Absence of Certain Developments. In the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documents: (a) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change; (b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries; (c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities; (d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business; (e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries; (f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business; (g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses; (h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business; (i) neither the Company nor its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiaries; (j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate; (k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change; (l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement; (m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities; (n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted; (o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements; (p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and (q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”).
Appears in 6 contracts
Samples: Securities Purchase Agreement (Xa, Inc.), Securities Purchase Agreement (Xa, Inc.), Securities Purchase Agreement (Xa, Inc.)
Absence of Certain Developments. In Since the date of the Balance Sheet, the Acquired Company has conducted its business only in the ordinary course of business consistent with past practice and, except in connection with or in the context as a result of the Transactions transactions contemplated in this Agreement and or as set forth in Section 2.9 of the Transaction DocumentsDisclosure Schedule, there has not been:
(a) there any change in the assets, liabilities, condition (financial or other), properties, business, operations or prospects of the Acquired Company, which change by itself or in conjunction with all other such changes, whether or not arising in the ordinary course of business, has not been any had or would be likely to have a Material Adverse Change nor has any event occurred which could result in any Material Adverse ChangeEffect;
(b) there has not been any declarationmortgage, setting a record date, setting aside encumbrance or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of lien placed on any of the outstanding shares properties of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesAcquired Company;
(c) there has not been any transfer, issuepurchase, sale or other disposition disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any properties or assets by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Acquired Company, including any of its Intellectual Property Assets (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreementas defined below), other than in the ordinary course of business;
(ed) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or lossloss to the Acquired Company's properties or assets, whether or not covered by insurance, which has had or would be likely to have a Material Adverse Effect;
(e) any declaration, setting aside or payment of any dividend by the Acquired Company, or the making of any other distribution in respect of the capital stock of the Acquired Company or any distribution to the Founding Stockholders, or any direct or indirect redemption, purchase or other acquisition by the Acquired Company of its own capital stock;
(f) any labor trouble or claim of unfair labor practices involving the Acquired Company, any change in the compensation payable or to become payable by the Acquired Company to any of its officers 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 of such officers 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 property or assets amendment of any of the foregoing;
(g) any resignation, termination or removal of the officers of the Acquired Company or its Subsidiaries having a replacement cost material loss of more than $10,000 for any single loss personnel of the Acquired Company or $20,000 for all such lossesmaterial change in the terms and conditions of the employment of the Acquired Company's officers or key personnel;
(h) neither any payment or discharge of a material lien or liability of the Acquired Company nor its Subsidiaries has mortgagedwhich was not shown on the Balance Sheet or incurred in the ordinary course of business thereafter;
(i) any contingent liability incurred by the Acquired Company as guarantor or otherwise with respect to the obligations of others or any cancellation of any material debt or claim owing to, pledged or subjected waiver of any material right of, the Acquired Company, including any write-off or compromise of any accounts receivable other than in the ordinary course of business consistent with past practice;
(j) any obligation or liability incurred by the Acquired Company to any Lien any of its assetsofficers, directors, stockholders or employees, or acquired any assets for loans or advances made by the Acquired Company to any of its officers, directors, stockholders or employees, except normal compensation and expense allowances payable to officers or employees;
(k) any change in accounting methods or practices, collection policies, pricing policies or payment policies of the Acquired Company;
(l) any loss, or any known development that could reasonably be expected to result in a purchase price in excess of $10,000 in the aggregate or soldloss, assigned, transferred, conveyed, leased or otherwise disposed of any assets significant supplier, customer, distributor or account of the Acquired Company;
(m) any amendment or termination of any material contract or agreement to which the Acquired Company is a party or its Subsidiaries for by which it is bound, which amendment or termination would have or be likely to have a sale Material Adverse Effect;
(n) any arrangements relating to any royalty, dividend or similar payment based on the revenues, profits or sales volume of the Acquired Company, whether as part of the terms of the Acquired Company's capital stock or by any separate agreement;
(o) any agreement with respect to the endorsement of the Acquired Company's products or services;
(p) any transaction or agreement involving fixed price in excess of $10,000 in terms or fixed volume arrangements;
(q) any other material transaction entered into by the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of Acquired Company other than transactions in the ordinary course of business;
(ir) neither except as provided in this Agreement, any amendment to the Articles of Incorporation or Bylaws; or
(s) any agreement or understanding whether in writing or otherwise, for the Company nor its Subsidiaries has canceled or compromised to take 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, individually or in the aggregate, would not be material to the Company or its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Companyactions specified in paragraphs (a) this Agreement;
through (mr) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)above.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Radian Group Inc), Stock Purchase Agreement (Radian Group Inc), Stock Purchase Agreement (Radian Group Inc)
Absence of Certain Developments. In (a) Except as set forth on Schedule 4.7(a), the ordinary course general nature of the business or of the Company is described in the context Confidential Private Placing Memorandum of the Transactions contemplated Company (the “Offering Memorandum”), which previously has been delivered to the Purchaser. The financial projections contained in the Offering Memorandum are based on and reflect facts that management of the Company believes still exist and assumptions that management of the Company believes are still reasonable, as of the date of this Agreement Agreement, but of which the Company cannot and does not assure or guarantee the Transaction Documentsattainment in any manner.
(b) Except as set forth on Schedule 4.7(b) and since the date of the Unaudited Financial Statements:
(ai) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
(bii) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its SubsidiariesCompany, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesCompany;
(ciii) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(giv) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 50,000 for any single loss or $20,000 250,000 for all such losses;
(hv) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the usual and ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Changematerially and adversely affects the business, assets, liabilities, prospects, properties, results of operations or condition (financial or otherwise) of the Company;
(lvi) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has not encountered any labor difficulties or labor union organizing activities;
(nvii) neither the Company nor its Subsidiaries has not made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(oviii) neither the Company nor its Subsidiaries has not disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;; or
(pix) neither to the Company nor its Subsidiaries has Company’s knowledge, suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their its suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and Company, which has had or its Subsidiaries; and
(q) neither is likely to have a material adverse effect on the Company nor its Subsidiaries has made any payment tobusiness, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property liabilities, prospects, properties, results of operations or services, condition (financial or otherwise) of the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)Company.
Appears in 3 contracts
Samples: Securities Purchase Agreement (Idleaire Technologies Corp), Securities Purchase Agreement (Idleaire Technologies Corp), Securities Purchase Agreement (Idleaire Technologies Corp)
Absence of Certain Developments. In Except as contemplated by or in connection with this Agreement or as set forth on Schedule 4.10 hereto, since the Latest Balance Sheet Date each Company has conducted its business in the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documentsand:
(a) there has not been any Material Adverse Change nor has any event occurred which could result damage, destruction or loss not covered by insurance with respect to the properties and assets of the Companies having a replacement cost of more than $1,000,000 in any Material Adverse Changethe aggregate;
(b) there has not been any declarationmaterial change by any Company in accounting or Tax principles, setting a record date, setting aside methods or authorizing the payment of, any dividend or policies (other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition than as required by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesUS GAAP);
(c) there no Company has not been entered into any transfer, issue, sale Contract involving the expected expenditures or other disposition receipts by the Company Companies of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securitiesmore than $1,000,000;
(d) neither no Company incurred or assumed any Indebtedness, and no Company has made any loans, advances or capital contributions to, or investments in, or guaranteed the Company nor its Subsidiaries has (i) awarded or paid obligations of, any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement)Person, other than to or on behalf of another Company or in the ordinary course of business;
(e) neither the no Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assetsasset, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessother than Permitted Exceptions;
(if) neither the no Company nor its Subsidiaries has canceled or compromised any debt or claimclaim with a value, individually or in the aggregate, exceeding $1,000,000, 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, individually or in the aggregate, would not be material right reasonably estimated to the represent to such Company or its Subsidiariesmore than $1,000,000;
(jg) neither the no Company nor its Subsidiaries has made any binding commitment or committed to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 1,000,000, other than as set forth in the aggregatecapital expenditure budget previously provided to Purchaser;
(kh) neither no Company has settled any Legal Proceeding (i) in which equitable relief was sought or (ii) which involved a payment in excess of $1,000,000, except for settlements that include a full and unconditional release in favor of the Company nor its Subsidiaries has incurred any debts, obligations Companies with no obligation or liabilities, whether due restriction relating to future performance or to become duemake any further payments;
(i) except as required by Contracts existing on the Latest Balance Sheet Date, there has not been any (i) increase in (x) the aggregate compensation of officers and directors of any Company having an annual base salary in excess of $150,000, or (y) the aggregate compensation of the employees of any Company outside the ordinary course of business; (ii) extraordinary bonus, benefit or other direct or indirect compensation paid to any officer, director and/or employee of any Company; (iii) new severance, termination, retention, deferred compensation, bonus or other incentive compensation, profit sharing, stock option, stock appreciation right, restricted stock, stock equivalent, stock purchase, pension, retirement, medical, hospitalization, life or other insurance or other employee benefit plan adopted or authorized for the benefit of the officers, directors, and/or employees of any Company with respect to which any Company would have any liability; or (iv) adoption or material amendment of any collective bargaining agreement;
(j) there has not been any sale, lease, transfer, assignment, distribution or other disposition of any material assets (except current liabilities incurred for distributions to Affiliates or sales or disposals of obsolete or other unused equipment in the ordinary course of business) by any Company in excess of $1,000,000; and
(k) there has not been any occurrence, none of which current liabilities (effect or change that, individually or in the aggregate) could result in , has had a Company Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)Effect.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Hexacomb CORP), Stock Purchase Agreement (Pactiv Corp)
Absence of Certain Developments. In Since the ordinary course of Balance Sheet Date and except as expressly permitted by Section 6.2 (i) the Company, the Purchased Companies and their Subsidiaries have each conducted their business or in all material respects only in the context Ordinary Course of the Transactions contemplated in this Agreement Business and the Transaction Documents:
(aii) there has not been any event, change, occurrence or circumstance that has had or would reasonably be expected to have a Material Adverse Change nor has any event occurred which could result Effect. Without limiting the generality of the foregoing, since the Balance Sheet Date and except as permitted by or in any Material Adverse Change;compliance with Section 6.2:
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company Company, the Purchased Companies or its any of their Subsidiaries having a replacement cost of more than $10,000 25,000 for any single loss or $20,000 100,000 for all such losses;
(hii) neither 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, the Purchased Companies or any of their Subsidiaries or any repurchase, redemption or other acquisition by the Company, the Purchased Companies or any of their Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interest in, the Company, the Purchased Companies or any of their Subsidiaries;
(iii) none of the Company, the Purchased Companies or any of their Subsidiaries have awarded or paid any bonuses to employees of the Company, any of the Purchased Companies or any of their Subsidiaries or entered into any employment (other than to the extent providing for “at-will” employment and without severance), deferred compensation, severance or similar agreement (nor amended any such agreement) or increased or agreed to increase the compensation payable (including equity compensation, whether payable in cash, stock or other property) or to become payable by it to any of the Company’s, the Purchased Companies’ or their Subsidiaries’ respective directors, officers, employees, agents or representatives or increased or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with such directors, officers, employees, agents or representatives;
(iv) there has not been any change by the Company, the Purchased Companies or any of their Subsidiaries in accounting or Tax reporting principles, methods or policies;
(v) none of the Company, the Purchased Companies or any of their Subsidiaries have made or rescinded any election relating to Taxes, or settled or compromised any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes;
(vi) none of the Company, the Purchased Companies or any of their Subsidiaries have entered into any transaction or Contract other than in the Ordinary Course of Business or conducted its business other than in the Ordinary Course of Business;
(vii) none of the Company, the Purchased Companies or any of their Subsidiaries have failed to promptly pay and discharge current liabilities when due in the Ordinary Course of Business except where disputed in good faith by appropriate proceedings;
(viii) none of the Company, the Purchased Companies or any of their Subsidiaries have made any loans, advances or capital contributions to, or investments in, any Persons other than advances for reasonable business expenses to employees made in the Ordinary Course of Business and listed, in the case of loans to any officer or director of the Company, by individual in Section 4.10(viii) of the Company nor its Disclosure Schedule;
(ix) none of the Company, the Purchased Companies or any of their Subsidiaries has have mortgaged, pledged or subjected to any Lien (other than Permitted Exceptions) any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company Company, the Purchased Companies or its Subsidiaries for a sale price in excess any of $10,000 in the aggregate their Subsidiaries, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course Ordinary Course of businessBusiness;
(ix) neither none of the Company nor its Company, the Purchased Companies or any of their Subsidiaries has have discharged or satisfied any Lien (other than Permitted Exceptions), or paid any obligation or liability (fixed or contingent), except in the Ordinary Course of Business and which, in the aggregate, would not be material to the Company, the Purchased Companies and their Subsidiaries taken as a whole;
(xi) none of the Company, the Purchased Companies or any of their Subsidiaries have canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Material Contract or right, material right except in the ordinary course Ordinary Course of business consistent with past practice Business and which, individually or in the aggregate, would not be material to the Company or its SubsidiariesCompany, the Purchased Companies and their Subsidiaries taken as a whole;
(jxii) neither none of the Company nor its Company, the Purchased Companies or any of their Subsidiaries has have made any binding commitment or committed to make any capital expenditures or capital additions or betterments in excess of $20,000 25,000 individually or $250,000 per quarter;
(xiii) none of the Company, the Purchased Companies or any of their Subsidiaries have issued, created, incurred, assumed or guaranteed any Indebtedness in an amount in excess of $50,000 in the aggregate;
(kxiv) neither the Company, the Purchased Companies or any of their Subsidiaries, have not granted any license or sublicense of any rights under or with respect to any Company nor its Subsidiaries has incurred any debts, obligations Intellectual Property or liabilities, whether due or to become dueCompany Technology, except current liabilities incurred for grants of non-exclusive rights made in the ordinary course connection with sales of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Changeproducts;
(lxv) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case none of the Company) this Agreement;
(m) neither , the Company nor its Subsidiaries has encountered any labor difficulties Purchased Companies or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers Subsidiaries have instituted or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiariessettled any material Legal Proceeding; and
(qxvi) neither none of the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitationCompany, the purchase, sale, exchange Purchased Companies or lease any of assets, property or services, or the making of a loan or guarantee) with any Affiliate their Subsidiaries have agreed to do anything set forth in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 4.10.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Segal Edward D), Stock and Asset Purchase Agreement (Applied Materials Inc /De)
Absence of Certain Developments. In Since January 1, 2020, the ordinary course of business or Business has been conducted in the context Ordinary Course of the Transactions contemplated in Business and, except as specifically disclosed on Schedule 3.8 of this Agreement and the Transaction DocumentsAgreement:
(a) there no Group Company has not been (i) amended its Organizational Documents, (ii) amended any Material Adverse Change nor has term of its issued and outstanding Ownership Interests, (iii) issued, sold, pledged, encumbered, granted, transferred or otherwise disposed of any event occurred which could result in Ownership Interests or securities convertible, exchangeable or exercisable into Ownership Interests, or warrants, options or other rights to acquire Ownership Interests of a Group Company or (iv) reclassified, combined, split, subdivided or redeemed, purchased or otherwise acquired, directly or indirectly, any Material Adverse Changeof its Ownership Interests;
(b) there no Group Company has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution become liable in respect of any shares guarantee or has incurred, assumed or otherwise become liable in respect of capital stock any Debt or material Liability;
(c) no Group Company has permitted any of its Assets to become subject to an Encumbrance other than a Permitted Encumbrance;
(d) no Group Company has acquired (including 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) no Group Company has entered into any material amendment, terminated, failed to renew (other than, for the avoidance of doubt, the expiration of any Contract in the Ordinary Course), assigned or transferred any Disclosed Contract, entered into any material amendment or terminated any other material Contract to which it is a party, or received any notice of termination (or, to the Knowledge of Seller, any threat of termination) of or default under any Disclosed Contract or written notice from another Person that any such Contract is unenforceable;
(f) no Group Company has sold, leased, licensed or otherwise disposed of any of its Subsidiaries material Assets or purchased any material Assets other than in the Ordinary Course of Business;
(g) no Group Company has waived, released, assigned, settled or compromised any material rights or claims, or any material litigation or arbitration;
(h) no Group Company has (i) made any declaration, set aside or made any distribution or other payment (whether payable in cash, property or a combination thereof) with respect to (or any repurchase, redemption or other acquisition by of) any of its Ownership Interests, (ii) purchased, redeemed or otherwise acquired any Ownership Interests, (iii) entered into any agreement with respect to the Company voting of its Ownership Interests, or its Subsidiaries(iv) entered into, or performed, any transaction with, or for the benefit of, any equity holder of Seller (including Owners) or any Affiliate of any equity holder of Seller that is not disclosed on Schedule 3.19 (other than Compensation payments made to its managers, directors, officers and employees in the outstanding shares Ordinary Course of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesBusiness);
(ci) there has not been any transferno destruction, issue, sale damage or other disposition by loss or eminent domain taking (completed or pending) (in each case, whether or not insured) affecting the Business, any Group Company or the Assets of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securitiesGroup Company;
(dj) neither no Group Company has increased the Compensation payable or paid, whether conditionally or otherwise, to (i) any current or former employee, consultant, independent contractor, agent or other service provider of any Group Company nor other than in the Ordinary Course of Business, (ii) any current or former manager, director or officer of any Group Company other than in the Ordinary Course of Business, or (iii) any equity holder of Seller (including Owners) or any Affiliate of any equity holder of Seller;
(k) no Group Company has made any loan or advance to, guarantee for the benefit of, any Person (other than advances to employees (other than an equity holder of Seller or any Affiliate of any equity holder of Seller) in the Ordinary Course of Business);
(l) no Group Company has made any change in any method of accounting or accounting practices or policies or has written-up or written-down any of its Subsidiaries material Assets or Liabilities or revalued its inventory, except for depreciation and amortization in accordance with GAAP consistently applied, or reversed any accruals or reserves (whether or not in the Ordinary Course of Business);
(m) no Group Company has (i) awarded made any new or paid rescinded or changed any bonuses to employees or representatives of the CompanyTax election, (ii) entered into any employment, deferred compensation, severance a settlement or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed compromise of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries has canceled or compromised any debt or claim, notice, audit report or amendedassessment in respect of any Taxes, canceled(iii) changed any annual Tax accounting period, terminated(iv) adopted or changed any method of Tax accounting, relinquished(v) filed any amended Tax Return, waived or released any Contract or right, except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiaries;
(jvi) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for Tax allocation agreement, Tax sharing agreement or settlement or closing agreement relating to any Tax, (in the case vii) surrendered any right to claim a Tax refund or (viii) consented to any extension or waiver of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered statute of limitations period applicable to any labor difficulties Tax claim or labor union organizing activitiesassessment;
(n) neither no Group Company has engaged in any activity with any patient, Payor or any other Person that has or would reasonably be expected to have the Company nor its Subsidiaries has made any change effect of accelerating to pre-Closing periods sales that would otherwise be expected to occur in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adoptedpost-Closing periods;
(o) neither the no Group Company nor its Subsidiaries has disclosed agreed to any Person change in the applicable fee schedules or other reimbursement terms with any third party Payors or agreed to any material trade secrets except for disclosures made changes to Persons subject to valid and enforceable confidentiality agreementsany Contract with any patient or resident of any Facility;
(p) neither the no Group Company nor its Subsidiaries has suffered failed to pay or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and perform any of their suppliers or customers which supply goods or services its obligations when and to the extent due (other than pursuant to a good faith defense or right of setoff), delayed or postponed the payment of any accounts payable or any other Liability or obligation, agreed or negotiated with any party to extend the payment date of any accounts payable or any other Liability or accelerated the collection of or discounted any accounts or notes receivable;
(q) no Group Company has terminated or its Subsidiaries closed any Facility, business or purchase goods operation;
(r) no Group Company has adopted, amended or services from terminated any Employee Plan or collective bargaining agreement or other labor union Contract or increased any benefits or contributions under any Employee Plan;
(s) no Group Company has deferred any planned or other routine or necessary maintenance or capital expenditures, or has entered into any agreement or commitment relating to or otherwise obligated itself to any capital expenditures other than the Ordinary Course of Business;
(t) no Group Company has commenced or initiated any Action against any Person;
(u) except as related to COVID-19 and COVID-19 Measures, no event or its Subsidiariescircumstance has occurred or exists that has had, or is reasonably likely to have, a Material Adverse Effect; and
(qv) neither the no Group Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction commitment or series agreed to do any of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate items referred to elsewhere in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 3.8.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Assisted 4 Living, Inc.), Membership Interest Purchase Agreement (Assisted 4 Living, Inc.)
Absence of Certain Developments. In Except as disclosed in Schedule 3.6 of the ordinary course of business or Disclosure Schedule, there has not been any material adverse change in the context assets, Liabilities, business, financial condition, operations, results of operations or business prospects of the Transactions contemplated in this Agreement Company since the date of its Latest Balance Sheet. Without limiting the generality of the foregoing, and except as disclosed on Schedule 3.6, since the Transaction Documentsdate of the Latest Balance Sheet:
(a) there the Company has not been sold, leased, transferred or assigned any Material Adverse Change nor has any event occurred which could result of its assets, tangible or intangible, other than for a fair consideration in any Material Adverse Changethe Ordinary Course of Business;
(b) there the Company has not been entered into any declarationcontract, setting a record datelease, setting aside sublease or authorizing the payment oflicense (or series of related contracts, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchaseleases, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiariessubleases and licenses) involving more than $5,000.00;
(c) there No party (including the Company) has accelerated, terminated, modified or canceled any contract, lease, sublease or license (or series of related contracts, leases, subleases and licenses) involving more than $5,000.00 to which the Company is a party or by which it is bound;
(d) the Company has not imposed any mortgage or pledge of, or subjection to any lien, charge, Security Interest or encumbrance of any kind on any of its assets, tangible or intangible;
(e) the Company has not made any capital expenditure (or series of related capital expenditures) involving more than $5,000.00;
(f) the Company has not 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) involving more than $5,000.00;
(g) the Company has not created, incurred, assumed or guaranteed any indebtedness (including capitalized lease obligations) involving more than $5,000.00 in the aggregate;
(h) the Company has not canceled, delayed or postponed (beyond its normal practice) the payment of accounts payable and other Liabilities;
(i) the Company has not canceled, compromised, waived or released any right or claim (or series of related rights and claims) involving more than $5,000.00 in the aggregate;
(j) the Company has not granted any license of any rights under or with respect to any Intellectual Property;
(k) There has been any transferno change made or authorized in the charter, issue, sale operating agreement or other disposition by organizational documents of the Company, other than the Amended and Restated Operating Agreement executed on or about November 1, 2004;
(l) the Company has not issued, sold or otherwise disposed of any shares of capital stock the Membership Interests or other securities of the Company equity securities, or its Subsidiaries or granted any grant of options, warrants, calls warrants or other rights to purchase or otherwise acquire shares obtain (including upon conversion or exercise) any of such capital stock or such other securitiesthe Membership Interests;
(dm) neither the Company nor its Subsidiaries has (i) awarded not declared, set aside or paid any bonuses distribution with respect to employees the Membership Interests or representatives redeemed, purchased or otherwise acquired any of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of businessMembership Interests;
(en) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been experienced any damage, destruction or loss, loss (whether or not covered by insurance, with respect to the ) materially adversely affecting its property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor has not made any loan to, or entered into any other transaction with, any of its Subsidiaries has disclosed Members, Managers, and employees (outside the Ordinary Course of Business) giving rise to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsclaim or right on its part against the person or on the part of the person against it;
(p) neither the Company nor its Subsidiaries has suffered not entered into any employment contract or experienced collective bargaining agreement, written or oral, or modified the terms of any change existing such contract or agreement;
(q) the Company has not granted any increase outside the Ordinary Course of Business in the relationship base compensation, fringe benefits, or course other compensation of, or paid any bonus or special payment of dealings between any kind to any of its Members, Managers, or employees;
(r) the Company and/or its Subsidiaries and has not adopted any (1) bonus, (2) profit-sharing, (3) incentive compensation, (4) pension, (5) retirement, (6) medical, hospitalization, life or other insurance, (7) severance, or (8) other plan, contract or commitment for any of their suppliers its directors and officers, or customers which supply goods employees, or services to modified or terminated any such existing plan, contract or commitment;
(s) the Company has not made any charitable or its Subsidiaries other capital contribution outside the Ordinary Course of Business;
(t) There has not been any other occurrence, commitment, event, incident, action, failure to act or purchase goods or services from transaction outside the Company and or its SubsidiariesOrdinary Course of Business involving the Company; and
(qu) neither the Company nor its Subsidiaries has made not committed to do any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)foregoing.
Appears in 2 contracts
Samples: Membership Interest Purchase Agreement (Seaena Inc.), Membership Interest Purchase Agreement (Crystalix Group International Inc)
Absence of Certain Developments. In Except as set forth on SCHEDULE 4.8 and since the ordinary course of business or in the context date of the Transactions contemplated in this Agreement and the Transaction DocumentsAudited Financial Statements:
(a) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of share capital stock of the Company or any of its Subsidiaries or any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries, of any of the outstanding shares of share capital stock or other securities of, or other ownership interest in, the Company or any of its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of share capital stock or other securities of the Company or any of its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor any of its Subsidiaries has (i) awarded or paid any bonuses to employees Employees or representatives Representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), (iii) agreed to increase the compensation payable or to become payable by the Company or any of its Subsidiaries to any of the Company's Employees or Representatives, or (iv) agreed to increase the coverage or benefits available under any severance pay, deferred compensation, bonus or other incentive compensation, pension or other employee benefit plan, payment or arrangement made to, for or with such Employees or Representatives, other than in the ordinary course of businessbusiness consistent with past practice which increases in the aggregate do not exceed $50,000 in annual cost to the Company or any of its Subsidiaries and consistent with the operating expense budget of the Company or any of its Subsidiaries, and other than as may have been required by law or insurers;
(e) neither the Company nor any of its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of businessbusiness and do not exceed per individual the reasonable anticipated expenses for legitimate business purposes), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiariesa Subsidiary;
(f) neither the Company nor any of its Subsidiaries has transferred or granted any rights under any Contracts or Contracts, leases, licenses, agreements or intangible property (as set forth in Section 4.12 hereof) used by the Company in its businessbusiness which could result in a Material Adverse Change;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or any of its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 50,000 for all such losses;
(h) neither the Company nor any of its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 50,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or any of its Subsidiaries for a sale price in excess of $10,000 50,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor any of its Subsidiaries has canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or any of its Subsidiaries;
(j) neither the Company nor any of its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 25,000 individually or $50,000 75,000 in the aggregate;
(k) neither the Company nor any of its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor any of its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor any of its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor any of its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor any of its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) except in the ordinary course of business, neither the Company nor any of its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or any of its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or any of its Subsidiaries or purchase goods or services from the Company and or any of its Subsidiaries, which has had or is likely to have a Material Adverse Effect; and
(q) neither the Company nor any of its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 50,000 or its equivalent (other than any transactions between or among the Company and any of its Subsidiaries) (each, an “Affiliate "AFFILIATE Transaction”").
Appears in 2 contracts
Samples: Share Purchase Agreement (El Sitio Inc), Share Purchase Agreement (El Sitio Inc)
Absence of Certain Developments. In Since the ordinary course of Balance Sheet Date and except as expressly permitted by Section 6.2 (i) the Company, the Purchased Companies and their Subsidiaries have each conducted their business or in all material respects only in the context Ordinary Course of the Transactions contemplated in this Agreement Business and the Transaction Documents:
(aii) there has not been any event, change, occurrence or circumstance that has had or would reasonably be expected to have a Material Adverse Change nor has any event occurred which could result Effect. Without limiting the generality of the foregoing, since the Balance Sheet Date and except as permitted by or in any Material Adverse Change;compliance with Section 6.2:
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company Company, the Purchased Companies or its any of their Subsidiaries having a replacement cost of more than $10,000 25,000 for any single loss or $20,000 100,000 for all such losses;
(hii) neither 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, the Purchased Companies or any of their Subsidiaries or any repurchase, redemption or other acquisition by the Company, the Purchased Companies or any of their Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interest in, the Company, the Purchased Companies or any of their Subsidiaries;
(iii) none of the Company, the Purchased Companies or any of their Subsidiaries have awarded or paid any bonuses to employees of the Company, any of the Purchased Companies or any of their Subsidiaries or entered into any employment (other than to the extent providing for "at-will" employment and without severance), deferred compensation, severance or similar agreement (nor amended any such agreement) or increased or agreed to increase the compensation payable (including equity compensation, whether payable in cash, stock or other property) or to become payable by it to any of the Company's, the Purchased Companies' or their Subsidiaries' respective directors, officers, employees, agents or representatives or increased or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with such directors, officers, employees, agents or representatives;
(iv) there has not been any change by the Company, the Purchased Companies or any of their Subsidiaries in accounting or Tax reporting principles, methods or policies;
(v) none of the Company, the Purchased Companies or any of their Subsidiaries have made or rescinded any election relating to Taxes, or settled or compromised any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes;
(vi) none of the Company, the Purchased Companies or any of their Subsidiaries have entered into any transaction or Contract other than in the Ordinary Course of Business or conducted its business other than in the Ordinary Course of Business;
(vii) none of the Company, the Purchased Companies or any of their Subsidiaries have failed to promptly pay and discharge current liabilities when due in the Ordinary Course of Business except where disputed in good faith by appropriate proceedings;
(viii) none of the Company, the Purchased Companies or any of their Subsidiaries have made any loans, advances or capital contributions to, or investments in, any Persons other than advances for reasonable business expenses to employees made in the Ordinary Course of Business and listed, in the case of loans to any officer or director of the Company, by individual in Section 4.10(viii) of the Company nor its Disclosure Schedule;
(ix) none of the Company, the Purchased Companies or any of their Subsidiaries has have mortgaged, pledged or subjected to any Lien (other than Permitted Exceptions) any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company Company, the Purchased Companies or its Subsidiaries for a sale price in excess any of $10,000 in the aggregate their Subsidiaries, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course Ordinary Course of businessBusiness;
(ix) neither none of the Company nor its Company, the Purchased Companies or any of their Subsidiaries has have discharged or satisfied any Lien (other than Permitted Exceptions), or paid any obligation or liability (fixed or contingent), except in the Ordinary Course of Business and which, in the aggregate, would not be material to the Company, the Purchased Companies and their Subsidiaries taken as a whole;
(xi) none of the Company, the Purchased Companies or any of their Subsidiaries have canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Material Contract or right, material right except in the ordinary course Ordinary Course of business consistent with past practice Business and which, individually or in the aggregate, would not be material to the Company or its SubsidiariesCompany, the Purchased Companies and their Subsidiaries taken as a whole;
(jxii) neither none of the Company nor its Company, the Purchased Companies or any of their Subsidiaries has have made any binding commitment or committed to make any capital expenditures or capital additions or betterments in excess of $20,000 25,000 individually or $250,000 per quarter;
(xiii) none of the Company, the Purchased Companies or any of their Subsidiaries have issued, created, incurred, assumed or guaranteed any Indebtedness in an amount in excess of $50,000 in the aggregate;
(kxiv) neither the Company, the Purchased Companies or any of their Subsidiaries, have not granted any license or sublicense of any rights under or with respect to any Company nor its Subsidiaries has incurred any debts, obligations Intellectual Property or liabilities, whether due or to become dueCompany Technology, except current liabilities incurred for grants of non-exclusive rights made in the ordinary course connection with sales of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Changeproducts;
(lxv) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case none of the Company) this Agreement;
(m) neither , the Company nor its Subsidiaries has encountered any labor difficulties Purchased Companies or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers Subsidiaries have instituted or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiariessettled any material Legal Proceeding; and
(qxvi) neither none of the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitationCompany, the purchase, sale, exchange Purchased Companies or lease any of assets, property or services, or the making of a loan or guarantee) with any Affiliate their Subsidiaries have agreed to do anything set forth in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 4.10.
Appears in 2 contracts
Samples: Stock and Asset Purchase Agreement (Metron Technology N V), Stock and Asset Purchase Agreement (Fsi International Inc)
Absence of Certain Developments. In the ordinary course of business Except as disclosed in Schedule 2.8 or in the context Financial Statements, since the date of the Transactions contemplated in this Agreement and the Transaction Documents:
latest Financial Statements, (a) there has not been no material adverse change in the financial condition of either the Company or any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
of the Operating Subsidiaries, (b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of neither the Company nor any Operating Subsidiary has incurred any material liabilities or its Subsidiaries or any repurchasematerial contingent liabilities, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there the Company has not been declared any transferdividends or purchased any of its capital stock, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries any Operating Subsidiary has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in material transactions outside the ordinary course of business;
, (e) neither the Company nor its Subsidiaries any Operating Subsidiary has made waived a valuable right or cancelled any loans, advances (other than advances to officers and employees of debt or claim held by the Company or its Subsidiaries which advances are made in the ordinary course of business)any Operating Subsidiary, or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries any Operating Subsidiary has transferred made a loan to any officer, director, employee or granted shareholder of the Company, or any rights under any Contracts agreement or licensescommitment therefor, used by the Company in its business;
(g) there neither the Company nor any Operating Subsidiary has not been had or committed to any damageincrease, destruction direct or lossindirect, whether in the compensation paid or not covered by insurancepayable to any officer, with respect to the property director, employee or assets agent of the Company or its Subsidiaries having any Operating Subsidiary, except as required by written employment agreements to which the Company or any Operating Subsidiary is a replacement cost of more than $10,000 for any single loss or $20,000 for all party (and which such losses;
increases are described in Schedule 2.8), (h) neither the Company nor its Subsidiaries any Operating Subsidiary has mortgagedhad any material loss, pledged destruction or subjected damage to any Lien any of its assetsproperty, whether or acquired any assets for a purchase price in excess of $10,000 in the aggregate or soldnot insured, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries any Operating Subsidiary has canceled had any change in personnel or compromised any debt or claimthe terms and conditions of their employment, 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, individually or in the aggregate, would not be material to the Company or its Subsidiaries;
(j) neither the Company nor its Subsidiaries any Operating Subsidiary has made had any binding commitment to make acquisition or disposition of any capital expenditures assets (or capital additions any contract or betterments in excess of $20,000 individually arrangement therefor), or $50,000 any other transaction otherwise than for fair value in the aggregate;
ordinary course of business, and (k) neither the Company nor its Subsidiaries any Operating Subsidiary has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed committed itself to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
of (pa) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
through (qj) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)above.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Chaney R & Partners 1993 Lp), Stock Purchase Agreement (North American Technologies Group Inc /Mi/)
Absence of Certain Developments. In the ordinary course of ---------------------------------- business or in the context of the Transactions contemplated in this Agreement and the Transaction Documents:
(a) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”"AFFILIATE TRANSACTION").. ----------------------
Appears in 2 contracts
Samples: Securities Purchase Agreement (Xa, Inc.), Securities Purchase Agreement (Xa, Inc.)
Absence of Certain Developments. In Except as set forth on Schedule 3.10 or as expressly contemplated by this Agreement, since the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction DocumentsBalance Sheet Date:
(ai) there has not been any Material Adverse Change nor to the Company nor, to the knowledge of the Seller or the Company has any event occurred which could is reasonably likely to result in any Material Adverse ChangeChange to the Company;
(bii) there has not been any material damage, destruction or loss, whether or not covered by insurance, with respect to the property and assets of the Company;
(iii) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, of any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock stock, or other securities of, or other ownership proprietary or equity interest in, the Company or its SubsidiariesCompany;
(civ) there has not been any transfer, issue, sale or other disposition by the Seller or the Company of any shares of capital stock stock, proprietary or equity interests or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls rights or other rights securities to purchase or otherwise acquire shares of such capital stock stock, proprietary or equity interests or such other securities;
(dv) neither the Company nor its Subsidiaries has (i) not awarded or paid any bonuses to employees or representatives of the CompanyCompany except in the ordinary course of business consistent with past practice or to the extent accrued on the Balance Sheet, (ii) or entered into any employment, deferred compensation, severance or similar agreements agreement (nor amended any such agreement)) or agreed to increase the compensation payable or to become payable by it to the Company's directors, officers, employees, agents or representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with such directors, officers, employees, agents or representatives;
(vi) there has not been any change by the Company in its accounting principles, methods or policies;
(vii) the Company has not entered into any transaction or Contract or conducted its business other than in the ordinary course of businessits business consistent with past practice;
(eviii) neither other than in the ordinary course of business consistent with past practice, the Company nor its Subsidiaries has not failed to promptly pay and discharge current liabilities of the Company except where disputed in good faith by appropriate proceedings;
(ix) the Company has not made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to the Seller or any Affiliate of the Company Seller (other than its Subsidiariesthe Company);
(fx) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets of the Company acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(ixi) neither the Company nor its Subsidiaries has canceled not discharged or compromised satisfied any debt or claimLien, or amended, canceled, terminated, relinquished, waived paid any obligation or released any Contract liability (fixed or rightcontingent) of the Company, except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiariestaken as a whole;
(jxii) the Company has not cancelled or compromised any debt or claim of the Company or amended, cancelled, terminated, relinquished, waived or released any Contract or right of the Company except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Company taken as a whole;
(xiii) neither the Seller nor the Company nor has transferred or granted any rights under any concessions, leases, licenses or agreements of the Company or Intangible Property used by the Company in its Subsidiaries business;
(xiv) the Company has not made any binding commitment or committed to make any capital expenditures or capital additions or betterments in excess of $20,000 5,000 individually or $50,000 25,000 in the aggregate;
(kxv) neither the Company nor its Subsidiaries has incurred not instituted or settled any debts, obligations or liabilities, whether due or material Legal Proceeding to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiariesis a party; and
(qxvi) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, agreed to do anything set forth in this Section 3.10 and the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among Seller has not agreed to cause the Company and its Subsidiaries) (each, an “Affiliate Transaction”)to do anything set forth in this Section 3.10.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Detection Systems Inc), Stock Purchase Agreement (Numerex Corp /Pa/)
Absence of Certain Developments. In the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documents:
(a) Since December 31, 2012, there has not been any Material Adverse Change Effect. Since December 31, 2012, except as set forth in Section 3.19 of the Disclosure Schedule or for actions or items after the date hereof that are required or allowed under Article 5:
(a) neither the Xxxxxx LLCs nor has the Subsidiaries have sold, leased, transferred or assigned any event occurred which could result in any Material Adverse Changeof their respective assets, tangible or intangible;
(b) there no party (including the Xxxxxx LLCs or the Subsidiaries) has not been accelerated, suspended, terminated, modified or canceled any declaration, setting a record date, setting aside Material Contract (or authorizing the payment of, any dividend or other distribution in respect series of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiariesrelated Contracts);
(c) there has not no Liens (other than Permitted Liens) have been imposed on any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities assets of the Company Xxxxxx LLCs or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securitiesthe Subsidiaries;
(d) neither the Company Xxxxxx LLCs nor its the Subsidiaries has have made any capital expenditure (ior series of related capital expenditures) awarded or paid any bonuses to employees or representatives in excess of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business$1,000,000;
(e) neither the Company Xxxxxx LLCs nor its the Subsidiaries has made any loanshave delayed, advances (postponed or accelerated the payment of accounts payable or other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiariesliabilities;
(f) neither the Company Xxxxxx LLCs nor its the Subsidiaries has transferred have canceled, compromised, waived or granted released any material right or claim (or series of related rights under any Contracts or licenses, used by the Company in its businessclaims);
(g) there has not been neither the Xxxxxx LLCs nor the Subsidiaries have entered into any damage, destruction employment or loss, whether collective bargaining Contract or not covered by insurance, with respect to modified the property or assets terms of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such lossesexisting Contract;
(h) neither the Company Xxxxxx LLCs nor its the Subsidiaries has mortgagedhave granted any increase in the base compensation, pledged paid bonuses or subjected to benefits or made any Lien other change in employment terms of any of its assets, officers or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessemployees;
(i) neither the Company Xxxxxx LLCs nor its the Subsidiaries has canceled or compromised any debt or claim, or amended, canceled, terminated, relinquished, waived or released any Contract or right, except have operated their businesses in a manner that is not in the usual, regular and ordinary course of business consistent with past practice and which, individually practices or made any material change in the aggregate, would not be material to the Company or its Subsidiariesconduct of their businesses and operations;
(j) neither the Company Xxxxxx LLCs nor its the Subsidiaries has made have merged into or with or consolidated with any binding commitment to make other entity or acquired any capital expenditures of the business or capital additions assets of any person or betterments in excess of $20,000 individually or $50,000 in the aggregateentity;
(k) neither the Company Xxxxxx LLCs nor its the Subsidiaries has incurred have made any debts, obligations change in their organizational documents or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Changeequivalent governing instruments;
(l) neither the Company Xxxxxx LLCs nor its the Subsidiaries has entered into have purchased any transaction other than securities of any entity, except short term debt securities of any Governmental Authority and banks, or make any investment in the ordinary course of business except for (in the case of the Company) this Agreementany entity;
(m) neither the Company Xxxxxx LLCs nor its the Subsidiaries has encountered have made any labor difficulties change in accounting principles or labor union organizing activitiespractices from those utilized in the preparation of the Financial Statements;
(n) neither no party (including the Company nor its Subsidiaries has made Xxxxxx LLCs or the Subsidiaries) has, with respect to the Xxxxxx LLCs, the Subsidiaries, the Xxxxxx Business or the Xxxxxx Assets, (i) made, changed or rescinded any change material election in the respect of Taxes, (ii) adopted or changed any material accounting principlesmethod in respect of Taxes (other than changes required by applicable law), methods (iii) amended any Return, or practices followed by it settled or depreciation compromised any material claim, notice, audit report or amortization policies or rates theretofore adopted;assessment in respect of Taxes; and
(o) neither the Company Xxxxxx LLCs nor its the Subsidiaries has disclosed have committed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and take any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate actions described in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 3.19.
Appears in 2 contracts
Samples: Contribution Agreement, Contribution Agreement (Regency Energy Partners LP)
Absence of Certain Developments. In Since the date of the Base Balance Sheet, the Company has conducted its business only in the ordinary course of business consistent with past practice and, except with respect to the Extraordinary Dividend or as set forth in the context Section 2.8 of the Transactions contemplated in this Agreement and the Transaction DocumentsDisclosure Schedule, there has not been:
(a) there any change in the assets, liabilities, condition (financial or other), 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 not been any had or could be reasonably likely to have a Material Adverse Change nor has any event occurred which could result in any Material Adverse ChangeEffect;
(b) there has not been any declarationmortgage, setting a record date, setting aside or authorizing the payment of, any dividend lien or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of encumbrance placed on any of the outstanding shares properties of capital stock or the Company, other securities of, or other ownership interest in, the Company or its Subsidiariesthan purchase money liens and liens for taxes not yet due and payable;
(c) there has not been any transfer, issuepurchase, sale or other disposition disposition, or any agreement or other arrangement for the purchase, sale or other disposition, of any properties or assets by the Company, including any of its Intellectual Property Assets (as defined below), involving the payment or receipt of more than $100,000 other than sales of goods and services by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(ed) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, that has had or could be reasonably likely to have a Material Adverse Effect;
(e) except for the Redemption, 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;
(f) 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 or employees other than normal merit increases to such employees in accordance with its usual practices, or any bonus payment or arrangement made to or with any of such officers or employees or any establishment or creation of any employment, deferred compensation or severance arrangement or employee benefit plan other than the Stock Option Plan with respect to such persons or the property amendment of any of the foregoing;
(g) any resignation, termination or assets removal of any officer of the Company or its Subsidiaries having a replacement cost material loss of more than $10,000 for any single loss personnel of the Company or $20,000 for all such lossesmaterial change in the terms and conditions of the employment of the Company's officers or key personnel;
(h) neither any payment or discharge of a material lien or liability of the Company nor its Subsidiaries has mortgagedthat was not shown on the audited balance sheet of the Company as of the date of the Base 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 obligations of others or any cancellation of any material debt or claim owing to, pledged or subjected waiver of any material right of, the Company, including any write-off or compromise of any accounts receivable other than write-offs or compromises of accounts receivable that are in the ordinary course of business in amounts consistent with past practice;
(j) any obligation or liability incurred by the Company to any Lien any of its assetsofficers, directors, shareholders or employees, or acquired any assets for a purchase price in excess of $10,000 in the aggregate loans or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of advances made by the Company to any of its officers, directors, shareholders or its Subsidiaries for a sale price in excess of $10,000 in the aggregate employees, except for assets acquired normal compensation and expense allowances payable to officers or sold, assigned, transferred, conveyed, leased or otherwise disposed of employees in the ordinary course of business;
(ik) neither any change in accounting methods or practices, collection policies, pricing policies or payment policies of the Company nor its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its SubsidiariesCompany;
(jl) neither any loss, or any known development that could reasonably be expected to result in a loss, of any significant supplier, customer, distributor or account of the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregateCompany;
(km) neither any amendment or termination of any material contract or agreement to which the Company nor its Subsidiaries has incurred is a party or by which it is bound;
(n) any debtsarrangements relating to any royalty or similar payment based on the revenues, obligations profits or liabilitiessales volume of the Company, whether due as part of the terms of the Company's capital stock or to become due, except current liabilities incurred by 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, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither except as provided in this Agreement, any amendment to the Company's articles of incorporation or by-laws;
(r) any agreement or understanding whether in writing or otherwise, for the Company nor its Subsidiaries has made to take any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions the actions specified in paragraphs (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guaranteea) with any Affiliate in each case, in excess of $10,000 or its equivalent through (other than any transactions between or among the Company and its Subsidiariesq) (each, an “Affiliate Transaction”)above.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Eagle Test Systems, Inc.), Stock Purchase Agreement (Eagle Test Systems, Inc.)
Absence of Certain Developments. In Except as set forth on Schedule 4.8 and since the ordinary course of business or in the context date of the Transactions contemplated in this Agreement and the Transaction DocumentsAudited Financial Statements:
(a) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or any of its Subsidiaries or any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or any of its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or any of its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor any of its Subsidiaries has (i) awarded or paid any bonuses to employees Employees or representatives Representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), (iii) agreed to increase the compensation payable or to become payable by the Company or any of its Subsidiaries to any of the Company's Employees or Representatives, or (iv) agreed to increase the coverage or benefits available under any severance pay, deferred compensation, bonus or other incentive compensation, pension or other employee benefit plan, payment or arrangement made to, for or with such Employees or Representatives, other than in the ordinary course of businessbusiness consistent with past practice which increases in the aggregate do not exceed $50,000 in annual cost to the Company or any of its Subsidiaries and consistent with the operating expense budget of the Company or any of its Subsidiaries, and other than as may have been required by law or insurers;
(e) neither the Company nor any of its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of businessbusiness and do not exceed per individual the reasonable anticipated expenses for legitimate business purposes), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiariesa Subsidiary;
(f) neither the Company nor any of its Subsidiaries has transferred or granted any rights under any Contracts or Contracts, leases, licenses, agreements or intangible property (as set forth in Section 4.12 hereof) used by the Company in its businessbusiness which could result in a Material Adverse Change;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or any of its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 50,000 for all such losses;
(h) neither the Company nor any of its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 50,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or any of its Subsidiaries for a sale price in excess of $10,000 50,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor any of its Subsidiaries has canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or any of its Subsidiaries;
(j) neither the Company nor any of its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 25,000 individually or $50,000 75,000 in the aggregate;
(k) neither the Company nor any of its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor any of its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor any of its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor any of its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor any of its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) except in the ordinary course of business, neither the Company nor any of its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or any of its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or any of its Subsidiaries or purchase goods or services from the Company and or any of its Subsidiaries, which has had or is likely to have a Material Adverse Effect; and
(q) neither the Company nor any of its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 50,000 or its equivalent (other than any transactions between or among the Company and any of its Subsidiaries) (each, an “"Affiliate Transaction”").
Appears in 2 contracts
Samples: Stock Purchase Agreement (El Sitio Inc), Share Purchase Agreement (El Sitio Inc)
Absence of Certain Developments. In the ordinary course of business or Other than as disclosed in the context of the Transactions contemplated in this Agreement and the Transaction Documents:
Reference SEC Reports, since December 31, 2009, (a) there has not been any Material Adverse Change nor has any event occurred which could result the Company and each of its Subsidiaries have conducted, in any Material Adverse Change;
all material respects, its businesses in the ordinary course, consistent with past practice, (b) there has not been any declarationa Material Adverse Effect, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
and (c) there has not been (i) any transferdeclaration, issue, sale setting aside or payment of any dividend or other disposition by the Company of any shares of capital distribution (whether in cash, stock or other property) with respect to any of the Company’s outstanding securities of or any repurchase or redemption by the Company or its Subsidiaries or of any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employmentchange in accounting methods, deferred compensation, severance principles or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of practices by the Company or any of its Subsidiaries which advances are made materially affecting its assets or liabilities, except insofar as may have been required by law or by a change in the ordinary course of business)applicable GAAP, or capital contributions to(iii) any sales, or investments inpledges, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or dispositions, transfers, leases, exclusive licenses, used by the Company in its business;
(g) there has not been guarantees or encumbrances of any damage, destruction or loss, whether or not covered by insurance, with respect to the material property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assetsSubsidiaries, (iv) any material acquisition (including, without limitation, by merger, consolidation, or acquired acquisition of stock or assets or any assets for a purchase price in excess other business combination) by the Company or any of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed its Subsidiaries of any corporation, partnership, other business organization or any division thereof, (v) to the knowledge of the Company, any disclosure of any material trade secrets of the Company or any of its Subsidiaries, (vi) any incurrence by the Company or any of its Subsidiaries of indebtedness for borrowed money which, individually or together with all such other indebtedness, exceeds $1,000,000, (vii) grants of any material security interest in any material assets of the Company or any of its Subsidiaries, (viii) any capital expenditure or purchase of fixed assets by the Company or any of its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries has canceled or compromised any debt or claim, or amended, canceled, terminated, relinquished, waived or released any Contract or right, except other than in the ordinary course of business consistent with past practice and which, individually or in accordance with the aggregateCompany’s capital expenditure budget as approved by the Board, would not be material to (ix) any change by the Company or any of its Subsidiaries of any material election in respect of taxes, any adoption or change by the Company or any of its Subsidiaries of any material accounting method in respect of taxes or settlement or compromise by the Company or any of its Subsidiaries of any material claim, notice, audit report or assessment in respect of taxes, (x) any pre-payment of any long-term debt or payment, discharge or satisfaction of any claims, liabilities or obligations (absolute, accrued, contingent or otherwise) by the Company or any of its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course for such payments, discharges or satisfaction of business, none of which current liabilities (individually claims as were made or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than effected in the ordinary course of business except for consistent with past practice, (in the case xi) any write-up, write-down or write-off of the Company) this Agreement;
(m) neither book value of any material assets, or a material amount of any other assets, of the Company nor or any of its Subsidiaries has encountered any labor difficulties Subsidiaries, other than as required by GAAP or labor union organizing activities;
(nxii) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, Board or the making officers of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)Company.
Appears in 1 contract
Absence of Certain Developments. In (a) Except as set forth on Schedule 4.8(a), the ordinary course general nature of the business or of the Company is described in the context Confidential Memorandum of the Transactions contemplated Company, dated July, 1999, prepared by Morgxx Xxxnxxx Xxxx Xxxxxx (xxe "Offering Memorandum"), which previously has been delivered to the Purchasers. The financial projections contained in the Offering Memorandum are based on and reflect facts that management of the Company believes still exist and assumptions that management of the Company believes are still reasonable, as of the date of this Agreement Agreement, but of which the Company cannot and does not assure or guarantee the Transaction Documentsattainment in any manner.
(b) Except as set forth on Schedule 4.8(b) and since the date of the Interim Financial Statements:
(ai) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
(bii) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock Capital Stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its SubsidiariesCompany, of any of the outstanding shares of capital stock Capital Stock or other securities of, or other ownership interest in, the Company or its SubsidiariesCompany;
(ciii) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock Capital Stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock Capital Stock or such other securities;
(div) neither the Company nor its Subsidiaries has (i) not awarded or paid any bonuses to employees Employees or representatives Representatives of the Company, (ii) Company nor has the Company either entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement)) or agreed to increase the compensation payable or to become payable by it to any of the Company's Employees or Representatives or agreed to increase the coverage or benefits available under any severance pay, deferred compensation, bonus or other incentive compensation, pension or other employee benefit plan, payment or arrangement made to, for or with such Employees or Representatives, other than in the ordinary course of businessbusiness consistent with past practice which increases in the aggregate do not exceed $25,000 in annual cost to the Company, and other than as may have been required by law or insurers;
(ev) neither the Company nor its Subsidiaries has not made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its SubsidiariesCompany;
(fvi) neither the Company nor its Subsidiaries has not transferred or granted any rights under any Contracts or Contracts, leases, licenses, agreements or intangible property (as set forth in Section 4.12 of this Agreement) used by the Company in its businessbusiness which could result in a Material Adverse Change;
(gvii) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 5,000 for any single loss or $20,000 50,000 for all such losses;
(hviii) neither the Company nor its Subsidiaries has not mortgaged, pledged or has been subjected to any Lien on any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate Company, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(iix) neither the Company nor its Subsidiaries has not canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its SubsidiariesCompany;
(jx) neither the Company nor its Subsidiaries has not made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 5,000 individually or $50,000 in the aggregate;
(kxi) neither the Company nor its Subsidiaries has not incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the usual and ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Changematerially and adversely affects the business, assets, liabilities, prospects, properties, results of operations or condition (financial or otherwise) of the Company;
(lxii) neither the Company nor its Subsidiaries has not entered into any transaction other than in the usual and ordinary course of business except for (in this Agreement and the case of the Company) this Agreementtransactions described herein;
(mxiii) neither the Company nor its Subsidiaries has not encountered any labor difficulties or labor union organizing activities;
(nxiv) neither the Company nor its Subsidiaries has not made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(oxv) neither the Company nor its Subsidiaries has not disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;; or
(pxvi) neither to the Company nor its Subsidiaries has Company's knowledge, suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their its suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and Company, which has had or its Subsidiaries; and
(q) neither is likely to have a material adverse effect on the Company nor its Subsidiaries has made any payment tobusiness, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property liabilities, prospects, properties, results of operations or services, condition (financial or otherwise) of the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)Company.
Appears in 1 contract
Samples: Securities Purchase and Stockholder Agreement (Advanced Switching Communications Inc)
Absence of Certain Developments. In Since the ordinary course of business or in Balance Sheet Date (and, with respect to clauses (a), (e), (f) and (p), the context of date that is 12 months prior to the Transactions contemplated in this Agreement and the Transaction Documents:Balance Sheet Date):
(a) there has not been any Seller Material Adverse Change nor has there occurred any event occurred which could is reasonably likely to result in any a Seller Material Adverse Change;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or its Subsidiaries Seller having a replacement cost of more than $10,000 5,000 for any single loss or $20,000 10,000 for all such losses;
(c) Seller has not 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 Seller, other than increases in the ordinary course of business consistent with past practice in the base salaries of employees of Seller other than officers or senior managers;
(d) Seller has not entered into any employment, deferred compensation, severance or similar agreement (nor amended any such agreement);
(e) there has not been any change by Seller in accounting or Tax reporting principles, methods or policies;
(f) Seller has not conducted its business other than in the ordinary course consistent with past practice;
(g) Seller has not entered into (1) any Material Contract that is not an Included Contract or (2) any other material transaction;
(h) neither Seller has not hired employees or engaged independent contractors to provide services for clients of Seller other than in the Company nor its Subsidiaries ordinary course of business consistent with, and at a level consistent with, past practice;
(i) Seller has not materially breached any Included Contract or materially amended any Included Contract;
(j) Seller has not failed to promptly pay and discharge current Liabilities except where disputed in good faith in an appropriate manner;
(k) Seller has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of Seller other than intercompany transactions in the ordinary course of business consistent with past practice;
(l) Seller has not mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate Seller except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(im) neither Seller has not discharged or satisfied any Lien, or paid any obligation or Liability, except in the Company nor its Subsidiaries ordinary course of business consistent with past practice and which, in the aggregate, are not material to Seller;
(n) Seller has not canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would are not be material to the Company or its SubsidiariesCompany;
(jo) neither the Company nor its Subsidiaries Seller has not made any binding commitment or committed to make any capital expenditures or capital additions or betterments improvements in excess of $20,000 5,000 individually or $50,000 10,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred as set forth in the ordinary course of businessSeller Disclosure Schedule, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than otherwise in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsconsistent with past practices;
(p) neither the Company nor its Subsidiaries Seller has suffered or experienced not entered into any change in the relationship or course of dealings between the Company and/or its Subsidiaries and prepaid services transactions with any of their suppliers its customers or customers which supply goods otherwise accelerated revenue recognition or the sales of its services for periods prior to the Company any Closing hereunder;
(q) Seller has not amended any of its Organizational Documents;
(r) Seller has not issued any membership interests or its Subsidiaries any security exercisable or purchase goods exchangeable for or services from the Company and or its Subsidiariesconvertible into membership interests of Seller; and
(qs) neither the Company nor its Subsidiaries Seller has made any payment to, or received any payment from, or made or received any investment in, or not entered into any transaction agreements to do or series perform in the future any actions referred to in this Section 3.8 which have not been consummated as of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)date hereof.
Appears in 1 contract
Absence of Certain Developments. In Except as set forth in Schedule 4.8 ---------------------------------- ------------ and since the ordinary course of business Acquisition Date and to the Company's or in the context of the Transactions contemplated in this Agreement and the Transaction DocumentsIASG's Knowledge, since December 31, 1999:
(ai) there has not been any Material Adverse Change nor has any event occurred which could reasonably be expected to result in any Material Adverse Change; or
(ii) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property and assets of the Company having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(biii) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its SubsidiariesCompany, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesCompany;
(civ) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(dv) neither except with respect to the hiring of new Employees in the ordinary course of business whose annual compensation in the aggregate is not greater than $100,000 (exclusive of benefits), the Company nor its Subsidiaries has (i) not awarded or paid any bonuses to employees or representatives Employees of the Company, (ii) Company nor has the Company entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement)) or agreed to increase the compensation payable or to become payable by it to any of the Company's directors, officers, Employees, agents or Representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with such directors, officers, Employees, agents or Representatives, other than in the ordinary course of businessbusiness consistent with past practice which increases in the aggregate do not exceed $20,000 in annual cost to the Company, and other than as may have been required by law or insurers;
(evi) neither the Company nor its Subsidiaries has not made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company Company, other than its Subsidiariesfor reimbursement of expenses in the ordinary course of business consistent with past practices;
(fvii) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate assets, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(iviii) neither the Company nor its Subsidiaries has not discharged or satisfied any Lien, or paid any obligation or liability (fixed or contingent), except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Company;
(ix) the Company has not canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiariesresult in a Material Adverse Change;
(jx) neither the Company nor has not transferred or granted any rights under any contracts, leases, licenses, agreements or Intangible Property (as defined in Section 4.12 hereof) used by the Company in its Subsidiaries business which reasonably could be expected to result in a Material Adverse Change; and
(xi) the Company has not made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”).
Appears in 1 contract
Samples: Securities Purchase Agreement (International Airline Support Group Inc)
Absence of Certain Developments. In From December 31, 2014 (x) to the date hereof, the business of the Company and its Subsidiaries has been conducted in the ordinary course of business or in the context of the Transactions contemplated in this Agreement consistent with past practice and the Transaction Documents:
(ay) there has not been any Material Adverse Change Effect. From December 31, 2014 to the date hereof, neither the Company nor has any event occurred which could result in any Material Adverse Changeof its Subsidiaries has:
(a) materially changed its accounting methodologies, practices or principles, other than as required by GAAP;
(b) there has not been established any declarationnew or amended in any material respect any existing cash management policies, setting a record date, setting aside including delaying or authorizing postponing the payment of, any dividend or other distribution in respect of any shares of capital stock of accounts payable or accelerating the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, collection of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement)accounts receivable, other than in the ordinary course of business;
(c) amended its or its Subsidiaries’ certificate or articles of formation or incorporation, bylaws or other similar organizational documents;
(d) been a party to any merger, acquisition, consolidation, liquidation, dissolution or similar transaction, or purchased a substantial equity interest in or substantial portion of the assets of, any business or Person;
(e) neither the Company nor its Subsidiaries has made borrowed any loans, advances material amount or incurred or become subject to any material liability (other than advances to officers and employees of the Company or its Subsidiaries which advances are made any liability incurred in the ordinary course of business), or capital contributions to, or investments in, any Person liability under any contract entered into in the ordinary course of business and borrowings from banks (or paid similar financial institutions) incurred to meet ordinary course of business working capital requirements and any fees or expenses to any Affiliate of the Company other than its Subsidiariesliability under this Agreement);
(f) neither the Company nor mortgaged or pledged or placed any Lien on any substantial portion of its Subsidiaries has transferred or granted any rights under any Contracts or licensesassets, used by the Company in its businessexcept Permitted Liens;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of or transferred any assets material portion of the Company its tangible assets, except any sale, assignment or its Subsidiaries for a sale price disposition of inventory and any conversion of rental instruments in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of each case in the ordinary course of business;
(i) neither sold or assigned any Intellectual Property, (ii) licensed or sublicensed any Intellectual Property other than in the ordinary course of business in connection with the sale, rental or lease of the Company’s products, or (iii) abandoned or permitted the lapse of any Intellectual Property other than, in the case of this clause (iii), in the ordinary course of business, including in connection with the ordinary course prosecution of patent applications and trademark applications consistent with past practice;
(i) issued, delivered, sold, pledged, encumbered, transferred or otherwise disposed of any of its equity securities, securities convertible into its equity securities or warrants, options or other rights of any kind to acquire its equity securities, or any bonds or debt securities, or proposed or agreed to do any of the foregoing;
(j) made any investment in excess of $250,000 in, or any loan in excess of $250,000 to, any other Person (other than its Subsidiaries), except in the ordinary course of business;
(k) (1) split, combined, adjusted, subdivided or reclassified any Shares or other capital stock, (2) declared, set aside, or paid any distribution with respect to its equity securities (other than cash distributions) or repurchased any of its equity securities (other than for cash), or made any other actual, constructive or deemed distribution in respect of the Shares or other capital stock (other than in cash), or (3) purchased, redeemed, retired or repurchased any of its equity securities (other than for cash) or otherwise acquired or disposed of any capital stock or other equity interests of the Company nor its Subsidiaries has canceled or any Subsidiary or any other securities thereof or any rights, warrants or options to acquire any such capital stock or other equity interests or other securities (in each case, other than acquisitions for cash);
(l) made or authorized any capital expenditures in excess of $500,000 individually or $1,000,000 in the aggregate or commitments therefor, except for such capital expenditures or commitments that are reflected in the budget delivered to Purchaser prior to the date hereof;
(m) settled, compromised or otherwise resolved any debt pending or Threatened claim, suit, action, charge, citation, proceeding, investigation or amendedarbitration for an amount in excess of $100,000 or which would impose any obligations or liabilities on the Company or any Subsidiary following the Closing; or
(n) other than as required under any Employee Benefit Plan in effect prior to the date hereof or to comply with applicable Law, canceled(A) increased the compensation or benefits payable to any of the Company’s current or former employees, terminatedofficers, relinquisheddirectors, waived or released any Contract or rightcontractors, except for increases in base salary or base wage rate for employees having total annual compensation less than or equal to $150,000, which increases did not exceed 3% in any individual case, (B) established, adopted, entered into, amended or terminated any Employee Benefit Plan or any bonus, severance, retention, termination, or pension plan, program or arrangement made to, for or with any of the Company’s current or former directors, officers, employees, or contractors, (C) paid or awarded, or committed to pay or award, any bonuses, equity compensation or other incentive compensation, other than in the ordinary course of business consistent with past practice and whichpractice, individually (D) accelerated the time of payment, funding or in the aggregatevesting of any compensation or other benefits under any Employee Benefit Plan, would not be material to the Company or its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for consistent with past practice, (in the case of the CompanyE) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered hired any labor difficulties employee, contractor or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, consultant having total annual cash compensation in excess of $10,000 150,000, (F) terminated the employment of any employee, contractor or its equivalent (consultant having total annual compensation in excess of $150,000, other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”).for cause,
Appears in 1 contract
Absence of Certain Developments. In the ordinary course of business or in the context of the Transactions Except as contemplated in by this Agreement and or as set forth on Schedule 5.9, since the Transaction DocumentsBalance Sheet Date:
(a) there the Company has not been any Material Adverse Change nor has any event occurred which could result conducted its business only in any Material Adverse Changethe Ordinary Course of Business;
(b) there has not been any declarationevent, setting change, occurrence or circumstance that has had or could reasonably be expected to have a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesMaterial Adverse Effect;
(c) there other than this Agreement, neither the Seller Parent nor the Seller has sold, transferred, redeemed or encumbered any Shares, and the Company has not been any transfer, issue, sale or other disposition by the Company of sold any shares of capital stock or other equity securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securitiesCompany;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course Ordinary Course of businessBusiness, the Company has not increased the benefits, compensation, bonus or bonus opportunity of any employee, officer or director of the Company;
(e) neither the Company nor its Subsidiaries has made not canceled or compromised any loansdebt or claim or amended, advances (other than advances to officers and employees of the Company canceled, terminated, relinquished, waived or its Subsidiaries which advances are made released any Material Contract or right except in the ordinary course Ordinary Course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its SubsidiariesBusiness;
(f) neither the Company has not mortgaged, pledged or subject to any Lien (other than Permitted Exceptions) any of its material assets, nor its Subsidiaries has transferred any such asset been seized or granted any rights under any Contracts or licenses, used by the Company in its businessattached;
(g) there the Company has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate material asset or sold, assigned, transferred, conveyed, leased or otherwise disposed of any material assets of the Company or its Subsidiaries except for a sale price in excess such types of $10,000 assets that are taken into account in the aggregate except for assets acquired calculation of any adjustment to the purchase price pursuant to Section 3.3 or soldthe consignment of copper pursuant to Section 2.2;
(h) the Company has not suffered any damage, assigned, transferred, conveyed, leased destruction or otherwise disposed loss of in the ordinary course of businessCompany Properties that would materially and adversely affect its condition (financial or otherwise) or operations (present or prospective);
(i) other than this Agreement, neither the Company Seller Parent nor its Subsidiaries the Seller has canceled issued, sold or compromised any debt or claimotherwise disposed of, or amendedagreed to issue, canceledsell or otherwise dispose of, terminated, relinquished, waived any capital stock or released any Contract or right, except in the ordinary course other security of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company and has not granted or its Subsidiariesagreed to grant any option, warrant or other right to subscribe for or to purchase any capital stock or any other security of the Company;
(j) neither the Company nor its Subsidiaries has made any binding commitment not paid or obligated itself to make any capital expenditures or capital additions or betterments pay in excess of $20,000 individually or $50,000 in the aggregate;aggregate for any fixed assets; and
(k) neither the Company nor its Subsidiaries has incurred not lost any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)major customer.
Appears in 1 contract
Samples: Stock Purchase Agreement (International Wire Group Inc)
Absence of Certain Developments. In the ordinary course of business or in the context of the Transactions Except as expressly ------------------------------- contemplated in by this Agreement and or as set forth on Schedule 5.10, since the Transaction DocumentsInterim Date:
(a) there has not been any Material Adverse Change nor has there occurred any event occurred which could is reasonably likely to result in any a Material Adverse Change;
(b) there has not been as of the date hereof any declarationdamage, setting a record datedestruction or loss, setting aside including condemnation or authorizing casualty, whether or not covered by insurance, with respect to the payment of, any dividend or other distribution in respect of any shares of capital stock property and assets of the Company or any of its Subsidiaries having a replacement cost of more than $1,000,000 for any single loss or $5,000,000 for all such losses and there has not been any repurchasesuch damage, redemption destruction or other acquisition Loss not covered by the Company insurance having a replacement cost of more than $5,000,000 for any single loss or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries$15,000,000 for all such Losses;
(c) there has not been any transferdeclaration, issue, sale setting aside or payment of any dividend or other disposition by the Company distribution in respect of any shares of capital stock or other securities Capital Stock of the Company or its Subsidiaries or any grant of optionsrepurchase, warrants, calls redemption or other rights to purchase acquisition by the Seller or otherwise acquire shares the Company or any of such capital stock its Subsidiaries of any outstanding Capital Stock of the Company or such other securitiesany of its Subsidiaries;
(d) neither the Company nor any of its Subsidiaries has (i) awarded entered into or paid modified any bonuses to employment, severance, termination, retention or similar agreements or arrangements with, or granted any bonuses, salary increases, severance or termination pay to, or otherwise increased the compensation or benefits of, any officer, director, consultant or employee other than increases in salary, compensation or benefits of employees or representatives other than officers of the CompanyCompany or its Subsidiaries granted in the ordinary course of business, except as may be required by applicable Law or a binding written Contract in effect on the date of this Agreement;
(iie) there has not been any material change by the Company or any of its Subsidiaries in accounting methods or policies, except as required by GAAP;
(f) neither the Company nor any of its Subsidiaries has entered into any employmenttransaction or Contract, deferred compensation, severance or similar agreements (nor amended any such agreement)otherwise conducted its business, other than in the ordinary course of businessbusiness other than (i) as may arise out of negotiations relating to the Company's contract with and/or investment in ICO and ICO Holdings and (ii) the settlement of any Legal Proceeding involving the China Investigation;
(eg) neither the Company nor any of its Subsidiaries has made any loans, advances failed to pay or otherwise discharge current Liabilities on a timely basis except where disputed in good faith by appropriate proceedings and except for immaterial oversights or errors;
(h) other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), neither the Company nor any of its Subsidiaries has made any material loans, advances or capital contributions to, or investments in, any Person or paid any material fees or expenses to the Seller or any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessSeller;
(i) neither the Company nor its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment or committed to make any capital expenditures or capital additions or betterments in excess of $20,000 5,000,000 individually or $50,000 25,000,000 in the aggregate;
(j) neither the Company nor any of its Subsidiaries has instituted or settled any material Legal Proceeding (other than the settlement of any Legal Proceeding involving the China Investigation after the date hereof);
(k) neither the Company nor any of its Subsidiaries has incurred made any debtsacquisition, obligations or liabilitiesany sale, whether due lease or to become duedisposition, of any material Assets of the Satellite Business, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;business consistent with past practice; and
(l) neither the Company Seller nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change agreed to do anything set forth in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 5.10.
Appears in 1 contract
Absence of Certain Developments. In Except as expressly contemplated by this Agreement or as set forth on Schedule 4.9, since the ordinary course of business or Balance Sheet Date (i) the Company and the Subsidiaries have conducted their respective businesses only in the context Ordinary Course of the Transactions contemplated in this Agreement Business and the Transaction Documents:
(aii) there has not been any event, change, occurrence or circumstance that, individually or in the aggregate with any such events, changes, occurrences or circumstances, has had or could reasonably be expected to have a Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;Effect. Without limiting the generality of the foregoing, since the Balance Sheet Date:
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(ga) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or its Subsidiaries any Subsidiary having a replacement cost of more than $10,000 RMB100,000 for any single loss or $20,000 RMB1,000,000 for all such losses;
(hb) there has not been any declaration, setting aside or payment of any dividend or other distribution in respect of any equity in or other securities of the Company or any repurchase, redemption or other acquisition by the Company or any Subsidiary of any outstanding equity interests in or other securities of, or other ownership interest in, the Company or any Subsidiary;
(c) neither the Company nor its Subsidiaries any Subsidiary has awarded or paid any bonuses to employees of the Company or any Subsidiary with respect to the fiscal year ended December 31, 2008, except to the extent accrued on the Balance Sheet, or entered into any employment, deferred compensation, severance or similar 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 any Subsidiary’s directors, officers, employees, agents or representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with such directors, officers, employees, agents or representatives;
(d) there has not been any change by the Company or any Subsidiary in accounting or Tax reporting principles, methods or policies;
(e) neither the Company nor any Subsidiary has made or rescinded any election relating to Taxes or settled or compromised any claim relating to Taxes;
(f) neither the Company nor any Subsidiary has entered into any transaction or Contract other than in the Ordinary Course of Business;
(g) neither the Company nor any Subsidiary has failed to promptly pay and discharge current liabilities except where disputed in good faith by appropriate proceedings;
(h) Except as set forth on Schedule 4.9 (h), neither the Company nor any Subsidiary has made any loans, advances or capital contributions to, or investments in, any Person with an amount exceeding RMB 100,000 or paid any fees or expenses to any Seller or any director, officer, partner, equityholder, member, shareholder or Affiliate of any Seller with an amount exceeding RMB 100,000, except for the normal payment of relevant employees’ salaries, reimbursement and bonuses;
(i) neither the Company nor any Subsidiary has (A) mortgaged, pledged or subjected to any Lien (other than Permitted Exceptions) any of its assets, or (B) acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 any Subsidiary, except, in the aggregate except case of clause (B), for assets acquired or acquired, sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course Ordinary Course of businessBusiness;
(ij) neither the Company nor its Subsidiaries any Subsidiary has discharged or satisfied any Lien, or paid any Liability, except in the Ordinary Course of Business;
(k) neither the Company nor any Subsidiary has canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course Ordinary Course of business consistent with past practice Business and which, individually or in the aggregate, would not be material to the Company or its Subsidiariesand the Subsidiaries taken as a whole;
(jl) neither the Company nor its Subsidiaries any Subsidiary has made any binding commitment or committed to make any capital expenditures or capital additions or betterments in excess of $20,000 RMB500,000 individually or $50,000 RMB2,000,000 in the aggregate;
(k) neither , with the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or exception of commitments relating to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement’s new construction project specified on Schedule 4.9(l);
(m) neither the Company nor its Subsidiaries any Subsidiary has encountered issued, created, incurred, assumed, guaranteed, endorsed or otherwise become liable or responsible with respect to (whether directly, contingently, or otherwise) any labor difficulties or labor union organizing activitiesIndebtedness in an amount in excess of RMB1,000,000 in the aggregate;
(n) neither the Company nor its Subsidiaries has made not granted any change license or sublicense of any rights under or with respect to any Intellectual Property except in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adoptedOrdinary Course of Business;
(o) neither the Company nor its Subsidiaries any Subsidiary has disclosed to instituted or settled any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;Legal Proceeding resulting in a loss of revenue in excess of RMB1,000,000 in the aggregate; and
(p) neither none of the Sellers or the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment toagreed, or received any payment fromcommitted, or made or received any investment in, arranged or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate understanding to do anything set forth in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 4.9.
Appears in 1 contract
Absence of Certain Developments. In Except as set forth in Section 3.7 of the Disclosure Schedule, since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has conducted its business other than in the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documentsconsistent with past practice and:
(a) there has not been any Company Material Adverse Change Effect nor has there occurred any event occurred which could is reasonably likely to result in any a Company Material Adverse ChangeEffect;
(b) there neither the Company nor any of its Subsidiaries has not been made any declaration, setting a record date, setting aside declaration or authorizing the payment of, of any dividend dividends or other distribution distributions on or in respect of any shares of capital stock or other security of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or of its Subsidiaries, or redemption, purchase or acquisition of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, security of the Company or any of its Subsidiaries, or made any other payment to or on behalf of any Seller or any Affiliate thereof other than closing of the JV Buyouts;
(c) there has not been any transfersplit, issue, sale combination or other disposition by the Company reclassification of any shares of capital stock or other securities security of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(gd) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or any of its Subsidiaries having a replacement cost of more than $10,000 50,000 for any single loss or $20,000 100,000 in the aggregate for all such any related losses;
(e) other than Change of Control Payments, neither the Company nor any of its Subsidiaries 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 Company or any of its Subsidiaries, other than increases in the ordinary course of business consistent with past practice in the base wages or salaries of employees of the Company or any of its Subsidiaries other than officers or senior managers;
(f) neither the Company nor any of its Subsidiaries has entered into or amended any employment, deferred compensation, severance or similar agreement;
(g) neither the Company nor any of its Subsidiaries has entered into any collective bargaining agreement or relationship with any labor organization;
(h) there has not been any change by the Company or any of its Subsidiaries in accounting or Tax reporting principles, methods or policies, any settlement of any Tax controversy, any amendment of any Tax Return, or any Tax election made by or with respect to the Company or any of its Subsidiaries;
(i) except for the transactions contemplated by this Agreement, neither the Company nor any of its Subsidiaries has entered into or amended any other transaction or Contract other than in the ordinary course of business consistent with past practice;
(j) neither the Company nor any of its Subsidiaries has hired employees or engaged independent contractors other than in the ordinary course of business consistent with, and at a level consistent with, past practice;
(k) neither the Company nor any of its Subsidiaries has materially breached any Material Contract;
(l) neither the Company nor any of its Subsidiaries has materially changed its policies and programs with respect to customer credits, coupons, rebates, returns, warranties, marketing or promotions;
(m) neither the Company nor any of its Subsidiaries has made any loans, advances or capital contributions to, or investments in, any Person;
(n) neither the Company nor any of its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or any of its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(io) neither the Company nor any of its Subsidiaries has canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Material Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would are not be material to the Company or any of its Subsidiaries;
(jp) neither the Company nor any of its Subsidiaries has entered into or amended any Contract or transaction with any of its Affiliates or paid any fees, expenses or other amounts to any Affiliate of the Company or any of its Subsidiaries;
(q) neither the Company nor any of its Subsidiaries has made any binding commitment or committed to make any capital expenditures or capital additions or betterments improvements (i) in excess of $20,000 500,000 individually or $50,000 1,000,000 in the aggregate, or (ii) outside the ordinary course of business consistent with past practices;
(kr) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction prepaid transactions or otherwise accelerated revenue recognition or the sales for periods prior to the Closing;
(s) neither the Company nor any of its Subsidiaries has materially changed its policies or practices with respect to the payment of accounts payable or other current liabilities or the collection of accounts receivable (including any acceleration or deferral of the payment or collection thereof);
(t) neither the Company nor any of its Subsidiaries has amended any of its Governing Documents, except as requested by Purchaser;
(u) neither the Company nor any of its Subsidiaries has 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 consent to the filing of any bankruptcy petition against it under any similar Law or other agreement with respect to the sale of its assets, securities or Business;
(v) neither the Company nor any of its Subsidiaries has issued any equity or debt securities or any security exercisable or exchangeable for or convertible into equity securities of the Company or any of its Subsidiaries, or incurred any Indebtedness or other Liabilities (other than in the ordinary course of business except for (in the case of the Company) this Agreementconsistent with past practices);
(mw) neither the Company nor any of its Subsidiaries has encountered (i) discharged, repaid, amended, modified, made payment on, canceled or compromised any labor difficulties Indebtedness, or labor union organizing activitiesdischarged or satisfied any Lien, or (ii) engaged in any transaction or provided any consideration relating to the release, modification or diminution of any guarantee, bond, surety or other obligation of any Seller or any Affiliate thereof;
(nx) neither the Company nor any of its Subsidiaries has made entered into any change in the accounting principles, methods compromise or practices followed settlement of any dispute or Legal Proceeding by it or depreciation or amortization policies or rates theretofore adoptedany Governmental Body;
(oy) neither the Company nor any of its Subsidiaries has disclosed transferred, assigned or granted any license or sublicense of any material rights under or with respect to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsIntellectual Property;
(pz) neither the Company nor any of its Subsidiaries has suffered failed (i) to file any material reports or experienced any change take steps necessary to comply with applicable Laws and (ii) to maintain in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiariesgood standing all Permits; and
(qaa) neither the Company nor any of its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction agreements or series of related transactions (including without limitation, commitments to do or perform in the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with future any Affiliate actions referred to in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 3.7.
Appears in 1 contract
Samples: Stock Purchase Agreement (Fresh Del Monte Produce Inc)
Absence of Certain Developments. In the ordinary course of business Except as expressly contemplated by this Agreement or as set forth in the context Section 5.11 of the Transactions contemplated in this Agreement and Purchaser Disclosure Letter, since the Transaction DocumentsPurchaser Balance Sheet Date:
(a) there has not been any Material Adverse Change nor has there occurred any event occurred which could is reasonably likely to result in any a Material Adverse ChangeChange with respect to Purchaser and its Subsidiaries, taken as a whole;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company Purchaser or any of its Subsidiaries having a replacement cost of more than $10,000 20,000 for any single loss or $20,000 for all such losses;
(c) 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 Purchaser or any repurchase, redemption or other acquisition by Purchaser or any of its Subsidiaries of any outstanding shares of capital stock or other securities of, or other ownership interest in, Purchaser or any of its Subsidiaries, except for dividends to Purchaser by any of its wholly owned Subsidiaries;
(d) neither Purchaser nor any of its Subsidiaries has issued any equity securities or any securities convertible into or exchangeable for equity securities of Purchaser or any of its Subsidiaries;
(e) neither Purchaser nor any of its Subsidiaries has awarded or paid any bonuses to employees of Purchaser or any of its Subsidiaries with respect to the fiscal year ended December 31, 1995, except to the extent accrued on the Purchaser Balance Sheet, or entered into any employment, deferred compensation, severance or similar agreement (or amended any such agreement) or agreed to increase the compensation payable or to become payable by it to any of its directors, officers, employees, agents or representa tives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with such directors, officers, employees, agents or representatives (other than normal increases in the ordinary course of business consistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of Purchaser and its Subsidiaries, taken as a whole);
(f) there has not been any change by Purchaser or any of its Subsidiaries in accounting or Tax reporting principles, methods or policies except as may be required by a change in national accounting standards;
(g) neither Purchaser nor any of its Subsidiaries has entered into any transaction or Contract or conducted its business other than in the ordinary course consistent with past practice;
(h) neither Purchaser nor any of its Subsidiaries has failed to promptly pay and discharge current liabilities except where disputed in good faith by appropriate proceedings;
(i) neither Purchaser 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 the Company Purchaser or any Affiliate or holder of 15% or more of the issued and outstanding capital stock of Purchaser;
(j) neither Purchaser nor any of its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company Purchaser or its Subsidiaries for a sale price in excess of $10,000 in the aggregate Subsidiaries, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(ik) neither Purchaser nor any of its Subsidiaries has discharged or satisfied any Lien, or paid any obligation or liability (fixed or contingent), except in the Company ordinary course of business consistent with past practice and which, in the aggregate, would not be material to Purchaser and its Subsidiaries, taken as a whole;
(l) neither Purchaser nor any of its Subsidiaries has canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or Purchaser and its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in taken as a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreementwhole;
(m) neither the Company Purchaser nor any of its Subsidiaries has encountered instituted or settled any labor difficulties or labor union organizing activitiesmaterial Legal Proceeding;
(n) neither the Company Purchaser nor any of its Subsidiaries has made suffered any change in the accounting principles, methods Extraordinary Loss or practices followed by it or depreciation or amortization policies or rates theretofore adoptedExtraordinary Losses;
(o) neither the Company Purchaser nor any of its Subsidiaries has disclosed transferred or granted any material rights under any concessions, leases, licenses, agreements, patents, inventions, trademarks, trade names, servicemarks, brandmarks, brand names, copyrights or the like, or with respect to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsknow-how;
(p) neither the Company Purchaser nor any of its Subsidiaries has suffered (A) received any notice or experienced citation for any change in violation of, nor, to the relationship best knowledge of Purchaser, has any complaint been filed with the FCC alleging a violation of, any rule, regulation or course policy of dealings between the Company and/or its Subsidiaries and FCC by the Purchaser or any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods the FCC licensee with respect to any System (as defined in Section 5.27), or services from (B) allowed any license issued by the Company FCC to Purchaser or any of its Subsidiaries or any FCC licensee with respect to any System (individually, a "Purchaser FCC License" and, collectively, the "Purchaser FCC Licenses") to lapse or be impaired in any manner, or operated any of its businesses in any manner not in compliance with its FCC authorization and or its Subsidiariesall applicable FCC rules, regulations and policies; and
(q) neither the Company Purchaser nor any of its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate agreed to do anything set forth in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 5.11.
Appears in 1 contract
Absence of Certain Developments. In the ordinary course of business or in the context of the Transactions Except as expressly contemplated in by this Agreement and or as set forth on Schedule 4.10, since the Transaction DocumentsBalance Sheet Date:
(a) there has not been any Material Adverse Change nor has there occurred any event occurred which could is reasonably likely to result in any a Material Adverse Change;
(b) there has not been any declaration, setting a record date, setting aside no disposal or authorizing the payment of, any dividend loss from damage or other distribution in respect otherwise of any shares fixed asset having a replacement cost of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiariesmore than $500,000;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of either of the Company or its Subsidiaries Companies having a replacement cost of more than $10,000 500,000 for any single loss or $20,000 2,000,000 for all such losseslosses and real and personal property of the Companies has been maintained in the ordinary course of business, consistent with past practice, and to Seller's Knowledge, no material expenditure is required to be made by any Person to enable each of the Companies to operate its business;
(i) there has not been a change in the authorized or issued capital stock of either of the Companies; (ii) grant of any stock option, warrant, or other right to purchase shares of capital stock of either of the Companies; (iii) issuance of any security convertible into the capital stock of either of the Companies; (iv) grant of any registration rights in respect of the capital stock of either of the Companies; (v) reclassification, combination, split, subdivision, purchase, redemption, retirement, issuance, sale, or any other acquisition or disposition, directly or indirectly, by either of the Companies of any shares of the capital stock thereof; (vi) amendment of any term of any outstanding security of either of the Companies; (vii) declaration, setting aside or payment of any dividend (whether in cash, securities or other property) or other distribution or payment in respect of the shares of the capital stock of either of the Companies; or (viii) sale or pledge of any stock or other equity interests owned by either of the Companies;
(i) amendment or other change in the certificate of incorporation or by-laws or other organizational documents of either of the Companies; (ii) merger or consolidation by either of the Companies with or into any other Person; (iii) subdivision or reclassification of any shares of the capital stock of either of the Companies; or (iv) change or agreement to change in any manner the rights of the outstanding capital stock of either of the Companies;
(f) Except as set forth on Schedule 4.10 (f) hereto, or to the extent either designated as Excluded Assets and Liabilities or disclosed and accrued on the Balance Sheet, neither of the Companies has awarded (or agreed to award) any bonuses to employees of the Companies with respect to the fiscal year ending March 31, 2002 or any period thereafter, or entered into any employment, deferred compensation, severance or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by it to any of the Companies' directors, officers, employees, agents or representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with such directors, officers, employees, agents or representatives (other than normal increases in the ordinary course of business consistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Companies taken as a whole);
(g) there has not been any agreement entered into or amended by either of the Companies with any labor union or association;
(h) there has not been any change by either of the Companies with respect to accounting, reserving or investing or Tax reporting principles, methods or policies;
(i) neither of the Company nor Companies has entered into any transaction or Contract or conducted its Subsidiaries business other than in the ordinary course consistent with past practice including maintaining consistency of average accounts receivable days, inventory holding days, and accounts payable days;
(j) neither of the Companies has failed to promptly pay and discharge current liabilities except where disputed in good faith by appropriate proceedings;
(k) neither of the Companies has made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to the Seller or any Affiliate of the Seller;
(1) neither of the Companies has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of either of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate Companies, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiariespractice;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”).
Appears in 1 contract
Samples: Stock Purchase Agreement (Hardie James Industries Nv)
Absence of Certain Developments. In Since the date of the latest Annual Balance Sheet through the date of this Agreement, except as set forth on Schedule 5.10 of the Seller and Company Disclosure Schedules or as expressly contemplated by the Pre-Transaction Asset Transfers and the transactions related to the Section 338(h)(10) Elections, (i) the Company and, with respect to the Business, the Seller and its other direct and indirect Subsidiaries have, in all material respects, conducted their business and operated their properties in the ordinary course of business consistent with past practice, (ii) neither the Company nor, with respect to the Business, the Seller or in any of its other direct and indirect Subsidiaries has suffered any material loss, damage, destruction or other casualty affecting any of their respective properties or assets, whether or not covered by insurance, (iii) the context of Company and its Subsidiaries have not amended their respective Organizational Documents; (iv) the Transactions contemplated in this Agreement Company and the Transaction Documents:
(a) there has its Subsidiaries have not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
(b) there has not been any declarationdeclared, setting a record date, setting set aside or authorizing the payment of, paid any dividend or other distribution in respect of any shares of capital stock the Capital Stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or of its Subsidiaries, of any of the outstanding shares of capital stock other than dividends or other securities of, or other ownership interest in, distributions payable entirely in cash from the Company or its Subsidiaries;
to the Seller; (cv) there has not been any transfer, issue, sale or other disposition by the Company of and its Subsidiaries have not issued, delivered transferred, assigned, pledged, encumbered or sold any shares of capital stock or other securities Capital Stock of the Company or any of its Subsidiaries Subsidiaries, other than the issuance of any Capital Stock of any wholly owned Subsidiary of the Company to the Company or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives wholly owned Subsidiary of the Company; (vi) the Company and its Subsidiaries have not changed any methods, policies or practices of accounting, except as required by GAAP; (iivii) entered into the Company and, with respect to the Business, the Seller and its other direct and indirect Subsidiaries have not made any employmentmaterial acquisitions or divestitures of any corporation, deferred compensationpartnership, severance or similar agreements (nor amended any such agreement)limited liability company, other business organization or division thereof or any assets that, individually or in the aggregate, have a value of greater than $250,000 other than acquisitions of assets for use in the Business in the ordinary course of business;
business consistent with past practice; (eviii) neither the Company nor and with respect to the Business, the Seller and its other direct and indirect Subsidiaries have not subjected any properties or assets of the Company or the Business to any Lien, except for Permitted Liens, (ix) the Company has not adopted a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company, or otherwise altered the Company’s corporate structure; (x) the Company and, with respect to the Business, the Seller and its other direct and indirect Subsidiaries have not (A) paid, discharged, settled or satisfied any action, litigation, claim or arbitration of or involving the Company or the Business in excess of $50,000 or (B) cancelled any material indebtedness of the Company (individually or in the aggregate) or cancelled, compromised, released or waived any claims or rights of the Company or the Business; (xi) the Company has not made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or other than routine advances to employees for business expenses to any Affiliate of in the ordinary consistent with past practices; (xii) the Company has not created or incurred any indebtedness or liability, directly or indirectly, for the payment of any indebtedness for borrowed money of any other than its Subsidiaries;
Person as obligor, guarantor, surety or otherwise; (fxiii) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurancenor, with respect to the property Business, the Seller or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assetsdirect or indirect Subsidiaries have adopted, established, entered into, amended or acquired terminated any assets for a purchase price in excess of $10,000 in the aggregate Company Benefit Plan (solely with respect to any current or soldformer Service Provider), assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of other than in the ordinary course of business;
business consistent with past practice; (ixiv) neither the Company nor nor, solely with respect to the Business, the Seller or any of its direct and indirect Subsidiaries has canceled have increased the compensation payable to any Business Employee earning in excess of $100,000 in base cash compensation per year, other than such increases described on Schedule 5.10(xiv) of the Seller and Company Disclosure Schedules or compromised any debt or claim, or amended, canceled, terminated, relinquished, waived or released any Contract or right, except increases made in the ordinary course of business consistent with past practice and whichor as part of the Company’s annual merit increase review cycle, individually or provided that no single Business Employee’s salary increase in connection with such annual merit increase review cycle exceeds six percent (6%); (xv) except as otherwise contemplated by this Agreement, neither the aggregateCompany nor, would not be material solely with respect to the Business, the Seller or any of its direct and indirect Subsidiaries have taken any action to accelerate the vesting or payment of any compensation or benefits of any Business Employee or grant to any Business Employee any contractually binding change in control, retention, severance or termination pay, transaction, stay bonus, tax gross-up, equity or equity-based award or bonus; (xvi) the Company has not entered into, amended or its Subsidiaries;
terminated any Collective Bargaining Agreement; (jxvii) the Company, the Seller and their Subsidiaries have not terminated without “cause” (as determined consistent with past practice) the employment or services of any Business Employee with annual base salary in excess of $100,000; (xviii) neither the Company nor nor, with respect to the Business, the Seller or any of its direct or indirect Subsidiaries has made hired any binding commitment to make any capital expenditures Business Employees who: (1) are not employed at will, (2) are non-billable employees or capital additions or betterments (3) have an annual base salary in excess of $20,000 individually 150,000; (xix) the Company and its Subsidiaries have not implemented or $50,000 announced any employee layoffs, furloughs, reductions in force, reductions in compensation or benefits, work schedule changes or similar actions that require or required compliance with the aggregate;
notice requirements of the WARN Act; (kxx) neither the Company nor nor, with respect to the Business, the Seller or any of its other direct or indirect Subsidiaries have entered into or made any agreement, commitment or promise whether in writing or otherwise, to do any of the foregoing; and (xxi) there has incurred not occurred any debtsevent that, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in together with any other event, has had or would reasonably be likely to have a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)Effect.
Appears in 1 contract
Absence of Certain Developments. In the ordinary course of business or in the context of the Transactions (a) Except as expressly contemplated in by this Agreement and or as set forth in Schedule 3.7(a) hereto, since the Transaction DocumentsBalance Sheet Date:
(a) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
(bi) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, of any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, any Subsidiary of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiariesany Subsidiary resulting in a payment or distribution to a Person other than the Company or a Subsidiary;
(cii) other than for normal payments and increases in the ordinary course of business, consistent with past practice, neither the Company nor any Subsidiary has granted any material increase in the compensation, commissions or bonus opportunities payable to any directors, officers, employees, consultants or agents;
(iii) there has not been any transfer, issue, sale or other disposition change by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of optionsSubsidiary in accounting or tax reporting principles, warrants, calls methods or other rights to purchase or otherwise acquire shares of such capital stock or such other securitiespolicies;
(div) neither the Company nor any Subsidiary has conducted its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), business other than in the ordinary course of business, consistent with past practice;
(ev) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries Subsidiary has mortgaged, pledged or subjected to any other Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate any Subsidiary, except for assets acquired or sold, assigned, transferredtrans- ferred, conveyed, leased or otherwise disposed of in the ordinary course of business, consistent with past practice;
(ivi) neither the Company nor its Subsidiaries any Subsidiary has canceled instituted, settled or compromised been named as a defendant in any debt or claim, or amended, canceled, terminated, relinquished, waived or released material Legal Proceeding;
(vii) neither the Company nor any Contract or rightSubsidiary has, except in the ordinary course of business business, consistent with past practice and whichpractice, individually incurred any indebtedness for borrowed money, modified the terms of any indebtedness for borrowed money existing at the Balance Sheet Date, or in issued any guarantee or otherwise become liable for the aggregate, would not be material to the Company or its Subsidiariesindebtedness for borrowed money of any other Person;
(jviii) neither the Company nor its Subsidiaries any Subsidiary has made issued or sold any binding warrants, bonds, debentures or other securities of the Company or any Subsidiary or issued, granted or delivered any right, option or other commitment to make for the issuance of any such securities or reduced or increased the stated capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;any class of shares; and
(kix) neither the Company nor its Subsidiaries any Subsidiary has incurred authorized, agreed or otherwise become committed to do any debtsof the foregoing.
(b) Except as expressly contemplated by this Agreement or as set forth in Schedule 3.7(b) hereto, obligations since December 31, 1997 (if Italian audited financials are available for such period on the Closing Date) or liabilitiesAugust 31, whether due or 1997 (if such Italian audited financials are not available on the Closing Date) there has not been any Material Adverse Change nor has there occurred any event which is reasonably likely to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;.
(lc) neither the Company nor its Subsidiaries has entered into any transaction other than Except as set forth in the ordinary course of business except for (in the case of the CompanySchedule 3.7(c) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principleshereto, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; Seller's Knowledge, since January 1, 1997, there has not been any Material Adverse Change and
(q) neither the Company nor its Subsidiaries , since August 31, 1997, there has made not been any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)Material Adverse Effect.
Appears in 1 contract
Absence of Certain Developments. In the ordinary course of business or Other than as disclosed in the context of the Transactions contemplated in this Agreement and the Transaction Documents:
Reference SEC Reports, since December 31, 2010, (a) there has not been any Material Adverse Change nor has any event occurred which could result the Company and each of its Subsidiaries have conducted, in any Material Adverse Change;
all material respects, its businesses in the ordinary course, consistent with past practice, (b) there has not been any declarationa Material Adverse Effect, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
and (c) there has not been (i) any transferdeclaration, issue, sale setting aside or payment of any dividend or other disposition by the Company of any shares of capital distribution (whether in cash, stock or other property) with respect to any of the Company’s outstanding securities of or any repurchase or redemption by the Company or its Subsidiaries or of any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employmentchange in accounting methods, deferred compensation, severance principles or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of practices by the Company or any of its Subsidiaries which advances are made materially affecting its assets or liabilities, except insofar as may have been required by law or by a change in the ordinary course of business)applicable GAAP, or capital contributions to(iii) any sales, or investments inpledges, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or dispositions, transfers, leases, exclusive licenses, used by the Company in its business;
(g) there has not been guarantees or encumbrances of any damage, destruction or loss, whether or not covered by insurance, with respect to the material property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assetsSubsidiaries, (iv) any material acquisition (including, without limitation, by merger, consolidation, or acquired acquisition of stock or assets or any assets for a purchase price in excess other business combination) by the Company or any of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed its Subsidiaries of any corporation, partnership, other business organization or any division thereof, (v) to the knowledge of the Company, any disclosure of any material trade secrets of the Company or any of its Subsidiaries, (vi) any incurrence by the Company or any of its Subsidiaries of indebtedness for borrowed money which, individually or together with all such other indebtedness, exceeds $1,000,000, (vii) grants of any material security interest in any material assets of the Company or any of its Subsidiaries, (viii) any capital expenditure or purchase of fixed assets by the Company or any of its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries has canceled or compromised any debt or claim, or amended, canceled, terminated, relinquished, waived or released any Contract or right, except other than in the ordinary course of business consistent with past practice and which, individually or in accordance with the aggregateCompany’s capital expenditure budget as approved by the Board, would not be material to (ix) any change by the Company or any of its Subsidiaries of any material election in respect of taxes, any adoption or change by the Company or any of its Subsidiaries of any material accounting method in respect of taxes or settlement or compromise by the Company or any of its Subsidiaries of any material claim, notice, audit report or assessment in respect of taxes, (x) any pre-payment of any long-term debt or payment, discharge or satisfaction of any claims, liabilities or obligations (absolute, accrued, contingent or otherwise) by the Company or any of its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course for such payments, discharges or satisfaction of business, none of which current liabilities (individually claims as were made or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than effected in the ordinary course of business except for consistent with past practice, (in the case xi) any write-up, write-down or write-off of the Company) this Agreement;
(m) neither book value of any material assets, or a material amount of any other assets, of the Company nor or any of its Subsidiaries has encountered any labor difficulties Subsidiaries, other than as required by GAAP or labor union organizing activities;
(nxii) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, Board or the making officers of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)Company.
Appears in 1 contract
Absence of Certain Developments. In Since the ordinary course of business or in Balance Sheet Date (and, with respect to clauses (a), (e), (f) and (p), the context of date that is 12 months prior to the Transactions contemplated in this Agreement and the Transaction Documents:Balance Sheet Date):
(a) there has not been any Seller Material Adverse Change nor has there occurred any event occurred which could is reasonably likely to result in any a Seller Material Adverse Change;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or its Subsidiaries Seller having a replacement cost of more than $10,000 5,000 for any single loss or $20,000 10,000 for all such losses;
(c) Seller has not 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 Seller, other than increases in the ordinary course of business consistent with past practice in the base salaries of employees of Seller other than officers or senior managers;
(d) Seller has not entered into any employment, deferred compensation, severance or similar agreement (nor amended any such agreement);
(e) there has not been any change by Seller in accounting or Tax reporting principles, methods or policies;
(f) Seller has not conducted its business other than in the ordinary course consistent with past practice;
(g) Seller has not entered into (1) any Contract that is not an Included Contract or (2) any other material transaction;
(h) neither Seller has not hired employees or engaged independent contractors to provide services for clients of Seller other than in the Company nor its Subsidiaries ordinary course of business consistent with, and at a level consistent with, past practice;
(i) Seller has not materially breached any Included Contract or materially amended any Included Contract;
(j) Seller has not failed to promptly pay and discharge current Liabilities except where disputed in good faith in an appropriate manner;
(k) Seller has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of Seller other than intercompany transactions in the ordinary course of business consistent with past practice;
(l) Seller has not mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate Seller except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(im) neither Seller has not discharged or satisfied any Lien, or paid any obligation or Liability, except in the Company nor its Subsidiaries ordinary course of business consistent with past practice and which, in the aggregate, are not material to Seller;
(n) Seller has not canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would are not be material to the Company or its SubsidiariesCompany;
(jo) neither the Company nor its Subsidiaries Seller has not made any binding commitment or committed to make any capital expenditures or capital additions or betterments improvements in excess of $20,000 5,000 individually or $50,000 10,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred as set forth in the ordinary course of businessSeller Disclosure Schedule, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than otherwise in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsconsistent with past practices;
(p) neither the Company nor its Subsidiaries Seller has suffered or experienced not entered into any change in the relationship or course of dealings between the Company and/or its Subsidiaries and prepaid services transactions with any of their suppliers its customers or customers which supply goods otherwise accelerated revenue recognition or the sales of its services for periods prior to the Company any Closing hereunder;
(q) Seller has not amended any of its Organizational Documents;
(r) Seller has not issued any membership interests or its Subsidiaries any security exercisable or purchase goods exchangeable for or services from the Company and or its Subsidiariesconvertible into membership interests of Seller; and
(qs) neither the Company nor its Subsidiaries Seller has made any payment to, or received any payment from, or made or received any investment in, or not entered into any transaction agreements to do or series perform in the future any actions referred to in this Section 3.8 which have not been consummated as of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)date hereof.
Appears in 1 contract
Absence of Certain Developments. In the ordinary course of business Except as expressly contemplated by ------------------------------- this Agreement, or in the context of the Transactions contemplated in this Agreement and the Transaction Documentsas set forth on Schedule 4.8, since December 31, 1995:
(a) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
(b) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property and assets of the Company Group having a replacement cost of more than $50,000 for any single loss or $200,000 for all such losses;
(c) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its SubsidiariesCompany, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesCompany, including as relates to the transactions contemplated by the Teleglobe Agreement;
(cd) there has not been any transfer, issue, sale or other disposition by the Company Group of any shares of capital stock or other securities of the Company or its Subsidiaries Group or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(de) neither the Company nor its Subsidiaries Group has (i) neither awarded or paid any bonuses to employees or representatives of the Company, (ii) Company Group nor entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement)) or agreed to increase the compensation payable or to become payable by it to any of the Company Group's directors, officers, employees, agents or Representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with such directors, officers, employees, agents or Representatives, other than in the ordinary course of businessbusiness consistent with past practice which increases in the aggregate do not exceed $200,000 in annual cost to the Company Group, and other than as may have been required by Law or insurers;
(ef) neither the Company nor its Subsidiaries Group has not failed to pay and discharge current liabilities when due except where disputed in good faith by appropriate proceedings;
(g) the Company Group has not made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such lossesGroup;
(h) neither the Company nor its Subsidiaries Group has not mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate Group except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(i) neither the Company nor its Subsidiaries Group has not discharged or satisfied any Lien, or paid any obligation or liability (fixed or contingent), except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Company Group taken as a whole
(j) the Company Group has not canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its SubsidiariesGroup taken as a whole;
(jk) neither the Company nor Group has not transferred or granted any rights under any contracts, leases, licenses, agreements or Proprietary Rights (as defined in Section 4.12 hereof) used by the Company Group in its Subsidiaries business which could result in a Material Adverse Change; and
(l) the Company Group has not made any binding commitment committment to make any capital expenditures or capital additions or betterments in excess of $20,000 4.6 million individually or $50,000 10 million in the aggregate;
aggregate (k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”items comprising these amounts being set forth on Schedule 4.8).
Appears in 1 contract
Samples: Securities Purchase Agreement (Primus Telecommunications Group Inc)
Absence of Certain Developments. In Since the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documents:
(a) Last Fiscal Year End, there has not been any Material Adverse Change Effect and:
(a) neither the Company nor any Subsidiary has sold, leased, licensed, transferred or assigned any event occurred which could result of its assets, tangible or intangible, other than for a fair consideration in any Material Adverse Changethe Ordinary Course of Business;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of neither the Company nor any Subsidiary has entered into any Contract (or its Subsidiaries or any repurchase, redemption or other acquisition by series of related Contracts) outside the Company or its Subsidiaries, Ordinary Course of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesBusiness;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of no party (including the Company or its Subsidiaries any Subsidiary) has accelerated, suspended, terminated, modified or canceled any Contract to which the Company or any grant Subsidiary is a party or by which any of options, warrants, calls or other rights to purchase or otherwise acquire shares them is bound that would have been a Material Contract at the time of any such capital stock or such other securitiesaction;
(d) neither no Encumbrance has been imposed on any assets of the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of businessSubsidiary except Permitted Encumbrances;
(e) neither the Company nor its Subsidiaries any Subsidiary has made any loans, advances capital expenditure (other than advances to officers and employees or series of related capital expenditures) outside the Company or its Subsidiaries which advances are made in the ordinary course Ordinary Course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its SubsidiariesBusiness;
(f) neither the Company nor its Subsidiaries any Subsidiary has transferred made any capital investment in, any loan to, or granted any rights under acquisition of the securities or assets of, any Contracts other Person (or licensesseries of related capital investments, used loans and acquisitions) either involving more than $25,000 or outside the Ordinary Course of Business or acquired (by the Company in its businessmerger, exchange, consolidation, acquisition of stock or assets or otherwise) any Person;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of neither the Company nor any Subsidiary has issued any note, bond or its Subsidiaries having a replacement cost of other debt security or created, incurred, assumed or guaranteed any indebtedness for borrowed money (including advances on existing credit facilities) or Capital Lease either involving more than $10,000 for any single loss individually or $20,000 for all such losses50,000;
(h) neither the Company nor its Subsidiaries any Subsidiary has mortgageddelayed, pledged postponed or subjected to any Lien any accelerated the payment of its assets, accounts payable or acquired any assets for a purchase price in excess of $10,000 in other Liability or the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed receipt of any assets accounts receivable, in each case outside the Ordinary Course of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessBusiness;
(i) neither the Company nor its Subsidiaries any Subsidiary has canceled or compromised any debt or claim, or amended, canceled, terminated, relinquishedcompromised, waived or released any Contract right or right, except in claim (or series of related rights or claims) outside the ordinary course Ordinary Course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its SubsidiariesBusiness;
(j) except incidental to the sale of products or services, neither the Company nor its Subsidiaries any Subsidiary has made granted any binding commitment license or sublicense of any rights under or with respect to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregateIntellectual Property Rights;
(k) neither there has been no change made or authorized in the Organizational Documents of the Company nor its Subsidiaries has incurred or any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse ChangeSubsidiary;
(l) neither the Company nor any Subsidiary has issued, sold or otherwise disposed of any of its Subsidiaries has entered into capital stock or equity interests, or granted any transaction options, warrants or other than in the ordinary course rights to purchase or obtain (including upon conversion, exchange or exercise) any of business except for (in the case of the Company) this Agreementits capital stock;
(m) neither the Company nor any Subsidiary has declared, set aside or paid any dividend or made any distribution with respect to its Subsidiaries has encountered capital stock or equity interests (whether in cash or in kind) or redeemed, purchased or otherwise acquired any labor difficulties of its capital stock or labor union organizing activitiessplit, combined or reclassified any outstanding shares of its capital stock;
(n) neither the Company nor any Subsidiary has experienced any damage, destruction or loss (whether or not covered by insurance) to its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adoptedproperty;
(o) neither the Company nor its Subsidiaries any Subsidiary has disclosed to entered into any Person employment or collective bargaining agreement, written or oral, or modified the terms of any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementssuch existing agreement;
(p) neither the Company nor its Subsidiaries any Subsidiary has suffered granted any increase in the base compensation or experienced made any other change in the relationship or course employment terms of dealings between the Company and/or its Subsidiaries and any of their suppliers its directors, officers or customers which supply goods or services to employees outside the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; andOrdinary Course of Business;
(q) neither the Company nor its Subsidiaries any Subsidiary has made adopted, amended, modified or terminated any payment toPlan (or taken any such action with respect to any Plan);
(r) neither the Company nor any Subsidiary has discharged or satisfied any Encumbrance or paid any liability, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, case with a value in excess of $10,000 25,000 individually or its equivalent ($100,000 in the aggregate, other than any transactions between or among current liabilities paid in the Ordinary Course of Business;
(s) neither the Company nor any Subsidiary has disclosed to any Person other than Chilco and its Subsidiariesauthorized representatives of Chilco any proprietary confidential information, other than pursuant to a confidentiality agreement prohibiting the use or further disclosure of such information, which agreement is listed on Schedule 4.9 and is in full force and effect;
(t) neither the Company nor any Subsidiary has made any change in accounting principles or practices from those utilized in the preparation of the Annual Financial Statements; and
(each, an “Affiliate Transaction”)u) neither the Company nor any Subsidiary has committed to take any of the actions described in this Section 4.9.
Appears in 1 contract
Samples: Share Exchange Agreement (Chilco River Holdings Inc)
Absence of Certain Developments. In Except as set forth in Section 3.7 of the Disclosure Schedule and the transactions contemplated by this Agreement, since the Balance Sheet Date, neither Seller nor any Company has conducted its business other than in the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documentsconsistent with past practice and:
(a) there has not been any Company Material Adverse Change nor has there occurred any event occurred which could reasonably be expected to result in any a Company Material Adverse Change;
(b) there No Company or Seller has not been directly or indirectly, declared, set aside for payment or paid any declaration, setting a record date, setting aside dividends or authorizing the payment of, any dividend distributions on or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities ofsecurity of such Company or Seller, or redeemed, purchased, retired or otherwise acquired any capital stock or other ownership interest in, the security of such Company or its SubsidiariesSeller, or made any other payment to or on behalf of any Seller Party or any Affiliate thereof;
(c) there has not been any transfersplit, issue, sale combination or other disposition by the Company reclassification of any shares of capital stock or other securities security of the any Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securitiesSeller;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company Companies or its Subsidiaries Seller having a replacement cost of more than $10,000 for any single loss or $20,000 25,000 in the aggregate for all such any related losses;
(e) no Company or 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 Companies or Seller, other than increases in the ordinary course of business consistent with past practice in the base wages or salaries of employees of the Companies or Seller other than officers or senior managers;
(f) no Company or Seller has entered into or amended any employment, deferred compensation, severance or similar agreement;
(g) no Company or Seller has entered into any collective bargaining agreement or relationship with any labor organization;
(h) neither there has not been any material change by any Company or Seller in accounting or Tax reporting principles, methods or policies, any settlement of any Tax controversy, any amendment of any Tax Return, or any material Tax election made by or with respect to the Companies or Seller;
(i) no Company nor its Subsidiaries or Seller has entered into or amended any other transaction or Contract other than in the ordinary course of business consistent with past practice;
(j) no Company or Seller has hired employees or engaged independent contractors other than in the ordinary course of business consistent with, and at a level consistent with, past practice;
(k) no Company or Seller has breached any Contract;
(l) no Company or Seller has made any loans, advances or capital contributions to, or investments in, any Person;
(m) no Company or Seller has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company Companies or its Subsidiaries for a sale price in excess of $10,000 in the aggregate Seller except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(in) neither the no Company nor its Subsidiaries or Seller has canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would are not be material to the any such Company or its SubsidiariesSeller;
(jo) neither the no Company nor or Seller has entered into or amended any Contract or transaction with any of its Subsidiaries Affiliates or paid any fees, expenses or other amounts to any Affiliate of such Company or Seller;
(p) no Company or Seller has made any binding commitment or committed to make any capital expenditures or expenditures, capital additions or betterments improvements or any other expense (i) in excess of $20,000 individually or $50,000 in the aggregate;
, or (kii) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in outside the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Changebusiness consistent with past practices;
(lq) neither the no Company nor its Subsidiaries or Seller has entered into any transaction prepaid transactions or otherwise accelerated revenue recognition or the sales for periods prior to the Closing outside of the ordinary course of business consistent with past practices;
(r) no Company or Seller has materially changed its policies or practices with respect to the payment of accounts payable or other current liabilities or the collection of accounts receivable (including any acceleration or deferral of the payment or collection thereof);
(s) no Company or Seller has amended any of its Governing Documents;
(t) no Company or Seller has adopted any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal, state or provincial bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law or other agreement with respect to the sale of its assets, securities or its respective Business;
(u) no Company or Seller has issued any equity or debt securities or any security exercisable or exchangeable for or convertible into equity securities of any such Company, or incurred any Indebtedness or other Liabilities (other than in the ordinary course of business except for (in the case of the Company) this Agreementconsistent with past practices);
(mv) neither no Company or Seller has (i) discharged, repaid, amended, modified, made payment on, canceled or compromised any Indebtedness, or discharged or satisfied any Lien other than in the Company nor its Subsidiaries has encountered ordinary course of the conduct of the Companies’ or Seller’s business consistent with past practices, or (ii) engaged in any labor difficulties transaction or labor union organizing activitiesprovided any consideration relating to the release, modification or diminution of any guarantee, bond, surety or other obligation of any Seller Party or any Affiliate thereof;
(nw) neither the no Company nor its Subsidiaries or Seller has made entered into any change in the accounting principles, methods compromise or practices followed settlement of any Legal Proceeding or investigation by it or depreciation or amortization policies or rates theretofore adoptedany Governmental Body;
(ox) neither the no Company nor its Subsidiaries or Seller has disclosed transferred, assigned or granted any license or sublicense of any material rights under or with respect to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsIntellectual Property;
(py) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the no Company or its Subsidiaries Seller has failed (i) to file any material reports or purchase goods or services from the Company take steps necessary to comply with applicable Laws and or its Subsidiaries(ii) to maintain in good standing all Permits; and
(qz) neither the no Company nor its Subsidiaries or Seller has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction agreements or series of related transactions (including without limitation, commitments to do or perform in the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with future any Affiliate actions referred to in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 3.7.
Appears in 1 contract
Absence of Certain Developments. In (a) Except as set forth on Schedule 3.8(a), the ordinary course general nature of the business or of the Company is described in the context Confidential Private Placing Memorandum dated November, 2004 of the Transactions contemplated Company (the “Offering Memorandum”), which previously has been delivered to the Purchaser. The financial projections contained in the Offering Memorandum are based on and reflect facts that management of the Company believes still exist and assumptions that management of the Company believes are still reasonable, as of the date of this Agreement Agreement, but of which the Company cannot and does not assure or guarantee the Transaction Documentsattainment in any manner.
(b) Except as set forth on Schedule 3.8(b) and since the date of the Unaudited Financial Statements:
(ai) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
(bii) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its SubsidiariesCompany, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesCompany;
(ciii) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(giv) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 50,000 for any single loss or $20,000 250,000 for all such losses;
(hv) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the usual and ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Changematerially and adversely affects the business, assets, liabilities, prospects, properties, results of operations or condition (financial or otherwise) of the Company;
(lvi) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has not encountered any labor difficulties or labor union organizing activities;
(nvii) neither the Company nor its Subsidiaries has not made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(oviii) neither the Company nor its Subsidiaries has not disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;; or
(pix) neither to the Company nor its Subsidiaries has Company’s knowledge, suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their its suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and Company, which has had or its Subsidiaries; andis likely to have a material adverse effect on the business, assets, liabilities, prospects, properties, results of operations or condition (financial or otherwise) of the Company.
(qc) neither the Company nor its Subsidiaries No Default or Event of Default has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company occurred and its Subsidiaries) (each, an “Affiliate Transaction”)is continuing.
Appears in 1 contract
Samples: Securities Purchase Agreement (Idleaire Technologies Corp)
Absence of Certain Developments. In Except as expressly contemplated by this Agreement, or except as set forth in Schedule 4.15, since March 31, 2001:
a. to the ordinary course Knowledge of business Seller, there has been no adverse change in the Acquired Business, or in the context of operation or financial condition thereof, except such changes which, in the Transactions contemplated in this Agreement and the Transaction Documents:
(a) there has aggregate, have not been any had a Material Adverse Change nor has any event occurred which could result in any Material Adverse ChangeEffect;
(b) there has not been any declarationb. to the Knowledge of Seller, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of neither Seller nor any of its Affiliates has, with respect to the outstanding shares of capital stock or other securities ofAcquired Business, or other ownership interest intaken any actions which would, if taken after the Company or its Subsidiariesdate hereof, violate Section 6.1 hereof;
(c) there has not been any transferc. to the Knowledge of Seller, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of an Acquired Company, the Company Seller Transferred Assets or its Subsidiaries the Acquired Business having a replacement cost of more than $10,000 25,000 for any single loss or $20,000 50,000 for all such losses;
d. there has not been any grant of any stock option or right to purchase the shares of the stock of any Acquired Company;
e. there has not been any declaration, setting aside or payment of any non-cash dividend or other distribution in respect of any shares of capital stock of the Acquired Companies or (hother than for cash) neither any repurchase, redemption or other acquisition of any outstanding shares of capital stock or other securities of, or other ownership interest in, any Acquired Company;
f. to the Knowledge of Seller, no Acquired Company has awarded or paid any bonuses to any of its employees, or entered into any employment, deferred compensation, severance or similar Commitment (nor amended any such Commitment) or agreed to increase the compensation payable or to become payable by it to any of its Subsidiaries directors, officers, employees, agents or representatives, or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with such directors, officers, employees, agents or representatives (other than (i) normal increases in the ordinary course of business, (ii) increases which constitute Indemnified Damages, or (iii) increases which would not materially reduce the Working Capital Value);
g. there has not been any change by any Acquired Company in accounting or tax reporting principles, methods or policies;
h. to the Knowledge of Seller, no Acquired Company has entered into any transaction or Commitment or conducted the Acquired Business other than in the ordinary course;
i. to the Knowledge of Seller, no Acquired Company has failed to pay and discharge promptly current liabilities except where disputed in good faith by appropriate proceedings;
j. to the Knowledge of Seller, no Acquired Company has made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to Seller or to any Affiliate of Seller (other than the payment of trade payables in the ordinary course) and routine transfers of cash;
k. to the Knowledge of Seller, no Acquired Company has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate assets, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course;
l. to the Knowledge of Seller, no Acquired Company has discharged or satisfied any Lien, or paid any obligation or liability (fixed or contingent), except in the ordinary course of businessbusiness or those which are Indemnified Damages;
(i) neither m. to the Knowledge of Seller, no Acquired Company nor its Subsidiaries has canceled cancelled or compromised any debt indebtedness or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract Commitment or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its SubsidiariesAcquired Companies;
(j) neither n. to the Knowledge of Seller, no Acquired Company nor its Subsidiaries has made any binding commitment or committed to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate100,000 individually;
(k) neither the o. no Acquired Company nor its Subsidiaries has incurred any debts, obligations instituted or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person settled any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered litigation, suit, claim, action, Proceeding or experienced investigation of any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiarieskind; and
p. to the Knowledge of Seller, no Acquired Company has agreed to do anything set forth in this Section 4.15(d) through (q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”o).
Appears in 1 contract
Absence of Certain Developments. In the ordinary course of business or Except as set forth in the context Section 3.8 of the Transactions contemplated in this Agreement and the Transaction DocumentsDisclosure Schedule, since January 10, 2008:
(a) there has not been any Company Material Adverse Change nor has there occurred any event occurred which could is reasonably likely to result in any a Company Material Adverse Change;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 5,000 for any single loss or $20,000 in the aggregate for all any related losses;
(c) the Company has not made any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or paid or agreed or promised to pay, orally or in writing, 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 member, shareholder, manager, director, officer, employee, distributor or agent of the Company or the LT Predecessor, other than increases in the ordinary course of business consistent with past practice in the base salaries of employees of the Company other than officers or senior managers;
(d) the Company has not entered into any employment, deferred compensation, severance or similar agreement (nor amended any such lossesagreement);
(e) there has not been any change by the Company in accounting or Tax reporting principles, methods or policies or any settlement of any Tax controversy;
(f) the Company has not conducted its business other than in the ordinary course consistent with past practice;
(g) the Company has not entered into any material transaction or Contract;
(h) neither the Company has not hired employees or engaged independent contractors to provide services for clients of the Company or any of its Subsidiaries other than in the ordinary course of business consistent with, and at a level consistent with, past practice;
(i) the Company nor any of its Subsidiaries has breached any Contract or amended any Contract;
(j) the Company nor any of its Subsidiaries has failed to promptly pay and discharge current Liabilities except where disputed in good faith in an appropriate manner;
(k) the Company has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of Company or the LT Predecessor;
(l) the Company has not mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(im) neither the Company nor its Subsidiaries 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 the Company;
(n) the Company has not canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would are not be material to the Company or its SubsidiariesCompany;
(jo) neither the Company nor its Subsidiaries has not made any binding commitment or committed to make any capital expenditures or capital additions or betterments improvements in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (5,000 individually or in the aggregate, except as set forth in Section 3.8(o) could result in a Material Adverse Change;
(l) neither of the Company nor its Subsidiaries has entered into any transaction other than Disclosure Schedule, or otherwise in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsconsistent with past practices;
(p) neither the Company nor has not entered into any prepaid services transactions with any of its Subsidiaries has suffered customers or experienced any change in otherwise accelerated revenue recognition or the relationship or course sales of dealings between its services for periods prior to the Closing;
(q) the Company and/or its Subsidiaries and has not amended any of their suppliers or customers which supply goods or services to its Organizational Documents;
(r) the Company has not issued any equity securities or its Subsidiaries any security exercisable or purchase goods exchangeable for or services from convertible into equity securities of the Company and or its SubsidiariesCompany; and
(qs) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or not entered into any transaction agreements to do or series perform in the future any actions referred to in this Section 3.8 which have not been consummated as of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)date hereof.
Appears in 1 contract
Absence of Certain Developments. In Except as set forth on SCHEDULE 6F or as expressly contemplated by this Agreement, since September 1, 1996 up to and including the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction DocumentsClosing Date:
(ai) there has not been occurred any Material Adverse Change nor has any event occurred which could reasonably be expected to result in any Material Adverse Change;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or any of its Subsidiaries having at a replacement cost of more than $10,000 100,000 for any single loss or $20,000 500,000 for all such losses;
(hiii) 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 of its Subsidiaries or any repurchase, redemption or other acquisition by the Company or any of its subsidiaries of any outstanding shares of the capital stock or other securities of, or other profit participation (other than a cash bonus program based on earnings described in SCHEDULE 6N) or proprietary or equity interest in, the Company or any of its Subsidiaries;
(iv) there has not been any transfer, issue, sale or disposition of any sales of capital stock, securities or profit participations (other than a cash bonus program based on earnings described in SCHEDULE 6N) or other proprietary or equity interests in the Company or any of its Subsidiaries or any grant of options, warrants, calls or other rights to directly or indirectly purchase or otherwise acquire profit participations (other than a cash bonus program based on earnings described in SCHEDULE 6N) or proprietary or equity interests in the Company or any of its Subsidiaries or shares of capital stock or securities of the Company or any of its Subsidiaries;
(v) neither the Company nor any of its Subsidiaries has mortgaged, pledged awarded or subjected paid any bonuses to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets employees of the Company or any of its Subsidiaries except to the extent appearing on the Latest Balance Sheet or has entered into any employment, deferred compensation, severance or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by the Company or any of its Subsidiaries to any directors, officers, employees, agents or representatives of the Company or any of its Subsidiaries or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for a sale price in excess of $10,000 in the aggregate except for assets acquired disability, sick leave, deferred compensation, bonus or soldother incentive compensation, assignedinsurance, transferredpension, conveyedor other employee benefit plan, leased payment or otherwise disposed of in the ordinary course of businessarrangement made to, or with such directors, officers, employees, agents or representatives;
(ivi) there has not been any change by the Company or any of its Subsidiaries in accounting principles, methods or policies;
(vii) neither the Company nor any of its Subsidiaries has canceled or compromised introduced any debt or claim, or amended, canceled, terminated, relinquished, waived or released any Contract or right, except in material change with respect to the ordinary course operations of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or any of its SubsidiariesSubsidiaries which is not in the Ordinary Course of Business;
(jviii) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than or made or entered into any Contract which by reason of its size, subject matter or otherwise is not in the ordinary course Ordinary Course of business except for (in the case of the Company) this AgreementBusiness ;
(mix) neither the Company nor any of its Subsidiaries has encountered any labor difficulties suffered one or labor union organizing activitiesmore Extraordinary Losses;
(nx) neither the Company nor any of its Subsidiaries has made any change investments in the accounting principlesor loans to, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person paid any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither fees or expenses to, or entered into or modified any Contract with any of the Company nor its Subsidiaries has suffered Shareholders or experienced any change in the relationship or course of dealings other respective Affiliates other than inter-company arrangements between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(qxi) neither the Company nor any of its Subsidiaries has made any payment to, agreed or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate committed to do anything set forth in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”).this Section 6F.
Appears in 1 contract
Absence of Certain Developments. In Since December 31, 2017, there has not occurred any event, occurrence, fact, circumstance or change that has had a Material Adverse Effect with respect to the Company and its Subsidiaries, taken as a whole. Except as set forth on Schedule 2.12, since December 31, 2017, the Company and its Subsidiaries have operated their business in the ordinary course of business or consistent with past practice in all material respects, and neither the context Company nor any of the Transactions contemplated in this Agreement and the Transaction Documentsits Subsidiaries has:
(a) there has not been sold, leased, assigned or transferred any Material Adverse Change nor has material portion of its assets, or entered into any event occurred which could result in any Material Adverse ChangeContract or letter of intent with respect thereto;
(b) there has not been effected any declarationrecapitalization, setting a record datereclassification, setting stock or other dividend, stock split or similar occurrence, adjustment, combination, subdivision or like change in its capitalization, or declared, set aside or authorizing the payment ofpaid any other distribution of any kind (whether in cash, stock or property) to any dividend stockholder or other distribution in respect of equity holder, or made any shares of capital stock of the Company direct or its Subsidiaries or any repurchaseindirect redemption, redemption retirement, purchase or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company equity interests;
(c) issued (or its Subsidiaries or any grant of options, warrants, calls or other rights made commitments to purchase or otherwise acquire shares of such capital stock or such other issue) additional securities;
(d) neither merged or consolidated with or made any equity investment in, or any loan or advance to, or any acquisition of the securities or assets of, any other Person (other than advancement of reimbursable ordinary and necessary business expenses made to directors, officers, employees, independent contractors, and third-party transportation providers of the Company nor its Subsidiaries has or any Subsidiary thereof in the ordinary course of business);
(ie) awarded or paid any bonuses to employees or representatives of made commitments for capital expenditures other than as contemplated by the Company’s budget, a true and correct copy of which has been made available to Buyer;
(iif) entered into granted any employmentlicense or sublicense of, deferred compensationassigned, severance transferred, abandoned, allowed to lapse or similar agreements (nor amended otherwise disposed of any such agreement), material rights under or with respect to any Intellectual Property other than in the ordinary course of businessbusiness consistent with past practice;
(eg) neither suffered any event of damage, destruction, casualty loss or claim affecting the Company nor its Subsidiaries has made any loansassets, advances (other than advances to officers and employees properties or business of the Company or any of its Subsidiaries and exceeding $100,000 individually or $250,000 in the aggregate;
(h) failed to maintain their respective material assets (except for Rolling Stock, which advances are made is addressed in Section 2.12(i) below) in good condition and repair, normal wear and tear excepted;
(i) failed to maintain its Rolling Stock consistent with past practices in a condition that is (i) adequate for use in the ordinary course of business)business in compliance with applicable law, or capital contributions to, or investments in, any Person or paid any fees or expenses (ii) operational and capable of performing its intended use based upon similar equipment of similar age and (iii) consistent with all requirements necessary to any Affiliate of the Company other than its Subsidiariesmaintain warranties applicable thereto;
(fj) neither the Company nor its Subsidiaries has transferred made any changes to policies or granted any rights under any Contracts or licensestiming of repairs, used by the Company in its businessmaintenance, and purchasing and installation of tires, fuel and other replaceable operating supplies;
(gk) there has not been granted any damageincrease in the amount of compensation, destruction benefits, bonus, change in control, retention or lossseverance pay payable or potentially payable to any of its directors, whether officers, employees, independent contractors or not covered by insuranceconsultants or adopted, with respect to the property amended or assets of the Company terminated any Plan or its Subsidiaries having a replacement cost of more than $10,000 for any single loss Benefit Program or $20,000 for all such lossesAgreement;
(hl) neither the Company nor its Subsidiaries has mortgagedmade any payment or commitment to pay any pension, pledged retirement allowance, retiree medical or subjected other employee benefit, any amount relating to unused vacation days or other paid time off, retention, severance or termination pay to any Lien any of its assetsdirector, officer or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries has canceled or compromised any debt or claim, or amended, canceled, terminated, relinquished, waived or released any Contract or right, except employee other than in the ordinary course of business consistent with past practice and which, individually which payments or in the aggregate, would commitments to pay do not be material to the Company or its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or exceed $50,000 in the aggregate;
(km) neither the Company nor its Subsidiaries has incurred made any debtsmaterial change in accounting, obligations auditing or liabilitiestax reporting methods, whether due policies or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Changepractices;
(ln) neither made or revoked any election with respect to Taxes of the Company nor or any of its Subsidiaries has entered into or changed its tax year;
(o) made any transaction payment or incurred any obligation in excess of $100,000, other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsconsistent with past practices;
(p) neither created, incurred, assumed or guaranteed any Indebtedness other than Indebtedness reflected on the Company nor its Subsidiaries has suffered or experienced any change Interim Financial Statements and borrowings of less than $500,000 in the relationship or course aggregate under the line of dealings between credit since the Company and/or its Subsidiaries and any date of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; andInterim Financial Statements;
(q) neither to the Sellers’ Knowledge, received a complaint or notice that an investigation against the Company nor has been commenced by any Governmental Authority or that any other event has occurred which calls into question any Permit necessary for the Company to conduct its business and to own and operate the Company’s material assets;
(r) received any notice from any customer, supplier, Governmental Authority or any other Person, the result of which could reasonably be expected to materially impact the business of the Company or any of its Subsidiaries;
(s) accelerated or changed any of its practices, policies, procedures or timing of the billing of customers or the collection of their accounts receivable, pricing and payment terms, cash collections, cash payments or terms with vendors other than in the ordinary course of business consistent with past practices;
(t) delayed or postponed the payment of any liability (including accounts payable or accrued expenses) or the deferment of expenses other than in the ordinary course of business consistent with past practices;
(u) discharged or satisfied any Lien, or subjected the Company or any of its Subsidiaries has made or any payment to, or received of their respective assets to any payment from, or made or received Lien;
(v) committed to do any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Covenant Transportation Group Inc)
Absence of Certain Developments. In Since the date of the Base Balance Sheet, each of the Company and each of its Subsidiaries has conducted its business in the ordinary course of business or consistent with past practice and, except as explicitly set forth in the context Section 2.8 of the Transactions contemplated in this Agreement and Disclosure Schedule or the Transaction DocumentsFinancial Statements, there has not been:
(a) there has not been any Material Adverse Change nor has any event occurred which could result change in any Material Adverse Change;
the Business or assets, liabilities, condition (b) there has not been any declarationfinancial or other), setting a record date, setting aside properties or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock operations of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or of its Subsidiaries, of any of the outstanding shares of capital stock which change by itself or in conjunction with all other securities ofsuch changes, whether or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than arising in the ordinary course of business, has had or could be reasonably expected to have a Material Adverse Effect;
(eb) neither any mortgage, charge, lien or other Claim placed on any of the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees properties of the Company or any of its Subsidiaries which advances are made Subsidiaries, other than purchase money liens and liens for taxes not yet due and payable and liens that arise in the ordinary course of business), business and do not materially impair the Company’s ownership or capital contributions to, use of such property or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiariesassets;
(fc) neither any purchase, sale or other disposition, or any agreement or other arrangement for the Company nor its Subsidiaries has transferred purchase, sale or granted other disposition, of any rights under any Contracts properties or licenses, used assets by the Company in or any of its businessSubsidiaries, including any of its Intellectual Property Assets (as defined below), involving the payment or receipt of more than $100,000;
(gd) there has not been any damage, destruction or loss, whether or not covered by insurance, with that has had or could be reasonably expected to have a Material Adverse Effect;
(e) except for the Redemption and/or the payment of the Pre-Closing Dividends and/or the issuance of the Pre-Closing Bonus Shares, any declaration, setting aside or payment of any dividend by the Company or any of its Subsidiaries, or the making of any other distribution in respect to of the property or assets share capital of the Company or any of its Subsidiaries, any direct or indirect redemption, purchase or other acquisition by the Company of its own share capital; or any bonus payments made to or with any officers or employees of the Company or any of its Subsidiaries;
(f) any labor trouble or claim of unfair labor practices involving the Company or any of its Subsidiaries, any change in the compensation payable or to become payable by the Company or any of its Subsidiaries having a replacement cost to any of more its officers or employees other than $10,000 for normal merit increases to employees in accordance with its usual practices, or any single bonus arrangements made to or with any of such officers or employees or any establishment or creation of any employment, deferred compensation or severance arrangement or employee benefit plan (other than the Current Share Option Plan) with respect to such persons, or the amendment of any of the foregoing;
(g) any resignation, termination or removal of any officer or key employee of the Company or any of its Subsidiaries, or material loss of personnel of the Company or $20,000 for all such lossesany of its Subsidiaries, or material change in the terms and conditions of the employment of the Company’s or any of its Subsidiaries’ officers or key personnel;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged any payment or subjected to any Lien any discharge of its assets, a material lien or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets liability of the Company or any of its Subsidiaries for a sale price in excess of $10,000 which was not shown on the Base Balance Sheet or incurred in the aggregate except for assets acquired ordinary course of business thereafter;
(i) any contingent liability incurred by the Company or sold, assigned, transferred, conveyed, leased any of its Subsidiaries as guarantor or otherwise disposed 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 or any of its Subsidiaries, including any write-off or compromise of any accounts receivable other than in the ordinary course of business consistent with past practices;
(j) any obligation or liability incurred by the Company or any of its Subsidiaries to any of its officers, directors, shareholders or employees, or any loans or advances made by the Company or any of its Subsidiaries to any of its officers, directors, shareholders or employees, except normal compensation and expense allowances payable to officers or employees in the ordinary course of business;
(ik) neither the Company nor its Subsidiaries has canceled any change in accounting methods or compromised any debt practices, collection policies, pricing policies, discount policies, sales incentive policies or claim, or amended, canceled, terminated, relinquished, waived or released any Contract or right, except in the ordinary course payment policies of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or any of its Subsidiaries;
(jl) neither any loss or, to the knowledge of the Company, any development that could reasonably be expected to result in a loss, of any significant supplier, customer, distributor or account of the Company nor or any of its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregateSubsidiaries;
(km) neither any amendment, modification, renewal or termination of, or waiver of any material right under, any material contract or agreement to which the Company nor and/or any of its Subsidiaries has incurred is a party or by which it is bound;
(n) any debtsarrangements relating to any royalty or similar payment based on the revenues, obligations profits or liabilitiessales volume of the Company or any of its Subsidiaries, whether due as part of the terms of the Company’s share capital or to become due, except current liabilities incurred by 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 and/or any of its Subsidiaries other than transactions in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; andor
(q) neither any agreement or understanding whether in writing or otherwise, for the Company nor and/or any of its Subsidiaries has made to take any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions the actions specified in clauses (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guaranteea) with any Affiliate in each case, in excess of $10,000 or its equivalent through (other than any transactions between or among the Company and its Subsidiariesp) (each, an “Affiliate Transaction”)above.
Appears in 1 contract
Samples: Share Purchase and Redemption Agreement (Alma Lasers Ltd.)
Absence of Certain Developments. In Except as described on Exhibit B -------------------------------- attached hereto and incorporated herein by this reference, since the ordinary course date of business the Nicklebys Balance Sheet, there has been (i) no materially adverse change in the condition (financial or otherwise) of the Company or in the context assets, liabilities, properties, business, operations or prospects of the Transactions contemplated in this Agreement and the Transaction Documents:
Company; (aii) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
(b) there has not been any no declaration, setting a record date, setting aside or authorizing the payment of, of any dividend or other distribution in with respect of any shares of capital stock of to the Company Nicklebys Common Stock or its Subsidiaries or any repurchaseredemption, redemption purchase or other acquisition by of any Nicklebys Common Stock or any split-up or other recapitalization relative to any Nicklebys Common Stock or any action authorizing or obligating the Company or its Subsidiaries, of to do any of the outstanding shares of capital stock foregoing; (iii) no loss, destruction or other securities of, damage to any material property or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives asset of the Company, whether or not insured; (iiiv) entered into no acquisition or disposition of assets (or any employment, deferred compensation, severance contract or similar agreements (nor amended any such agreementarrangement therefor), or any other transaction by the Company otherwise than for fair value and in the ordinary course of business;
; (ev) neither no discharge or satisfaction by the Company nor its Subsidiaries has made of any loans, advances lien or encumbrance or payment of any obligation or liability (absolute or contingent) other than advances current liabilities shown on the Nicklebys Balance Sheet, or current liabilities incurred since the date thereof in the ordinary course of business; (vi) no sale, assignment or transfer by the Company of any of the tangible or intangible assets of the Company, cancellation by the Company of any debts, claims or obligations, mortgage, pledge or satisfaction by the Company of any assets to officers and employees any lien, charge, security interest or other encumbrance or waiver by the Company of any rights of value which, in any such case, is material to the business of the Company (whether or its Subsidiaries which advances are made not in the ordinary course of business); (vii) no payment of any bonus to or change in the compensation of any director, officer or capital contributions toemployee of the Company, whether directly or investments inby means of any bonus, pension plan, contract or commitment; (viii) no write-off or material reduction in the carrying value of any Person asset which is material to the business of the Company; (ix) no disposition or paid any fees or expenses lapse of rights as to any Affiliate intangible property which is material to the business of the Company other than its Subsidiaries;
Company; (fx) neither except for ordinary travel advances, no loans or extensions of credit to shareholders, officers, directors or employees of the Company nor its Subsidiaries has transferred Company; (xi) no entry into any commitment or granted any rights under any Contracts or licenses, used transaction by the Company in its business;
(gincluding, without limitation, any borrowing or capital expenditure) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price involving an amount in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed 1,000.00; (xii) no issuance of any assets capital stock, or of any other security convertible into any of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or soldcapital stock, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company; and (xiii) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed no agreement to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and do any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate things described in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 3.7.
Appears in 1 contract
Samples: Stock Purchase and Exchange Agreement (Nicklebys Com Inc)
Absence of Certain Developments. In the ordinary course of -------------------------------- business or in the context of the Transactions contemplated in this Agreement and the Transaction Documents:
(a) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”"AFFILIATE TRANSACTION").. ----------------------
Appears in 1 contract
Absence of Certain Developments. In Except as expressly contemplated by this Agreement, since the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction DocumentsCompany Balance Sheet Date:
(ai) there has not been any Material Adverse Change material adverse change nor has there occurred any event occurred which could is reasonably likely to result in any Material Adverse Changea material adverse change;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 250,000 for any single loss or $20,000 1,000,000 for all such losses;
(hiii) neither 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 nor 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) there has not been any change by the Company in accounting or Tax reporting principles, methods or policies;
(v) the Company has not entered into any transaction or Contract or conducted its Subsidiaries business other than in the ordinary course consistent with past practice;
(vi) the Company has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to the Seller or any Affiliate of the Seller;
(vii) the Company has not mortgaged, pledged or subjected to any Lien Lien, any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate Company, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(iviii) neither the Company nor its Subsidiaries has not discharged or satisfied any Lien, or paid any obligation or liability (fixed or contingent), except in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to the Company;
(ix) the Company has not canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its SubsidiariesCompany;
(jx) neither the Company nor its Subsidiaries has not made any binding commitment or committed to make any capital expenditures or capital additions or betterments in excess of $20,000 250,000 individually or $50,000 1,000,000 in the aggregate;
(kxi) neither the Company nor its Subsidiaries has incurred any debts, obligations not instituted or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person settled any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiarieslegal proceeding; and
(qxii) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate not agreed to do anything set forth in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 4.9.
Appears in 1 contract
Absence of Certain Developments. In Since the ordinary course of business or in Most Recent Balance Sheet Date, the context of the Transactions contemplated in this Agreement and the Transaction Documents:
(a) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock operations of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not have been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries has canceled or compromised any debt or claim, or amended, canceled, terminated, relinquished, waived or released any Contract or right, except conducted in the ordinary course of business consistent with past practice and, except for the matters disclosed in Section 3.9 of the Disclosure Schedule:
(a) (i) the Company Charter, the Company By-Laws and whichthe Subsidiary Documents have not been amended, individually and (ii) neither the Company nor its Subsidiaries have amended any term of their outstanding equity interests or other securities nor issued, sold, granted, or otherwise disposed of, their equity interests or other securities;
(b) neither the Company nor any of its Subsidiaries has become liable in respect of any guarantee of, or have incurred, assumed or otherwise become liable in respect of, any indebtedness, except for borrowings in the aggregateordinary course of business under credit facilities in existence on the Most Recent Balance Sheet Date;
(c) neither the Company nor any of its Subsidiaries has (i) made any declaration, would not be material to setting aside or payment of any dividend or other distribution with respect to, or any repurchase, redemption or other acquisition of, any of their capital stock or other equity interests or (ii) entered into, or performed, any transaction with, or for the benefit of, any officer, director, employee or other affiliate of the Company or any of its Subsidiaries (other than payments made to officers, directors and employees in the ordinary course of business);
(d) there has been no material loss, destruction, damage or eminent domain taking (in each case, whether or not insured) affecting the operations of the Company or any of its Subsidiaries or any material asset of the Company or any of its Subsidiaries;
(e) neither the Company nor any of its Subsidiaries has increased the compensation payable or paid, whether conditionally or otherwise, to (i) any employee, consultant or agent other than in the ordinary course of business or (ii) any director or officer;
(f) neither the Company nor any of its Subsidiaries has entered into any agreement that is, will be or would be (assuming the Company continued to be subject to SEC rules and regulations requiring filing of current and periodic reports under the Exchange Act) required to be filed as an exhibit to, or described in, filings made or to be made by the company with the SEC;
(g) neither the Company nor any of its Subsidiaries has made any change in its methods of accounting or accounting practices (including with respect to reserves);
(h) neither the Company nor any of its Subsidiaries has made, changed or revoked any material tax election, elected or changed any method of accounting for tax purposes, settled any claim, action, cause of action, suit or other proceeding in respect of taxes or entered into any contractual obligation in respect of taxes with any Governmental Entity;
(i) neither the Company nor any of its Subsidiaries has terminated or closed any facility, business or operation;
(j) neither the Company nor any of its Subsidiaries has made adopted any binding commitment to make Employee Benefit Plan or, except in accordance with the terms thereof as in effect on the Most Recent Balance Sheet Date, increased any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregatebenefits under any Employee Benefit Plan;
(k) neither the Company nor any of its Subsidiaries has incurred written up or written down any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Changeits material assets;
(l) neither the Company nor any of its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case agreement to do any of the Company) things referred to elsewhere in this Agreement;Section 3.9; and
(m) neither the no event or circumstance has occurred which has had, or is reasonably likely to have, a Company nor its Subsidiaries has encountered any labor difficulties Material Adverse Effect, individually or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)aggregate.
Appears in 1 contract
Samples: Merger Agreement (Gartner Inc)
Absence of Certain Developments. In Since the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documents:
(a) Latest Balance Sheet Date, there has not been any Material Adverse Change Effect and:
(a) neither the Company nor any Subsidiary has sold, leased, licensed, transferred or assigned any event occurred which could result of its assets, tangible or intangible, other than for a fair consideration in any Material Adverse Changethe Ordinary Course of Business;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of neither the Company nor any Subsidiary has entered into any Contract (or its Subsidiaries series of related Contracts) either involving more than $10,000 or any repurchase, redemption or other acquisition by outside the Company or its Subsidiaries, Ordinary Course of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesBusiness;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of no party (including the Company or its Subsidiaries any Subsidiary) has accelerated, suspended, terminated, modified or canceled any Contract to which the Company or any grant Subsidiary is a party or by which any of options, warrants, calls or other rights to purchase or otherwise acquire shares them is bound that would have been a Material Contract at the time of any such capital stock or such other securitiesaction;
(d) neither no Encumbrance has been imposed on any assets of the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of businessSubsidiary except Permitted Encumbrances;
(e) neither the Company nor its Subsidiaries any Subsidiary has made any loans, advances capital expenditure (other or series of related capital expenditures) either involving more than advances to officers and employees $10,000 or outside the Ordinary Course of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its SubsidiariesBusiness;
(f) neither the Company nor its Subsidiaries any Subsidiary has transferred made any capital investment in, any loan to, or granted any rights under acquisition of the securities or assets of, any Contracts other Person (or licensesseries of related capital investments, used loans and acquisitions) either involving more than $10,000 or outside the Ordinary Course of Business or acquired (by the Company in its businessmerger, exchange, consolidation, acquisition of stock or assets or otherwise) any Person;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of neither the Company nor any Subsidiary has issued any note, bond or its Subsidiaries having a replacement cost of other debt security or created, incurred, assumed or guaranteed any indebtedness for borrowed money (including advances on existing credit facilities) or Capital Lease either involving more than $10,000 for any single loss individually or $20,000 for all such losses25,000 in the aggregate;
(h) neither the Company nor its Subsidiaries any Subsidiary has mortgageddelayed, pledged postponed or subjected to any Lien any accelerated the payment of its assets, accounts payable or acquired any assets for a purchase price in excess of $10,000 in other Liability or the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed receipt of any assets accounts receivable, in each case outside the Ordinary Course of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessBusiness;
(i) neither the Company nor its Subsidiaries any Subsidiary has canceled or compromised any debt or claim, or amended, canceled, terminated, relinquishedcompromised, waived or released any Contract right or right, except in claim (or series of related rights or claims) either involving more than $10,000 or outside the ordinary course Ordinary Course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its SubsidiariesBusiness;
(j) except incidental to the sale of products or services, neither the Company nor its Subsidiaries any Subsidiary has made granted any binding commitment license or sublicense of any rights under or with respect to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregateIntellectual Property Rights;
(k) neither there has been no change made or authorized in the Organizational Documents of the Company nor its Subsidiaries has incurred or any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse ChangeSubsidiary;
(l) neither the Company nor any Subsidiary has issued, sold or otherwise disposed of any of its Subsidiaries has entered into capital stock or equity interests, or granted any transaction options, warrants or other than in the ordinary course rights to purchase or obtain (including upon conversion, exchange or exercise) any of business except for (in the case of the Company) this Agreementits capital stock;
(m) neither the Company nor any Subsidiary has declared, set aside or paid any dividend or made any distribution with respect to its Subsidiaries has encountered capital stock or equity interests (whether in cash or in kind) or redeemed, purchased or otherwise acquired any labor difficulties of its capital stock or labor union organizing activitiessplit, combined or reclassified any outstanding shares of its capital stock;
(n) neither the Company nor any Subsidiary has experienced any damage, destruction or loss (whether or not covered by insurance) to its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adoptedproperty;
(o) neither the Company nor its Subsidiaries any Subsidiary has disclosed to entered into any Person collective bargaining agreement, written or oral, or entered into or modified the terms of any material trade secrets such existing agreement with any officer, director or holder of more than 5% of the capital stock of the Company or any Subsidiary, or, except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsin the Ordinary Course of Business, with any employee ;
(p) neither the Company nor its Subsidiaries any Subsidiary has suffered granted any increase in the base compensation or experienced made any other change in the relationship or course employment terms of dealings between the Company and/or its Subsidiaries and any of their suppliers its directors, officers or customers which supply goods or services to employees outside the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; andOrdinary Course of Business;
(q) neither the Company nor its Subsidiaries any Subsidiary has made adopted, amended, modified or terminated any payment toPlan (or taken any such action with respect to any Plan);
(r) neither the Company nor any Subsidiary has discharged or satisfied any Encumbrance or paid any liability, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, case with a value in excess of $10,000 individually or its equivalent ($25,000 in the aggregate, other than any transactions between or among current liabilities paid in the Ordinary Course of Business;
(s) neither the Company nor any Subsidiary has disclosed, to any Person other than Buyer and its Subsidiariesauthorized representatives of Buyer, any proprietary confidential information, other than pursuant to a confidentiality agreement prohibiting the use or further disclosure of such information, which agreement is listed on Schedule 3.9 and is in full force and effect;
(t) neither the Company nor any Subsidiary has made any change in accounting principles or practices from those utilized in the preparation of the Annual Financial Statements; and
(each, an “Affiliate Transaction”)u) neither the Company nor any Subsidiary has committed to take any of the actions described in this Section 3.9.
Appears in 1 contract
Samples: Merger Agreement (SoftBrands, Inc.)
Absence of Certain Developments. In Except as expressly contemplated by this Agreement or as set forth in Schedule 3.8, between the ordinary course Balance Sheet Date and the date hereof, the Company, its Subsidiaries, the Managed Projects and, to the Knowledge of business or the Company, the Specified Projects have conducted their respective businesses only in the context Ordinary Course of the Transactions contemplated in this Agreement Business thereof, and the Transaction Documents:
(a) there has not been any event, change, occurrence or circumstance that has had a Material Adverse Change Effect, nor has there occurred or arisen any event occurred which could result in event, condition or state of facts of any Material Adverse Change;
(b) there has not been character specifically related to any declarationShareholder, setting a record date, setting aside or authorizing the payment ofCompany, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities ofManaged Projects or, or other ownership interest in, to the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives Knowledge of the Company, (ii) entered into any employmentof the Specified Projects that has had or could reasonably be expected to result in a Material Adverse Effect. Without limiting the generality of the foregoing, deferred compensationexcept as set forth in Schedule 3.8, severance or similar agreements (nor amended any such agreement), other than in between the ordinary course of business;Balance Sheet Date and the date hereof:
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(gi) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or Company, any of its Subsidiaries Subsidiaries, and of the Managed Projects or, to the Knowledge of the Company, any of the Specified Projects having a replacement cost of more than $10,000 150,000 for any single loss or $20,000 250,000 for all such losses;
(hii) neither 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 of its Subsidiaries or any repurchase, redemption or other acquisition by the Company, any of its Subsidiaries or any of the Project Companies of any outstanding shares of capital stock or other securities of, or other ownership interest in, the Company, any of its Subsidiaries or any of the Project Companies;
(iii) none of the Company nor any of its Subsidiaries has awarded or paid any bonuses to employees of the Company or any of its Subsidiaries except to the extent accrued on the Balance Sheet, or entered into any employment, deferred compensation, severance, collective bargaining or similar agreement (nor amended or modified in any respect any such agreement) or agreed to increase the compensation payable or to become payable by it to any of the Company’s or any of its Subsidiaries’ directors, officers, employees, agents or representatives or agreed to increase the coverage or benefits available under any Company Plan;
(iv) except as required by law or under GAAP, there has not been any change by the Company, any of its Subsidiaries, any of the Managed Projects or, to the Knowledge of the Company, any of the Specified Projects in any material accounting or Tax reporting principles, methods or policies;
(v) none of the Company, any of its Subsidiaries or any of the Managed Projects has made or rescinded any material election relating to Taxes or settled or compromised any material claim relating to Taxes and, to the Knowledge of the Company, none of the Specified Projects, has made or rescinded any material election relating to Taxes or settled or compromised any material claim relating to Taxes;
(vi) none of the Company, any of its Subsidiaries, any of the Managed Projects or, to the Knowledge of the Company, any of the Specified Projects has terminated any Material Contract (other than any such terminations pursuant to which none of the Company, any of its Subsidiaries, any of the Managed Project or any of the Specified Projects has any post-termination obligations with a value in excess of, or that are payable or may potentially become payable in an amount in excess of, $150,000 for any such individual termination or in excess of $250,000 in the aggregate for all such terminations) or relinquished, waived or released any rights under any Material Contract or failed in any material respect to perform obligations under or suffered the occurrence of any uncured default under any Material Contract;
(vii) none of the Company, any of its Subsidiaries, any of the Managed Projects or, to the Knowledge of the Company, any of the Specified Projects, has failed to pay any creditor any material amount owed to such creditor when due or granted any extensions of credit other than in the Ordinary Course of Business;
(viii) none of the Company or any of its Subsidiaries has entered into financial arrangements for the benefit of any Shareholder other than financial arrangements with respect to any Shareholder in his capacity as an officer or employee of the Company or any of its Subsidiaries;
(ix) none of the Company, any of its Subsidiaries or any of the Managed Projects has (A) except as would constitute a Permitted Exception, mortgaged, pledged or subjected to any Lien any of its assets, or (B) other than in the Ordinary Course of Business, acquired any assets for a purchase price in excess of $10,000 in the aggregate assets, tangible or intangible, or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets assets, tangible or intangible, of the Company or Company, any of its Subsidiaries for a sale price or any of the Managed Projects, in excess of each case greater than $10,000 150,000 individually or $250,000 in the aggregate aggregate;
(x) to the Knowledge of the Company, none of the Specified Projects has (A) except for assets as would constitute a Permitted Exception, mortgaged, pledged or subjected to any Lien any of its assets, or (B) other than in the Ordinary Course of Business, acquired any assets, tangible or intangible, or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets, tangible or intangible, of such Specified Project, in each case greater than $150,000 individually or $250,000 in the ordinary course of businessaggregate;
(ixi) neither none of the Company nor its Subsidiaries Company, any Subsidiary or any Managed Project has canceled discharged or compromised satisfied any debt or claimLien, or amendedpaid any Liability and, canceledto the Knowledge of the Company, terminatednone of the Specified Projects has discharged or satisfied any Lien, relinquishedor paid any Liability, waived other than, with respect to a Lien or released any Contract or right, except Liability incurred in the ordinary course Ordinary Course of business consistent with past practice and whichBusiness, the payment, discharge or satisfaction in the Ordinary Course of Business, greater than $150,00 individually or $250,000 in the aggregate, would not be material to the Company or its Subsidiaries;
(jxii) neither except as set forth in the Company nor 2008 Budget, in the form as set forth in Exhibit E (the “Budget”), none of the Company, any of its Subsidiaries or any of the Managed Projects has made or committed to make any binding commitment capital expenditures or capital additions or betterments and, to the Knowledge of the Company, none of the Specified Projects has made or committed to make any capital expenditures or capital additions or betterments in excess of $20,000 150,000 individually or $50,000 250,000 in the aggregate;
(kxiii) except as set forth in the Budget, neither the Company nor Company, any of its Subsidiaries or any of the Managed Projects has incurred issued, created, incurred, assumed, guaranteed, endorsed or otherwise become liable or responsible with respect to (whether directly, contingently, or otherwise) any debtsIndebtedness and, obligations or liabilitiesto the Knowledge of the Company, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course Ordinary Course of business except for Business, none of the Specified Projects has issued, created, incurred, assumed, guaranteed, endorsed or otherwise become liable or responsible with respect to (whether directly, contingently, or otherwise) any Indebtedness in excess of $150,000 individually or $250,000 in the case aggregate;
(xiv) none of the Company) this Agreement;
(m) neither , any Subsidiary or any Managed Project has instituted or settled any Legal Proceeding and, to the Company nor its Subsidiaries Knowledge of the Company, none of the Specified Projects has encountered instituted or settled any labor difficulties Legal Proceeding resulting in a loss of revenue in excess of $150,000 individually or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change $250,000 in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiariesaggregate; and
(qxv) neither none of the Company nor Company, any of its Subsidiaries Subsidiaries, any of the Managed Projects, and, to the Knowledge of the Company, none of the Specified Projects has made any payment toagreed, or received any payment fromcommitted, or made or received any investment in, arranged or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)understanding to do anything prohibited by this Section 3.8.
Appears in 1 contract
Absence of Certain Developments. In Except as listed on Schedule 4.9, since the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction DocumentsLast Fiscal Year End:
(a) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse ChangeEffect;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of neither the Company nor any Subsidiary has sold, leased, licensed, transferred or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of assigned any of its assets, tangible or intangible, other than for a fair consideration in the outstanding shares Ordinary Course of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesBusiness;
(c) there has not been any transfer, issue, sale or other disposition by neither the Company nor any Subsidiary has entered into any Contract (or series of any shares related Contracts) either involving more than $15,000 or outside the Ordinary Course of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securitiesBusiness;
(d) neither no party (including the Company nor its Subsidiaries or any Subsidiary) has (i) awarded accelerated, suspended, terminated, modified or paid canceled any bonuses Contract to employees which the Company or representatives any Subsidiary is a party or by which any of them is bound that would have been a Material Contract at the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended time of any such agreement), other than in the ordinary course of businessaction;
(e) neither the Company nor its Subsidiaries no Encumbrance has made been imposed on any loans, advances (other than advances to officers and employees assets of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its SubsidiariesSubsidiary except Permitted Encumbrances;
(f) neither the Company nor its Subsidiaries any Subsidiary has transferred made any capital expenditure (or granted any rights under any Contracts series of related capital expenditures) either involving more than $15,000 or licenses, used by outside the Company in its businessOrdinary Course of Business;
(g) there neither the Company nor any Subsidiary has not been made any damagecapital investment in, destruction any loan to, or loss, whether or not covered by insurance, with respect to any acquisition of the property securities or assets of, any other Person (or series of related capital investments, loans and acquisitions) outside the Company Ordinary Course of Business or its Subsidiaries having a replacement cost acquired (by merger, exchange, consolidation, acquisition of more than $10,000 for stock or assets or otherwise) any single loss or $20,000 for all such lossesPerson;
(h) neither the Company nor its Subsidiaries any Subsidiary has mortgagedissued any note, pledged bond or subjected to other debt security or created, incurred, assumed or guaranteed any Lien any of its assets, indebtedness for borrowed money (including advances on existing credit facilities) or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessCapital Lease;
(i) neither the Company nor its Subsidiaries any Subsidiary has canceled delayed, postponed or compromised accelerated the payment of accounts payable or other Liability or the receipt of any debt or claimaccounts receivable, or amended, canceled, terminated, relinquished, waived or released any Contract or right, except in each case outside the ordinary course Ordinary Course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its SubsidiariesBusiness;
(j) neither the Company nor its Subsidiaries any Subsidiary has made canceled, compromised, waived or released any binding commitment to make any capital expenditures right or capital additions claim (or betterments in excess series of $20,000 individually related rights or $50,000 in claims) outside the aggregate;
Ordinary Course of Business; (k) except incidental to the sale of products or services, neither the Company nor its Subsidiaries any Subsidiary has incurred granted any debts, obligations license or liabilities, whether due sublicense of any rights under or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed with respect to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsIntellectual Property Rights;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”).
Appears in 1 contract
Absence of Certain Developments. In Except as set forth on Schedule 5.9, since the ordinary course of business or in the context date of the Transactions contemplated in this Agreement and the Transaction DocumentsMost Recent Financial Statements:
(a) there has not been any Material Adverse Change nor nor, to the Sellers’ knowledge, has any event occurred which could reasonably be expected to result in any Material Adverse Change;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock the Membership Interests of the Company or its Subsidiaries Company, or any repurchase, redemption or other acquisition by the Company or its SubsidiariesCompany, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesCompany;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock Membership Interests or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock Membership Interests or such other securities;
(d) neither the Company nor its Subsidiaries has not (i) awarded or paid any bonuses to employees Employees or representatives Representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), (iii) agreed to increase the compensation payable or to become payable by the Company to any of the Company’s Employees or Representatives, or (iv) agreed to increase the coverage or benefits available under any severance pay, deferred compensation, bonus or other incentive compensation, pension or other employee benefit plan, payment or arrangement made to, for or with such Employees or Representatives, other than in the ordinary course of businessbusiness consistent with past practice, which increases in the aggregate do not exceed $50,000 in annual cost to the Company, and consistent with the operating expense budget of the Company, and other than as may be agreed by the Purchaser;
(e) neither the Company nor its Subsidiaries has not made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of businessbusiness and do not exceed per individual the reasonable anticipated expenses for legitimate business purposes), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its SubsidiariesCompany;
(f) neither to the knowledge of the Sellers, the Company nor its Subsidiaries has not transferred or granted any rights under any Contracts or material Contracts, leases, licenses, agreements or Intellectual Property (defined hereafter) used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 5,000 for any single loss or $20,000 10,000 for all such lossesLosses;
(h) neither the Company nor its Subsidiaries has not mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 15,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries has not canceled or compromised any debt or claim, or or, to the knowledge of the Sellers, amended, canceled, terminated, relinquished, waived or released any Contract or rightContract, except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiariesresult in a Material Adverse Change;
(j) neither the Company nor its Subsidiaries has not made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 10,000 individually or $50,000 25,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has not incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has not entered into any transaction other than in the ordinary course of business business, except for (in the case of the Company) this AgreementAgreement and except for transactions involving less than $15,000;
(m) neither the Company nor its Subsidiaries has not encountered any labor difficulties strikes or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has not made any change in the accounting principles, methods or practices followed by it or changed its depreciation or amortization policies or rates theretofore adopted;
(o) neither to the knowledge of the Sellers, the Company nor its Subsidiaries has not disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsagreements or privilege;
(p) neither the Company nor its Subsidiaries has not suffered or experienced any material change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their its suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiarieswhich could reasonably be expected to result in any Material Adverse Change; and
(q) neither the Company nor its Subsidiaries has not made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including including, without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)equivalent.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Wako Logistics Group Inc)
Absence of Certain Developments. In the ordinary course of business or Except as set forth in the context of the Transactions contemplated in this Agreement and the Transaction Documents:
(a) Schedule 3.13, since January 1, 1999, there has not been any Material Adverse Change nor has any event occurred which could result in any Company Material Adverse Change;
(b) there , or any development which could reasonably be expected to result in a prospective Company Material Adverse Change. Except as set forth in Schedule 3.13, since January 1, 1999 the Company and each Subsidiary has conducted its business in the ordinary and usual course consistent with past practices and has not been any declaration(i) sold, setting a record dateleased, setting aside transferred or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, otherwise disposed of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more (other than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries has canceled or compromised any debt or claim, or amended, canceled, terminated, relinquished, waived or released any Contract or right, except dispositions in the ordinary course of business consistent with past practice and whichpractices), individually (ii) terminated or amended in the aggregate, would not be any material respect any contract or lease to which the Company or any of its Subsidiaries is a party or to which it or any of its Subsidiaries is bound or to which its or any of its Subsidiaries;
' properties are subject, (jiii) neither amended the Articles of Incorporation or by-laws (or other organizational documents) of the Company nor or any of its Subsidiaries, or taken any action in contemplation of an amendment to the Articles of Incorporation or by-laws (or other organizational documents) of the Company or any of its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions in contemplation of the liquidation or betterments in excess dissolution of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor or any of its Subsidiaries and, to the Seller's best knowledge, no such action has incurred any debtsbeen taken by the shareholders, obligations directors or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course officers of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor or any of its Subsidiaries, (iv) declared, set aside for payment or paid any dividend or distribution on any shares of the capital stock of the Company or any of its Subsidiaries, (v) repurchased or otherwise acquired any shares of the capital stock of the Company or any of its Subsidiaries has entered or any option, warrant, right, call or commitment relating to its or their capital stock or any outstanding securities or obligations convertible into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principlesexchangeable for, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to giving any Person any material trade secrets except right to subscribe for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither or acquire from the Company nor its Subsidiaries has suffered or experienced Company, any change in shares of the relationship or course capital stock of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or any of its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”).,
Appears in 1 contract
Absence of Certain Developments. In (a) Except as contemplated or permitted by this Agreement or as set forth on the Developments Schedule, since the date of the latest Audited Financial Statement:
(i) neither the Company nor any of its Subsidiaries has mortgaged, pledged or subjected to any material Encumbrance any material portion of its assets, expect Permitted Liens;
(ii) neither the Company nor any of its Subsidiaries has sold, assigned or transferred any material portion of its tangible assets or any material Intellectual Property, in each case except in the ordinary course of business business;
(iii) neither the Company nor any of its Subsidiaries has made any change in its accounting methods, principles or practices, except as required by concurrent changes in GAAP;
(iv) neither the Company nor any of its Subsidiaries has made any revaluation of any of their material assets including writing off notes or accounts receivable other than in the context ordinary course of the Transactions contemplated in this Agreement and the Transaction Documents:business; and
(av) there neither the Company nor any of its Subsidiaries has not been made any Material Adverse Change nor has any event occurred which could result material capital expenditures or commitments therefor, except in any Material Adverse Change;the ordinary course of business, consistent with past practices.
(b) there Except as contemplated or permitted by this Agreement or as set forth on the Developments Schedule, since November 30, 2005;
(i) neither the Company nor any of its Subsidiaries has not been granted any declarationincrease in compensation or fringe benefits or payment, setting a record dateor any bonus to any of their directors or employees, setting aside or authorizing the payment ofin any case, any dividend or other distribution in respect excess of 10 percent of any shares such amount prior to such increase;
(ii) neither the Company nor any of capital stock its Subsidiaries has made any loan or provided any advance to their directors or employees, or granted any increase in severance or termination pay or entered into, or materially modified or amended any currently effective employment, severance, termination or indemnification Contract or any Contract the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Company of the nature contemplated hereby;
(iii) neither the Company nor any of its Subsidiaries has made any material change or alteration in the policy of the Company or its Subsidiaries relating to the granting of stock options or other equity compensation to their directors, employees and consultants;
(iv) neither the Company nor any of its Subsidiaries has made a material modification of or amendment to any Material Contract and no such Material Contract has been cancelled;
(v) neither the Company nor any of its Subsidiaries has issued, sold or transferred any of its capital stock or other equity 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 other bonds or debt securities, except for the issuance of shares of Class B Common Stock upon the exercise of Options;
(vi) the Company has not made a declaration, set aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the Company’s capital stock, or any repurchasepurchase, redemption or other acquisition by the Company or any of its Subsidiaries, Subsidiaries of any of the outstanding shares of Company’s or its Subsidiaries’ capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase acquire any such shares or otherwise acquire shares of such capital stock or such other securities;; and
(dvii) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loanssplit, advances combination or reclassification of any of the Company’s or any of its Subsidiaries’ capital stock.
(other than advances to officers and employees viii) the business of the Company or and its Subsidiaries which advances are made has been conducted in all material respects in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;consistent with past practice; and
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(gix) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in occurred a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)Effect.
Appears in 1 contract
Samples: Merger Agreement (Kforce Inc)
Absence of Certain Developments. In Since January 1, 2015, the Company has conducted its business only in the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documentsand, except as set forth on Schedule 2.8, there has not been:
(a) there any change or event, by itself or in conjunction with all other changes or events, that has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Changehad, or would reasonably be likely to have, a material adverse effect on the assets, condition (financial or other), properties, business, operations or prospects of the Company;
(b) there has any Encumbrance placed on any of the properties of the Company, other than Encumbrances for Taxes not yet due and payable or for Taxes being contested in good faith by appropriate proceedings for which adequate reserves have been made on the Financial Statements;
(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 Company, for at least $25,000 individually, and in each case outside of the ordinary course of business;
(d) any damage, destruction or loss of property, of at least $25,000 in value, whether or not covered by insurance;
(e) any declaration, setting a record date, setting aside or authorizing the payment of, of any dividend or other distribution by the Company in respect of any shares of capital stock the Equity Interests of the Company or its Subsidiaries Company, or any repurchasedirect or indirect redemption, redemption purchase or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesEquity Interests;
(cf) there has not been except in the ordinary course of business, (i) any transferhiring, issueresignation, sale termination or other disposition by the Company removal of any shares officer or employee of capital stock the Company, or other securities (ii) any increase in the compensation of any employee of the Company or its Subsidiaries any promise or agreement to change the compensation of any employee of the Company;
(g) any establishment, adoption, amendment or termination of any Employee Benefit Program;
(h) any issuance, sale or grant, or contract to issue, sell or grant any Equity Interests of the Company or any grant of options, warrants, calls warrants or other rights with respect to purchase or otherwise acquire shares the Equity Interests of such capital stock or such other securitiesthe Company;
(d) neither the Company nor its Subsidiaries has (i) awarded any payment or paid any bonuses to employees discharge of a material Encumbrance or representatives material liability of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than the payment or discharge of any Encumbrance or liability in the ordinary course of business;
(ej) neither the Company nor its Subsidiaries has made any loanschange to any Tax election or any method of accounting for Tax purposes, advances or any action in respect of Taxes (other than advances to officers and employees the payment of the Company or its Subsidiaries which advances are made Taxes when due in the ordinary course of business), course) or capital contributions to, or investments in, with any Person or paid any fees or expenses to any Affiliate of the Company other than its SubsidiariesGovernmental Authority;
(fk) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used contingent liability incurred by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, as guarantor with respect to the property obligations of others or assets any cancellation of any Indebtedness or claim owing to, or waiver of any right of, the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such lossesCompany;
(hl) neither any obligation or liability incurred by the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assetsofficers, directors, managers, Equity Interests holders, or acquired any assets for a purchase price in excess of $10,000 in the aggregate loans or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of advances made by the Company to any of its officers, directors, managers, Equity Interest holders or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of employees other than compensation and benefits payable to employees in the ordinary course of business;
(im) neither any material change in accounting methods or practices of the Company nor its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its SubsidiariesCompany;
(jn) neither any material loss or material reduction, or, to the Knowledge of the Company, development that could result in a material loss or material reduction, of business with any material supplier or customer of the Company;
(o) any termination of any agreement that would have met the definition of Material Contracts;
(p) any arrangements relating to any royalty, commission or similar payment based on the revenues, profits, sales volume, production or collections of the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in each case in excess of $20,000 10,000 individually or $50,000 in the aggregate;
(kq) neither any regulatory action, or other proceeding commenced, or threatened in writing by any Governmental Authority against the Company; or
(r) any agreement for the Company nor its Subsidiaries has incurred to take any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Companyactions specified in paragraphs (a) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
through (q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)above.
Appears in 1 contract
Absence of Certain Developments. In Except as set forth in Section 3.7 of the Disclosure Schedule (arranged in subsections corresponding to the subsections set forth below; provided that all such subsections qualify this introductory clause), since the Balance Sheet Date, the Company (which term shall also include Wholesale Holdings for purposes of this Section 3.7) has conducted its business in the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documentsmaterially consistent with past practice and:
(a) there has not been any Company Material Adverse Change nor has there occurred any event occurred which could is reasonably likely to result in any a Company Material Adverse Change;
(b) there has not been any declarationsplit, setting a record date, setting aside combination or authorizing the payment of, any dividend or other distribution in respect reclassification of any shares of capital stock or other security of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any that is not reflected in Section 3.3 of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesDisclosure Schedule;
(c) there has not been any transferdamage, issuedestruction or loss that is not covered by insurance, sale or other disposition by with respect to the Company of any shares of capital stock or other securities property and assets of the Company having a replacement cost of more than $50,000 for any single loss or its Subsidiaries or $100,000 in the aggregate for any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securitiesrelated losses;
(d) neither the Company nor its Subsidiaries has (i) awarded not made any change in the rate of compensation, commission or bonus payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonuses bonus, incentive, retention or other compensation, retirement or severance benefit or vacation pay, to employees or representatives in respect of any director, officer or employee of the Company, other than increases in the ordinary course of business consistent with past practice;
(iie) the Company has not entered into or amended any employment, deferred compensation, severance or similar agreements agreement;
(nor amended f) the Company has not hired any such agreement), employees or engaged any individual independent contractors other than in the ordinary course of businessbusiness consistent with past practice;
(eg) neither the Company nor its Subsidiaries has not made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such lossesPerson;
(h) neither the Company nor its Subsidiaries has not mortgaged, pledged pledged, or subjected to any Lien Lien, other than the Permitted Liens, any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased conveyed or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased conveyed or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(i) neither the Company nor its Subsidiaries has not canceled or compromised affirmatively waived any debt or claim, claim or amended, canceled, terminated, relinquished, terminated or affirmatively waived or released any right under any Material Contract or right, except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiariespractice;
(j) neither the Company nor its Subsidiaries has made any binding commitment not committed to make any capital expenditures or capital additions or betterments improvements (i) in excess of $20,000 individually or $50,000 in the aggregateaggregate or (ii) outside the ordinary course of business consistent with past practices;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations not accelerated revenue recognition or liabilities, whether due or the sales for periods prior to become due, except current liabilities incurred in the Closing outside of the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Changebusiness consistent with past practices;
(l) neither the Company nor has not materially changed its Subsidiaries policies or practices with respect to the payment of accounts payable or other current liabilities or the collection of accounts receivable (including any acceleration or deferral of the payment or collection thereof);
(m) the Company has not 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;
(n) the Company has not discharged or repaid any Indebtedness for Borrowed money outside the ordinary course of business consistent with past practice;
(o) the Company has not entered into any transaction compromise or settlement of any Legal Proceeding or investigation by any Governmental Body;
(p) the Company has not transferred, assigned or granted any license or sublicense of any material rights under or with respect to any Intellectual Property other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiariesconsistent with past practice; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or not entered into any transaction agreements or series of related transactions (including without limitation, commitments to do or perform in the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with future any Affiliate actions referred to in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 3.7.
Appears in 1 contract
Samples: Merger Agreement (RumbleON, Inc.)
Absence of Certain Developments. In Since September 30, 2006, other than as disclosed in the SEC Reports, in the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documents:
(a) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse ChangeChange other than those matters as disclosed in the SEC Reports;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securitiessecurities other than those matters as disclosed in the SEC Reports;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of businessbusiness other than those matters as disclosed in the SEC Reports;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its businessbusiness other than those matters as disclosed in the SEC Reports;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 50,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 50,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness other than those matters as disclosed in the SEC Reports;
(i) neither the Company nor its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its SubsidiariesSubsidiaries other than those matters as disclosed in the SEC Reports;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse ChangeChange other than those matters as disclosed in the SEC Reports;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this AgreementAgreement other than those matters as disclosed in the SEC Reports;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its SubsidiariesSubsidiaries other than those matters as disclosed in the SEC Reports; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 50,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)) other than those matters as disclosed in the SEC Reports.
Appears in 1 contract
Samples: Securities Purchase and Option Agreement (Wherify Wireless Inc)
Absence of Certain Developments. In (a) Except as expressly contemplated by this Agreement, as set forth in Schedule 3.22, between the ordinary course of business or in the context of the Transactions contemplated in this Agreement Last Balance Sheet Date and the Transaction Documentsdate hereof:
(a) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 25,000 for any single loss or $20,000 50,000 for all such losses;
(hii) neither there has at no time been a material change (financial or otherwise) in the condition, results of operations, business, properties, assets, liabilities, or to the knowledge of the Company or any Seller, future prospects of the Company; and there is no fact known to the Company or any Seller which materially adversely affects or in the future (as far as the Company or any Seller can foresee) may materially adversely affect the financial condition, results of operations, business, properties, assets, liabilities, or future prospects of the Company;
(iii) there has been no accepted purchase order or quotation, arrangement, or understanding for future sale of the products or services of the Company which the Company, or any Seller expects will not be profitable;
(iv) the Company has not experienced any material labor difficulty or loss of employees or customers and has not entered into any collective bargaining agreement;
(v) the Company has not agreed to, permitted or suffered of any of the acts, transactions or other things described in this Section 3.22;
(vi) there has not been any grant of any stock option or right to purchase shares of the stock of the Company;
(vii) 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 of any outstanding shares of capital stock or other securities of, or other ownership interest in, the Company;
(viii) the Company has not awarded or paid any bonuses to employees of the Company, or entered into any employment, deferred compensation, severance or similar 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 directors, officers, employees, agents or representatives, or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with such directors, officers, employees, agents or representatives (other than normal increases in the Ordinary Course and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of the Company);
(ix) there has not been any change by the Company in accounting or Tax reporting principles, methods or policies;
(x) the Company has not entered into any transaction or contract or conducted its Subsidiaries business other than in the Ordinary Course and other than those listed on Schedule 3.20(a);
(xi) the Company has not failed to pay and discharge promptly current liabilities except where disputed in good faith by appropriate proceedings;
(xii) the Company has not made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company (other than the payment of trade payables in the Ordinary Course);
(xiii) the Company has not mortgaged, pledged or subjected to any Lien Encumbrance any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate assets, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessOrdinary Course;
(ixiv) neither the Company nor its Subsidiaries has canceled not discharged or satisfied any Encumbrance, or paid any obligation or liability (fixed or contingent), except in the Ordinary Course and which, in the aggregate, would not be material to the Company;
(xv) the Company has not cancelled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract contract or right, right except in the ordinary course of business consistent with past practice Ordinary Course and which, individually or in the aggregate, would not be material to the Company or its SubsidiariesCompany;
(jxvi) neither the Company nor its Subsidiaries has not made any binding commitment or committed to make any capital expenditures or capital additions or betterments in excess of $20,000 25,000 individually or $50,000 in the aggregate;
(kxvii) neither the Company nor its Subsidiaries has incurred any debts, obligations not instituted or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person settled any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered litigation, suit, claim, action, proceeding or experienced investigation of any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiarieskind; and
(qxviii) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate not agreed to do anything set forth in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 3.22.
Appears in 1 contract
Samples: Stock Purchase and Recapitalization Agreement (A21 Inc)
Absence of Certain Developments. In Since the ordinary course date of business the Nickleby's ---------------------------------- Balance Sheet, there has been (i) no materially adverse change in the condition (financial or otherwise) of Nickleby's or in the context assets, liabilities, properties, business, operations or prospects of the Transactions contemplated in this Agreement and the Transaction Documents:
corporation; (aii) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
(b) there has not been any no declaration, setting a record date, setting aside or authorizing the payment of, of any dividend or other distribution in with respect of any shares of capital stock of to the Company Nickleby's Common Shares or its Subsidiaries or any repurchaseredemption, redemption purchase or other acquisition by the Company of any Nickleby's Common Shares or its Subsidiaries, of any split-up or other recapitalization relative to any Nickleby's Common Shares or any action authorizing or obligating Nickleby's to do any of the outstanding shares foregoing; (iii) no loss, destruction or damage to any material property or asset of capital stock Nickleby's, whether or other securities ofnot insured; (iv) no acquisition or disposition of assets (or any contract or arrangement therefor), or any other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition transaction by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or Nickleby's otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than for fair value and in the ordinary course of business;
; (ev) neither the Company nor its Subsidiaries has made no discharge or satisfaction by Nickleby's of any loans, advances lien or encumbrance or payment of any obligation or liability (absolute or contingent) other than advances to officers and employees current liabilities shown on the Nickleby's Balance Sheet, or current liabilities incurred since the date thereof in the ordinary course of business; (vi) no sale, assignment or transfer by Nickleby's of any of the Company tangible or its Subsidiaries which advances are made intangible assets of either corporation, cancellation by Nickleby's of any debts, claims or obligations, or mortgage, pledge, satisfaction of any assets to any lien, charge, security interest or other encumbrance or waiver by Nickleby's of any rights of value which, in any such case, is material to the business of Nickleby's (whether or not in the ordinary course of business); (vii) no payment of any bonus to or change in the compensation of any director, officer or employee of Nickleby's, whether directly or by means of any bonus, pension plan, contract or commitment and no change in employee compensation, whether directly or by means of any bonus, pension plan, contract or commitment; (viii) no write-off or material reduction in the carrying value of any asset which is material to the business of Nickleby's; (ix) no disposition or lapse of rights as to any intangible property which is material to the business of Nickleby's; (x) except for ordinary travel advances, no loans or extensions of credit to shareholders, officers, directors or employees of Nickleby's; (xi) no entry into any commitment or transaction by Nickleby's (including, without limitation, any borrowing or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(fexpenditure) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price involving an amount in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed 1,000.00; (xii) no issuance of any assets capital stock, or of any other security convertible into any of the Company capital stock, of Nickleby's; or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(ixiii) neither the Company nor its Subsidiaries has canceled or compromised any debt or claim, or amended, canceled, terminated, relinquished, waived or released agreement to do any Contract or right, except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) things described in this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)Section 4.7.
Appears in 1 contract
Absence of Certain Developments. In the ordinary course of business Except as expressly contemplated by this Agreement or as set forth in the context Section 4.10 of the Transactions contemplated in this Agreement and Radiocoms Disclosure Letter, since the Transaction DocumentsRadiocoms Balance Sheet Date:
(a) there has not been any Material Adverse Change nor has there occurred any event occurred which could is reasonably likely to result in any a Material Adverse ChangeChange with respect to the Business or Radiocoms and its Subsidiaries, taken as a whole;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or its Subsidiaries Business having a replacement cost of more than $10,000 L10,000 for any single loss or $20,000 L10,000 for all such losses;
(c) 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 Radiocoms or any of its Subsidiaries or any repurchase, redemption or other acquisition by Seller, Radiocoms or any Subsidiary of Radiocoms of any outstanding shares of capital stock or other securities of, or other ownership interest in, Radiocoms or any of its Subsidiaries, except for (i) dividends to Radiocoms by any of its wholly owned Subsidiaries and (ii) Seller's acquisition of the Shares and the Preferred Shares as contemplated by this Agreement;
(d) neither Radiocoms nor any or its Subsidiaries has issued any equity securities or any securities convertible into or exchangeable for equity securities of Radiocoms or any of its Subsidiaries, other than the Shares and the Preferred Shares;
(e) neither Radiocoms nor any of its Subsidiaries or Relevant Affiliates has awarded or paid any bonuses to employees of the Business or Radiocoms with respect to the fiscal year ended September 30, 1995 and the period ended March 31, 1996, except to the extent accrued on the Radiocoms Balance Sheet or the March Radiocoms Balance Sheet, or entered into any employment, deferred compensation, severance or similar agreement (or amended any such agreement) or agreed to increase the compensation payable or to become payable by it to any of its directors, officers, employees, agents or representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compen sation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with such directors, officers, employees, agents or representatives (other than normal increases in the ordinary course of business consistent with past practice and that in the aggregate have not resulted in a material increase in the benefits or compensation expense of Radiocoms and its Subsidiaries, taken as a whole);
(f) there has not been any change by Radiocoms or any of its Subsidiaries or Relevant Affiliates in accounting or Tax reporting principles, methods or policies relating to the Business;
(g) neither Radiocoms nor any of its Subsidiaries or Relevant Affiliates has entered into any transaction or Contract or conducted its business related to the Business other than in the ordinary course consistent with past practice, and no Relevant Affiliate of Radiocoms has entered into any transaction or Contract or conducted any business related to the Business other than in the ordinary course consistent with past practice, except for the acquisition by Radiocoms of the EFJ Shares, the EFJ Warrant and the issued and outstanding capital stock of Linear Modulation Technology Limited ("LMT") and Securicor Electronics Limited ("SEL");
(h) neither the Company Radiocoms nor any of its Subsidiaries or Relevant Affiliates has failed to promptly pay and discharge current liabilities of the Business, except where disputed in good faith by appropriate proceedings;
(i) neither Radiocoms nor any of its Subsidiaries has made any loans (other than as evidenced by the EFJ Note), advances or capital contributions to, or investments in, any Person or paid any fees or expenses to Seller or any Affiliate of Seller;
(j) neither Radiocoms nor any of its Subsidiaries or Relevant Affiliates has mortgaged, pledged or subjected to any Lien any of its assetsassets related to the Business, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company Radiocoms or its Subsidiaries for a sale price in excess of $10,000 in or Relevant Affiliates related to the aggregate Business, except for (i) assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice, (ii) the transfer of the ownership of the issued and outstanding capital stock of LMT and SEL from Seller to Radiocoms on May 14, 1996 and (iii) the acquisition by Radiocoms of the EFJ Shares and the EFJ Warrant from Securicor Communications Inc. on June 17, 1996;
(k) neither Radiocoms nor any of its Subsidiaries or Relevant Affiliates has discharged or satisfied any Lien related to the Business, or paid any obligation or liability (fixed or contingent) related to the Business, except (i) in the ordinary course of business consistent with past practice and which, in the aggregate, would not be material to Radiocoms and its Subsidiaries, taken as a whole, and (ii) for the refinancing of all of the outstanding indebtedness owed by Radiocoms to Seller and its Affiliates in connection with the issuance of the Preferred Shares;
(l) neither the Company Radiocoms nor any of its Subsidiaries or Relevant Affiliates has canceled or compromised any debt or claim, claim related to the Business or amended, canceled, terminated, relinquished, waived or released any Contract or right, right related to the Business except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company Business or Radiocoms and its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in taken as a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreementwhole;
(m) neither the Company Radiocoms nor any of its Subsidiaries or Relevant Affiliates has encountered instituted or settled any labor difficulties or labor union organizing activitiesmaterial Legal Proceeding related to the Business;
(n) neither the Company Business nor Radiocoms or any of its Subsidiaries has made suffered any change extraordinary loss or extraordinary losses (as defined in Opinion No. 30 of the accounting principlesAccounting Principles Board of the American Institute of Certified Public Accountants and any amendments or interpretations thereof) (individually, methods or practices followed by it or depreciation or amortization policies or rates theretofore adoptedan "Extraordinary Loss" and, collectively, "Extraordinary Losses");
(o) neither the Company Radiocoms nor any of its Subsidiaries or Relevant Affiliates has disclosed transferred or granted any material rights under any concessions, leases, licenses, agreements, patents, inventions, trademarks, trade names, service marks, brandmarks, brand names, copyrights or the like, or with respect to any Person know-how, in any material trade secrets except for disclosures made case related to Persons subject to valid and enforceable confidentiality agreementsthe Business;
(p) neither the Company Radiocoms nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods Relevant Affiliates has received any notice or services from citation for any violation of, nor, to the Company knowledge of Seller, has any complaint been filed with the Department of Trade and Industry ("DTI") alleging a violation of any rule, regulation or policy of the DTI related to the Business, or allowed any equipment authorization related to the Business issued by the FCC to Radiocoms or any of its SubsidiariesSubsidiaries or Relevant Affiliates to lapse or be impaired in any manner, or operated any of its businesses related to the Business in any manner not in compliance with its FCC equipment authorizations and all applicable DTI or FCC rules, regulations and policies; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series none of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 Seller or its equivalent Relevant Affiliates (other than on behalf of Radiocoms or any transactions between Subsidiary thereof), Radiocoms or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)any Subsidiary of Radiocoms has agreed to do anything set forth in this Section 4.10.
Appears in 1 contract
Absence of Certain Developments. In the ordinary course of business or in the context of the Transactions Except as contemplated in by this Agreement and or as set forth on Schedule 5.9, since the Transaction DocumentsBalance Sheet Date:
(a) there each Company has not been any Material Adverse Change nor has any event occurred which could result conducted its business only in any Material Adverse Changethe Ordinary Course of Business;
(b) there has not been any declarationevent, setting change, occurrence or circumstance that has had or could reasonably be expected to have a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesMaterial Adverse Effect;
(c) there other than this Agreement, neither the Seller Parent nor the Seller has sold, transferred, redeemed or encumbered any Equity Interests, and the Companies have not been sold any transfer, issue, sale or other disposition by the Company equity securities of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securitiesCompany;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course Ordinary Course of businessBusiness, the Companies have not increased the benefits, compensation, bonus or bonus opportunity of any employee, officer or director of any Company;
(e) neither the no Company nor its Subsidiaries has made canceled or compromised any loansdebt or claim or amended, advances (other than advances to officers and employees of the Company canceled, terminated, relinquished, waived or its Subsidiaries which advances are made released any Material Contract or right except in the ordinary course Ordinary Course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its SubsidiariesBusiness;
(f) neither the no Company has mortgaged, pledged or subject to any Lien (other than Permitted Exceptions) any of its material assets, nor its Subsidiaries has transferred any such asset been seized or granted any rights under any Contracts or licenses, used by the Company in its businessattached;
(g) there no Company has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate material asset or sold, assigned, transferred, conveyed, leased or otherwise disposed of any material assets of the any Company;
(h) no Company has suffered any damage, destruction or loss of Company Properties that would materially and adversely affect its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired condition (financial or sold, assigned, transferred, conveyed, leased otherwise) or otherwise disposed of in the ordinary course of businessoperations (present or prospective);
(i) other than this Agreement, neither the Company Seller Parent nor its Subsidiaries the Seller has canceled issued, sold or compromised any debt or claimotherwise disposed of, or amendedagreed to issue, canceledsell or otherwise dispose of, terminatedany Equity Interest or any other security of any Company and has not granted or agreed to grant any option, relinquished, waived warrant or released other right to subscribe for or to purchase any Contract capital or right, except in the ordinary course any other security of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiaries;any Company; and
(j) neither the no Company nor its Subsidiaries has made any binding commitment not paid or obligated itself to make any capital expenditures or capital additions or betterments pay in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred aggregate for any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of fixed assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”).
Appears in 1 contract
Absence of Certain Developments. In Except as expressly contemplated by this Agreement, since the ordinary course of business or Balance Sheet Date through the date hereof, the Company and the Company Subsidiaries have conducted their respective businesses only in the context Ordinary Course of Business. Since the Transactions contemplated in this Agreement and the Transaction DocumentsBalance Sheet Date:
(a) there has not been any Material Adverse Change nor has loss, with respect to the tangible property and assets of the Company or any event occurred which could result in Subsidiary having a replacement cost of more than $10,000 for any Material Adverse Changesingle loss or $100,000 for all such losses;
(b) none of the WCS Spectrum Licenses has been revoked, suspended, modified or has expired and no event has occurred or condition or state of facts exists which constitutes or, after notice or lapse of time or both, will, or would reasonably be expected to, constitute a breach or default under any WCS Spectrum License which permits or, after notice or lapse of time or both, will, or would reasonably be expected to, permit revocation, cancellation, suspension or adverse modification of any WCS Spectrum License;
(c) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, of any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, either Company Subsidiary of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the either Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securitiesSubsidiary;
(d) neither the Company nor its Subsidiaries any Company Subsidiary has (i) awarded or paid hired any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensationconsulting, severance or similar agreements (nor amended agreement or agreed to increase the compensation payable or to become payable by it to any such agreement)of the Company’s or any Company Subsidiary’s consultants, other than in the ordinary course of businessdirectors, officers, employees, agents or representatives;
(e) there has not been any material change by the Company or either Company Subsidiary in accounting or Tax reporting principles, methods or policies;
(f) neither the Company nor its Subsidiaries either Company Subsidiary has failed to pay promptly and discharge current liabilities except where disputed in good faith by appropriate proceedings;
(g) neither the Company nor either Company Subsidiary has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business)cash advances, or capital contributions to, or investments in, any Person or paid any fees or expenses to any stockholder of the Company or any director, officer, partner, stockholder or Affiliate of the Company other than its Subsidiaries;
(f) neither the or either Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such lossesSubsidiary;
(h) neither the Company nor its Subsidiaries either Company Subsidiary has mortgaged, pledged or been subjected to any Lien on any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any material assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate either Company Subsidiary, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course Ordinary Course of businessBusiness, or taken any action specified in Section 7.2(b)(ix);
(i) neither the Company nor its Subsidiaries either Company Subsidiary has canceled discharged or satisfied any Lien, or paid any obligation or liability (fixed or contingent) in excess of $10,000 individually or $100,000 in the aggregate, except in the Ordinary Course of Business;
(j) neither the Company nor either Company Subsidiary has cancelled or compromised any debt or claim, pending claim or amended, canceledcancelled, terminated, relinquished, waived or released any Contract or right, material right except in the ordinary course Ordinary Course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its SubsidiariesBusiness;
(jk) except for those in connection with the acquisition of the WCS Spectrum Licenses, neither the Company nor its Subsidiaries either Company Subsidiary has made any binding commitment or committed to make any capital expenditures or capital additions or betterments in excess of $20,000 10,000 individually or $50,000 100,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries either Company Subsidiary has entered into issued, created, incurred, assumed or guaranteed any transaction other than in the ordinary course of business except for (in the case of the Company) this AgreementIndebtedness;
(m) neither the Company nor its Subsidiaries either Company Subsidiary has encountered received notice of, instituted or settled any labor difficulties or labor union organizing activities;material Legal Proceeding; and
(n) neither the Company nor its Subsidiaries either Company Subsidiary has made any change in the accounting principlesagreed, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment tocommitted, or received any payment from, or made or received any investment in, arranged or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate understanding to do anything set forth in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 5.A.9.
Appears in 1 contract
Absence of Certain Developments. In Except as set forth in Section 3.7 of the Disclosure Schedule (arranged in subsections corresponding to the subsections set forth below), since the Balance Sheet Date, neither the Company nor any of its Subsidiaries has conducted its business other than in the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documentsconsistent with past practice and:
(a) there has not been any Company Material Adverse Change nor has there occurred any event occurred which could is reasonably likely to result in any a Company Material Adverse Change;
(b) there neither the Company nor any of its Subsidiaries has not been made any declaration, setting a record date, setting aside declaration or authorizing the payment of, of any dividend dividends or other distribution distributions on or in respect of any shares of capital stock or other security of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or of its Subsidiaries, or redemption, purchase or acquisition of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, security of the Company or any of its Subsidiaries, or made any other payment to or on behalf of the Seller or any Affiliate thereof;
(c) there has not been any transfersplit, issue, sale combination or other disposition by the Company reclassification of any shares of capital stock or other securities security of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(gd) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or any of its Subsidiaries having a replacement cost of more than $10,000 5,000 for any single loss or $20,000 10,000 in the aggregate for all such any related losses;
(e) neither the Company nor any of its Subsidiaries 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 Company or any of its Subsidiaries, other than increases in the ordinary course of business consistent with past practice in the base wages or salaries of employees of the Company or any of its Subsidiaries other than officers or senior managers;
(f) neither the Company nor any of its Subsidiaries has entered into or amended any employment, deferred compensation, severance or similar agreement;
(g) neither the Company nor any of its Subsidiaries has entered into any collective bargaining agreement or relationship with any labor organization;
(h) there has not been any material change by the Company or any of its Subsidiaries in accounting or Tax reporting principles, methods or policies, any settlement of any Tax controversy, any amendment of any Tax Return, or any material Tax election made by or with respect to the Company or any of its Subsidiaries;
(i) except for the transactions contemplated by this Agreement, neither the Company nor any of its Subsidiaries has entered into or amended any other transaction or Contract other than in the ordinary course of business consistent with past practice;
(j) neither the Company nor any of its Subsidiaries has hired employees or engaged independent contractors other than in the ordinary course of business consistent with, and at a level consistent with, past practice;
(k) neither the Company nor any of its Subsidiaries has breached any Contract, other than certain past due payables and lease payments not in excess of $10,000 in the aggregate;
(l) neither the Company nor any of its Subsidiaries has made any loans, advances or capital contributions to, or investments in, any Person;
(m) neither the Company nor any of its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or any of its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(in) neither the Company nor any of its Subsidiaries has canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would are not be material to the Company or any of its Subsidiaries;
(jo) neither the Company nor any of its Subsidiaries has entered into or amended any Contract or transaction with any of its Affiliates or paid any fees, expenses or other amounts to any Affiliate of the Company or any of its Subsidiaries;
(p) neither the Company nor any of its Subsidiaries has made any binding commitment or committed to make any capital expenditures or capital additions or betterments improvements (i) in excess of $20,000 5,000 individually or $50,000 10,000 in the aggregate, or (ii) outside the ordinary course of business consistent with past practices;
(kq) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction prepaid transactions or otherwise accelerated revenue recognition or the sales for periods prior to the Closing outside of the ordinary course of business consistent with past practices;
(r) neither the Company nor any of its Subsidiaries has materially changed its policies or practices with respect to the payment of accounts payable or other current liabilities or the collection of accounts receivable (including any acceleration or deferral of the payment or collection thereof);
(s) neither the Company nor any of its Subsidiaries has amended any of its Governing Documents;
(t) neither the Company nor any of its Subsidiaries has adopted any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of 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 or other agreement with respect to the sale of its assets, securities or Business;
(u) neither the Company nor any of its Subsidiaries has issued any equity or debt securities or any security exercisable or exchangeable for or convertible into equity securities of the Company or any of its Subsidiaries, or incurred any Indebtedness or other Liabilities (other than in the ordinary course of business except for (in the case of the Company) this Agreementconsistent with past practices);
(mv) neither the Company nor any of its Subsidiaries has encountered (i) discharged, repaid, amended, modified, made payment on, canceled or compromised any labor difficulties Indebtedness, or labor union organizing activitiesdischarged or satisfied any Lien, or (ii) engaged in any transaction or provided any consideration relating to the release, modification or diminution of any guarantee, bond, surety or other obligation of the Seller or any Affiliate thereof;
(nw) neither the Company nor any of its Subsidiaries has made entered into any change in the accounting principles, methods compromise or practices followed settlement of any Legal Proceeding or investigation by it or depreciation or amortization policies or rates theretofore adoptedany Governmental Body;
(ox) neither the Company nor any of its Subsidiaries has disclosed transferred, assigned or granted any license or sublicense of any material rights under or with respect to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsIntellectual Property;
(py) neither the Company nor any of its Subsidiaries has suffered failed (i) to file any material reports or experienced any change take steps necessary to comply with applicable Laws and (ii) to maintain in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiariesgood standing all Permits; and
(qz) neither the Company nor any of its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction agreements or series of related transactions (including without limitation, commitments to do or perform in the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with future any Affiliate actions referred to in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 3.7.
Appears in 1 contract
Absence of Certain Developments. In Except as contemplated or permitted by this Agreement or as set forth on Schedule 5.08, since the ordinary course of business or in the context date of the Transactions contemplated in this Agreement and the Transaction DocumentsLatest Balance Sheet:
(a) there the business of the Company and its Subsidiaries has not been any Material Adverse Change nor has any event occurred which could result conducted in any Material Adverse Changeall material respects in the ordinary course of business;
(b) there has not been occurred any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its SubsidiariesMaterial Adverse Effect;
(c) there has not been any transfer, issue, sale or other disposition by neither the Company nor any of any shares of capital stock or other securities of the Company or its Subsidiaries has issued, delivered, reissued or sold, disposed or pledged any of its shares of, or authorized the same in respect of, capital stock, any voting securities or any grant of other equity interests or any options, warrants, calls convertible or exchangeable securities, subscriptions, stock appreciation rights or other rights equity-based compensation with respect to purchase such securities of any kind, or otherwise acquire shares of such capital granted phantom stock or such other securitiessimilar rights with respect to any of the foregoing;
(d) neither the Company nor any of its Subsidiaries has (i) awarded created, incurred, assumed or paid guaranteed any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), Funded Debt other than (x) in the ordinary course of businessbusiness pursuant to the Company's existing revolving credit facilities, or (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) neither the Company nor and its Subsidiaries has made have not sold, transferred, leased, mortgaged, pledged or otherwise subjected to any loans, advances Lien (other than advances Permitted Liens) any material assets or property (tangible or intangible);
(f) the Company and its Subsidiaries have not entered into, terminated prior to officers the expiration of its scheduled term, or received notice of early termination of any Contract involving a total remaining binding commitment by the Company or any of its Subsidiaries of $1,000,000 or more;
(g) the Company and employees its Subsidiaries have not entered into any Contract to make an acquisition (whether by merger, acquisition of stock or assets, or otherwise) of any business or line of business;
(h) there has not been any change in the organizational documents of the Company or its Subsidiaries which advances are made in the ordinary course any of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(fi) neither no election has been made to change the status of the Company nor or any of its Subsidiaries has transferred (as a corporation, partnership or granted any rights under any Contracts disregarded entity) for federal, state or licenses, used by the Company in its businesslocal Tax purposes;
(gj) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or any of its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate200,000;
(k) neither the Company nor any of its Subsidiaries has incurred any debts, obligations or liabilities, whether due materially increased the salary payable or to become duepayable by it to any of the Company's or its Subsidiaries' employees whose base salary is in excess of $175,000, except current liabilities incurred pursuant to the Plans or Contracts set forth on Schedule 5.19, or materially increased the coverage or benefits available under any severance pay, termination pay, deferred compensation, bonus or other incentive compensation plan or arrangement, except for bonuses payable to certain officers and employees of the Company or any of its Subsidiaries in connection with the ordinary course consummation of business, none the Transactions (which will be included as part of which current liabilities (individually or in the aggregate) could result in a Material Adverse ChangeTransaction Expenses);
(l) neither the Company nor any of its Subsidiaries has entered into any transaction adopted a plan of liquidation, dissolution, merger, consolidation or other than in the ordinary course of business except for (in the case of the Company) this Agreementreorganization;
(m) neither there has not been any material change by the Company nor or any of its Subsidiaries has encountered any labor difficulties in its accounting or labor union organizing activities;Tax reporting methods, principles or policies; and
(n) neither of the Company nor any of its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed committed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and do any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)foregoing.
Appears in 1 contract
Absence of Certain Developments. In the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documents:Since December 31, 2006 (and, with respect to clause (e) below, December 31, 2005):
(a) there has not been any Company Material Adverse Change nor has there occurred any event occurred which could is reasonably likely to result in any a Company Material Adverse Change;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the any Company or its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 25,000 in the aggregate for all any related losses;
(c) none of the Companies 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 any Company, other than increases in the ordinary course of business consistent with past practice in the base salaries of employees of any Company other than officers or senior managers;
(d) none of the Companies has entered into any employment, deferred compensation, severance or similar agreement (nor amended any such lossesagreement);
(e) there has not been any change by any Company in accounting or Tax reporting principles, methods or policies or any settlement of any Tax controversy;
(f) none of the Companies has conducted its business other than in the ordinary course consistent with past practice;
(g) none of the Companies has entered into any other material transaction;
(h) neither none of the Companies has hired employees or engaged independent contractors to provide services for clients of any Company nor its Subsidiaries other than in the ordinary course of business consistent with, and at a level consistent with, past practice;
(i) none of the Companies has breached any Contract in any material respect;
(j) none of the Companies has failed to promptly pay and discharge current Liabilities except where disputed in good faith in an appropriate manner;
(k) none of the Companies has made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of any Company other than intercompany transactions in the ordinary course of business consistent with past practice;
(l) none of the Companies has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the any Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(im) neither none of the Company nor its Subsidiaries Companies has discharged or satisfied any Lien, or paid any obligation or Liability, except in the ordinary course of business consistent with past practice;
(n) none of the Companies has canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would are not be material to the Company or its Subsidiariesany Company;
(jo) neither none of the Company nor its Subsidiaries Companies has made any binding commitment or committed to make any capital expenditures or capital additions or betterments improvements in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result , except as set forth in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than Disclosure Schedule, or otherwise in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsconsistent with past practices;
(p) neither none of the Company nor its Subsidiaries Companies has suffered or experienced entered into any change in the relationship or course of dealings between the Company and/or its Subsidiaries and prepaid services transactions with any of their suppliers its customers or customers which supply goods otherwise accelerated revenue recognition or the sales of its services for periods prior to the Company Closing;
(q) except for the iProcert Operating Agreement, none of the Companies has amended any of its Organizational Documents;
(r) none of the Companies has issued any equity securities or its Subsidiaries any security exercisable or purchase goods exchangeable for or services from the Company and or its Subsidiariesconvertible into equity securities of such Company; and
(qs) neither none of the Company nor its Subsidiaries Companies has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction agreements to do or series perform in the future any actions referred to in this Section 3.8 which have not been consummated as of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)date hereof.
Appears in 1 contract
Absence of Certain Developments. In Except as expressly contemplated by this Agreement or as set forth on Schedule 4.10, since the ordinary course of Balance Sheet Date (i) the Company and its Subsidiaries have conducted their business or in all material respects only in the context Ordinary Course of Business and in substantially the Transactions contemplated in this Agreement same manner as previously conducted and the Transaction Documents:
(aii) there has not been any event, change, occurrence or circumstance that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;Effect. Without limiting the generality of the foregoing, since the Balance Sheet Date:
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or its Subsidiaries any Subsidiary having a replacement cost of more than $10,000 100,000 for any single loss or $20,000 250,000 for all such losses;
(hii) 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 any Selling Stockholder or the Company or any Subsidiary of any outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or any Subsidiary;
(iii) neither the Company nor any Subsidiary has awarded or paid any bonuses to employees of the Company or any Subsidiary with respect to the fiscal year ended January 31, 2003, except to the extent accrued on the Balance Sheet or entered into any employment, deferred compensation, severance or similar 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 any Subsidiary's directors, officers, employees, agents or representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with such directors, officers, employees, agents or representatives;
(iv) there has not been any change by the Company or any Subsidiary in accounting or Tax reporting principles, methods or policies;
(v) the Company has not made or rescinded any election relating to Taxes or settled or compromised any claim relating to Taxes;
(vi) neither the Company nor any Subsidiary has entered into any transaction or Contract or conducted its business other than in the Ordinary Course of Business;
(vii) neither the Company nor any Subsidiary has failed to promptly pay and discharge current liabilities except where disputed in good faith by appropriate proceedings;
(viii) neither the Company nor any Subsidiary has made any loans, advances or capital contributions to, or investments in, any Person or paid any fees or expenses to any member of the Selling Stockholders (except for the payment of compensation and expense reimbursement to members of the Selling Stockholders who are employees of the Company or its Subsidiaries in the Ordinary Course of Business);
(ix) neither the Company nor any Subsidiary has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate any Subsidiary, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course Ordinary Course of businessBusiness;
(ix) neither the Company nor any Subsidiary has discharged or satisfied any Lien, or paid any obligation or liability (fixed or contingent), except in the Ordinary Course of Business and which, in the aggregate, would not be material to the Company and its Subsidiaries taken as a whole;
(xi) neither the Company nor any Subsidiary has canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course Ordinary Course of business consistent with past practice Business and which, individually or in the aggregate, would not be material to the Company or and its SubsidiariesSubsidiaries taken as a whole;
(jxii) neither the Company nor its Subsidiaries any Subsidiary has made any binding commitment or committed to make any capital expenditures or capital additions or betterments in excess of $20,000 100,000 individually or $50,000 250,000 in the aggregate;
(kxiii) the Company has not granted any license or sublicense of any rights under or with respect to any Intellectual Property;
(xiv) neither the Company nor its Subsidiaries any Subsidiary has incurred any debts, obligations instituted or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person settled any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its SubsidiariesLegal Proceeding; and
(qxv) neither none of the Selling Stockholders nor the Company nor its Subsidiaries has made any payment toagreed, or received any payment from, or made or received any investment inarranged, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate an understanding to do anything set forth in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 4.10.
Appears in 1 contract
Samples: Stock Purchase Agreement (North Atlantic Trading Co Inc)
Absence of Certain Developments. In the ordinary course of business or in the context of the Transactions contemplated in this Agreement Except as set forth on Schedule 4.6 and the Transaction Documentssince December 31, 2004:
(a) there has not been any Material Adverse Change nor has any event occurred which could reasonably be expected to result in any Material Adverse Change;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock the Membership Interests of the Company or any securities of its Subsidiaries Subsidiaries, or any repurchase, redemption or other acquisition by the Company or any of its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or any of its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock Membership Interests or other securities of the Company or any of its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock Membership Interests or such other securities;
(d) neither the Company nor any of its Subsidiaries has (i) awarded or paid any bonuses to employees Employees or representatives Representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), (iii) agreed to increase the compensation payable or to become payable by the Company or any of its Subsidiaries to any of the Company’s Employees or Representatives, or (iv) agreed to increase the coverage or benefits available under any severance pay, deferred compensation, bonus or other incentive compensation, pension or other employee benefit plan, payment or arrangement made to, for or with such Employees or Representatives, other than in the ordinary course of businessbusiness consistent with past practice which increases in the aggregate do not exceed $25,000 in annual cost to the Company or any of its Subsidiaries and consistent with the operating expense budget of the Company or any of its Subsidiaries, and other than as may have been required by law or insurers;
(e) neither the Company nor any of its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of businessbusiness and do not exceed per individual the reasonable anticipated expenses for legitimate business purposes), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiariesa Subsidiary;
(f) neither the Company nor any of its Subsidiaries has transferred or granted any rights under any Contracts or Contracts, leases, licenses, agreements or Intellectual Property (defined hereafter) used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or any of its Subsidiaries having a replacement cost of more than $10,000 5,000 for any single loss or $20,000 10,000 for all such losses;
(h) neither the Company nor any of its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or any of its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor any of its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or any of its Subsidiaries;
(j) neither the Company nor any of its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 10,000 individually or $50,000 25,000 in the aggregate;
(k) neither the Company nor any of its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor any of its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor any of its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor any of its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor any of its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor any of its Subsidiaries has suffered or experienced any material change in the relationship or course of dealings between the Company and/or any of its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or any of its Subsidiaries or purchase goods or services from the Company and or any of its Subsidiaries; and
(q) neither the Company nor any of its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and any of its Subsidiaries) (each, an “Affiliate Transaction”).
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Wako Logistics Group Inc)
Absence of Certain Developments. In the ordinary course of business or in the context of the Transactions Except as contemplated in by this Agreement and or set forth on Schedule 4.8, since the Transaction DocumentsLast Reviewed Fiscal Year End:
(a) except for the Excluded Assets, neither Sellers nor any Company has sold, leased, transferred or assigned any of the assets of any Company, tangible or intangible, other than for fair consideration in the Ordinary Course of Business;
(b) no Company has entered into any Contract (or series of related Contracts) involving more than $[*] that is outside the Ordinary Course of Business;
(c) no Person (including Sellers or any Company) has accelerated, suspended, terminated, modified or canceled any Contract (or series of related Contracts) involving more than $[*] 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 material assets of, any other Person (or series of related capital investments, loans and acquisitions);
(f) other than advances on existing credit facilities in the Ordinary Course of Business, no Company has created, incurred, assumed or guaranteed any Indebtedness;
(g) no Company has delayed, postponed or accelerated the payment of accounts payable or other liabilities or the receipt of any accounts receivable except in the Ordinary Course of Business;
(h) no Company has canceled, compromised, waived or released any material right or claim (or series of related rights or claims) other than in the Ordinary Course of Business;
(i) there has been no change made, or authorized to be made, in the Organizational Documents of any Company other than as disclosed to Buyer in connection with the Pre-Closing Reorganization;
(j) no Company has experienced any damage, destruction or loss (whether or not covered by insurance) in excess of $[*] in the aggregate to its property;
(k) no Company has made any loan to, or entered into any other transaction with, any Seller, any Business Employee or any Company’s directors, officers, employees or independent contractors, or any Affiliate of the foregoing other than such loans with an aggregate [*] Please refer to footnote 1 on page 1 of this Exhibit 2.3 principal balance of less than $[*] made to independent contractor drivers and Business Employees that are not Sellers, Affiliates of any Seller, or officers, managers or directors of any Company;
(l) no Company has entered into any Plan or any other employment, consulting, severance, retention, change in control or indemnification agreements, or entered into, or become bound by, any collective bargaining agreement or other obligation to any labor organization or employee representative, in each case, whether written or oral, or modified the terms of any such existing agreement except as required by applicable Law and there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Changematerial labor trouble, work stoppages, strikes or threats thereof;
(bm) no Company has made any change in accounting principles or practices from those utilized in the preparation of the Annual Financial Statements;
(n) 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 the Business and to own and operate such Company’s assets;
(o) there has not been any declarationno increase to the salary, setting a record date, setting aside or authorizing the payment of, any dividend wage or other distribution compensation or level of benefits payable or to become payable by any Company to any of its officers, managers, directors, Business Employees, agents or Independent Contractors (including any Seller);
(p) no Material Adverse Effect has occurred;
(q) no Company has received any written notice (or, to Sellers’ Knowledge, in respect of any shares of capital stock of the Company or its Subsidiaries other manner) from any customer, supplier, Governmental Entity or any repurchaseother Person, redemption the result of which could reasonably be expected to materially impact the Business;
(r) no Company has issued, sold or other acquisition by the Company or its Subsidiaries, otherwise disposed of any of the outstanding shares of capital stock or other securities ofits Ownership Interests, or other ownership interest ingranted any Ownership Interests, the Company or its Subsidiaries;
(c) there has not been including any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls warrants or other rights to purchase or otherwise acquire shares obtain (including upon conversion, exchange or exercise) any of such capital stock or such other securitiesits Ownership Interests;
(ds) neither the no Company nor its Subsidiaries has (i) awarded made any settlement of or compromised any Tax liability, 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; or (iv) taken any other action that would have the effect of increasing the Tax liability of any Company for any period (or portion thereof) beginning after the Closing Date;
(t) except for the Cash Sweep, no Company has declared, set aside or paid any bonuses dividend or made any distribution with respect to employees its Ownership Interests (whether in cash or representatives in kind) or redeemed, purchased or otherwise acquired any of its Ownership Interests or split, combined or reclassified any of its Ownership Interests;
(u) except as part of the Companyrequirements of the Closing, (ii) entered into no Company has discharged or satisfied any employment, deferred compensation, severance Encumbrance or similar agreements (nor amended paid any such agreement)liability, other than current liabilities paid in the ordinary course Ordinary Course of businessBusiness; [*] Please refer to footnote 1 on page 1 of this Exhibit 2.3
(v) except as required by applicable Law, no Company has adopted or terminated or made any amendment or modification to any Plans;
(ew) neither no Company has incurred any trade accounts payable which have not been satisfied in full prior to the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its SubsidiariesClosing Date;
(fx) neither the no Company nor its Subsidiaries has transferred or granted taken any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets action outside of the Company or its Subsidiaries having a replacement cost Ordinary Course of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgagedBusiness, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired actions explicitly permitted or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business;
(i) neither the Company nor its Subsidiaries 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 business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or its Subsidiaries;
(j) neither the Company nor its Subsidiaries has made any binding commitment to make any capital expenditures or capital additions or betterments in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than in the ordinary course of business except for (in the case of the Company) required by this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(qy) neither Sellers nor any Company has committed or agreed (in writing or otherwise) to take any of the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate actions described in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 4.8.
Appears in 1 contract
Absence of Certain Developments. In Except as contemplated or permitted by this Agreement or as set forth on Section 4.08 of the Disclosure Schedule, since December 31, 2014:
(a) the business of the Company and each of its Subsidiaries has been conducted in all material respects in the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documents:
(a) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Changeconsistent with past practice;
(b) there has not been occurred any declaration, setting a record date, setting aside change or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities ofevent that has resulted, or other ownership interest could reasonably be expected to result in, the Company or its Subsidiariesa Material Adverse Effect;
(c) there has not been any transfer, issue, sale or other disposition by neither the Company nor any of its Subsidiaries has sold, transferred, leased, mortgaged, pledged or otherwise subjected to any Lien (other than Permitted Liens) any of its assets or property (tangible or intangible) or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any shares of capital stock or other securities assets of the Company or any of its Subsidiaries except for assets acquired or any grant of optionssold, warrantsassigned, calls or other rights to purchase transferred, conveyed, leased or otherwise acquire shares disposed of such capital stock or such other securitiesin the ordinary course of business consistent with past practice;
(d) neither the Company nor any of its Subsidiaries has acquired (iwhether by merger, acquisition of stock or assets, or otherwise) awarded any business or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course line of business;
(e) neither there has not been any change in the organizational or constituent documents of the Company nor or any of its Subsidiaries has or made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than one of its Subsidiaries;
(f) neither no election has been made or action taken to change the status of the Company nor or any of its Subsidiaries has transferred (as a corporation, partnership or granted any rights under any Contracts disregarded entity) for federal, state or licenses, used by the Company in its businesslocal income Tax purposes;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or any of its Subsidiaries having a replacement cost of more than $10,000 50,000 for any single loss or $20,000 200,000 in the aggregate for all such any related losses;
(h) neither the Company nor any of its Subsidiaries has mortgagedmade any change in the rate of compensation, pledged commission, bonus or subjected other direct or indirect remuneration payable or paid or agreed or orally promised to pay, conditionally or otherwise, incentive, retention or other compensation, retirement, welfare, fringe or severance benefit or vacation pay by it to any Lien of the Company’s or any of its assetsSubsidiaries’ directors, officers, employees, distributors, independent sale representatives or brokers, except in each case for (i) changes in the ordinary course of business consistent with past practices and (ii) bonuses payable to certain officers and employees of the Company or any of its Subsidiaries in connection with the consummation of the transactions contemplated by this Agreement (which will be included as part of the Transaction Expenses);
(i) there has not been any material change by the Company or any of its Subsidiaries in its accounting or Tax reporting methods, principles or policies, any settlement of any Tax controversy, any amendment of any Tax Return, or acquired any assets for a purchase price in excess Tax election made, revoked or terminated by or with respect to the Company or any of $10,000 in its Subsidiaries;
(j) neither the aggregate Company nor any of its Subsidiaries has made any declaration or sold, assigned, transferred, conveyed, leased or otherwise disposed payment of any assets dividends or distributions on or in respect of any capital stock or equity interests of the Company or any of its Subsidiaries, or redemption, purchase or acquisition of any capital stock or equity interests security of the Company or any of its Subsidiaries, or made any other payment to or on behalf of any Affiliate of the Company or its Subsidiaries for a sale price in excess other than dividends, loans and distributions payable to the Company or one of $10,000 in its Subsidiaries;
(k) there has not been any split, combination or reclassification of any shares of capital stock or equity interests of the aggregate Company or any of its Subsidiaries;
(l) neither the Company nor any of its Subsidiaries has entered into or amended any employment, deferred compensation, severance or similar agreement;
(m) neither the Company nor any of its Subsidiaries has entered into any collective bargaining agreement or relationship with any labor organization;
(n) except for assets acquired the transactions contemplated by this Agreement, neither the Company nor any of its Subsidiaries has entered into or sold, assigned, transferred, conveyed, leased amended any other transaction or otherwise disposed of Contract other than in the ordinary course of businessbusiness consistent with past practice;
(io) neither the Company nor any of its Subsidiaries has hired employees or engaged independent contractors in each case with annual compensation in excess of $50,000 other than in the ordinary course of business consistent with, and at a level of compensation consistent with, past practice;
(p) neither the Company nor any of its Subsidiaries has materially changed its policies and programs with respect to customer credits, coupons, rebates, marketing or promotions;
(q) neither the Company nor any of its Subsidiaries has made any loans, advances or capital contributions to, or investments in, any Person other than a Subsidiary;
(r) neither the Company nor any of its Subsidiaries has canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and whichpractice;
(s) neither the Company nor any of its Subsidiaries has entered into or amended any Contract or transaction with any of its Affiliates or paid any fees, individually expenses or in the aggregate, would not be material other amounts to any Affiliate of the Company or any of its Subsidiaries;
(jt) except as disclosed in the Latest Balance Sheet, neither the Company nor any of its Subsidiaries has made any binding commitment or committed to make any capital expenditures or capital additions or betterments in excess improvements outside the ordinary course of $20,000 individually or $50,000 in the aggregatebusiness consistent with past practices;
(ku) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction prepaid services transactions with any of its customers or otherwise accelerated revenue recognition;
(v) neither the Company nor any of its Subsidiaries has materially changed its policies with respect to the payment of accounts payable or other current Liabilities or the collection of accounts receivable (including any acceleration or deferral of the payment or collection thereof);
(w) neither the Company nor any of its Subsidiaries has 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 consent to the filing of any bankruptcy petition against it under any similar Law or other agreement with respect to the sale of its assets, securities or its business;
(x) neither the Company nor any of its Subsidiaries has issued any equity or debt securities or any security exercisable or exchangeable for or convertible into equity securities of the Company or any of its Subsidiaries, or incurred other Liabilities (other than in the ordinary course of business except for (in the case of the Company) this Agreementconsistent with past practices);
(my) neither the Company nor any of its Subsidiaries has encountered entered into any labor difficulties compromise or labor union organizing activitiessettlement of any Proceeding;
(nz) neither the Company nor any of its Subsidiaries has made transferred, assigned or granted any change in the accounting principles, methods license or practices followed by it sublicense of any material rights under or depreciation or amortization policies or rates theretofore adopted;with respect to any Intellectual Property; or
(oaa) neither of the Company nor any of its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreements;
(p) neither the Company nor its Subsidiaries has suffered or experienced any change in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiaries; and
(q) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction agreement or series committed to do or perform in the future any of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate actions referred to in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 4.08.
Appears in 1 contract
Absence of Certain Developments. In Since the Balance Sheet Date, the Company has not conducted its business other than in the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documentsconsistent with past practice and:
(a) there has not been any Company Material Adverse Change nor has there occurred any event occurred which could is reasonably likely to result in any a Company Material Adverse Change;
(b) there the Company has not been made any declaration, setting a record date, setting aside declaration or authorizing the payment of, of any dividend dividends or other distribution distributions on or in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities ofsecurity of the Company, or redemption, purchase or acquisition of any capital stock or other ownership interest insecurity of the Company, the Company or its Subsidiariesmade any other payment to or on behalf of any Seller or any Affiliate thereof;
(c) there has not been any transfersplit, issue, sale combination or other disposition by the Company reclassification of any shares of capital stock or other securities security of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securitiesCompany;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 5,000 for any single loss or $20,000 10,000 in the aggregate for all such any related losses;
(e) the Company has not 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 Company, other than increases in the ordinary course of business consistent with past practice in the base wages or salaries of employees of the Company other than officers or senior managers;
(f) the Company has not entered into or amended any employment, deferred compensation, severance or similar agreement;
(g) the Company has not entered into any collective bargaining agreement or relationship with any labor organization;
(h) neither there has not been any material change by the Company nor its Subsidiaries in accounting or Tax reporting principles, methods or policies, any settlement of any Tax controversy, any amendment of any Tax Return, or any material Tax election made by or with respect to the Company;
(i) except for the transactions contemplated by this Agreement, the Company has not entered into or amended any other transaction or Contract other than in the ordinary course of business consistent with past practice;
(j) the Company has not hired employees or engaged independent contractors other than in the ordinary course of business consistent with, and at a level consistent with, past practice;
(k) the Company has not breached any Contract;
(l) the Company has not made any loans, advances or capital contributions to, or investments in, any Person that are undisclosed or not listed in Schedules A and F;
(m) the Company has not mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(in) neither the Company nor its Subsidiaries has not canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would are not be material to the Company or its SubsidiariesCompany;
(jo) neither the Company nor has not entered into or amended any Contract or transaction with any of its Subsidiaries Affiliates or paid any fees, expenses or other amounts to any Affiliate of the Company;
(p) the Company has not made any binding commitment or committed to make any capital expenditures or capital additions or betterments improvements (i) in excess of $20,000 5,000 individually or $50,000 10,000 in the aggregate;
, or (kii) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in outside the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Changebusiness consistent with past practices;
(lq) neither the Company nor its Subsidiaries has not entered into any transaction prepaid transactions or otherwise accelerated revenue recognition or the sales for periods prior to the Closing outside of the ordinary course of business consistent with past practices;
(r) the Company has not materially changed its policies or practices with respect to the payment of accounts payable or other current liabilities or the collection of accounts receivable (including any acceleration or deferral of the payment or collection thereof);
(s) the Company has not amended any of its Governing Documents;
(t) the Company has not 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 consent to the filing of any bankruptcy petition against it under any similar Law or other agreement with respect to the sale of its assets, securities or Business;
(u) the Company has not issued any equity or debt securities or any security exercisable or exchangeable for or convertible into equity securities of the Company, or incurred any Indebtedness or other Liabilities (other than in the ordinary course of business except for (in the case of the Company) this Agreementconsistent with past practices);
(mv) neither the Company nor its Subsidiaries has encountered not (i) discharged, repaid, amended, modified, made payment on, canceled or compromised any labor difficulties Indebtedness, or labor union organizing activitiesdischarged or satisfied any Lien, or (ii) engaged in any transaction or provided any consideration relating to the release, modification or diminution of any guarantee, bond, surety or other obligation of any Seller or any Affiliate thereof;
(nw) neither the Company nor its Subsidiaries has made not entered into any change in the accounting principles, methods compromise or practices followed settlement of any Legal Proceeding or investigation by it or depreciation or amortization policies or rates theretofore adoptedany Governmental Body;
(ox) neither the Company nor its Subsidiaries has disclosed not transferred, assigned or granted any license or sublicense of any material rights under or with respect to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsIntellectual Property;
(py) neither the Company nor its Subsidiaries has suffered not failed (i) to file any material reports or experienced any change take steps necessary to comply with applicable Laws and (ii) to maintain in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiariesgood standing all Permits; and
(qz) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or not entered into any transaction agreements or series of related transactions (including without limitation, commitments to do or perform in the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with future any Affiliate actions referred to in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this section.
Appears in 1 contract
Absence of Certain Developments. In the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documents:Since December 31, 2006 (and, with respect to clause (e) below, December 31, 2005):
(a) there has not been any Company Material Adverse Change nor has there occurred any event occurred which could is reasonably likely to result in any a Company Material Adverse Change;
(b) there has not been any declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the any Company or its Subsidiaries Subsidiary having a replacement cost of more than $10,000 5,000 for any single loss or $20,000 10,000 in the aggregate for all any related losses;
(c) no Company or Subsidiary 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 any Company or Subsidiary, other than increases in the ordinary course of business consistent with past practice in the base salaries of employees of the Companies and the Subsidiaries other than officers or senior managers;
(d) no Company or Subsidiary has entered into any employment, deferred compensation, severance or similar agreement (nor amended any such lossesagreement);
(e) there has not been any change by any Company or Subsidiary in accounting or Tax reporting principles, methods or policies or any settlement of any Tax controversy;
(f) no Company or Subsidiary has conducted its business other than in the ordinary course consistent with past practice;
(g) no Company or Subsidiary has entered into any other material transaction;
(h) neither no Company or Subsidiary has hired employees or engaged independent contractors to provide services for clients of the such Company nor its Subsidiaries or Subsidiary other than in the ordinary course of business consistent with, and at a level consistent with, past practice;
(i) no Company or Subsidiary has materially breached any Contract or materially amended any Contract;
(j) no Company or Subsidiary has failed to promptly pay and discharge current Liabilities except where disputed in good faith in an appropriate manner;
(k) no Company or Subsidiary 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 Company or Subsidiary other than intercompany transactions in the ordinary course of business consistent with past practice;
(l) no Company or Subsidiary has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the such Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate Subsidiary except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(im) neither no Company or Subsidiary 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, are not material to the Companies and the Subsidiaries;
(n) no Company nor its Subsidiaries or Subsidiary has canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would are not be material to the Company or its Companies and the Subsidiaries;
(jo) neither the no Company nor its Subsidiaries or Subsidiary has made any binding commitment or committed to make any capital expenditures or capital additions or betterments improvements in excess of $20,000 individually or $50,000 in the aggregate;
(k) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in the ordinary course of business, none of which current liabilities (10,000 individually or in the aggregate) could result , except as set forth in a Material Adverse Change;
(l) neither the Company nor its Subsidiaries has entered into any transaction other than Disclosure Schedule, or otherwise in the ordinary course of business except for (in the case of the Company) this Agreement;
(m) neither the Company nor its Subsidiaries has encountered any labor difficulties or labor union organizing activities;
(n) neither the Company nor its Subsidiaries has made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(o) neither the Company nor its Subsidiaries has disclosed to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsconsistent with past practices;
(p) neither the no Company nor its Subsidiaries or Subsidiary has suffered or experienced entered into any change in the relationship or course of dealings between the Company and/or its Subsidiaries and prepaid services transactions with any of their suppliers its customers or customers which supply goods otherwise accelerated revenue recognition or the sales of its services for periods prior to the Closing;
(q) no Company or Subsidiary has amended any of its Subsidiaries Organizational Documents;
(r) no Company or purchase goods Subsidiary has issued any equity securities or services from any security exercisable or exchangeable for or convertible into equity securities of the such Company and or its SubsidiariesSubsidiary; and
(qs) neither the no Company nor its Subsidiaries or Subsidiary has made any payment to, or received any payment from, or made or received any investment in, or entered into any transaction agreements to do or series perform in the future any actions referred to in this Section 3.8 which have not been consummated as of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)date hereof.
Appears in 1 contract
Absence of Certain Developments. In Except as set forth in Section 3.7 of the Disclosure Schedule (arranged in subsections corresponding to the subsections set forth below), since the Balance Sheet Date, the Company has not conducted its business other than in the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documentsconsistent with past practice and:
(a) there has not been any Company Material Adverse Change nor has there occurred any event occurred which could is reasonably likely to result in any a Company Material Adverse Change;
(b) there the Company has not been made any declaration, setting a record date, setting aside declaration or authorizing the payment of, of any dividend dividends or other distribution distributions on or in respect of any shares of capital stock of the Company or its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities ofsecurity of the Company, or redemption, purchase or acquisition of any capital stock or other ownership interest insecurity of the Company, the Company or its Subsidiariesmade any other payment to or on behalf of any Seller or any Affiliate thereof;
(c) there has not been any transfersplit, issue, sale combination or other disposition by the Company reclassification of any shares of capital stock or other securities security of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securitiesCompany;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or and assets of the Company or its Subsidiaries having a replacement cost of more than $10,000 5,000 for any single loss or $20,000 10,000 in the aggregate for all such any related losses;
(e) the Company has not 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 Company, other than increases in the ordinary course of business consistent with past practice in the base wages or salaries of employees of the Company other than officers or senior managers;
(f) the Company has not entered into or amended any employment, deferred compensation, severance or similar agreement;
(g) the Company has not entered into any collective bargaining agreement or relationship with any labor organization;
(h) neither there has not been any material change by the Company nor its Subsidiaries in accounting or Tax reporting principles, methods or policies, any settlement of any Tax controversy, any amendment of any Tax Return, or any material Tax election made by or with respect to the Company;
(i) except for the transactions contemplated by this Agreement, the Company has not entered into or amended any other transaction or Contract other than in the ordinary course of business consistent with past practice;
(j) the Company has not hired employees or engaged independent contractors other than in the ordinary course of business consistent with, and at a level consistent with, past practice;
(k) the Company has not breached any Contract;
(l) the Company has not made any loans, advances or capital contributions to, or investments in, any Person;
(m) the Company has not mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of businessbusiness consistent with past practice;
(in) neither the Company nor its Subsidiaries has not canceled or compromised any debt or claim, claim or amended, canceled, terminated, relinquished, waived or released any Contract or right, right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would are not be material to the Company or its SubsidiariesCompany;
(jo) neither the Company nor has not entered into or amended any Contract or transaction with any of its Subsidiaries Affiliates or paid any fees, expenses or other amounts to any Affiliate of the Company;
(p) the Company has not made any binding commitment or committed to make any capital expenditures or capital additions or betterments improvements (i) in excess of $20,000 5,000 individually or $50,000 10,000 in the aggregate;
, or (kii) neither the Company nor its Subsidiaries has incurred any debts, obligations or liabilities, whether due or to become due, except current liabilities incurred in outside the ordinary course of business, none of which current liabilities (individually or in the aggregate) could result in a Material Adverse Changebusiness consistent with past practices;
(lq) neither the Company nor its Subsidiaries has not entered into any transaction prepaid transactions or otherwise accelerated revenue recognition or the sales for periods prior to the Closing outside of the ordinary course of business consistent with past practices;
(r) the Company has not materially changed its policies or practices with respect to the payment of accounts payable or other current liabilities or the collection of accounts receivable (including any acceleration or deferral of the payment or collection thereof);
(s) the Company has not amended any of its Governing Documents;
(t) the Company has not 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 consent to the filing of any bankruptcy petition against it under any similar Law or other agreement with respect to the sale of its assets, securities or Business;
(u) the Company has not issued any equity or debt securities or any security exercisable or exchangeable for or convertible into equity securities of the Company, or incurred any Indebtedness or other Liabilities (other than in the ordinary course of business except for (in the case of the Company) this Agreementconsistent with past practices);
(mv) neither the Company nor its Subsidiaries has encountered not (i) discharged, repaid, amended, modified, made payment on, canceled or compromised any labor difficulties Indebtedness, or labor union organizing activitiesdischarged or satisfied any Lien, or (ii) engaged in any transaction or provided any consideration relating to the release, modification or diminution of any guarantee, bond, surety or other obligation of any Seller or any Affiliate thereof;
(nw) neither the Company nor its Subsidiaries has made not entered into any change in the accounting principles, methods compromise or practices followed settlement of any Legal Proceeding or investigation by it or depreciation or amortization policies or rates theretofore adoptedany Governmental Body;
(ox) neither the Company nor its Subsidiaries has disclosed not transferred, assigned or granted any license or sublicense of any material rights under or with respect to any Person any material trade secrets except for disclosures made to Persons subject to valid and enforceable confidentiality agreementsIntellectual Property;
(py) neither the Company nor its Subsidiaries has suffered not failed (i) to file any material reports or experienced any change take steps necessary to comply with applicable Laws and (ii) to maintain in the relationship or course of dealings between the Company and/or its Subsidiaries and any of their suppliers or customers which supply goods or services to the Company or its Subsidiaries or purchase goods or services from the Company and or its Subsidiariesgood standing all Permits; and
(qz) neither the Company nor its Subsidiaries has made any payment to, or received any payment from, or made or received any investment in, or not entered into any transaction agreements or series of related transactions (including without limitation, commitments to do or perform in the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with future any Affiliate actions referred to in each case, in excess of $10,000 or its equivalent (other than any transactions between or among the Company and its Subsidiaries) (each, an “Affiliate Transaction”)this Section 3.7.
Appears in 1 contract
