the Balance Sheet Date, each Seller and Company has conducted the Business in the Ordinary Course, and except for actions taken in the Ordinary Course, no Company or Seller has taken any of the following actions with respect to the transactions contemplated hereby and/or previously disclosed Business:
(i) (A) increased or modified the compensation or benefits payable or to become payable to any current or former directors, employees, consultants or contractors of the Purchaser in writing including in Financial Statements Business, (B) increased or modified any Benefit Plan made available to Purchaserto, neither for or with any current or former directors, employees, consultants or contractors of the Business nor Business, or (C) entered into any Purchased Assets has: employment, severance or termination agreement;
(a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (bii) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion assigned any material property or assets;
(iii) incurred, assumed or guaranteed any material Indebtedness;
(iv) mortgaged, pledged or subjected to Liens any assets, properties or rights of its assets or properties (tangible or intangible)the Business, except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; Permitted Exceptions;
(cv) entered into, amended amended, modified, canceled or terminated waived any material rights under any Material Contract or License become aware of or permitted the termination or cancellation of any Material Contract;
(vi) engaged in or become aware of any material violation of, or conflict with, any applicable Law;
(vii) engaged in or become aware of any damage, destruction or loss with respect to any material assets, properties or rights of the Business, whether or not covered by insurance;
(viii) made any material change in accounting practices;
(ix) made any material Tax election, changed its method of Tax accounting or settled any material claim for Taxes except to the extent such election, change or settlement (i) relates to the Consolidated Tax Returns of or which include any of the Companies and Parent or any Affiliate of Parent, and (ii) does not materially create or increase any Taxes of a Company for a Post-Closing Tax Period or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount affect a net operating loss or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group other Tax attribute of employees, individual service provider or consultanta Company; and
(e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (fx) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect Contract to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since Except as set forth on Section 6.7 of the Company Disclosure Schedules, as otherwise contemplated by this Agreement, and other than in each case in the Ordinary Course of Business consistent with past practices, since December 31, 2017 2022, the Company has not:
(a) made any material change in the Company’s cash management practices and other than as a result of and/or its policies, practices and procedures with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchasercollection of accounts receivable, neither the Business nor any Purchased Assets has: establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits;
(ab) suffered a Material Adverse Effect or suffered paid any material theft, damage, destruction obligation or casualty loss that is not covered by insurance; liability (bother than in the Ordinary Course of Business);
(c) sold, leased, assigned, distributed, licensed, sublicensed, assigned or transferred or otherwise encumbered a portion any of its assets or properties (tangible or intangible)assets, except for sales of inventory or services in the ordinary course Ordinary Course of business to unaffiliated third Persons on an arm’s length basisBusiness, or canceled without fair consideration any material debts or claims owing to or held by it; ;
(cd) sold, assigned, licensed, sublicensed, transferred or encumbered any Proprietary Rights or other intangible assets, or abandoned or permitted to lapse any of the Proprietary Rights that are material to the business of the Company;
(e) made or granted any bonus or any wage or salary increase to any employee or group of employees (except as required by pre-existing contracts or, in the case of non-officer employees, consistent with past practice), or made or granted any increase in any employee benefit plan or arrangement, or amended or terminated any existing employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement;
(f) incurred any indebtedness or incurred or become subject to any material liability, except current liabilities incurred in the Ordinary Course of Business and liabilities under contracts entered into in the Ordinary Course of Business;
(g) suffered any extraordinary Losses or waived any rights of material value, whether or not in the Ordinary Course of Business;
(h) suffered any damage, destruction or casualty loss, whether or not covered by insurance, to its property in excess of $10,000;
(i) made any material capital expenditures;
(j) made any material change in any method of accounting or accounting policies, other than those required by GAAP or disclosed in the notes to the Company P&L or the Company Balance Sheet;
(k) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(l) entered into, materially amended or terminated any material Material Contract or License any government license or permit or taken any other action or entered into any other transaction other than in the Ordinary Course of Business;
(m) imposed any Encumbrance upon any of the Company’s properties, securities or assets, tangible or intangible;
(n) adopted any plan of merger, consolidation, reorganization, liquidation or dissolution or filed a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consented to the filing of any bankruptcy petition against it under any similar Law;
(o) purchased, leased or acquired the right to own, use or lease any property or assets for an amount in excess of $20,000, individually (in the case of a Lease, per annum) or $50,000 in the aggregate (in the case of a Lease, for the entire term of the Lease, not including any option term), except for purchases of inventory or supplies in the Ordinary Course of Business consistent with past practice;
(p) acquired by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business, any Person, or any division thereof;
(q) made, changed or rescinded any Tax election made by the Company, amended any tax return of the Company or took any position on any tax return of the Company, took any action, omitted to take any action or entered into any other transaction that would have the effect of increasing the Tax liability required to be paid by the Company other than as contemplated in this Agreement or as required by Law; or
(r) entered into any other material transaction, other than in the Ordinary Course of Business, or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since Except as set forth on the ------------------------------- "Developments Schedule" attached hereto and except as expressly contemplated by --------------------- this Agreement, since December 31, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser1997, neither the Business Company nor any Purchased Assets of its Subsidiaries has: :
(a) suffered any change that has had or could reasonably be expected to have a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is in excess of $100,000, to its assets, whether or not covered by insurance; insurance or suffered any substantial destruction of its books and records;
(b) redeemed or repurchased, directly or indirectly, any shares of capital stock or other equity security or declared, set aside or paid any dividends or made any other distributions (whether in cash or in kind) with respect to any shares of its capital stock or other equity security;
(c) issued, sold or transferred any equity securities, any securities convertible, exchangeable or exercisable into shares of its capital stock or other equity securities, or warrants, options or other rights to acquire shares of its capital stock or other equity securities;
(d) incurred or become subject to any liabilities, except liabilities disclosed in the Schedules to this Agreement or incurred in the Ordinary Course of Business;
(e) subjected any portion of its properties or assets to any Lien;
(f) sold, leased, assignedassigned or transferred (including, distributedwithout limitation, licensed, sublicensed, transferred transfers to any Seller or otherwise encumbered any Insider) a portion of its assets or properties (tangible or intangible)assets, except for sales of inventory or services and used equipment in the ordinary course Ordinary Course of business to unaffiliated third Persons on an arm’s length basisBusiness, or canceled without fair consideration any material debts or claims owing to or held by it; ;
(cg) sold, assigned, licensed or transferred (including, without limitation, transfers to any Seller or any Insider) any Proprietary Rights owned by, issued to or licensed to the Company or any of its Subsidiaries or disclosed any confidential information (other than pursuant to agreements requiring the disclosure to maintain the confidentiality of and preserving all rights of the Company and its Subsidiaries in such confidential information) or received any confidential information of any third party in violation of any obligation of confidentiality;
(h) suffered any extraordinary losses or waived any rights of material value outside the Ordinary Course of Business;
(i) incurred any indebtedness for borrowed money (other than indebtedness to finance its working capital and capital expenditure needs);
(j) entered into, amended or terminated any material Contract lease, contract, agreement or License commitment other than in the Ordinary Course of Business, or taken any other action or entered into any other transaction other than in the Ordinary Course of Business;
(k) entered into any other material transaction, or materially changed any business practice; ;
(dl) made, made or granted or promised any bonus, severance, retention or other incentive amount bonus (except for bonuses paid to employees and sales representatives in the Ordinary Course of Business and reflected on the Financial Statements) or any wage, salary, salary or compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employeesemployees or consultant or made or granted any increase in any employee benefit plan or arrangement, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Planexisting employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement;
(m) made any other change in employment terms for any of its directors, other than as required by Law; officers, and employees outside the Ordinary Course of Business;
(fn) entered into any transaction with any Insider (incurred intercompany charges or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course Ordinary Course of business Business (including including, without limitation, with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable receivable, purchases of inventory and supplies, repairs and maintenance, and payment of accounts payablepayable and accrued expenses); ;
(ho) failed to make made any material capital expenditures that were previously budgeted loans or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary advances to, or otherwise affectguarantees for the benefit of, any Persons other than in the aggregate price paid for Ordinary Course of Business;
(p) changed (or authorized any change) in its articles of its products incorporation or servicesby-laws; or
(q) that differ from the terms and conditions previously offered by Seller with respect agreed or committed to the Business; and/or (k) committed or agreed to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December 31Except as set forth on the attached Developments Schedule and except as expressly contemplated by this Agreement, 2017 and since the date of the Audited Balance Sheet Date , the Company has not:
(a) amended or modified its certificate of incorporation or by-laws (or equivalent governing documents), other than as a result of and/or amendments to increase authorized capital;
(b) except for such dividends or other distributions that will be paid in cash prior to or in connection with the Closing, declared, set aside or paid any dividend or other distribution with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion shares of its assets Capital Stock, or properties repurchased, redeemed or other acquired any outstanding shares of Capital Stock or other securities of, or other ownership interests in, the Company;
(tangible c) split, combined, reclassified any Capital Stock of the Company or intangible)amended any term of any outstanding security of the Company;
(d) incurred, except for sales of inventory assumed or services guaranteed any Indebtedness other than (i) Indebtedness that will be paid or converted to Capital Stock prior to or in connection with the Closing and (ii) Indebtedness incurred in the ordinary course of business to unaffiliated third Persons and in amounts and on an arm’s length basis, or canceled without fair consideration any material debts or claims owing terms consistent with past practices that will be paid prior to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; in connection with the Closing;
(e) adoptedchanged any method of accounting, entered intomethod of tax accounting or accounting practice, amended except for any such change that is consistent with GAAP or terminated any Plan, other than as required by Law; reason of a concurrent change in GAAP;
(f) subjected any properties or assets or Company Patents to any Lien, except for Permitted Liens;
(g) sold, assigned, transferred or licensed any Company Patent or material assets;
(h) issued, sold or transferred any of its capital stock or other equity securities, securities convertible into its capital stock or other equity securities or warrants, options or other rights to acquire its capital stock or other equity securities, or any bonds or debt securities (other than issuances, sales and transfers that will be reflected in the statement to be delivered pursuant to Section 1.06(e);
(i) made any material capital investment in, or any loan to, any other Person;
(j) made any material changes to its employee benefit plans or employment agreements, adopted any new employee benefits plans or entered into any transaction with new employment agreements;
(k) made any Insider material Tax election (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (hbusiness) failed to make or settled any material Tax liability;
(l) made any asset acquisition or capital expenditures that were previously budgeted expenditure in excess of $50,000 individually or scheduled to be made$100,000 in the aggregate; or
(i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (km) committed or agreed to do any of the foregoing.
Appears in 1 contract
Absence of Certain Developments. Since December Except as set forth on the attached Developments Schedule and except as expressly contemplated by this Agreement, since May 31, 2017 and other than as a result of and/or with respect to 2005, the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Company has not:
(a) suffered any change that has had or the Company reasonably expects to have, individually or in the aggregate, a Material Adverse Effect or suffered any material theft, damage, destruction destruction, or casualty loss that is not covered by insurance; ;
(b) mortgaged, pledged or subjected any portion of its properties or assets to any material Lien (other than Permitted Liens);
(c) sold, leased, assigned, distributedor transferred (including, licensedwithout limitation, sublicensed, transferred transfers to any Stockholder or otherwise encumbered any Insider) a portion of its assets or properties (their tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basisassets, or canceled without fair consideration any material debts or claims owing to or held by it; them;
(cd) sold, assigned, licensed, or transferred (including, without limitation, transfers to any Stockholder or any Insider) any material Proprietary Rights owned by, issued to, or licensed to the Company or disclosed any material confidential information (other than pursuant to agreements requiring the disclosure to maintain the confidentiality of and preserving all rights of the Company in such confidential information) or received any material confidential information of any third party in violation of any obligation of confidentiality;
(e) suffered any extraordinary losses or waived any rights of material value;
(f) suffered any material theft, damage, destruction or casualty loss to its tangible assets, whether or not covered by insurance, or suffered any substantial destruction of the books and records of the Company;
(g) entered into, amended amended, or terminated any material Contract lease, contract, agreement, or License commitment, or entered into any other material transaction other than in the Ordinary Course of Business;
(h) engaged in any promotional sales or discount or other activity with customers that has or the Company reasonably expects to have the effect of materially accelerating to pre-Closing periods sales that would otherwise be expected to occur in post-Closing periods;
(i) entered into any other material transaction, or materially changed any business practice; ;
(dj) madeexcept in the Ordinary Course of Business, granted paid or promised increased any bonusbonuses, severancesalaries, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former stockholder, director, officer, or employee or sales representativeentered into any employment, group of employeesseverance, individual service provider change in control, or consultant; similar contract or agreement with any director, officer, or employee;
(ek) adopted, entered intoor materially increased the payments to or benefits under, amended any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or terminated any Plan, other than as required by Law; (f) entered into any transaction employee benefit plan for or with any Insider employees of the Company;
(or any Affiliate of any Insider); (gl) conducted its their cash management customs and practices other than in the ordinary course Ordinary Course of business Business (including including, without limitation, with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable receivable, purchases of supplies, repairs and maintenance, payment of accounts payablepayable and accrued expenses, levels of capital expenditures and operation of cash management practices generally);
(m) made any capital expenditures or commitments for capital expenditures (other than the capital expenditure made pursuant to and in accordance with the Spiral Freezer and Mixer Purchase Agreement) except in the Ordinary Course of Business;
(n) issued, sold or transferred any notes, bonds or other debt securities, any shares of Capital Stock or other equity securities, any securities convertible, exchangeable or exercisable into shares of Capital Stock or other equity securities, or any warrants, options or other rights to acquire shares of Capital Stock or other equity securities or granted any stock appreciation, phantom stock or other similar rights;
(o) borrowed any amount or incurred or become subject to any material liabilities, except current liabilities incurred in the Ordinary Course of Business;
(p) discharged or satisfied any material Lien or paid any material obligation or liability, other than current liabilities paid in the Ordinary Course of Business, or prepaid any amount of Indebtedness;
(q) made any loans or advances to, or guarantees for the benefit of, any Persons, except for advances to employees in the Ordinary Course of Business;
(r) changed or authorized any change in its articles of incorporation or by-laws (or equivalent governing document), or
(s) declared, paid, made, or otherwise effectuated any dividends or distributions, redemptions, equity repurchases, or other transactions involving the Company's Capital Stock or equity securities or rights to control the same;
(t) made a material change in its accounting methods; or
(hu) failed made or committed to make any material capital expenditures that were previously budgeted payments or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed other transfers in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary toconnection with, or otherwise affectin contemplation of, the aggregate price paid for any of its products transactions contemplated by this Agreement or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingother Transaction Documents.
Appears in 1 contract
Samples: Asset Purchase Agreement (Otis Spunkmeyer Holdings Inc)
Absence of Certain Developments. Since December 31Except as set forth on Sellers' Disclosure Schedule and except as expressly contemplated by this Agreement, 2017 and since February 24, 2014, the Company has not:
(a) (i) accelerated the billing of customers of the Company or otherwise billed any customers of the Companies other than as in the Ordinary Course of Business, (ii) paid any trade or accounts payable or any other obligation or liability, other than in the Ordinary Course of Business, (iii) canceled or postponed the payment of trade or accounts payable or other obligations other than in the Ordinary Course of Business, (iv) agreed or negotiated with any party to extend the payment date of any liability or obligation, (v) accelerated the collection of (or discounted) any accounts or notes receivable (whether billed or unbilled) or any deferred revenue, or
(b) amended its Governing Documents;
(c) adopted a result plan or agreement of and/or liquidation, dissolution, restructuring, merger, consolidation, recapitalization or other reorganization;
(d) (i) issued, sold, transferred, pledged, disposed of or suffered any Lien on any of its Equity Interests (or any securities or rights convertible, exchangeable or exercisable into its Equity Interests), (ii) granted any options, warrants or other rights to purchase or obtain any of its Equity Interests, (iii) split, combined, subdivided or reclassified any of its Equity Interests, (iv) declared, set aside or paid any distribution, other than any distribution payable in cash, with respect to the transactions contemplated hereby and/or previously disclosed any of its Equity Interests or (v) redeemed, purchased or otherwise acquired any of its Equity Interests;
(e) delayed tendering payment or delayed cutting any checks;
(f) mortgaged, pledged or subjected to the Purchaser in writing including in Financial Statements made available to Purchaserany Lien any of its properties or assets, neither the Business nor or discharged any Purchased Assets has: Lien;
(a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (bg) sold, leased, assigned, distributed, licensed, sublicensed, assigned or transferred or otherwise encumbered a portion any of its assets or properties (tangible or intangible)Tangible Assets, except for sales of inventory or services in the ordinary course Ordinary Course of business to unaffiliated third Persons on an arm’s length basisBusiness, or canceled without fair consideration any material debts or claims owing to or held by it; ;
(ch) sold, assigned, licensed, sublicensed, transferred or encumbered any Proprietary Rights or other intangible assets, disclosed any proprietary Confidential Information to any Person (other than Buyer and Buyer’s representatives, agents, attorneys or employees).
(i) made or granted any bonus or any wage or salary increase to any employee or group of employees (except as required by pre-existing contracts or, in the case of non-officer employees, consistent with past practice), or made or granted any increase in any employee benefit plan or arrangement, or amended or terminated any existing employee benefit plan or arrangement or adopted any new employee benefit plan or arrangement, or entered into, modified or terminated any collective bargaining agreement or relationship;
(j) incurred any Indebtedness or incurred or become subject to any material liability, except current liabilities incurred in the Ordinary Course of Business and liabilities under contracts entered into in the Ordinary Course of Business;
(k) made any loans or advances to, or guarantees for the benefit of, any Person;
(l) suffered any extraordinary Losses or expressly waived in writing any rights of material value, whether or not in the Ordinary Course of Business;
(m) suffered any damage, destruction or casualty loss to its Tangible Assets or properties in excess of $25,000, whether or not covered by insurance;
(n) made any capital expenditures or commitments therefor that aggregate in excess of $50,000;
(o) reduced or delayed any budgeted or planned capital expenditures;
(p) made any change in any method of accounting or accounting policies;
(q) engaged in any promotional sale, discount, price reduction or other activity that has or would reasonably be expected to have the effect of accelerating to pre-Closing periods revenues that otherwise would be expected to occur in post-Closing periods;
(r) instituted or permitted any material change in the conduct of the Business, or any change in its method of purchase, sale, lease, management, marketing, promotion or operation;
(s) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount contract or any wagelicense, salary, compensation or benefit increase to any current permit issued by any Governmental Authority;
(t) directly or former director, officer, employee indirectly engaged in any transaction or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Planarrangement with any of its officers, partners or other Affiliates;
(u) taken any other action or entered into any other transaction other than as required by Lawin the Ordinary Course of Business; or
(fv) entered into any transaction with any Insider (other material transaction, whether or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than not in the ordinary course Ordinary Course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for materially changed any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingbusiness practice.
Appears in 1 contract
Samples: Purchase and Sale Agreement (National Automation Services Inc)
Absence of Certain Developments. Since December 31, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: 2022:
(a) suffered a Material Adverse Effect Except as set forth in Section 3.8(a) of the Disclosure Schedule none of the Transferred Companies or suffered their Subsidiaries has sold, leased or disposed of, or subjected to any Lien (other than Permitted Liens), any of its tangible or intangible assets, other than sales, leases or dispositions that are immaterial to the Transferred Companies or their Subsidiaries, or canceled or released any material theftdebt or material claim held by it other than in the Ordinary Course of Business;
(b) none of the Transferred Companies or their Subsidiaries have (i) made any loan or advance to any Person, other than advances to employees for business expenses to be incurred in the Ordinary Course of Business or transactions with customers on credit in the Ordinary Course of Business, (ii) applied for, assented or attest to (or permitted a deemed assent or attestation by failure to act) or accepted any financial assistance under the CARES Act;
(c) there has been no theft of, or damage, destruction or casualty loss that is to, (i) any asset of any Transferred Company or its Subsidiaries necessary to the operation of its business, whether or not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration (ii) any material debts of the books and records of any Transferred Company or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; its Subsidiaries;
(d) none of the Transferred Companies or their Subsidiaries have (i) entered into any Material Contract, (ii) terminated any Contract that would be a Material Contract if in existence as of the date hereof, other than with respect to terminations or expirations of any such Contracts in accordance with their terms, or (iii) modified any Material Contract;
(e) none of the Transferred Companies or their Subsidiaries have made any material change in its accounting methods or policies (including in its cash management practices and its practices with respect to collection of accounts receivable, establishment of accruals and reserves (including for bad debt and deferred revenue), inventory control, prepayment of expenses and acceptance of customer deposits), unless such change was required by GAAP;
(f) none of the Transferred Companies or their Subsidiaries have made, granted or promised committed to make, capital expenditures for any bonusproperty outside of the Ordinary Course of Business or in excess of $100,000 in the aggregate;
(g) none of the Transferred Companies or their Subsidiaries have declared, severance, retention set aside or paid any cash or equity dividend or other incentive amount constructive or deemed distribution in respect of any of their equity securities, or otherwise made payment to any Seller or any of their respective Affiliates in such Person’s capacity as a Seller;
(h) except as required under any Plan or Contract, or to comply with applicable Law, none of the Transferred Companies or their Subsidiaries have made or granted any bonus or any wage, salary, compensation increase or benefit increase severance to any current or former director, officer, employee or sales representativeemployee, group of employees, individual service provider independent contractor or consultant; (e) adopted, entered into, or amended or terminated any existing Plan or arrangement, or adopted any new Plan; H:836720 23
(i) except as required under any Plan or Contract, or to comply with applicable Law, none of the Transferred Companies or their Subsidiaries have adopted, amended, modified, or terminated any employment agreement, independent contractor agreement, consulting agreement, staffing agreement or arrangement for the services of temporary employees, collective bargaining agreement or other agreement for the payment of any wages, incentive or severance;
(j) none of the Transferred Companies or their Subsidiaries have effectuated any reduction in force, early retirement program or other voluntary or involuntary employment termination program or otherwise implemented any employee layoff, in each case, not in compliance with the Worker Adjustment and Retraining Notification Act or any similar state, local or foreign Law;
(k) none of the Transferred Companies or their Subsidiaries have (i) accelerated or delayed the collection of notes or accounts receivable in advance of or beyond the dates when the same would have been collected in the Ordinary Course of Business or (ii) delayed or accelerated the payment of any account payable or other liability beyond or in advance of the dates when the same would have been paid in the Ordinary Course of Business;
(l) Except as set forth in Section 3.8(l) of the Disclosure Schedule, none of the Transferred Companies or their Subsidiaries have made any acquisition, by means of merger, recapitalization, consolidation or purchase of all or substantially all of the assets of a Person or other similar transaction, or any disposition of assets or securities of any other Person;
(m) there has been no Proceeding involving or relating to any Transferred Company or its Subsidiaries (or any of their businesses or assets), and there has been no loss, expiration or revocation of any Permit;
(n) none of the Transferred Companies has deferred any employee-side payroll Taxes under the CARES Act; and
(o) there has been no authorization, approval, agreement or commitment made by any Transferred Company or its Subsidiaries to do any of the foregoing other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than contemplated in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingthis Agreement.
Appears in 1 contract
Absence of Certain Developments. Since December 31the Balance Sheet Date, 2017 the Company has conducted its business in all material respects in the ordinary course of business consistent with past practice and other than as a result of and/or there has not been any Material Adverse Effect. Since such date, neither Seller nor the Company has, with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: Company:
(a) suffered a Material Adverse Effect or suffered made any material theftchange in any method of accounting or accounting practice, damagepolicy or procedure other than as required by a concurrent change in GAAP;
(b) amended the Company’s Governing Documents;
(c) (i) issued, destruction delivered, sold, pledged, transferred, conveyed, disposed of, encumbered, amended or casualty loss that is not covered by insurancemodified any participation or other membership interests, or any class of securities exercisable for, convertible into or exchangeable for participation or other membership interests; (bii) declared, set aside, made or paid any distribution or payments (whether in cash, stock or property or any combination thereof) in respect of any of participation or other membership interests or (iii) redeemed or otherwise acquired any participation or other membership interests or granted any Person any right or option to acquire any participation or other membership interests, except for cash distributions to Seller in an amount not to exceed $5,000,000 in the aggregate made prior to the end of the month reflected in the Latest Financial Statements delivered pursuant to Section 2.4(a);
(d) incurred any Liability required to be reflected on a balance sheet prepared in accordance with GAAP outside the ordinary course of business;
(e) incurred any Indebtedness;
(f) incurred any Liability not required to be reflected on a balance sheet prepared in accordance with GAAP;
(g) entered into a scheme of arrangement, merged or consolidated with any business or any corporation, partnership, limited liability company, association or other business organization or division thereof, acquired a material amount of assets from any Person outside the ordinary course of business or made any loans, advances or capital contributions to, or any investments in, any Persons;
(h) sold, leased, assigned, distributed, licensed, sublicensed, transferred licensed or otherwise encumbered a portion of its transferred any material assets or properties (tangible or intangible), except for sales of inventory securities, properties or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basisinterests, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business consistent with past practice;
(including i) entered into any material joint venture, partnership or other similar arrangement;
(j) adopted a plan of complete or partial liquidation, dissolution, merger, consolidation, recapitalization or other reorganization or taken any action for the appointment of a receiver, administrator, trustee or similar officer;
(k) instituted, compromised or settled any litigation for more than $20,000 in the aggregate or waived any claims or rights of value of greater than $20,000;
(l) modified, amended, terminated or permitted the lapse of, in any material manner, any lease of, operating agreement or other Contract relating to any real property material to the business of the Company;
(m) entered into, materially amended or terminated a Material Contract other than in order to comply with applicable Law;
(n) entered into any agreement containing any provision or covenant limiting in any respect the ability to (i) sell or buy any products or services to or from any other Person, (ii) engage in any line of business, or (iii) compete with any Person;
(o) permitted any material assets to become subjected to any Liens, other than Permitted Liens;
(p) (i) paid, announced, promised, granted, made or agreed to make, whether orally or in writing, any increase in or establishment of (as applicable) any wages, base pay, fees, incentive pay, bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, fringe benefit, option, participation or other membership interest purchase, Benefit Plan, or any other form of compensation (except as required by applicable Law or, with respect to maintenance base salary or wage rates payable to non-executive employees only, in the ordinary course of working business consistent with past practice), (ii) hired, engaged or terminated any employee, consultant, director or service provider (except for non-executive employees with aggregate annual compensation below $50,000 hired in the ordinary course of business consistent with past practice) or (iii) otherwise entered into, adopted, amended or terminated any Benefit Plan;
(q) authorized, or made any commitment with respect to, any capital balancesexpenditure;
(r) made a new Tax election or changed or revoked any Tax election; entered into a settlement or compromise of any claim, maintenance notice, audit report or assessment in respect of inventory levelsTaxes; made a change in any annual Tax accounting period or an adoption or change in any method of Tax accounting; filed any material amendment to a Tax Return; entered into any Tax allocation agreement, collection Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax; surrendered any right to claim a Tax refund; or consented to any extension or waiver of accounts receivable and payment the statute of accounts payable)limitations period applicable to any Tax claim or assessment; or
(hs) except in the ordinary course of business consistent with past practice, sold, transferred, assigned, licensed, pledged, encumbered, abandoned, dedicated to the public, permitted to lapse, failed to make any material capital expenditures that were previously budgeted maintain or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing otherwise disposed of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoingIntellectual Property.
Appears in 1 contract
Samples: Participation Interest Purchase Agreement (BMB Munai Inc)
