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Common use of Absence of Changes Clause in Contracts

Absence of Changes. Since the Audited Financial Statement Date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any

Appears in 2 contracts

Samples: Investment Agreement (Chadmoore Wireless Group Inc), Investment Agreement (Moore Robert W/Nv)

Absence of Changes. Since the Audited Financial Statement Date, date of the Company Balance Sheet and except as set forth in Section 2.9 of Schedule 2.8, Company and its Subsidiary have conducted the Disclosure Schedule or as disclosed Business in the SEC Documents filed prior to the ordinary course of business, consistent with past practices and since such date hereof, there has not been any material adverse change, (a) a Company Material Adverse Effect or any event circumstance, event, occurrence or development whichthat, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business aggregate, has had or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In additionwould have a Company Material Adverse Effect, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (ab) any declarationwaivers by Company or its Subsidiary of any right, setting aside or payment cancellations of any debt or claim, of substantial value, (c) any declarations, set asides or payments of any dividend or other distribution distributions or payments in respect of the capital stock Company Common Stock, (d) any changes in the accounting principles or equity interestsmethods which are utilized by Company and its Subsidiary, (e) of the any amounts borrowed or any liabilities (absolute or contingent) incurred by Company or its Subsidiary, other than in the ordinary course of business, (f) any of its Subsidiaries, liens discharged or satisfied or any direct obligations or indirect redemption, purchase liabilities (absolute or other acquisition contingent) paid by the Company or its Subsidiary, other than in the ordinary course of business, (g) any material assets, either tangible or intangible, of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or its Subsidiary mortgaged, pledged or subjected to a lien, other than in the ordinary course of business consistent with past practices, (h) any material tangible assets of its Subsidiaries; (b) except for Company sold, assigned or transferred, other than the executionsale of inventory in the ordinary course of business, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salarypatents, rate trademarks, trade names, copyrights, trade secrets or other intangible assets of commissionsCompany or its Subsidiary sold, rate assigned or transferred, (j) any losses of consulting fees material property of Company or its Subsidiary, (k) any expenditures by Company or its Subsidiary of any material amount, or any other compensation bonuses or extraordinary salary increases, or (l) any amendments or terminations of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anymaterial agreement.

Appears in 2 contracts

Samples: Merger Agreement (Mossimo Inc), Merger Agreement (Iconix Brand Group, Inc.)

Absence of Changes. Since December 31, 2008, the date of the Audited Financial Statement DateStatements, interim Unaudited Financial Statements dated June 30, 2009, and to date, the Company has operated its business in the ordinary course consistent with past practices and there has not been, except as set forth disclosed in Section 2.9 this Agreement or the Exhibits attached hereto: i. any Material Adverse Effect; ii. any damage, destruction or loss (whether or not covered by insurance) affecting any tangible asset or property used or useful in the business operations, normal wear and tear excepted; iii. any payments, discharges or satisfactions by the Company of any liens, claims, charges or liabilities (whether absolute, accrued, contingent or otherwise and whether due or to become due) relating to the business operations, other than in the ordinary course of the Disclosure Schedule business and consistent with past practice; iv. any licenses, sales, transfers, pledges, mortgages or as disclosed other dispositions of any tangible or intangible assets having a value over $100 (in the SEC Documents filed prior to aggregate) used or held for use in connection with the date hereofoperation of the business, there has not been other than in the ordinary course of business and consistent with past practice; v. any material adverse changewrite-offs as uncollectible of any accounts receivable or notes receivable of the operations, or any event or development whichportion thereof, individually or together with other such events, could reasonably be expected to result in a material adverse change, not provided for in the Business allowance for uncollectible accounts in the Interim Financial Statements; vi. any cancellations of any material debts or Condition claims of, or any amendments, terminations or waivers of any rights of material value to, the business operations; vii. any general uniform increase in or change in the method of computing the compensation of employees of the Company. None Company who perform services for the benefit of the other representations business operations; viii. any material changes in the manner in which the Company extends discount or warranties set forth credits to customers or otherwise deals with customers of its business; ix. any material changes in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and accounting methods or practices followed by the Operative Agreements Company and or any changes in depreciation or amortization policies or rates theretofore adopted; x. any capital commitments by the Company and for additions to property, plant or equipment of the business operations; xi. any agreements or commitments to merge or consolidate with or otherwise acquire any other corporation, association, firm or other business organization or division thereof; xii. any declarations of dividend, payment of any dividend, issuance of any securities, purchase or redemption of any securities, commitments or authorizations for any changes to its Articles of Incorporation or amendments to any by-laws, conversions of any options, warrants or otherwise into common shares; and except as disclosed in Section 2.9 of paragraph B.1. relating to the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:total shares issued and outstanding which resulted from a corporate reorganization; (a) xiii. any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect material transaction relating to the Company other than in the ordinary course of the business and consistent with past practice; or xiv. any agreements or understandings, whether in writing or otherwise, for the Company to take any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase actions specified in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyitems i. through xii. above.

Appears in 2 contracts

Samples: Stock Purchase and Sale Agreement (Alpha Music MFG Corp.), Stock Purchase and Sale Agreement (Apollo Entertainment Group, Inc.)

Absence of Changes. Since the Audited Financial Statement DateJune 30, 2004, except as set forth in Section 2.9 of on Schedule 5.8 and except to the Disclosure Schedule extent expressly contemplated or as disclosed required by this Agreement, the Sellers have operated the Business in the SEC Documents filed prior ordinary course, consistent with past practice, and, subject to the date hereofthose exceptions, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any declarationmaterial adverse effect on the Assets, setting aside business, operations, financial condition or payment results of operations of the Sellers or the Business; (b) any damage, destruction or loss (whether or not covered by insurance) with respect to any material Assets of any dividend or other distribution in respect of the capital stock Sellers; (or equity interestsc) any change by any of the Company Sellers in its accounting methods, principles or practices; (d) any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition of any interests in any Seller or any payment by the Company or a Seller to any of its Subsidiaries Affiliates; (e) any increase in the benefits under, or the establishment or amendment of, any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, option (including the granting of options, appreciation rights, performance awards or restricted stock or membership awards), stock or membership purchase or other employee benefit plan, or any other increase in the compensation payable or to become payable to members, stockholders, managers, directors, officers or employees of any Seller, except as set forth on Schedule 5.8 and except for increases in salaries or wages payable or to become payable in the ordinary and usual course to employees of a Seller who are not members, stockholders, managers, directors or officers of such capital stock Seller; (f) any transaction or equity interests) of Contract material to any Seller or any Option with respect to commitment for the Company same, entered into by a Seller other than in the ordinary and usual course; (g) any transfer, Encumbrance or disposition by any Seller of any of its SubsidiariesAssets, other than in the ordinary and usual course and not material, either individually or in the aggregate; (bh) except for any receipt by any Seller of written or, to the executionknowledge of the Sellers, delivery and performance by oral, notice that any Contract or arrangement to which such Seller is a party relating to the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect toPurchased Assets, the Company Assumed Liabilities or any Subsidiary, the Business has been or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiarywill be canceled; (i) any increase in salary, rate of commissions, rate of consulting fees or issuance by any other compensation Seller of any current bond, note, option, warrant or former officer, director, shareholder, manager, member, employee other corporate security or consultant membership or partnership interest; (i) any individual capital expenditure by any Seller in excess of the Company $250,000 or any Subsidiary; (ii) any individual commitment by any Seller to make any such capital expenditure in excess of $100,000, in either case not included in the Sellers’ fiscal year 2005 capital expenditure budget attached to Schedule 5.8 (the “Seller 2005 Capital Expenditure Budget”); (k) any payment of, or incurrence of liability to pay, any Taxes, other than those arising and discharged or to be discharged in the ordinary and usual course; (l) any loans made by any Seller to any Person, including any Affiliate, member, stockholder, manager, director, employee or officer of any Seller, in excess of $100,000 individually or $250,000 in the aggregate; (m) any incurrence of indebtedness by any Seller for borrowed money or commitment by any Seller to borrow money other than in the ordinary and usual course; (n) any payment of consideration of management fees to any nature whatsoever Affiliate (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant in accordance with the terms of the Company Existing Management Agreements as they exist on the date hereof); or (o) any authorization, approval, agreement or anycommitment by any Seller to take any action described in subparagraphs (c) through (n) above.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Sunrise Senior Living Inc), Facilities Purchase and Sale Agreement (Sunrise Senior Living Inc)

Absence of Changes. Since the Audited Financial Statement DateDecember 31, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof2009, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Material Adverse Effect on Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the generality of the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except this Agreement or as disclosed set forth in Section 2.9 2.8 of the Sellers Disclosure ScheduleSchedule (each such disclosure reflecting the appropriate sub-section to which it is responsive), there since December 31, 2009, the Company has not occurred since the Audited Financial Statement Datenot: (a) entered into any declaration, setting aside Contract or payment of transaction or incurred any dividend or other distribution in respect Liabilities outside of the capital stock (or equity interests) ordinary course of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option business consistent with respect to the Company or any of its Subsidiariespast practice; (b) except for the executioneffected or approved any split, delivery and performance by the combination or reclassification of any Company of this Agreement and the Operative AgreementsCapital Stock or Equity Equivalents, and the transactions contemplated hereby or therebyrepurchased, any authorizationredeemed or otherwise acquired, issuancedirectly or indirectly, sale or other disposition by the Company or any Subsidiary of any shares of capital stock Company Capital Stock or Equity Equivalents, except for repurchases of Company Capital Stock pursuant to agreements with Company employees, officers, directors and consultants relating to repurchases at cost upon termination of service with Company; (c) amended its certificate of incorporation or bylaws; (d) transferred to any Person rights to any intellectual property other than grants of non-exclusive licenses in the ordinary course of business consistent with past practices; (e) made or agreed to make any disposition or sale of, waiver of rights to, license or lease of, or Option incurrence of any Lien on, any assets or properties of Company other than grants of non-exclusive licenses and leases of equipment in the ordinary course of business (and other than dispositions of obsolete assets or properties); (f) made or agreed to make any purchase of any assets and properties of any Person other than in the ordinary course of business of Company consistent with respect topast practice; (g) made or agreed to make any capital expenditures or commitments for additions to its property, plant or equipment constituting capital assets in an amount exceeding $10,000 individually or $50,000 in the Company aggregate; (h) made or agreed to make any write-off, write-down or revaluation or any Subsidiarydetermination to write off, write-down or revalue, any of its assets and properties, or any modification change in any reserves or amendment liabilities associated therewith, other than write offs or write downs of any right accounts receivable in the ordinary course of any holder of any outstanding shares of capital stock of, or Option with respect to, business and in amounts not exceeding reserves shown on the Company or any SubsidiaryBalance Sheet; (i) failed to pay or otherwise satisfy any of its Liabilities that is presently due and payable except Liabilities that are being contested in good faith by appropriate means or proceedings; (j) granted any severance or termination pay to any director, officer, employee or consultant, except as described in Section 2.8 of the Sellers Disclosure Schedule; (k) granted or approved any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any of its current or former officer, director, shareholderemployee, manager, member, employee independent contractor or consultant (other than increases in compensation paid to Sellers and other than increases in compensation of employees in the Company ordinary course of business consistent with past practices); (l) terminated or waived any Subsidiary; material right or benefit; (m) paid any stay or retention bonus; (n) (i) made or changed any material election in respect of Taxes, adopted or changed any accounting method in respect of Taxes, (ii) entered into any payment of consideration tax allocation agreement, tax sharing agreement, tax indemnity agreement, closing agreement, or settlement or compromise of any nature whatsoever claim or assessment in respect of Taxes, or (iii) consented to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes with any Taxing Authority or otherwise; (o) failed to renew any insurance policy (other than salaryany insurance policy replaced with another insurance policy providing comparable coverage); no insurance policy of Company has been cancelled or materially amended; and Company has given all notices and presented all claims (if any) under all such policies in a timely fashion; (p) suffered physical damage, commissions destruction or consulting fees paid to other casualty loss (whether or not covered by insurance) affecting any current or former officer, director, shareholder, manager, member, employee or consultant of the Company material real or anypersonal property or equipment of Company; and (q) entered into or approved any contract, arrangement or understanding or acquiesced in respect of any arrangement or understanding, to do, engage in or cause or having the effect of any of the foregoing.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Connecture Inc), Stock Purchase Agreement (Connecture Inc)

Absence of Changes. Since the Audited Financial Statement Date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to Balance Sheet Date through the date hereofof this Agreement, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, (x) there has not occurred since a Company Material Adverse Effect, (y) except for the Audited Financial Statement DateRestructuring, Seller and its Subsidiaries have operated the Business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted and (z) except for actions taken in connection with the Restructuring or this Agreement and the transactions contemplated hereby, neither Seller nor any of its Subsidiaries has taken any of the following actions: (a) amended any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) Organizational Documents of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for effected any split, combination or reclassification of any Shares or any Equity Interests of any of the executionCompany’s Subsidiaries; (c) issued, delivery and performance by sold or otherwise disposed of any Shares or other Equity Interests of the Company or any Equity Interests of this Agreement and any of the Operative AgreementsCompany’s Subsidiaries, and or granted any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) or entered into any agreement with any respect to the transactions contemplated hereby conversion, exchange, registration or therebyvoting of, any authorization, issuance, sale Shares or other disposition Equity Interests of the Company or any Equity Interests of any of the Company’s Subsidiaries; (d) declared or paid any dividends or distributions on or in respect of the Shares or the Equity Interests of any of the Company’s Subsidiaries or redeemed, purchased or acquired any Shares or any Equity Interests of any of the Company’s Subsidiaries; (e) increased the rate of, or amended or accelerated the payment, right to payment or vesting of the compensation, severance, termination pay or retention payments payable or to become payable to or benefits of any Designated Employee other than in the ordinary course of business and consistent with past practice; (f) other than in the ordinary course of business consistent with past practice, sold, leased, licensed, transferred or otherwise disposed of or encumbered any material Tangible Property or material Intellectual Property Right of the Company, or granted or otherwise created or consented to the creation of any Lien (other than Permitted Liens) affecting any material assets of the Company or any part thereof; (g) incurred, assumed or guaranteed any Indebtedness to which the Company or any of its Subsidiaries or any of their assets or properties would be subject, other than unsecured Indebtedness incurred in the ordinary course of business; (h) made any significant changes to its normal and customary practices regarding the solicitation, booking and fulfillment of orders or the shipment and delivery of goods relating to the Business; (i) made any changes in accounting methods or practices, except as required by GAAP or applicable Law or as disclosed in the notes to the Financial Statements; (j) made any material changes in Tax accounting methods, except as required by applicable Law; (k) canceled, modified or waived any material debts or claims held by the Company or any Subsidiary of any shares of capital stock ofits Subsidiaries, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of waived any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant substantial value of the Company or any Subsidiaryof its Subsidiaries; (l) entered into any material transaction affecting the Business not in the ordinary course of business; or (iim) agreed in writing or otherwise to take, or proposed to take, any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyactions described in the foregoing.

Appears in 2 contracts

Samples: Stock Purchase Agreement (Tucows Inc /Pa/), Stock Purchase Agreement (Rightside Group, Ltd.)

Absence of Changes. Since the Audited Financial Statement Datedate of the Reference Balance Sheets, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to Financial Statements, each of the date hereof, Purchased Companies has conducted its business only in the ordinary course consistent with past practice and there has not been been: (a) any material adverse changechange in the assets, liabilities, condition (financial or any event other), properties, business, operations of such Purchased Company, which change by itself or development which, individually or together in conjunction with all other such eventschanges, could whether or not arising in the ordinary course of business, would reasonably be expected to result in a material adverse change, in the Business or Condition Material Adverse Effect; any Encumbrance placed on any of the properties of such Purchased Company. None of the , other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby than purchase money liens and by the Operative Agreements liens for Taxes not yet due and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:payable; (ab) any material damage, destruction or loss, whether or not covered by insurance; (c) any declaration, setting aside or payment of any dividend distribution by such Purchased Company, or the making of any other distribution in respect of the capital stock (or equity interests) interests of the Company or any of its Subsidiariessuch Purchased Company, or any direct or indirect redemption, purchase or other acquisition by the such Purchased Company of its own equity interests; (d) any labour trouble or claim of unfair labour practices involving such Purchased Company; (e) any resignation, termination or removal of any officer of such Purchased Company or material loss of personnel of such Purchased Company or material change in the terms and conditions of the employment of such Purchased Company’s officers or key personnel; (f) any contingent Liability incurred by such Purchased Company as guarantor or to the Knowledge of its Subsidiaries of any such capital stock (or equity interests) of or any Option Seller, otherwise with respect to the Company obligations of others, or any cancellation of its Subsidiariesany material debt or claim owing to, or waiver of any material right of, such Purchased Company, including any write-off or compromise of any accounts receivable other than write-offs in the ordinary course of business consistent with past practice not exceeding NIS 70,000; (bg) except for the executionany change in accounting methods or practices, delivery and performance by the Company collection policies, pricing policies or payment policies of this Agreement and the Operative Agreements, and the transactions contemplated hereby such Purchased Company; (h) any amendment or thereby, termination of any authorization, issuance, sale or other disposition by the Company Material Contract (or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or Contract that would be a Material Contract but for such amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiarya termination); (i) any increase in salaryContract relating to any royalty or similar payment based on the revenues, rate profits or sales volume of commissionssuch Purchased Company, rate whether as part of consulting fees the terms of such Purchased Company’s equity interests or by any separate agreement; (j) any other compensation material transaction entered into by such Purchased Company other than transactions in the ordinary course of business; or (k) any current agreement or former officerunderstanding whether in writing or otherwise, director, shareholder, manager, member, employee or consultant for such Purchased Company to take any of the Company or any Subsidiary; actions specified in paragraphs (iia) any payment of consideration of any nature whatsoever through (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyj) above.

Appears in 2 contracts

Samples: Purchase Agreement, Purchase Agreement (Mandalay Digital Group, Inc.)

Absence of Changes. Since the Audited Financial Statement DateDecember 31, 1999, except as set forth in Section 2.9 Schedule 4.19, none of the Disclosure Schedule or as disclosed in the SEC Documents filed prior following has occurred with respect to the date hereof, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement DateBusiness: (a) except as contemplated by Section 6.03(a)(i)(B), any declarationincrease in, setting aside or payment any commitment or promise to increase, other than ordinary and customary bonuses and salary increases for Employees at the times and in the amounts consistent with its past practice, (i) the rates of cash compensation or (ii) except as would not have a Material Adverse Effect on HBI or as required by applicable laws, any increase in the amounts or other benefits paid or payable under any Plans; (b) any distribution, sale or transfer of, or any commitment to distribute, sell or transfer, assets of HBI or any HBI Subsidiary of any dividend kind that singly is, or in the aggregate are, Material to the Business, other than distributions, sales or transfers in the ordinary course of its business and consistent with its past practices; (c) any cancellation, or agreement to cancel, any Indebtedness, obligation or other distribution liability owing to HBI or its Subsidiaries, including any Indebtedness, obligation or other liability of any Affiliate, provided that HBI and its Subsidiaries may negotiate and adjust bills and invoices in respect the course of good-faith disputes with customers in a manner consistent with past practice; (d) any plan, agreement or arrangement granting any preferential rights to purchase or acquire any interest in any of the capital stock (or equity interests) Material assets of the Company HBI or any of its SubsidiariesSubsidiaries or requiring the consent of any Person to the transfer and assignment of any such asset; (e) any purchase or acquisition of, or any direct agreement, plan or indirect redemption, arrangement to purchase or other acquisition acquire, any property, rights or assets outside of the ordinary course of operating the Business consistent with its past practices; (f) any waiver of any of HBI's or its Subsidiaries' rights or claims that singly is, or in the aggregate are, Material to the Business; (g) any transaction by HBI or any of its Subsidiaries outside the Company ordinary course of operating the Business or not consistent with the past practices of the Business; (h) any incurrence by HBI or any of its Subsidiaries of any such capital stock (or equity interests) of Indebtedness or any Option with respect Guaranty not constituting Indebtedness, or of any commitment to the Company incur any Indebtedness or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary;such Guaranty; or (i) any increase in salary, rate cancellation or termination of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant a Material Contract of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyBusiness.

Appears in 2 contracts

Samples: Purchase Agreement (Wedge Group Inc), Purchase Agreement (Chicago Bridge & Iron Co N V)

Absence of Changes. Since the Audited Financial Statement DateDecember 31, except as set forth in Section 2.9 2007, Xxxxxxxx and each of the Disclosure Schedule or as disclosed Subsidiaries have carried on the Business and conducted its operations and affairs only in the SEC Documents filed prior to the date hereof, ordinary and normal course consistent with past practice and there has not been been: (i) any material adverse changechange in the condition (financial or otherwise), assets, liabilities, operations, earnings, business or prospects of Xxxxxxxx or any event of the Subsidiaries; (ii) any damage, destruction or development whichloss (whether or not covered by insurance) affecting the property or assets of Xxxxxxxx or any of the Subsidiaries; (iii) any obligation or liability (whether absolute, individually accrued, contingent or together with otherwise, and whether due or to become due) incurred by Xxxxxxxx or any of the Subsidiaries, other such events, could reasonably be expected to result in a material adverse change, than those incurred in the Business ordinary and normal course and consistent with past practice; (iv) any payment, discharge or Condition satisfaction of any Encumbrance, liability or obligation of Xxxxxxxx or any of the Company. None Subsidiaries (whether absolute, accrued, contingent or otherwise, and whether due or to become due), other than payment of accounts payable and tax liabilities incurred in the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 ordinary course of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:business consistent with past practice; (av) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares in respect of the capital stock (or equity interests) of the Company Xxxxxxxx or any of its Subsidiaries, the Subsidiaries or any direct or indirect redemption, purchase or other acquisition of any such shares; (vi) any issuance or sale by the Company Xxxxxxxx or any of its the Subsidiaries, or any Contract entered into by Xxxxxxxx or any of the Subsidiaries, for the issuance or sale by Xxxxxxxx or any of the Subsidiaries of any such shares in the capital stock (or equity interests) of or any Option with respect to securities convertible into or exercisable for shares in the Company capital of Xxxxxxxx or any of its the Subsidiaries; (bvii) except for any licence, sale, assignment, transfer, disposition, pledge, mortgage or granting of a security interest or other Encumbrance (other than Permitted Encumbrances) on or over any property or assets of either Xxxxxxxx or any of the executionSubsidiaries, delivery other than in the ordinary and performance by normal course of business consistent with past practice; (viii) any write-off as uncollectible of any accounts or notes receivable or any portion thereof of Xxxxxxxx or any of the Company Subsidiaries in amounts exceeding $25,000 in the aggregate; (ix) any cancellation of this Agreement and any debts or claims or any amendment, termination or waiver of any rights of value to Xxxxxxxx or any of the Operative AgreementsSubsidiaries in amounts exceeding $10,000 in each instance or $25,000 in the aggregate; (x) any general increase in the compensation of employees of Xxxxxxxx or any of the Subsidiaries (including, and the transactions contemplated hereby or therebywithout limitation, any authorizationincrease pursuant to any employee plan or commitment), issuance, sale or other disposition by the Company or any Subsidiary increase in any such compensation or bonus payable to any officer, employee, consultant or agent thereof (having an annual salary or remuneration in excess of $50,000) or the execution of any shares employment contract with any officer or employee (having an annual salary or remuneration in excess of capital stock $50,000), or the making of any loan to, or engagement in any transaction with, any employee, officer or director of Xxxxxxxx or any of the Subsidiaries or any commitment, undertaking or promise to do any of the foregoing; (xi) any change in the accounting or tax practices followed by Xxxxxxxx or any of the Subsidiaries; (xii) any change adopted by Xxxxxxxx or any of the Subsidiaries in their depreciation or amortization policies or rates; or (xiii) any change in the credit terms offered to customers of, or Option with respect by suppliers to, the Company Xxxxxxxx or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anySubsidiaries.

Appears in 2 contracts

Samples: Share Purchase Agreement (Crown Oil & Gas Inc.), Share Purchase Agreement (Crown Oil & Gas Inc.)

Absence of Changes. Since the Audited Financial Statement Date, except Except in each case as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 2.1(f) of the Disclosure Schedule, since December 31, 1998, the Company and its Subsidiaries have been operated in the ordinary course consistent with past practice and there has not occurred since the Audited Financial Statement Datebeen: (ai) any material adverse change in the business, assets, condition (financial or otherwise), financial position, results of operations or prospects (other than changes resulting from general economic or market conditions) of the Company and its Subsidiaries, taken as a whole; (ii) any material obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by the Company or any of its Subsidiaries, other than obligations under customer contracts, current obligations and other liabilities incurred in the ordinary course of business and consistent with past practice; (iii) any payment, discharge, satisfaction or settlement of any material claim or obligation of the Company or any of its Subsidiaries, except in the ordinary course of business and consistent with past practice; (iv) other than regularly scheduled dividends on the Preferred Stock, any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the capital stock (or equity interests) of the Company or any of its Subsidiaries, Subsidiaries or any direct or indirect redemption, purchase or other acquisition by of any such shares; (v) any issuance or sale, or any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable for shares of capital stock of the Company or any of its Subsidiaries; (vi) any sale, assignment, pledge, encumbrance, transfer or other disposition of any material asset of the Company or any of its Subsidiaries (excluding in all events sales of assets no longer useful in the operation of the business and sales of inventory to customers in the ordinary course of business consistent with past practice), or any sale, assignment, transfer or other disposition of any such capital stock (or equity interests) of patents, trademarks, service marks, trade names, copyrights, licenses, franchises, know-how or any Option other intangible assets of the Company or any of its Subsidiaries; (vii) any creation of any Claim on any property of the Company or any of its Subsidiaries, except for Claims created in the ordinary course of business consistent with respect past practice or which individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect; (viii) any write-down of the value of any asset of the Company or any of its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof, other than write-downs or write-offs which do not exceed $250,000, in the aggregate, as of the date of this Agreement; (ix) any cancellation of any material debts or claims or any amendment, termination or waiver of any rights of material value to the Company or any of its Subsidiaries; (bx) any material capital expenditures or commitments or additions to property, plant or equipment of the Company and its Subsidiaries other than in the ordinary course of business and consistent with the Company's capital expenditure plan; (xi) except in each case for regular annual increases, any material or general increase in the execution, delivery and performance by compensation of employees of the Company or any of this Agreement and the Operative Agreementsits Subsidiaries (including any increase pursuant to any written bonus, and the transactions contemplated hereby or therebypension, any authorization, issuance, sale profit-sharing or other disposition benefit or compensation plan, policy or arrangement or commitment), or any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $150,000; (xii) any damage, destruction or loss not covered by insurance affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or loss in excess of $250,000; (xiii) any change in the independent public accountants of the Company and its Subsidiaries or any material change in the accounting methods or accounting practices followed by the Company or any Subsidiary material change in depreciation or amortization policies or rates; or (xiv) any agreement, whether in writing or otherwise, to take any of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, actions specified in the Company or any Subsidiary; foregoing items (i) any increase in salarythrough (xiii), rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid subject to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anydollar thresholds set forth in items (i) through (xiii) above.

Appears in 2 contracts

Samples: Stock Purchase Agreement (J H Heafner Co Inc), Stock Purchase Agreement (California Tire Co)

Absence of Changes. Since the Audited Financial Statement Latest Balance Sheet Date, except as set forth in Section 2.9 on Schedule 4.8, the Company and each of the Disclosure Schedule or as disclosed its Subsidiaries have been operated in the SEC Documents filed prior to the date hereofordinary course of business, consistent with past practice, and there has not been any material adverse change, or been: (i) any event or development which, individually condition that has resulted in or together with other such events, could reasonably be expected to result in a material an adverse change, change in the Business business, operations, assets, condition (financial or Condition otherwise), operating results, liabilities, relations with employees, customers, suppliers or prospects of the Company. None Company or any of its Subsidiaries, or any casualty loss or damage to the assets or properties of the other representations Company or warranties set forth in this Agreement shall be deemed to limit the foregoing. In additionany of its Subsidiaries, without limiting the foregoing, except as expressly contemplated hereby and whether or not covered by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:insurance (a "Material Adverse Change"); (aii) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the capital stock (or equity interests) other securities of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition of any capital stock or other securities of the Company or any of its Subsidiaries, or any other payments of any nature directly or indirectly to or for the benefit of the Stockholder or any Affiliate of the Company (whether or not on or with respect to any shares of capital stock or other securities of the Company or any of its Subsidiaries owned by the Stockholder or Affiliate), other than salaries and benefits paid in the ordinary course of business, consistent with past practice; (iii) any general uniform increase in the compensation of employees (including any increase pursuant to any bonus, pension, profit-sharing or other plan or commitment) of the Company or any of its Subsidiaries, or any increase in or prepayment of any such compensation payable to or to become payable to any director, officer or key employee; (iv) any acquisition or disposition of assets or properties owned by the Company or any of its Subsidiaries Subsidiaries, other than in the ordinary course of business, consistent with past practice; (v) any such capital stock (agreement or equity interests) commitment on the part of the Company or any Option of its Subsidiaries to merge, amalgamate or consolidate with respect to or into, or otherwise acquire, any other Person or division thereof; (vi) any change in depreciation or amortization policies or rates previously adopted, any change in income or expense recognition or bad debt reserve, write-down or write-off policies previously adopted, any material write-up or write-down of inventory or other assets or any other change in other accounting or in Tax reporting or methods or practices followed by the Company or any of its Subsidiaries; (bvii) except for any change in the execution, delivery and performance by manner in which products or services of the Company or any of this Agreement and the Operative Agreements, and the transactions contemplated hereby or therebyits Subsidiaries are marketed (including any change in prices), any authorizationchange in the manner in which the Company or any of its Subsidiaries extends discounts or credit to customers, issuanceor any change in the manner or terms by which the Company or any of its Subsidiaries collects accounts receivable, sale or other disposition except in the ordinary course of business and which would not have a Material Adverse Effect; (viii) any failure by the Company or any Subsidiary of any shares of its Subsidiaries to make scheduled capital stock of, expenditures or Option with respect to, the Company or any Subsidiaryinvestments, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees failure to pay trade accounts payable or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant Liability of the Company or any Subsidiaryof its Subsidiaries when due; or (iiix) any payment of consideration of any nature whatsoever Contract or other understanding or arrangement (other than salarythis Agreement), commissions whether in writing or consulting fees paid otherwise, to take any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyactions specified in the foregoing clauses (i) through (viii).

Appears in 2 contracts

Samples: Stock Purchase Agreement (Tiger Telematics Inc), Stock Purchase Agreement (Tiger Telematics Inc)

Absence of Changes. Since the Audited Financial Statement DateSeptember 30, 2006, except as set forth in Section 2.9 2.10 of the Company Disclosure Schedule Schedule: the Company has not entered into any Contract, commitment or as disclosed transaction or incurred any Liabilities other than in the SEC Documents filed prior ordinary course of business consistent with past practice; the Company has not acquired an interest in or made any capital investment in, altered or entered into any Contract or other commitment to alter its interest in, any corporation, association, joint venture, partnership or business entity in which the date hereofCompany directly or indirectly holds any interest; the Company has not entered into any strategic alliance, joint development or joint marketing Contract; there has not been any material adverse changeamendment or other material modification (or agreement to do so) or violation of the terms of, any of the Contracts set forth or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, described in the Business Company Disclosure Schedule, except as described therein; the Company has not entered into any transaction with any officer, director, shareholder, Affiliate or Condition Associate of the Company. None , other than pursuant to any Contract in effect as of the date of the Current Balance Sheet and disclosed to Parent and identified on the Company Disclosure Schedule. the Company has not entered into or amended any Contract pursuant to which any other representations Person is granted manufacturing, marketing, distribution, licensing or warranties set forth similar rights of any type or scope with respect to any products of the Company or Company Intellectual Property, other than any such Contracts and licenses (or amendments thereto) disclosed in this Agreement shall be deemed the Company Disclosure Schedule; no Action or Proceeding has been commenced or, to limit the foregoing. In additionknowledge of the Company, without limiting threatened by or against the foregoing, except as expressly contemplated hereby Company and no Action or Proceeding has been settled or compromised by the Operative Agreements and except as disclosed in Section 2.9 of Company; the Disclosure Schedule, there Company has not occurred since the Audited Financial Statement Date: (a) any declarationdeclared, setting set aside or payment of paid any dividend dividends on or made any other distribution distributions (whether in cash, stock or property) in respect of any Company Capital Stock or Equity Equivalents, or effected or approved any split, combination or reclassification of any Company Capital Stock or Equity Equivalents, or issued or authorized the capital issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or Equity Equivalents, or repurchased, redeemed or otherwise acquired, directly or indirectly, any shares of Company Capital Stock or Equity Equivalents, except for repurchases of Company Capital Stock pursuant to agreements with Company employees, officers, directors and consultants relating to repurchases at cost upon termination of service with the Company; except for the issuance of shares of Company Capital Stock upon exercise or conversion of options, warrants, or preferred stock (or equity interestslisted in Section 2.3(c) of the Company Disclosure Schedule, (A) the Company has not issued, granted, delivered, sold or any of its Subsidiariesauthorized or proposed to issue, grant, deliver or sell, or any direct purchased or indirect redemptionproposed to purchase, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock ofCompany Capital Stock or Equity Equivalents, or Option with respect to, (B) the Company has not modified or any Subsidiary, or any modification or amendment of any right amended the rights of any holder of any outstanding shares of capital Company Capital Stock or Equity Equivalents (including to reduce or alter the consideration to be paid to the Company upon the exercise of any outstanding options, warrants, stock purchase rights or other Equity Equivalents); and (C) the Company has not granted any options with an exercise price of less than the fair market value of the Company's Common Stock on the date the option was granted. there has not been any amendment to the articles of incorporation or bylaws of the Company; there has not been any transfer (by way of a license or otherwise) to any Person of rights to any Intellectual Property other than non-exclusive licenses with the Company's customers in the ordinary course of business consistent with past practice; the Company has not made or agreed to make any disposition or sale, license or lease of, or Option incurrence of any Lien in an amount exceeding $50,000 individually or $100,000 in the aggregate, on, any Assets and Properties, other than sales of products or services, or grants of nonexclusive licenses (to object code only) of products, to customers in the ordinary course of business consistent with respect to, past practice; the Company has not made or agreed to make any purchase of any Assets and Properties of any Person other than (i) acquisitions of inventory, or licenses of products, in the ordinary course of business consistent with past practice and (ii) other acquisitions in an amount not exceeding $50,000 in the case of any individual item or $100,000 in the aggregate; the Company has not made or agreed to make any capital expenditures or commitments for additions to property, plant or equipment constituting capital assets individually or in the aggregate in an amount exceeding $50,000; the Company has not made or agreed to make any write-off or write-down, or any Subsidiary; determination to write off or write-down, or revalue, any of its Assets and Properties, or change any reserves or liabilities associated therewith in an amount exceeding $50,000; the Company has not made or agreed to make payment, discharge or satisfaction, in an amount in excess of $50,000 in any one case, or $100,000 in the aggregate, of any claim, Liability or obligation (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of Liabilities reflected or reserved against in the Company Financials; the Company has not failed to pay or otherwise satisfy any Liabilities when due and payable, except such Liabilities which are being contested in good faith by appropriate means or procedures and which, individually and in the aggregate, are immaterial in amount; the Company has not created, incurred, assumed or guaranteed any Indebtedness in an aggregate amount exceeding $50,000, or issued or sold any debt securities, or extended or otherwise modified the terms of any Indebtedness; the Company has not granted or approved (i) any severance or termination pay to, (ii) any increase of greater than five percent (5%) in salary, rate of commissions, rate of consulting fees or any other compensation of, (iii) the payment of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees and customary benefits paid to any current or former officer, director, shareholder, manager, member, employee or consultant consultant) to, (iv) any loan or extension of credit to, or (v) any discretionary or stay bonus to, any director, current or former officer, employee, shareholder or consultant, except payments made pursuant to written Contracts outstanding on the date hereof, copies of which have been delivered to Parent and which are disclosed in Section 2.10(s) of the Company Disclosure Schedule; the Company has not adopted, entered into, amended, modified or terminated (partially or completely) any Employee Plan (as defined in Section 2.15(a)(vi)), other than any such Employee Plan disclosed in the Company Disclosure Schedule; there has been no filed claim or written notice to the Company of wrongful discharge or other unlawful labor practice or action with respect to the Company; the Company has not made or changed any material election in respect of Taxes, adopted or changed any accounting method in respect of Taxes, entered into any tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, settlement or compromise of any claim or assessment in respect of Taxes, nor has it consented to any extension or waiver of the statute of limitations period applicable to any claim or assessment in respect of Taxes; the Company has not made any change in accounting policies, principles, methods, practices or procedures; the Company has not failed to renew any insurance policy; no insurance policy of the Company has been cancelled or materially amended; and the Company has given all notices and presented all claims (if any) under all such policies in a timely fashion; there has been no material amendment or non-renewal of any Approvals, and the Company has used commercially reasonable efforts to maintain such Approvals and has observed in all material respects all Laws and Orders applicable to the business or Assets and Properties of the Company; the Company has used commercially reasonable efforts to prosecute applications for its Registered Intellectual Property Rights, and has submitted all required documents and fees during the prosecution thereof; there has been no physical damage, destruction or other casualty loss (whether or not covered by insurance) affecting any of the real or personal property or equipment of the Company individually or in the aggregate in an amount exceeding $50,000, other than ordinary wear and tear; bb. no event or condition of any character has occurred that has had or is reasonably likely to have a Material Adverse Effect on the Company; cc. the Company has not waived or released any material right or claim of the Company, including any write-off or other compromise of any material account receivable of the Company; dd. the Company has not entered into any employment Contract, or modified the terms of any existing such Contract; ee. the Company has not suffered any adverse change or any threat of any adverse change in its relations with, or any loss or threat of loss of, any of its licensors, distributors, suppliers or other business partners except for such changes or losses and threatened changes or losses (assuming for this purpose that such threats are realized) as would not individually or in the aggregate have or be reasonably expected to have a Material Adverse Effect; and

Appears in 2 contracts

Samples: Merger Agreement (Celsius Holdings, Inc.), Merger Agreement (Celsius Holdings, Inc.)

Absence of Changes. Since the Audited Financial Statement DateJune 30, 2016, except as set forth in Section 2.9 3.5 of the Disclosure Schedule or as disclosed Letter, the Business has been operated in the SEC Documents filed prior Ordinary Course of Business in all material respects and there has been, with respect to the date hereofBusiness, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Dateno: (a) any declaration, setting aside event that has had or payment would reasonably be expected to have a Material Adverse Effect; (b) change in the Hong Kong Foreign Subsidiary’s authorized or issued equity securities; grant of any dividend option or other distribution in respect right to purchase equity securities of the capital stock (Hong Kong Foreign Subsidiary; issuance of any security convertible into such equity securities; grant of any registration rights; or equity interests) of the Company or any of its Subsidiariespurchase, or any direct or indirect redemption, purchase retirement, or other acquisition by the Company or any of its Subsidiaries Hong Kong Foreign Subsidiary of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiariessecurities; (bc) except for amendment to the executioncertificate of incorporation, delivery and performance bylaws or other organizational documents of the Hong Kong Foreign Subsidiary; (d) payment or increase by the any Seller Company of this Agreement and any bonuses, salaries, or other compensation to any director, officer, or employee of the Operative AgreementsBusiness, and in each case, other than as required by any existing Contract, Legal Requirement or the transactions contemplated hereby terms of an Employee Benefit Plan, or therebyentry into any employment, severance, or similar Contract with any director, officer, or employee of the Business; (e) adoption of, or material increase in the payments to or benefits under, any authorizationprofit sharing, issuancebonus, sale deferred compensation, savings, insurance, pension, retirement, or other Employee Benefit Plan for or with any employees of the Business; (f) damage to or destruction or loss of any asset or property of the Business, whether or not covered by insurance, that materially and adversely affects the properties, assets, business, financial condition, or prospects of the Business or the Transferred Assets, taken as a whole; (g) entry into, termination of, or receipt of notice of termination of (i) any license, distributorship, dealer, sales representative, joint venture, credit, or similar agreement that is material to the Business, (ii) any Contract included in the Business Assets or transaction involving the Business with a total remaining commitment by or to any Seller Company that is or is reasonably expected to be in excess of $25,000, or (iii) any other Business Contract, in each case, other than in the Ordinary Course of Business; (h) sale, lease or other disposition by the Company or any Subsidiary of any shares Business Assets, other than (i) in the Ordinary Course of capital stock ofBusiness, (ii) assets or property having an aggregate value of less than $25,000, or Option with respect to, the Company or any Subsidiary, or any modification or amendment (iii) payments of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiarycash dividends; (i) any increase in salarymortgage, rate of commissionspledge, rate of consulting fees or any other compensation imposition of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever Lien (other than salary, commissions Permitted Liens) on any Business Asset; (j) cancellation or consulting fees paid waiver of any claims or rights with respect to a Business Asset with a value in excess of $25,000; (k) material change in the accounting methods or policies used by any current or former officer, director, shareholder, manager, member, employee or consultant Seller Company in respect of the Business; (l) claim of litigation or any cancellation, compromise, waiver, or release of any right or claim (or series of related rights and claims) either involving more than $25,000 or outside the Ordinary Course of Business; or (m) agreement, whether oral or written, by any Seller Company or anyto do any of the foregoing in respect of the Business.

Appears in 2 contracts

Samples: Asset Purchase Agreement (Photomedex Inc), Asset Purchase Agreement (ICTV Brands Inc.)

Absence of Changes. Since the Audited Financial Statement Balance Sheet Date, the Company has conducted the Business in the ordinary course of business and, except as set forth in Section 2.9 of the Disclosure on Schedule or as disclosed in the SEC Documents filed prior to the date hereof2.13, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any declaration, setting aside Material Adverse Effect (contingent or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiariesotherwise); (b) except for any damage, destruction or loss (whether or not covered by insurance) affecting any of the executionAssets or the Business; (c) any increase or any commitment to increase the compensation, delivery and performance bonus, sales commissions or fee arrangement payable or to become payable by the Company to any of this Agreement its employees, consultants or agents in respect of the Business, other than those that are normal, customary and the Operative Agreementsconsistent with past practices; (d) any sale or transfer, and the transactions contemplated hereby or therebyany agreement to sell or transfer, any authorizationof the Assets to any Person in the ordinary course of business; (e) any plan, issuanceagreement or arrangement granting any preferential rights to purchase or acquire any interest in any of the Assets (other than this Agreement) or to obtain any service or Asset provided by the Business or requiring consent of any party to the transfer and assignment of the Assets; (f) any waiver, sale release or other disposition lapse of any material rights or claims of the Company necessary to Conduct the Business; (g) any amendment or termination of any Material Contract necessary to Conduct the Business and to which the Company is a party; (h) any transaction by the Company or any Subsidiary that relates to the Business which is outside the ordinary course of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiarybusiness; (i) any increase cancellation or termination of a Material Contract necessary to Conduct the Business with a customer, supplier, service provider or client prior to the scheduled termination date; or (j) any mortgage or other lien or encumbrance upon the Assets created, except (1) with respect to purchase money liens incurred in salary, rate connection with the acquisition of commissions, rate Equipment with an aggregate cost not in excess of consulting fees $10,000 necessary or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant desirable for the conduct of the Company Business, (2) (A) liens for Taxes either not yet due or any Subsidiary; being contested in good faith and by appropriate proceedings (iiand for which contested Taxes adequate reserves have been established and are being maintained) any payment or (B) materialmen's, mechanics', workers', repairmen's, employees' or other like liens arising in the ordinary course of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anybusiness.

Appears in 1 contract

Samples: Asset Purchase Agreement (Itron Inc /Wa/)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 2.1(f) of the Company Disclosure Schedule or as disclosed Schedule, since September 30, 1997, the Company and its Subsidiaries have been operated in the SEC Documents filed prior to the date hereof, ordinary course consistent with past practice and there has not been been: (i) any material adverse changeevent, violation or any event or development whichother matter that could, individually or together with other such eventsin the aggregate, could reasonably be expected to result in have a material adverse changeCompany Material Adverse Effect; (ii) any obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by the Company or any of its Subsidiaries, other than obligations under customer contracts, current obligations and liabilities incurred in the Business ordinary course of business and consistent with past practice; (iii) any payment, discharge, satisfaction or Condition settlement of any claim or obligation of the Company. None Company or any of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoingits Subsidiaries, except as expressly contemplated hereby in the ordinary course of business and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:consistent with past practice; (aiv) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the capital stock (or equity interests) of the Company or any of its Subsidiaries, Subsidiaries or any direct or indirect redemption, purchase or other acquisition by of any such shares; (v) any issuance or sale, or any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable for shares of capital stock of the Company or any of its Subsidiaries; (vi) any sale, assignment, pledge, encumbrance, transfer or other disposition of any tangible asset of the Company or any of its Subsidiaries (other than sales of inventory to customers in the ordinary course of business consistent with past practice), or any sale, assignment, transfer or other disposition of any such capital stock (or equity interests) of patents, trademarks, service marks, trade names, copyrights, licenses, franchises, know-how or any Option other intangible assets of the Company or any of its Subsidiaries; (vii) any creation of any Claim on any property of the Company or any of its Subsidiaries, except in the ordinary course of business consistent with respect past practice or such Claims which, individually or in the aggregate, could not reasonably be expected to have a Company Material Adverse Effect; (viii) any write-down of the value of any asset of the Company or any of its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof, other than write-downs or write-offs which, in the aggregate, equal approximately $112,000 as of the date of this Agreement and which, individually, do not exceed $10,000; (ix) any cancellation of any debts or claims or any amendment, termination or waiver of any rights of value to the Company or any of its Subsidiaries; (bx) except for the executionany capital expenditure or commitment or addition to property, delivery and performance by plant or equipment of the Company or any of its Subsidiaries, other than capital expenditures or commitments or additions to property, plant or equipment of the Company or any of its Subsidiaries which, in the aggregate, equal approximately $383,000 as of the date of this Agreement and which, individually, do not exceed $10,000; (xi) any general increase in the Operative Agreementscompensation of employees of the Company or any of its Subsidiaries (including any increase pursuant to any written bonus, and the transactions contemplated hereby or therebypension, any authorization, issuance, sale profit-sharing or other disposition benefit or compensation plan, policy or arrangement or commitment), or any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $75,000; (xii) any damage, destruction or loss (whether or not covered by insurance) affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or loss in excess of $50,000; (xiii) any change in the independent public accountants of the Company and its Subsidiaries or any material change in the accounting methods or accounting practices followed by the Company or any Subsidiary material change in depreciation or amortization policies or rates; or (xiv) any agreement, whether in writing or otherwise, to take any of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, actions specified in the Company or any Subsidiary; foregoing items (i) any increase in salarythrough (xiii), rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid subject to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anydollar thresholds set forth in items (i) through (xiii) above.

Appears in 1 contract

Samples: Merger Agreement (Phoenix Racing Inc)

Absence of Changes. Since Except as set forth in Schedule 4(i), since the Audited Financial Reference Net Operating Assets Statement Date, the Company has conducted its business only in the Ordinary Course of Business and has not engaged in any practice, taken any action or entered into any transaction outside the Ordinary Course of Business. Without limiting the generality of the foregoing and except as set forth in Section 2.9 Schedule 4(i), since the Reference Net Operating Assets Statement Date the Company has not: (i) suffered any Material Adverse Effect; (ii) amended its Certificate of Incorporation or by-laws; (iii) sold or pledged, or agreed to sell or pledge, any capital stock owned by it; (iv) split, combined or reclassified its outstanding stock or issued or authorized or proposed the issuance of any other securities with respect to, in lieu of or in substitution for, the Shares; (v) declared, set aside or paid dividends on, or made any other distribution with respect to, the Shares; (vi) redeemed, purchased or otherwise acquired or agreed to redeem, purchase or acquire any Shares; (vii) incurred indebtedness for borrowed money outside the Ordinary Course of Business; (viii) guaranteed indebtedness of another Person other than in the Ordinary Course of Business; (ix) paid or increased any bonuses, salaries or other compensation to any director, officer or (except in the Ordinary Course of Business) employee or entered into any employment, severance or similar contract with any director, officer or employee; (x) adopted, or made an increase in the payments to or benefits under, any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement or other employee benefit plan for or with any employees of the Disclosure Company; (xi) sold (other than sales of Inventory in the Ordinary Course of Business), leased or otherwise disposed of any material asset or property of the Company (other than capital assets of an aggregate value of up to $50,000) or mortgaged, pledged or encumbered any material asset or property of the Company, including the sale, lease or other disposition of any of the Proprietary Rights; (xii) made any material changes in the customary methods of operations of the Company, including practices and policies relating to manufacturing, purchasing, inventories, marketing, selling and pricing; (xiii) merged with, entered into a consolidation with or acquired an interest of five percent (5%) or more in, any business or any Person or acquired a substantial portion of the assets or business of any Person or any division or line of business thereof, or otherwise acquired any material assets other than in the Ordinary Course of Business consistent with past practice; (xiv) made any capital expenditure or commitment for any capital expenditure in excess of $50,000 individually except for expenditures or commitments consistent with the capital projects budget attached to Schedule 4(i) (and the Company's customary ten percent (10%) variance); (xv) issued any purchase orders or as otherwise agreed to make any purchases involving exchanges in value in excess of $1,400,000 individually or $60,000,000 in the aggregate (except for purchases made or agreed to be made with the prior written consent of the Buyer); (xvi) written down or written up (or failed to write down or write up in accordance with GAAP consistent with past practice) the value of any Inventories or receivables or revalued any assets of the Company other than in the Ordinary Course of Business consistent with past practice and in accordance with GAAP; (xvii) amended, terminated, cancelled or compromised any material claims of the Company or waived any other rights of substantial value to the Company; (xviii) made any change in any method of accounting or accounting practice or policy used by the Company, other than such changes required by GAAP or disclosed in the SEC Documents filed prior Disclosure Schedule; (xix) failed to maintain the Assets in accordance with good business practice and in good operating condition and repair (normal wear and tear excepted); (xx) allowed any Permit or Environmental Permit that was issued or relates to the date hereofCompany or otherwise relates to any asset to lapse or terminate or failed to renew any such Permit or Environmental Permit or any insurance policy (set forth on Schedule 4(cc)) that is scheduled to terminate or expire within forty-five (45) calendar days after the Closing Date; (xxi) terminated, there has not been discontinued, closed or disposed of any material adverse changeplant, facility or other business operation, or laid off any event employees (other than layoffs of less than fifty (50) employees in any six-month period in the Ordinary Course of Business consistent with past practice) or development implemented any early retirement or separation program or any program providing early retirement window benefits within the meaning of Treasury Regulation Section 1.401(a)-4 or announced or planned any such action or program for the future; (xxii) amended, modified or consented to the termination of any Material Contract or the Company's rights thereunder; (xxiii) made any charitable contribution in excess of $1,000; (xxiv) disclosed any secret or confidential intellectual property (except by way of issuance of a patent or pursuant to the terms of any of the Material Contracts) or permitted to lapse or go abandoned any intellectual property (or any registration or grant thereof or any application relating thereto) to which, individually or together under which, the Company has any right, title, interest or license; (xxv) made any express or deemed election or settled or compromised any liability with other such events, could reasonably be expected respect to result in a material adverse change, in the Business or Condition Taxes of the Company. None ; (xxvi) suffered any casualty loss or damage with respect to any of the other representations Assets which in the aggregate have a replacement cost of more than $50,000, whether or warranties set forth not such loss or damage shall have been covered by insurance; and (xxvii) agreed, whether in writing or otherwise, to take any of the actions specified in this Agreement shall be deemed Section 4(i) or granted any options to limit purchase, rights of first refusal, rights of first offer or any other similar rights or commitments with respect to any of the foregoing. In addition, without limiting the foregoingactions specified in this Section 4(i), except as expressly contemplated hereby and by this Agreement. The Buyer acknowledges that there may be a disruption to the Operative Agreements and except Business as disclosed in Section 2.9 a result of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, execution and delivery and performance by the Company of this Agreement and (or the Operative Agreementsannouncement thereof by the Buyer or the Seller) or the consummation of the Contemplated Transactions, and the transactions contemplated hereby Buyer agrees that the Seller bears the burden of proving that any inaccuracies in Section 4(i)(i) or therebySections 4(y) or 4(z) resulted solely from such disruptions and that such inaccuracies that proved to have resulted solely from such disruptions will not constitute breaches of Sections 4(i)(i), any authorization, issuance, sale 4(y) or other disposition by 4(z) for the Company or any Subsidiary purpose of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anySection 12(b).

Appears in 1 contract

Samples: Stock Purchase Agreement (Panolam Industries Inc)

Absence of Changes. Since the Audited Financial Statement Latest Compiled Balance Sheet Date, there has not been any Material Adverse Change affecting the Company and no event has occurred or circumstance exists which may result in such a Material Adverse Change. Without limiting the generality of the foregoing, since the Latest Compiled Balance Sheet Date, except as set forth in Section 2.9 of Schedule 3.8, the Disclosure Schedule or as disclosed Company has been operated in the SEC Documents filed prior to the date hereofordinary course of business, consistent with past practice, and there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) except in the ordinary course of business, any payment, discharge or satisfaction of any Encumbrance or Liability by the Company or any cancellation by the Company of any debts or claims or any amendment, termination or waiver of any rights of value to the Company; (b) any declaration, setting aside or payment of any dividend or other distribution in of any assets of any kind whatsoever with respect to any shares of the capital stock (or equity interests) of the Company or any of its SubsidiariesCompany, or any direct or indirect redemption, purchase or other acquisition of any such shares of the capital stock of the Company; (c) any stock split, reverse stock split, combination, reclassification or recapitalization of any capital stock of the Company, or any issuance of any other security in respect of or in exchange for, any shares of any capital stock of the Company; (d) any issuance by the Company of any shares of its capital stock or any debt security or securities, rights, options or warrants convertible into or exercisable or exchangeable for any shares of such capital stock or debt security; (e) any license, sale, transfer, pledge, mortgage or other disposition of any tangible or intangible asset of the Company with a fair market value in excess of $25,000; (f) any termination or, to the Company's best knowledge, indication of an intention to terminate or not renew, any Contract between the Company and any other Person with a fair market value in excess of $100,000 prior to the scheduled termination date of such Contract; (g) any write-down or write-up of the value of any asset of the Company, or any write-off of any accounts receivable or notes receivable of the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiariesportion thereof; (bh) except for any increase in or modification of compensation payable or to become payable to any officer, employee, consultant or agent of the executionCompany, delivery and performance by other than any such increases in the Company ordinary course of this Agreement and business, consistent with past practice, or the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary entering into of any shares of capital stock of, employment contract with any officer or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiaryemployee; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation modification or acceleration of any current benefits payable or former to become payable under any bonus, pension, severance, insurance or other benefit plan, payment or arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) made to, for or with any officer, directoremployee, shareholderconsultant or agent of the Company; (j) the making of any loan, manageradvance or capital contribution to or investment in any Person or the engagement in any transaction with any employee, memberofficer, employee director or consultant shareholder of the Company, other than advances to employees in the ordinary course of business for travel and similar business expenses; (k) any change in the accounting methods or practices followed by the Company or any Subsidiary; change in depreciation or amortization policies or rates theretofore adopted; (iil) any payment deterioration in the aging of consideration the Company's accounts payable or acceleration in the aging of the Company's accounts receivable or other change in the Company's working capital management practices, other than in the ordinary course of business; (m) any change in the manner in which the Company extends discounts or credit to customers or otherwise deals with customers; (n) any termination of employment of any nature whatsoever (other than salary, commissions officer or consulting fees paid to any current or former officer, director, shareholder, manager, member, key employee or consultant of the Company or, to the Company's best knowledge, any expression of intention by any officer or anykey employee of the Company to terminate such office or employment with such Person; (o) any amendments or changes in the Company's Charter Documents; (p) any labor disputes or any union organizing campaigns; (q) the commencement of any litigation or other action by or against the Company; or (r) any agreement, understanding, authorization or proposal, whether in writing or otherwise, for the Company to take any of the actions specified in items (a) through (q) above.

Appears in 1 contract

Samples: Stock Purchase and Redemption Agreement (Greenfield Online Inc)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 of SCHEDULE 4.2.8, since the Disclosure Schedule or as disclosed Balance Sheet Date, Speed Release has conducted its business only in the SEC Documents filed ordinary course consistent with prior to the date hereof, there practice and has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datenot: (a) suffered any declarationSpeed Release Material Adverse Effect; (b) declared, setting aside set aside, made or payment of paid any dividend or other distribution in respect of the its capital stock or membership interests, or otherwise purchased or redeemed, directly or indirectly, any shares of its capital stock or membership interests; (c) issued or equity sold any shares of its capital stock or membership interests, or any securities convertible into or exchangeable for any such shares or membership interests, or issued, sold, granted or entered into any subscriptions, options, warrants, conversion or other rights, agreements, commitments, arrangements or understandings of any kind, contingent or otherwise, to purchase or otherwise acquire any such shares or membership interests, or any securities convertible into or exchangeable for any such shares or membership interests; (d) incurred any indebtedness for borrowed money, issued or sold any debt securities or prepaid any debt (including, without limitation, any borrowings from or prepayments to any shareholder or member), except for borrowings and prepayments in the ordinary course of the Company business; (e) mortgaged, pledged or otherwise subjected to any Lien, any of its Subsidiariesproperties or assets, tangible or intangible, except for Permitted Liens; (f) forgiven, canceled, compromised, waived or released any debts, claims or rights, except for debts of, or claims and rights against, persons other than any shareholder or member that have been forgiven, canceled, compromised, waived or released in the ordinary course of business; (g) paid or committed to pay any bonus, other incentive compensation, change in control or similar compensation to any officer, director, employee, manager, shareholder, member or affiliate, or granted or committed to grant to any officer, director, employee, manager, shareholder, member or affiliate any other increase in, or additional, compensation in any form; (h) entered into, instituted, adopted or amended or committed to enter into, institute, adopt or amend any employment, consulting, retention, change-in-control, collective bargaining, bonus or other incentive compensation, profit-sharing, health or other welfare, stock option or other equity, pension, retirement, vacation, severance, deferred compensation or other employment, compensation or benefit plan, policy, agreement, trust, fund or arrangement in respect of or for the benefit of any officer, director, employee, manager, shareholder, member or affiliate; (i) encountered any labor union organizing activity or had any actual or threatened employee strikes, work stoppages, slowdowns or lockouts, or had any material adverse change in its relations with its employees, agents, customers or suppliers; (j) amended either its certificate of incorporation or its bylaws; (k) changed in any respect its accounting practices, policies or principles; (l) incurred, assumed, guaranteed or otherwise become directly or indirectly liable with respect to any liability or obligation in excess of $10,000 in each case or $25,000 in the aggregate at any one time outstanding (whether absolute, accrued, contingent or otherwise and whether direct or indirect, or as guarantor or otherwise with respect to any liability or obligation of any other person) other than agreements for purchases of goods or services in the ordinary course of business; (m) sold any assets with a value in excess of $10,000 in each case or $25,000 in the aggregate, other than inventory in the ordinary course of business; (n) received any notice of termination of any Contract which, in any case or in the aggregate, would have or result in a Speed Release Material Adverse Effect; (o) transferred or granted any rights under, or entered into any settlement regarding the breach or infringement of, any Intellectual Property or modified any existing rights with respect thereto; (p) suffered any damage, destruction or loss (whether or not covered by insurance), or any direct employment-related problem, that, individually or indirect redemptionin the aggregate, purchase would have or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiariesresult in a Speed Release Material Adverse Effect; (bq) except for made any capital expenditures or capital additions or improvements in excess of an aggregate of $25,000; (r) instituted, settled or agreed to settle any litigation, action or proceeding before any court or governmental body involving amounts in excess of $25,000; (s) entered into any transaction, Contract or commitment other than in the executionordinary course of business, delivery and performance or paid or agreed to pay any legal, accounting, brokerage or finder's fees, taxes or other expenses in connection with, or incurred any severance pay obligations by reason of, this Agreement, the Company of this Agreement and the Operative Agreements, and other Transaction Agreements or the transactions contemplated hereby or thereby, ; or (t) taken any authorization, issuance, sale action or other disposition by omitted to take any action that would result in the Company or any Subsidiary occurrence of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Merger Agreement (Mixson Corp /De/)

Absence of Changes. Since the Audited Financial Statement Latest Balance Sheet Date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed on SCHEDULE 5.7, each Seller has operated its respective Business in the SEC Documents filed prior to the date hereofordinary course of business, consistent with past practice, and there has not been been: (i) any material adverse changechange in the business, operations, assets, condition (financial or otherwise), operating results, liabilities, relations with employees, customers or suppliers, or prospects of such Seller, or any event casualty loss or development whichdamage to the assets of such Seller, individually whether or together with other such events, could reasonably be expected to result in not covered by insurance (a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:"MATERIAL ADVERSE CHANGE"); (aii) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the capital stock (or equity interests) of the Company or any of its Subsidiariessuch Seller, or any direct or indirect redemption, purchase or other acquisition by the Company of any thereof, or any of its Subsidiaries other payments of any nature to any Affiliate of such capital stock (Seller whether or equity interests) of not on or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock ofof such Seller owned by such Affiliate (excluding salaries and benefits paid in the ordinary course of business of the Business consistent with past practice); (iii) any general uniform increase in the compensation of employees (including any increase pursuant to any bonus, pension, profit-sharing or Option with respect to, the Company other plan or any Subsidiarycommitment) of such Seller, or any modification increase in any such compensation payable to any officer, director or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiarykey employee; (iiv) any increase change in salarythe tax or other accounting methods or practices followed by such Seller, rate any change in the depreciation or amortization policies or rates previously adopted or any write-up of commissionsinventory or other assets; (v) any change in the manner in which products or services of such Seller are marketed (including any change in prices), rate of consulting fees any change in the manner in which such Seller extends discounts or credit to customers or any change in the manner or terms by which such Seller collects accounts receivable or otherwise deals with customers; (vi) any failure by such Seller to make scheduled capital expenditures or investments or any failure to pay trade accounts payable or any other compensation Liability of such Seller when due; or (vii) any current agreement, whether in writing or former officerotherwise, director, shareholder, manager, member, employee or consultant to take any of the Company or any Subsidiary; actions specified in the foregoing CLAUSES (iii) any payment of consideration of any nature whatsoever through (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyvi).

Appears in 1 contract

Samples: Asset Purchase Agreement (Amedisys Inc)

Absence of Changes. Since the Audited Financial Statement Date, except (a) Except as set forth in Section 2.9 of the Disclosure on Schedule or as disclosed in the SEC Documents filed prior to the date hereof3.13, since December 31, 2007, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, change in the Business financial condition or Condition in the results of operations, business, properties or assets of the Company. None of the other representations or warranties . (b) Except as set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements Schedule 3.13 and except as disclosed for the discharge of liabilities and distribution of capital incident to the Company’s winding up activities, since December 31, 2007, the Company has operated its business only in Section 2.9 the ordinary course of the Disclosure Schedule, there business consistent with past practice and has not occurred since the Audited Financial Statement Datenot: (ai) amended its Certificate or Articles of Incorporation, Bylaws or other charter or organizational document, or merged with or into or consolidated with any declarationother Person, setting aside subdivided or payment in any way reclassified any shares of its capital stock or changed or agreed to change in any manner the rights of its outstanding capital stock; (ii) issued or sold any capital stock or other equity interest or any bonds, debentures, notes, debt instruments, evidences of indebtedness or other securities of any dividend or other distribution in respect of the capital kind, including, without limitation, any stock (or equity interests) of the Company appreciation rights, options, warrants, calls or any other rights of its Subsidiaries, any kind to purchase or otherwise receive an equity interest; (iii) made any direct or indirect redemption, retirement, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of its capital stock of, or Option with respect to, the Company other equity interest or any Subsidiarybonds, debentures, notes, debt instruments, evidences of indebtedness or other securities of any kind; (iv) incurred any indebtedness for borrowed money or entered into any commitment to borrow money or guarantee any liability for borrowed money; (v) made any change in its accounting or reserving methods or practices; (vi) allowed the creation of any Lien on any of its tangible or intangible assets or property, or any modification sale, transfer, assignment, lease or amendment abandonment of any right interest in any of any holder its tangible or intangible assets or property, other than sales, transfers, assignments and leases in the ordinary course of any outstanding shares of capital stock of, or Option business consistent with respect to, the Company or any Subsidiarypast practice; (ivii) entered into any contract, commitment or transaction resulting in the imposition of liabilities or obligations not fully reserved and provided for in the 2007 Unaudited Financial Statement; (viii) made any acquisition of all or any substantial part of the assets, properties, securities or business of any other Person; (ix) increased or agreed to increase in any salary, rate wages, bonus, severance, compensation, pension or other benefits payable or to become payable, or granted any severance or termination payments or benefits, to any of commissions, rate of consulting fees or any other compensation of any its current or former officerofficers, directordirectors, shareholderemployees, managerconsultants, memberagents or other representatives; or (x) entered into any contract, employee commitment or consultant transaction to do any of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Stock Purchase Agreement (Suncoast Holdings, Inc)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof4.9, since December 31, 2013, there has not been any material adverse change, with respect or any event or development which, individually or together with other such events, could reasonably be expected related to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement DateAssets: (a) any declarationmaterial and unrepaired damage or destruction, setting aside or payment of any dividend loss or other distribution in respect of the capital stock (casualty, however arising and whether or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition not covered by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiariesinsurance; (b) any indebtedness incurred by Seller for borrowed money (except by endorsement for collection or for deposit of negotiable instruments received in the ordinary course of business and except for debts and liabilities incurred in the execution, delivery and performance by the Company ordinary course of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option business consistent with respect to, the Company or any Subsidiaryprior practices), or any modification agreement to incur any such indebtedness other than intercompany indebtedness; (c) any change in the accounting methods or practices of Seller or any change in depreciation or amortization policies or rates theretofore adopted; (d) any amendment or termination, or any written notice of termination, of any contract, agreement, lease, franchise or license to which Seller is a party or by which it is bound; (e) any liability or obligation incurred by Seller, except current liabilities for trade or business obligations incurred in the ordinary course of business consistent with past practice, or any cancellation or compromise by Seller of any debt or claim other than in the ordinary course of business consistent with past practice, or any waiver or release by Seller of any right of substantial value to the Business; (f) except in the ordinary course of business and consistent with past practice, any holder grant or extension of any outstanding shares power-of-attorney or guaranty in respect of capital stock ofthe obligation of any Person; (g) except for Permitted Encumbrances and other than in the ordinary course of business, any mortgage, pledge or Option other encumbering of any of the Assets; (h) any sale, transfer, lease, abandonment or other disposal of any material portion of the Assets (real, personal or mixed, tangible or intangible), except in the ordinary course of business consistent with respect to, the Company or any Subsidiarypast practice; (i) any assignment, transfer, licensing, grant or other disposal of any Intellectual Property (as defined in Section 4.10 hereof); (j) any grant by Seller of any general increase in salary, rate of commissions, rate of consulting fees or any other the compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company employees of Seller who are deemed by Seller to be employed by or working directly in the Business; or any Subsidiarygrant by Seller of any increase in compensation payable to or to become payable to any such employee; or any agreement by Seller entered into with any employee; except in the ordinary course of business and consistent with past practice; (iik) with respect to the Business, any capital expenditure made, or any commitment to make any capital expenditure, for any tangible or intangible capital assets, additions or improvements, except capital expenditures in the ordinary course of business and capital expenditures that do not exceed $10,000 in any instance or $50,000 in the aggregate; (l) any payment of consideration action taken or omitted to be taken that would result in the occurrence of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company foregoing; or (m) any sale or anyother transfer of any interest or rights in the Business.

Appears in 1 contract

Samples: Asset Purchase Agreement (AAC Holdings, Inc.)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 2.1(e) of the ------------------ Disclosure Schedule or as disclosed Schedule, since December 31, 1995, the MARS Companies have been operated in the SEC Documents filed prior to the date hereof, ordinary course consistent with past practice and there has not been been: (i) any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, change in the Business condition (financial or Condition otherwise), assets, liabilities, operations, customer contracts or other customer arrangements, management personnel, xxxxxxxx, revenues, earnings or business; (ii) any obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by any MARS Company, other than obligations under customer contracts, current obligations and liabilities incurred in the ordinary course of the business and consistent with past practice; (iii) any payment, discharge or satisfaction of any claim or obligation of any MARS Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby in the ordinary course of business and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:consistent with past practice; (aiv) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the capital stock (or equity interests) of the any MARS Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiariesshares; (bv) except any issuance or sale, or any contract entered into for the executionissuance or sale, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company securities convertible into or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding exercisable for shares of capital stock ofof any MARS Company; (vi) any sale, assignment, pledge, encumbrance, transfer or other disposition of any tangible asset of any MARS Company, except as contemplated by this Agreement, or Option with respect toany sale, assignment, transfer or other disposition of any patents, trademarks, service marks, trade names, copyrights, licenses, franchises, know-how or any other intangible assets; (vii) any creation of any material claim or other encumbrance on any property of any MARS Company; (viii) any material write-down of the value of any asset of any MARS Company or any Subsidiarymaterial write-off as uncollectible of any accounts or notes receivable or any portion thereof; (iix) any cancellation of any debts or claims or any amendment, termination or waiver of any rights of value to any MARS Company; (x) any capital expenditure or commitment or addition to property, plant or equipment of any MARS Company, individually or in the aggregate, in excess of $25,000; (xi) any general increase in the compensation of employees of any MARS Company (including any increase pursuant to any bonus, pension, profit-sharing or other benefit or compensation plan, policy or arrangement or commitment), or any increase in salaryany such compensation or bonus payable to any officer, rate of commissions, rate of consulting fees or any other compensation of any current or former officershareholder, director, shareholderconsultant or agent of any MARS Company having an annual salary or remuneration in excess of $40,000; (xii) any material damage, manager, member, employee destruction or consultant loss (whether or not covered by insurance) affecting any asset or property of any MARS Company; (xiii) any change in the independent public accountants of any MARS Company or in the accounting methods or accounting practices followed by any MARS Company or any Subsidiary; change in depreciation or amortization policies or rates; (iixiv) any payment of consideration of agreement or action not otherwise referred to in items (i) through (xiii) above entered into or taken that is material to the MARS Companies taken as a whole; or (xv) any nature whatsoever (other than salaryagreement, commissions whether in writing or consulting fees paid otherwise, to take any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyactions specified in the foregoing items (i) through (xiv).

Appears in 1 contract

Samples: Stock Purchase Agreement (Physician Support Systems Inc)

Absence of Changes. Since the Audited Financial Statement Date, except as set forth in Section 2.9 date of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereofBalance Sheet, there (i) no Company Material Adverse Effect has not been any material adverse changeoccurred, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, and (ii) without limiting the generality of the foregoing, except as expressly contemplated hereby and by between the Operative Agreements and except as disclosed in Section 2.9 date of the Disclosure ScheduleBalance Sheet and the date of this Agreement, there has not occurred since neither the Audited Financial Statement DateCompany nor any of its Subsidiaries has: (a) any declarationdeclared, setting aside set aside, made or payment of paid any dividend or other distribution in respect of its capital stock, or agreed to do any of the foregoing, or purchased or redeemed or agreed to purchase or redeem, directly or indirectly, any shares of its capital stock (other than the repurchase or equity interestsforfeiture of Company Capital Stock pursuant to the terms of any Stock Restriction Agreement or the recapture of Company Capital Stock from escrow funds established to secure indemnification obligations); (b) issued or sold any shares of its capital stock of any class or any options, warrants, conversion or other rights to purchase any such shares or any securities convertible into or exchangeable for such shares (other than the issuance of options in the ordinary course of business and consistent with past practice pursuant to the Company Stock Plan or the issuance of shares of Company Common Stock pursuant to the exercise of Company Options, the exercise or conversion of Company Warrants or the conversion of shares of Company Preferred Stock); (c) adopted, amended, modified, or terminated in any material respect any Company Employee Plan, agreement trust, fund, arrangement for the benefit of employees or any collective bargaining agreement (other than as may have been required by the terms of the Company Employee Plan or collective bargaining agreement, or as may have been required by applicable Legal Requirements); Table of Contents (d) increased any compensation or fringe benefits, paid any bonus, granted any increase in severance or termination pay or otherwise changed any of the terms of employment or service for any of its SubsidiariesEmployees other than in the ordinary course of business and consistent with past practice; (e) entered into any loan or advanced any money or other property with any of its employees, officers, directors or consultants outside the ordinary course of business consistent with past practice; (f) incurred any indebtedness for purchase money or borrowed money; (g) mortgaged, pledged or subjected to any Security Interest, any of its properties or assets, tangible or intangible; (h) acquired or disposed of any assets or properties having a value in excess of $100,000 (singly or in the aggregate); (i) forgiven or canceled any debts or claims, or waived any direct rights, having a value in excess of $100,000; (j) incurred a capital expenditure or indirect redemptionmade a commitment by the Company exceeding $100,000 individually or $1,000,000 in the aggregate; (k) changed accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAP; (l) made or changed any election in respect of Taxes, purchase adopted or changed any accounting method in respect of Taxes (other acquisition than as a result of the transactions contemplated herein), agreed to or settled any claim or assessment in respect of Taxes, or extended or waived any of the limitation periods applicable to any claim or assessment in respect of Taxes; (m) revaluated any of its assets (whether tangible or intangible), including writing down the value of inventory or writing off, discounting or otherwise compromising any notes or accounts receivable in an amount in excess of $50,000; (n) received notice of any claim or potential claim of ownership, interest or right by any person other than the Company of the Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries infringement by the Company of any such capital stock other Person’s Intellectual Property Rights; (o) commenced or equity interests) settled any lawsuit or become aware of the commencement, settlement, notice or written threat of any Option with respect to lawsuit or proceeding or other investigation against the Company or any of its Subsidiaries; (bp) except received written notice of any claim or potential claim for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary violation of any shares employment laws; (q) conducted its business, other than in the ordinary course consistent with past practice; Table of capital stock ofContents (r) engaged in any purchase or sale of any interest in real property, grant of any Security Interest in any real property, agreement to lease, sublease, license or Option with respect to, the Company or otherwise occupy any Subsidiaryreal property, or any modification alteration, amendment, modification, violation or amendment termination of any right of the terms of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary;Real Property Lease; or (is) entered into any increase in salaryagreement, rate of commissions, rate of consulting fees commitment or obligation to do any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Merger Agreement (Vmware, Inc.)

Absence of Changes. Since the Audited Financial Statement Date, except as set forth in Section 2.9 date of the Disclosure Schedule or as disclosed most recent Balance Sheet, the Cathedral Group has conducted its business only in the SEC Documents filed prior to the date hereof, Ordinary Course of Business and there has not been been: (a) any Material Adverse Change; (b) any material adverse changedamage, destruction or loss, whether covered by insurance or not, with regard to the Cathedral Group's properties and business; (c) any payment by the Cathedral Group to, or any event notice to or development whichacknowledgment by the Cathedral Group of any amount due or owing to, individually or together with other such eventsthe Cathedral Group's self-insured carrier, could reasonably be expected to result in a material adverse changeif any, in the Business connection with any self-insured amounts or Condition liabilities under health insurance covering employees of the Company. None Cathedral Group, in each case, in excess of a reserve therefor on the other representations most recent Balance Sheet and in the Interim Financial Statements; (d) any amendment or warranties set forth change in this Agreement shall be deemed to limit the foregoing. In additionCathedral Group's authorized or issued capital stock, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: or Charter Documents; (ae) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) in respect of of, the capital stock (or equity interests) of the Company or Cathedral Group, any of its Subsidiariespurchase, or any direct or indirect redemptionretirement, purchase redemption or other acquisition by the Company or of, any of its Subsidiaries grant of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the executionoption, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale warrant or other disposition by the Company or any Subsidiary of any right to purchase shares of capital stock of, or Option the grant of any registration rights with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of the Cathedral Group; (f) any cancellation of, or Option agreement to cancel any indebtedness or obligation owing to the Cathedral Group in excess of $5,000 on an individual basis or $10,000 in the aggregate; (g) any amendment, modification or termination of any existing Permits or Contracts, or entering into any new Contract or plan relating to any salary, bonus, insurance, pension, health or other employee welfare or benefit plan for or with any directors, officers, employees or consultants of the Cathedral Group; (h) to the Knowledge of any Seller or either Company, any entry into any material Contract not in the Ordinary Course of Business, including, without limitation, relating to any borrowing, capital expenditure or the sale or purchase of any property, rights, or assets or any options or similar agreements with respect to, to the Company or any Subsidiary; foregoing; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation to the Knowledge of any current Seller or former officereither Company, directorany disposition by the Cathedral Group of any material asset; (j) to the Knowledge of any Seller or either Company, shareholderany adverse change in any Contract or relationship with any customer or supplier the sales patterns, managerpricing policies, member, employee accounts receivable or consultant accounts payable relating to the Cathedral Group; (k) any write-down of the Company value of any inventory having an aggregate value in excess of $5,000, or write-off, as uncollectible, of any Subsidiarynotes, trade accounts or other receivables having an aggregate value in excess of $5,000; (iil) any payment of consideration of change by the Cathedral Group in accounting methods or principles; or (m) any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant material change in the cash and cash equivalents of the Company or anyCathedral Group from the amounts shown on the balance sheet as of the date of the Interim Financial Statements.

Appears in 1 contract

Samples: Stock Purchase Agreement (Resortquest International Inc)

Absence of Changes. Since the Audited Financial Statement DateEvergreen Interim Balance Sheet date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed Evergreen has conducted its business only in the SEC Documents filed prior to the date hereofordinary course, there and Evergreen has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datenot: (a) any declaration, setting aside amended or payment otherwise modified its Certificate of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its SubsidiariesIncorporation, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its SubsidiariesBy-Laws; (b) issued or sold or authorized for issuance or sale, or granted any options or made other agreements (other than this Agreement) with respect to any ownership interest, or altered any term of any of its ownership interest or made any change in its ownership interests or its capitalization, except as previously discussed and disclosed with Exousia Merger Subsidiary prior to the Effective Time; (c) incurred any obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due, except current liabilities for trade or business obligations incurred in the executionordinary course of business and consistent with prior practice; (d) recorded or accrued any item of revenue, delivery except in the ordinary course of business and performance by consistent with prior practice; (e) been subjected to any Lien or other restriction any of its properties, business or assets; (f) discharged or satisfied any Lien, or paid any obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due, other than current liabilities shown on the Company Interim Balance Sheet and current liabilities incurred since the Interim Balance Sheet Date in the ordinary course of this Agreement business and the Operative Agreementsconsistent with prior practice; (g) declared or made any payment of dividends or other distribution to its shareholders upon or in respect of any ownership interests, and the transactions contemplated hereby or therebypurchased, retired or redeemed, or obligated itself to purchase, retire or redeem, any authorization, issuance, sale ownership interests or other disposition by the Company securities; (h) sold, transferred, leased to others or any Subsidiary otherwise disposed of any shares properties or assets or purchased, leased from others or otherwise acquired any properties or assets except in the ordinary course of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiarybusiness; (i) canceled or compromised any debt or claim or waived or released any right of substantial value; (j) terminated or received any notice of termination of any contract, lease, license or other agreement or any Governmental License, or suffered any damage, destruction or loss (whether or not covered by insurance) that, in any case or in the aggregate, has had or is reasonably likely to result in a Material Adverse Effect; (k) had any change in its relations with its employees or any material customer or supplier, other than those that would not result in a Material Adverse Effect to Evergreen; (1) transferred or granted any rights under, or entered into any settlement regarding the breach or infringement of, any United States or foreign license, patent, copyright, trademark, trade name, service xxxx, brand xxxx, brand name, invention, intellectual property or similar rights or with respect to any know-how, or modified any existing rights with respect thereto; (m) made any change in the rate of compensation, commission, bonus or other remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, extra compensation, pension or severance or vacation pay, to any shareholder, director, officer, employee, salesman, distributor or agent of Evergreen except in the ordinary course of business consistent with prior practice and not in contemplation of the Merger; (n) made any increase in salaryor commitment to increase any employee benefits, rate of commissionsadopted or made any commitment to adopt any additional Employee Benefit Plan or made any contribution, rate of consulting fees or other than regularly scheduled contributions, to any other compensation of Employee Benefit Plan; (o) engaged in any current or former officertransaction with any shareholder, director, shareholderofficer, manageremployee, membersalesman, employee distributor or consultant agent of the Company or any Subsidiary; Evergreen other than (i) normal compensation and other fees earned in their capacity as such in accordance with past practice, (ii) transactions in the ordinary course of business not involving an expenditure in excess of an aggregate of $10,000 per individual, and (iii) transactions in accordance with the provisions of Contracts (as hereinafter defined in Section 4.17(b) with any payment such Person that are disclosed on Schedule 4.17 hereto) or made any loans or advances to any director, officer, employee, salesman, distributor or agent other than travel and entertainment advances in the ordinary course of consideration business consistent with prior practice; (p) made any capital expenditures or capital additions in excess of $25,000 in any individual case, or in excess of $50,000 in the aggregate; (q) made any loan or advance to any Person other than travel and other similar routine advances in the ordinary course of business consistent with past practice, or acquired any capital stock or other securities of any nature whatsoever other corporation or any ownership interest in any other business enterprise; (r) changed its banking or safe deposit arrangements; (s) instituted, settled or agreed to settle any litigation, action or proceeding before any court or governmental body relating to Evergreen or its respective properties or assets; (t) failed to replenish its supplies in a normal and customary manner consistent with its prior practice and prudent business practices prevailing in the industry, or made any purchase commitment in excess of the normal, ordinary and usual requirements of its business or at any price in excess of the then current market price or upon terms and conditions more onerous than those usual and customary in the industry, or made any change in its selling, pricing, advertising or personnel practices inconsistent with its prior practice; (u) failed to pay its trade or business payables in the ordinary course of business and in accordance with the terms specified by its vendors and service providers; (v) entered into any transaction, contract or commitment other than salary, commissions in the ordinary course of business; (w) changed any accounting practices or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant principles utilized in the preparation of the Company Financial Statements; (x) suffered any change, event or anycondition that, in any case or in the aggregate, has had or is reasonably likely to result in a Material Adverse Effect; or (y) entered into any agreement or made any commitment to take any of the types of action described in subparagraphs (a) through (w) above, other than those that would not have a Material Adverse Effect on Evergreen.

Appears in 1 contract

Samples: Merger Agreement (Exousia Advanced Materials, Inc.)

Absence of Changes. Since the Audited Financial Statement Current Balance Sheet Date, except as accurately set forth in Section 2.9 4.30 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereofStatement, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition none of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there following has not occurred since the Audited Financial Statement Date: (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any Company Subsidiary: (a) any circumstance, condition, event or state of its Subsidiariesfacts (either singly or in the aggregate), other than conditions generally affecting the Air Conditioning and Refrigeration Contracting or Plumbing businesses, which has caused, is causing or will cause a Material Adverse Effect on the Company; (b) any change in its authorized Capital Stock or in any of its outstanding Capital Stock or Derivative Securities; (c) any Restricted Payment, except any declaration or payment of dividends by any Company Subsidiary solely to the Company; (d) any increase in, or any commitment or promise to increase, the rates of Cash Compensation as of the date hereof, or the amounts or other benefits paid or payable under any Company ERISA Pension Plan or Other Compensation Plan, except for ordinary and customary bonuses and salary increases for employees (other than the executionStockholders or their Immediate Family Members) at the times and in the amounts consistent with its past practice; (e) any work interruptions, delivery and performance by labor grievances or claims filed, or any similar event or condition of any character, that will have a Material Adverse Effect on the Company of this Agreement and Surviving Corporation following the Operative Agreements, and the transactions contemplated hereby or thereby, Effective Time; (f) any authorization, issuancedistribution, sale or other disposition by the Company or any Subsidiary of any shares of capital stock transfer of, or Option any Company Commitment to distribute, sell or transfer, any of its assets or properties of any kind which singly is or in the aggregate are Material to the Company, other than distributions, sales or transfers in the ordinary course of its business and consistent with respect toits past practices to Persons other than the Stockholders and their Immediate Family Members and Affiliates; (g) any cancellation, the Company or agreement to cancel, any Indebtedness, obligation or other liability owing to it, including any Indebtedness, obligation or other liability of any Stockholder or any SubsidiaryRelated Person or Affiliate thereof, provided that it may negotiate and adjust bills in the course of good faith disputes with customers in a manner consistent with past practice, if all those adjustments are included in the Supplemental Information provided ARS pursuant to Section 6.08; (h) any plan, agreement or arrangement granting any modification preferential rights to purchase or amendment acquire any interest in any of its assets, property or rights or requiring consent of any right Person to the transfer and assignment of any holder of any outstanding shares of capital stock ofsuch assets, property or Option with respect to, the Company or any Subsidiaryrights; (i) any increase purchase or acquisition of, or agreement, plan or arrangement to purchase or acquire, any property, rights or assets outside of the ordinary course of its business consistent with its past practices; (j) any waiver of any of its rights or claims that singly is or in salary, rate the aggregate are Material to the Company; (k) any transaction by it outside the ordinary course of commissions, rate its business or not consistent with its past practices; (l) any incurrence by it of consulting fees any Indebtedness or any other compensation Guaranty not constituting its Indebtedness, or any Company Commitment to incur any Indebtedness or any such Guaranty; (m) any investment in the Capital Stock, Derivative Securities or Indebtedness of any Person other than a Permitted Investment; (n) except in accordance with the Company's consolidated capital expenditure budget for the Company's current fiscal year, any capital expenditure or former officerseries of related capital expenditures by the Company and the Company Subsidiaries collectively in excess of $25,000, director, shareholder, manager, member, employee or consultant commitments by the Company and the Company Subsidiaries to make capital expenditures totaling in excess of $25,000; or (o) any cancellation or termination of a Material Agreement of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyCompany.

Appears in 1 contract

Samples: Merger Agreement (Timmons Gorden H)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 of the Disclosure Schedule 4.10 attached hereto or as disclosed in the SEC Documents filed prior to the date hereof, otherwise contemplated by this Agreement there has not been any change in the Assets, liabilities, financial condition or operations of the Company from that reflected in the Financial Statements except changes in the ordinary course of business that have not resulted, either individually or in the aggregate, in a Material Adverse Effect. Except as set forth in Schedule 4,10 or as contemplated by this Agreement, since September 30, 2011 there has not been: (a) any extraordinary damage, destruction or loss, whether or not covered by insurance; (b) any waiver or compromise by the Company of a valuable right or of a material adverse changedebt owed to it; (c) any loans or guarantees made by the Company to or for the benefit of its shareholders, employees, officers or directors or any event or development which, individually or together with shareholder of their immediate families other such events, could reasonably be expected to result in a material adverse change, than advances made in the Business ordinary course of business; (d) any satisfaction or Condition discharge of any lien, claim or encumbrance or payment of any obligation by the Company, except in the ordinary course of business; (e) any material or adverse change or amendment to a Material Contract; (f) any new hire or resignation or termination of employment of any key employee or any material change in any compensation arrangement or other employment terms of any key employee; (g) any sale, disposition, assignment or transfer of any of the Company. None 's Assets or properties of the other representations Company except in the ordinary course of business; (h) any security interest created by the Company, with respect to any of its respective material properties or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoingAssets, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has statutory liens for taxes not occurred since the Audited Financial Statement Date: yet due or payable; (ai) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) any of the Company or any REPO Shares of its Subsidiariesthe Company, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock REPO Shares by the Company; (j) any borrowing of any amount or equity interestsincurrence or subjection to any material liabilities, except current liabilities incurred in the ordinary course of business and liabilities under contracts entered into in the ordinary course of business; (k) any issuance of any notes, bonds or other debt securities or any Option with respect to the Company REPO Shares or other equity securities or any of its Subsidiaries; (b) except for the executionsecurities convertible, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby exchangeable or thereby, exercisable into any authorization, issuance, sale REPO Shares or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; equity securities; (i1) any increase investment in salary, rate of commissions, rate of consulting fees or any other compensation of any current entity or former officer, director, shareholder, manager, member, employee or consultant of the Company or steps taken to incorporate any Subsidiary; (iim) any payment of consideration of capital expenditures or commitments therefor; (n) any nature whatsoever material change in the accounting methods, principles or practices used by the Company, (o) any other material transaction other than salary, commissions in the ordinary course of business; or consulting fees paid (p) any other event or condition that might reasonably be expected to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyhave a Material Adverse Effect.

Appears in 1 contract

Samples: Stock Purchase Agreement (National Asset Recovery Corp.)

Absence of Changes. Since the Audited Financial Statement Datedate of the Reference Balance Sheet, the Company has conducted its business only in the Ordinary Course of Business, the Company has not suffered a Material Adverse Effect or any material loss, damage, destruction or other casualty affecting any of its material properties or assets (whether or not covered by insurance) and, except as set forth in Section 2.9 of the Disclosure on Schedule 3.10 or as disclosed contemplated by the terms of this Agreement, the Company has not: (a) redeemed or repurchased, directly or indirectly, or declared, set aside or paid any dividends on (other than dividends paid to the Company) or made any other distributions (whether in cash or in kind) with respect to, any of its equity securities; (b) issued, sold or transferred any notes, bonds or other debt securities, any equity securities, or any securities convertible, exchangeable or exercisable into, directly or indirectly, any of its equity securities; (c) borrowed any amount or incurred or become subject to any Indebtedness (including contingently as a guarantor or otherwise) or other Liabilities, except current liabilities incurred in the SEC Documents filed Ordinary Course of Business (and not constituting Indebtedness); (d) discharged or satisfied any Lien or paid any Liability related to the Company (other than Liabilities paid in the Ordinary Course of Business), or prepaid any amount of Indebtedness or subjected any portion of its properties or assets to any Lien or other encumbrance (other than Permitted Liens and Liens that will be released at or prior to the date hereofClosing); (e) sold, there has leased, subleased, licensed, assigned, transferred or otherwise disposed of (including transfers to Company Securityholders or any Insider) any of its material tangible or intangible assets (including Company Intellectual Property Assets), except for non-exclusive licenses granted in the Ordinary Course of Business to customers on an arms’ length basis; (f) waived, canceled, compromised or released any rights or claims of material value, whether or not been in the Ordinary Course of Business; (g) except in the Ordinary Course of Business, entered into any material adverse changeContract or amended or terminated the Company’s rights thereunder, or entered into any event other material transaction; (h) made, granted or development whichpromised any wage, individually salary, commissions or together with compensation increase in excess of $50,000 per year to, or made any other such eventschange in employment terms for, could reasonably be expected any director, officer, employee, sales representative or consultant paid, or made any new commitment to result pay, any bonus or made any profit-sharing payment, cash incentive payment or similar payment granted or promised any increase in a any employee benefit plan or arrangement, amended, established or terminated any Company Employee Program (other than an amendment required by Law), or adopted any new Employee Program; (i) made any material adverse changechange in its business practices, including, without limitation, any change in the Business accounting methods or Condition practices or collection, credit, pricing or payment policies of the Company. None ; (j) except in the Ordinary Course of Business, made any capital expenditures in excess of $10,000 in the aggregate or any investments; (k) made any loans or advances to, or guarantees for the benefit of, any Persons (other than advances to employees for travel and business expenses incurred in the Ordinary Course of Business that do not exceed $10,000 in the aggregate); (l) changed, amended or modified or authorized any change, amendment or modification in its certificate of incorporation, bylaws or other governing or organizational documents; (m) instituted or settled any claim or lawsuit for an amount involving in excess of $5,000 in the aggregate or involving equitable or injunctive relief; (n) acquired any other business or Person (or any significant portion or division thereof), whether by merger, consolidation or reorganization or by purchase of its assets or stock or acquired any other material assets; (o) materially amended any Permit other than routine renewals or failed to maintain any Permit or timely obtain any Permit that is material to the ongoing operations of the Company; (p) outside the Ordinary Course of Business, made or changed any Tax election, changed any annual Tax accounting period, adopted or changed any method of Tax accounting, filed any amended Tax Return, entered into any closing agreement with respect to Taxes, settled or compromised any Tax claim or assessment, surrendered any right to claim a material Tax refund, received or requested any Tax ruling, or consented to any extension or waiver of the limitations period applicable to any material Tax claim or assessment; (q) entered into any Contract or other representations transaction with an Insider not at arms’ length; or (r) committed or warranties set forth agreed, in this Agreement shall be deemed writing or otherwise, to limit the foregoing. In addition, without limiting any of the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Ancillary Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any.

Appears in 1 contract

Samples: Merger Agreement (Sanara MedTech Inc.)

Absence of Changes. Since the Audited Financial Statement Date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed each Group Company has (i) operated its business in the SEC Documents filed prior ordinary course consistent with past practice, (ii) used its best efforts to preserve business, (iii) collected receivables and paid payables and similar obligations in the date hereofordinary course of business consistent with past practice, and (iv) not engaged in any new line of business or entered into any material agreement, transaction or activity or made any commitment except those in the ordinary course of business consistent with past practice. Since the Statement Date, there has not been any material adverse changeMaterial Adverse Effect on Group Company, or as contemplated under the Transaction Documents any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, change in the Business way any Group Company conducts its business, and there has not been, occurred or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoingarisen, except as expressly contemplated hereby and by under this Agreement, the Operative Agreements and except as disclosed in Section 2.9 of Restructuring Plan or the Disclosure Schedule, there has not occurred since the Audited Financial Statement Dateother Transaction Documents: (a) any purchase, acquisition, sale, lease, disposal of or other transfer of or changes in any assets, whether tangible or intangible, other than the purchase or sale of inventory in the ordinary course of business; (b) any acquisition (by merger, consolidation or other combination, or acquisition of shares or assets, or otherwise) of any business or other Person or division thereof, or any sale or disposition of any business or division thereof; (c) any sale, assignment, exclusive license, or transfer of any Intellectual Property of any Group Company; (d) any waiver, termination, cancellation, settlement or compromise by a Group Company of a right, debt or claim owed to it; (e) any incurrence, creation, assumption, repayment, satisfaction, or discharge of (A) any material Lien (other than Permitted Liens) or (B) any Indebtedness or guarantee, or the making of any loan or advance (other than reasonable and normal advances to employees for bona fide expenses that are incurred in the ordinary course of business consistent with its past practice), or the making of any investment or capital contribution; (f) any material amendment to or termination of any Material Contract, any entering of any new Contract that would have been a Material Contract if in effect on the date hereof, or any amendment to or waiver under any Charter Document; (g) any change in any compensation arrangement or Contract with any employee of any Group Company, or adoption of any new Benefit Plan, or any material change in any existing Benefit Plan; (h) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) any Equity Security of the Company or any of its SubsidiariesGroup Company, or any direct or indirect issuance, transfer, redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or Equity Security by any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any SubsidiaryGroup Company; (i) any increase damage, destruction or loss to the properties or assets of any Group Company, whether or not covered by insurance valued; (j) any material change in salary, rate of commissions, rate of consulting fees accounting methods or practices or any other compensation material revaluation of any current of its assets; (k) any change in the approved or former officer, director, shareholder, manager, member, employee or consultant registered business scope of the any Group Company or any Subsidiary; change to any Consent or permits held by such Group Company; (iil) any payment of consideration commencement or settlement of any nature whatsoever Action; (m) any authorization, sale, issuance, transfer, pledge or other disposition of any Equity Securities of any Group Company; (n) any resignation or termination of any Key Employee or any material group of employees of any Group Company; (o) any transaction with any Related Party (other than salaryas previously contracted); (p) any making, commissions change or consulting fees paid revocation of any material Tax election, any entry into any closing agreement or settlement or compromise of any audit, claim, assessment or dispute for Taxes, consent to any current extension or former officer, director, shareholder, manager, member, employee or consultant waiver of the limitation period applicable to any claim or assessment in respect of any Tax, any change (or request to any Tax authority to change) of any accounting period or method of accounting of any Group Company for Tax purposes; (q) any adoption of, resolution to approve or petition or similar proceeding or order in relation to, a plan of complete or partial liquidation, dissolution, scheme of arrangement, merger, consolidation, restructuring, recapitalization or other reorganization of any Group Company; (r) any receiver, trustee, administrator or other similar Person appointed in relation to the affairs of any Group Company or anyits property; or (s) any agreement or commitment to do any of the foregoing.

Appears in 1 contract

Samples: Share Purchase Agreement (Bitdeer Technologies Group)

Absence of Changes. Since Except as contemplated hereby or reflected in ------------------ the Audited Financial Statement Date, except as Latest Balance Sheet or set forth in on Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 5.20 of the Disclosure Schedule, since the Latest Balance Sheet Date there has not occurred since the Audited Financial Statement Datebeen: (a) any declarationdamage to or destruction or loss in excess of One Hundred Thousand Dollars ($100,000) in the aggregate of the assets, setting aside properties, rights or payment interests of the Company or any of its Subsidiaries used in its respective Business, whether or not covered by insurance; (b) increases in the salary, bonus or other compensation payable to any current or former officer, employee, manager or director of the Company or any Subsidiary other than in the Ordinary Course of Business; (c) any hiring of any dividend employees, except in the ordinary course of business and consistent with past practice; (d) any adoption, grant, extension or increase to the rate or terms of any bonus, insurance, pension or other distribution employee benefit plan, payment or arrangement made to, for, or with any manager or employee or any other benefits payable in respect any other form by the Company or any Subsidiary except increases required by Applicable Law; (e) any entry into, modification or termination of any Contract involving a total remaining commitment of at least One Hundred Thousand Dollars ($100,000) other than in the Ordinary Course of Business, or receipt of notice of termination of any Material Contract; (f) any increase in the aggregate indebtedness for borrowed money or any increase in purchase commitments or other Liabilities incurred by the Company or any of its Subsidiaries, nor has the Company or any of its Subsidiaries issued or assumed, guaranteed or endorsed any debt securities or otherwise as an accommodation become responsible for, the obligations of any other Person, nor has there been any change in any assumption underlying, or method of calculating, any bad debt, contingency or other reserve, except for liabilities, commitments and obligations incurred in the Ordinary Course of Business; (g) any Lien created on any of the capital stock assets of the Company or any of its Subsidiaries other than Permitted Liens; (h) any sale, assignment, transfer or equity interests) other disposition or license of any assets of the Company or any of its Subsidiaries, or any direct or indirect redemptionother than the sale, purchase assignment, transfer or other disposition of obsolete equipment in the Ordinary Course of Business; (i) any acquisition or lease of any assets valued, in the aggregate, in excess of One Hundred Thousand Dollars ($100,000), other than in the Ordinary Course of Business; (j) any amendment, termination or waiver by the Company or any of its Subsidiaries of any such capital stock right of substantial value belonging to it; (k) any amendment of the certificate of formation or equity interests) operating agreement of or any Option with respect to the Company or any of its Subsidiaries; (bl) except any discussions, negotiations or agreement with respect to any collective bargaining agreement or union representation of any of the Company's employees; (m) any capital expenditure or commitment for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition a capital expenditure by the Company or any Subsidiary of its Subsidiaries not fully paid for; (n) any shares powers of capital stock attorney granted (other than powers of attorney granted in the Ordinary Course of Business with respect to Tax matters or powers granted for the sole purpose of executing the documents contemplated by this Agreement); (o) any merger or consolidation with, or purchase of all or a part of the assets of, or Option with respect to, the Company other acquisition of any business or any Subsidiaryproprietorship, firm, association, partnership, corporation or any modification other business organization or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiarydivision thereof; (ip) any increase change in salary, rate any methods of commissions, rate of consulting fees accounting or accounting practice other than those required by changes in GAAP; (q) any other compensation transaction entered into of any current or former kind with any officer, director, shareholder, manager, member, employee manager or consultant member of the Company or any Subsidiary; of its Subsidiaries; (iir) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of agreement by the Company or anyany of its Subsidiaries to do any of the foregoing; or (s) a Company Material Adverse Effect.

Appears in 1 contract

Samples: Membership Interest Purchase Agreement (Jones Lang Lasalle Inc)

Absence of Changes. Since the Audited Financial Statement Balance Sheet Date, except as set forth in Section 2.9 of Schedule 5.19, the Disclosure Schedule or as disclosed Company has conducted its operations in the SEC Documents filed prior to the date hereof, ordinary course and there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any declarationmaterial adverse change in the business, setting aside operations, properties, condition (financial or other), assets, liabilities (contingent or otherwise), results or prospects of the Company; (b) any damage, destruction or loss (whether or not covered by insurance) materially adversely affecting the properties or business of the Company, individually or in the aggregate; (c) any change in the authorized capital stock of the Company or in its outstanding securities or any change in the respective Stockholders' ownership interests in the Company or any grant of any options, warrants, calls, conversion rights or commitments; (d) any declaration or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition of any of the capital stock of the Company; (e) any increase in the compensation payable or to become payable by the Company to the Stockholders or any of its Subsidiaries of any such capital stock (officers, directors, employees, consultants or equity interests) of or any Option agents, except for ordinary and customary bonuses and salary increases for employees in accordance with respect to the Company or any of its Subsidiariespast practice, which bonuses and salary increases are set forth in Schedule 5.19; (bf) except for the executionany significant work interruptions, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby labor grievances or thereby, claims filed; (g) any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiarytransfer, or any modification agreement to sell or amendment transfer, any material assets, properties or rights of the Company to any right of person, including, without limitation, the Stockholders and their Affiliates; (h) any holder of any outstanding shares of capital stock ofcancellation, or Option with respect toagreement to cancel, any indebtedness or other obligation owing to the Company or any SubsidiaryCompany; (i) any increase in salarythe Company's indebtedness, rate other than accounts payable incurred in the ordinary course of commissionsbusiness, rate consistent with past practices or incurred in connection with the transactions contemplated by this Agreement; (j) any plan, agreement or arrangement granting any preferential rights to purchase or acquire any interest in any of consulting fees the assets, property or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant rights of the Company or requiring consent of any Subsidiary; party to the transfer and assignment of any such assets, property or rights; (iik) any payment purchase or acquisition of, or agreement, plan or arrangement to purchase or acquire, any property, rights or assets outside of consideration the ordinary course of the Company's business; (l) any waiver of any nature whatsoever (other than salary, commissions material rights or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant claims of the Company; (m) any material breach, amendment or termination of any material contract, agreement, Permit or other right to which the Company is a party or anyany of its property is subject; or (n) any other material transaction by the Company outside the ordinary course of business.

Appears in 1 contract

Samples: Acquisition Agreement (Quanta Services Inc)

Absence of Changes. Since Except as set out in Appendix A-4-25, since the Audited Financial Statement Date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as required by this Agreement or disclosed in Section 2.9 any other schedule or appendix hereto, Dragon and the Dragon Subsidiaries have carried on their Business and conducted their operations and affairs only in the Ordinary Course and neither Dragon nor any of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:Dragon Subsidiaries has (a) made or suffered any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries;Material Adverse Change, (b) suffered any damage, destruction or loss (whether or not covered by insurance) affecting their Assets, (c) incurred any liability, obligation, indebtedness or commitment (whether accrued, absolute, contingent or otherwise, and whether due or to become due), other than unsecured current liabilities, obligations, indebtedness and commitments incurred in the Ordinary Course, (d) paid, discharged or satisfied any Encumbrance, liability, obligation, indebtedness or commitment of Dragon or a Dragon Subsidiary (whether accrued, absolute, contingent or otherwise, and whether due or to become due) other than payment of accounts payable and tax liabilities incurred in the Ordinary Course of its Business, (e) declared, set aside or paid any dividend or made any other distribution with respect to any of their shares, or redeemed, repurchased or otherwise acquired, directly or indirectly, any such shares, (f) issued or sold or entered into any Contract for the issuance or sale of any of their shares, or securities convertible into or exercisable for shares in the capital of any of, Dragon or a Dragon Subsidiary, except for the executionissuance or sale of shares or securities issued pursuant to existing share option plans or agreements, (g) suffered any labour trouble or disruption, delivery and performance by including any strike or lock out, that adversely affected them, (h) made any sale, assignment, transfer or disposition or granted any Encumbrance on, to or over any of their Assets, other than sales of products to customers in the Company Ordinary Course of this Agreement and their Business, (i) made any write-down of the Operative Agreements, and the transactions contemplated hereby or thereby, value of any authorization, issuance, sale or other disposition by the Company inventory or any Subsidiary write-off as uncollectible of any shares of capital stock of, or Option with respect to, the Company their Accounts Receivable or any Subsidiaryportion thereof in amounts exceeding $100,000 in the aggregate, (j) cancelled any debts or Claims or made any amendment, termination or any modification or amendment waiver of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, value to it in an amount exceeding $100,000 in the Company or any Subsidiary;aggregate, (ik) made any general increase in the compensation of its employees or any increase in salaryany such compensation or bonus payable to any of its officers, rate employees, consultants or agents (having an annual salary or remuneration in excess of commissions$30,000), rate executed any employment agreement with any officer or employee (having an annual salary or remuneration in excess of consulting fees $30,000) or made any other compensation loan to, or engaged in any transaction with, any of its employees, officers or directors, (l) made any current capital expenditures or former officercommitments in excess of $100,000 in the aggregate, (m) made any change in its accounting, directorcosting, shareholdertax practices or depreciation or amortization policies or rates, (n) terminated, managercancelled or modified, memberin any Material respect, employee or consultant received any notice of a request for termination, cancellation or modification of, in any Material respect, any Material Contract of Dragon or a Dragon Subsidiary, or (o) authorized or agreed to or otherwise committed to do any of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Share Purchase Agreement (Dragon Pharmaceuticals Inc)

Absence of Changes. Since During the Audited Financial Statement period commencing on the Signing Date and ending at the Registration Date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed Company shall conduct its business in the SEC Documents filed prior to ordinary course of business consistent with the date hereof, there has past practice and shall not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datehave: (a) suffered any declarationMaterial Adverse Effect; (b) incurred, setting aside assumed, guaranteed or discharged any indebtedness, Encumbrance, claim, commitment, obligation or liability, absolute, accrued, contingent or otherwise, to any third party and Governmental Entity, including but not limited to China-Singapore Suzhou Industrial Park Development Co., Ltd., whether due or to become due, except for (i) current liabilities for trade or business obligations incurred in connection with the purchase of goods or services in the ordinary course of business consistent (in amount and kind) with past practice and (ii) the payment of such current liabilities; (c) sold, transferred, leased or licensed to others or otherwise disposed of, or purchased or acquired any material assets, property, business or assets, tangible or intangible, except for products sold or acquired in the ordinary course of business consistent with past practice, or canceled or compromised any debt, claim, commitment, obligation or liability or waived or released any right of substantial value, other than in the ordinary course of business consistent (in amount and kind) with past practice, and not material in the aggregate; (d) terminated, cancelled, materially modified or received any notice of termination of any Material Contract; (e) made any material loans, advances or capital contributions to, or investments in, any Person; (f) suffered any damage, destruction or loss (which is not covered by insurance) relating to the liabilities and obligations arisen out of any products or services provided, manufactured or sold by Company before the Registration Date such as warranty obligations and product liabilities, due to (i) the Company’s performance of any agreement for the purchase or lease of materials, supplies, goods, services, equipment or other assets before the Registration Date, and (ii) the Company’s performance of any sales, distribution or other similar agreement providing for the sale by the Company of materials, supplies, goods, services, equipment or other assets before the Registration Date, in any case or in the aggregate in excess of US$100,000; Execution copy August 6, 2007 (g) (i) assigned, transferred or granted any rights under, or entered into any agreement or settlement regarding the substantial breach, misappropriation, infringement or violation of, any Intellectual Property, or substantially modified any existing rights with respect thereto or (ii) settled or compromised any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Intellectual Property, in any case or in the aggregate in excess of US$200,000; (h) made any increase in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or paid or agreed or promised to pay (in either case in writing or orally), 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 present or former director, officer, employee or consultant, of any of the Company, except for any increase, payment or agreement or promise to pay in the ordinary course of business consistent (in amount and kind) with past practice; (i) made any change in its accounting, auditing or tax methods, practices or principles, except to the extent required by PRC GAAP or Applicable Laws; (j) committed, suffered, permitted or incurred any transaction or event which would substantially increase its liability relating to Taxes other than in the ordinary course of business and consistent with past practice; (k) paid or agreed to pay any substantial legal, accounting, brokerage, finder’s fee, Taxes or other expenses in connection with, or incurred any severance pay obligations by reason of the Transaction Documents or the transactions contemplated thereby that have not been paid or will not be fully paid and discharged at or prior to the Registration Date; (l) deferred or agreed to defer payment of any payables or accelerated or agreed to accelerate the collection of any receivables in excess of US$100,000; (m) made any grant of credit to any customer or distributor on terms materially more favorable than had been extended to that customer or distributor in the past; (n) amended its Organizational Documents or merged with or into or consolidated with any other Person, subdivided, combined or changed or agreed to change in any manner the character of its business; (o) declared, promised or made any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company Transferor in any materially different manner or made any substantial change whatsoever in its capital structure other than that in the ordinary course of its Subsidiariesbusiness consistent (in amount and kind) with past practice; (bp) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) loaned or advanced substantial money or other property to any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current present or former officer, director, shareholder, manager, memberofficer, employee or consultant of the Company or any Subsidiary; Company, (ii) established, adopted, entered into, substantially amended or terminated any payment of consideration of any nature whatsoever Benefit Plan, collective labor agreement (other than salaryas may be required by the terms of an existing Benefit Plan or collective labor agreement, commissions or consulting fees paid as may be required by Applicable Law), or (iii) granted Execution copy August 6, 2007 any equity or equity-based awards to any current present or former officer, director, shareholder, manager, memberofficer, employee or consultant of the Company Company; or (q) taken any action or anyomitted to take any action that would result in the occurrence of any of the foregoing.

Appears in 1 contract

Samples: Equity Interests Transfer Agreement (Advanced Semiconductor Engineering Inc)

Absence of Changes. (a) Since the Audited Financial YTD Statement Date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, change in the Business financial condition or Condition in the results of operations, business, properties or assets of the Company. None of the other representations or warranties . (b) Except as set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements Schedule 3.13 and except as disclosed in Section 2.9 for the discharge of liabilities and distribution of capital incident to the Disclosure ScheduleCompany’s winding up activities, there has not occurred since the Audited Financial YTD Statement Date, the Company has operated its business only in the ordinary course of business consistent with past practice and has not: (ai) amended its Certificate or Articles of Incorporation, Bylaws or other charter or organizational document, or merged with or into or consolidated with any declarationother Person, setting aside subdivided or payment in any way reclassified any shares of its capital stock or changed or agreed to change in any manner the rights of its outstanding capital stock; (ii) issued or sold any capital stock or other equity interest or any bonds, debentures, notes, debt instruments, evidences of indebtedness or other securities of any dividend or other distribution in respect of the capital kind, including, without limitation, any stock (or equity interests) of the Company appreciation rights, options, warrants, calls or any other rights of its Subsidiaries, any kind to purchase or otherwise receive an equity interest; (iii) made any direct or indirect redemption, retirement, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of its capital stock of, or Option with respect to, the Company other equity interest or any Subsidiarybonds, debentures, notes, debt instruments, evidences of indebtedness or other securities of any kind; (iv) incurred any indebtedness for borrowed money or entered into any commitment to borrow money or guarantee any liability for borrowed money; (v) made any change in its accounting or reserving methods or practices; (vi) allowed the creation of any Lien on any of its tangible or intangible assets or property, or any modification sale, transfer, assignment, lease or amendment abandonment of any right interest in any of any holder its tangible or intangible assets or property, other than sales, transfers, assignments and leases in the ordinary course of any outstanding shares of capital stock of, or Option business consistent with respect to, the Company or any Subsidiarypast practice; (ivii) entered into any contract, commitment or transaction resulting in the imposition of liabilities or obligations not fully reserved and provided for in the YTD Financial Statements; (viii) made any acquisition of all or any substantial part of the assets, properties, securities or business of any other Person; (ix) increased or agreed to increase in any salary, rate wages, bonus, severance, compensation, pension or other benefits payable or to become payable, or granted any severance or termination payments or benefits, to any of commissions, rate of consulting fees or any other compensation of any its current or former officerofficers, directordirectors, shareholderemployees, managerconsultants, memberagents or other representatives; or (x) entered into any contract, employee commitment or consultant transaction to do any of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Stock Purchase Agreement (Patriot Risk Management, Inc.)

Absence of Changes. Since Except as and to the Audited Financial Statement Date, except as set forth in Section 2.9 of the Disclosure Schedule or as extent publicly disclosed in the Company SEC Documents filed prior to Reports, since the date hereofAudit Date, the Company and its subsidiaries have conducted their business in the ordinary and usual course consistent in all material respects with past practice and there has not been been: (a) any material adverse changeevent, or any event occurrence or development which, individually which does or together with other such events, could would reasonably be expected to result in a material adverse changehave, individually or in the Business or Condition of aggregate, a Material Adverse Effect on the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:; (ab) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of capital stock of the capital stock (or equity interests) of the Company or any of its SubsidiariesCompany, or any direct or indirect redemptionrepurchase, purchase retirement, redemption or other acquisition by the Company or any of its Subsidiaries subsidiary of any Company securities; (c) any amendment of any term of any outstanding security of the Company or any subsidiary that would materially increase the obligations of the Company or such capital stock subsidiary under such security; (d) (i) any incurrence or assumption by the Company or any subsidiary of any indebtedness for borrowed money other than (A) under existing credit facilities (or equity interestsany renewals, replacements or extensions that do not increase the aggregate commitments thereunder) (x) in the ordinary and usual course of business consistent in all material respects with past practice (it being understood that any indebtedness incurred prior to the date hereof in respect of capital expenditures shall be considered to have been in the ordinary and usual course of business consistent with past practice) or (y) in connection with (1) any acquisition or capital expenditure permitted by Section 5.1 or (2) the transactions contemplated hereby or (B) borrowings by any direct or indirect wholly-owned subsidiaries of the Company from a direct or indirect parent of such subsidiary, in the ordinary course of business consistent in all material respects with past practice, or (ii) any guarantee, endorsement or other incurrence or assumption of liability (whether directly, contingently or otherwise) by the Company or any Option subsidiary for the obligations of any other person (other than any wholly owned subsidiary of the Company), other than in the ordinary and usual course of business consistent in all material respects with past practice; (e) any creation or assumption by the Company or any subsidiary of any Lien on any material asset of the Company or any subsidiary, other than in the ordinary and usual course of business consistent in all material respects with past practice and other than Permitted Liens (as defined herein); (f) any making of any loan, advance or capital contribution to or investment in any person by the Company or any subsidiary, other than (i) any acquisition permitted by Section 5.1, (ii) loans, advances or capital contributions to or investments in wholly owned subsidiaries of the Company, (iii) loans or advances to employees of the Company or any subsidiary made in the ordinary and usual course of business consistent in all material respects with past practice or (iv) any of such made in connection with the investment portfolio activities of any subsidiary of the Company made in the ordinary course of business consistent in all material respects with the investment policies and strategies of the Company and its subsidiaries as disclosed in writing to Parent prior to the date hereof (the "INVESTMENT GUIDELINES"); (i) any contract or agreement entered into by the Company or any subsidiary on or prior to the date hereof relating to any material acquisition or disposition of any assets or business or (ii) any modification, amendment, assignment, termination or relinquishment by the Company or any subsidiary of any contract, license or other right (including any insurance policy naming it as a beneficiary or a loss payable payee) that does or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect on the Company, other than, in the case of (i) and (ii), transactions, commitments, contracts or agreements in the ordinary and usual course of business consistent in all material respects with past practice and those contemplated by this Agreement; (h) any material change in any policy, practice or principle for financial or Tax accounting purposes or otherwise of the Company or any subsidiary with respect to accounting, reserving, hedging, tax, financial reporting, actuarial, investing or otherwise engaging in derivatives transactions, underwriting or claims administration, including any material change in any method of calculating or estimating any bad debt, contingency, insurance, or other reserve for financial reporting purposes or for any other tax or accounting purpose (other than any change required by reason of a change in applicable Law, GAAP or SAP); (i) any (i) grant of any severance or termination pay to any director, officer or employee of the Company or any of its Subsidiariessubsidiaries; (ii) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any director, officer or employee of the Company or any of its subsidiaries; (iii) increase in benefits payable under any existing severance or termination pay policies or employment agreements; or (iv) increase in compensation, bonus or other benefits payable to directors, officers or employees of the Company or any of its subsidiaries other than, in the case of clause (iv) only, increases prior to the date hereof in compensation, bonus or other benefits payable to employees of the Company or any of its subsidiaries in the ordinary and usual course of business consistent in all material respects with past practice for amounts not in excess of $50,000 for any employee, as disclosed in the Section 3.6 of the Company Disclosure Schedule, or merit increases in salaries of employees at regularly scheduled times in customary amounts consistent in all material respects with past practices in amounts not to exceed $50,000 for any employee; (bj) except for any making or revocation of any Tax election that could reasonably be expected to have, individually or in the executionaggregate, delivery and performance by a Material Adverse Effect on the Company or any compromise of this Agreement and any material Tax liability or any waiver or extension of the Operative Agreements, and the transactions contemplated hereby statute of limitations in respect of any material Taxes; or (k) agreement (whether written or thereby, any authorization, issuance, sale or other disposition oral) by the Company or any Subsidiary of its subsidiaries to do any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Merger Agreement (Leucadia National Corp)

Absence of Changes. Since Except as disclosed in the Audited ALHC Financial Statement Date, except Statements or as set forth in Section 2.9 3.11 of the ALHC Disclosure Schedule or as disclosed Schedule, since the ALHC Balance Sheet Date, ALHC and ALHC Subsidiaries have conducted their business only in the SEC Documents filed Ordinary Course of Business and ALHC has not: (i) amended or otherwise modified its Governing Documents; (ii) issued or sold or authorized for issuance or sale, or granted any options or warrants or amended or modified in any respect any previously granted option or warrant or made other agreements (other than this Agreement) of the type referred to in Section 3.4 with respect to, any shares of its capital stock or any other of its securities, or altered any term of any of its outstanding securities or made any change in its outstanding shares of capital stock or other ownership interests or its capitalization, whether by reason of a reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, stock dividend or otherwise or redeemed, purchased or otherwise acquired any of its or AUSA’s capital stock or agreed to do any of the foregoing (whether or not legally enforceable); (iii) recorded or accrued any item of revenue, except as a result of the provision of services in the Ordinary Course of Business and consistent with prior practice; (iv) incurred any indebtedness for borrowed money, entered into any lease that should be capitalized in accordance with GAAP or subjected to any encumbrance or other restriction any of its properties, business or assets except encumbrances or other restrictions that could not reasonably be expected to have a Material Adverse Effect; (v) discharged or satisfied any encumbrance, or paid any obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due, other than current liabilities shown on ALHC Balance Sheet as of the ALHC Balance Sheet Date and current liabilities incurred since that date hereofin the Ordinary Course of Business and consistent with prior practice; (vi) sold, there has not been transferred, leased to others or otherwise disposed of any material adverse changeproperties or assets or purchased, leased from others or otherwise acquired any material properties or assets except in the Ordinary Course of Business; (vii) canceled or compromised any debt or claim or waived or released any right of substantial value; (viii) terminated or received any notice of termination of any contract, lease, license or other agreement or any Governmental License, or suffered any event damage, destruction or development which, individually loss (whether or together with other such events, not covered by insurance) that could reasonably be expected to result in have a material adverse change, Material Adverse Effect; AGREEMENT AND PLAN OF MERGER (ix) made any change in the Business rate of compensation, commission, bonus or Condition other remuneration payable, or paid, agreed, or promised (in writing or otherwise) to pay, provide or modify, conditionally or otherwise, any bonus, extra compensation, pension, severance or vacation pay or any other benefit or perquisite of any other kind, to any director, officer, employee, salesman or agent of ALHC or any of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoingALHC Subsidiaries, except as expressly contemplated hereby in the Ordinary Course of Business consistent with prior practice and by the Operative Agreements and except as pursuant to or in accordance with plans disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests3.11(a) of the Company ALHC Disclosure Schedule that were in effect as of the ALHC Balance Sheet Date; (x) made any increase in or commitment (whether or not legally enforceable) to increase or communicated any intention to increase any employee benefits, adopted or made any commitment to adopt any additional employee benefit plan or made any contribution, other than regularly scheduled contributions, to any ALHC Plan (as defined in Section 3.14); (xi) lost the employment services of a senior manager or other employee of equal or higher ranking; (xii) made any loan or advance to any Person other than travel and other similar routine advances in the Ordinary Course of Business consistent with past practice, or acquired any capital stock or other securities of any other corporation or any ownership interest in any other business enterprise; (xiii) instituted, settled or agreed to settle any material litigation, action or proceeding before any court or governmental body relating to ALHC or its properties or assets; (xiv) entered into any transaction, contract or commitment other than in the Ordinary Course of its SubsidiariesBusiness; (xv) changed any accounting practices, policies or any direct or indirect redemption, purchase or other acquisition by procedures utilized in the Company or any preparation of its Subsidiaries of any such capital stock ALHC Financial Statements (or equity interests) of or any Option including procedures with respect to the Company revenue recognition, payment of accounts payable or collection of accounts receivable); or (xvi) entered into any agreement or made any commitment to take any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company types of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; action described in subparagraphs (i) any increase in salary, rate through (xv) of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anythis Section 3.11.

Appears in 1 contract

Samples: Merger Agreement (Access Plans USA, Inc.)

Absence of Changes. Since the Audited Financial Statement Datedate of the Balance Sheet through the date hereof, (a) no Company Material Adverse Effect has occurred, and (b) without limiting the generality of the foregoing, except as set forth in Section 2.9 4.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth expressly provided for in this Agreement shall be deemed to limit Agreement, neither the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 Company nor any of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Dateits Subsidiaries has: (a) any declarationdeclared, setting set aside or payment of paid any dividend dividends on, or made any other distribution distributions (whether in cash, shares or property) in respect of any of its Equity Securities, or split, combined or reclassified any of its Equity Securities, or issued or authorized the capital stock issuance of any other securities in respect of, in lieu of or in substitution for its Equity Securities; (b) repurchased, redeemed or otherwise acquired, directly or indirectly, any of its Equity Securities (or equity interestsoptions, warrants or other rights exercisable therefor) other than pursuant to the terms of any Share Restriction Agreement; (c) issued, granted, delivered or sold any of its Equity Securities or any subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any kind or character obligating it to issue, grant, deliver or sell any such Equity Securities or other convertible securities convertible into Company Shares, in each case, other than the issuance of Company Ordinary Shares pursuant to the exercise of Company Options or Company Warrants; (d) amended, restated or otherwise modified its Organizational Documents; (e) acquired or agreed to acquire by merging or consolidating with, or by purchasing any assets or Equity Securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquired or agreed to acquire any assets that are material, individually or in the aggregate, to the Company’s or its Subsidiaries’ respective businesses; (f) sold, leased, licensed or otherwise disposed of any of its properties or assets (other than sale, lease, license or other disposition of any immaterial properties or assets of the Company or its Subsidiaries that were made in the ordinary course of business consistent with past practice), including the sale of any accounts receivable of the Company or granted or otherwise created or consented to the creation of any easement, covenant, restriction, assessment or charge materially affecting any owned property or leased property or any part thereof; (g) conveyed, assigned, subleased, licensed, exchanged, mortgaged, granted, subjected to any Encumbrance or otherwise transferred all or any portion of any owned property or leased property or any interest or rights therein, other than conveyance, assigns, subleases, licenses or other transfers (i) of any immaterial properties (or interest or rights therein) of the Company or its Subsidiaries and (ii) that were made in the ordinary course of business consistent with past practice); (h) adopted a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization; (i) paid any Indebtedness (other than (i) as expressly required by and in compliance with the required payment terms thereof and (ii) the payment of trade debt in the ordinary course of business consistent with past practice), or incurred any Indebtedness or guaranteed any Indebtedness or issued or sold any debt securities or guarantee any debt securities or other obligations of any third parties; (j) made any loans to any third party (other than loans or advances to employees for travel and business expenses in the ordinary course of business consistent with past practice) or purchased debt securities of a third party or amended the terms of any outstanding loan agreement; (k) paid, discharged, satisfied or made any expenditure or enter into any commitment or transaction obligating the Company or any of its Subsidiaries to make payments in an amount exceeding $20,000 individually or $50,000 in the aggregate (other than the payment of rent, payroll and interest obligations on Indebtedness of the Company or any of its Subsidiaries in the ordinary course of business and consistent with past practice); (l) (i) sold, licensed or transferred to any Person any rights to any Company Intellectual Property or Company Licensed Intellectual Property or entered into any agreement with respect to any Company Intellectual Property with any Person or with respect to any Intellectual Property of any Person (other than nonexclusive licenses to Company Intellectual Property or Company Licensed Intellectual Property pursuant to Contracts for the sale or license of Company Products in the ordinary course of business pursuant to the Company’s or its Subsidiaries’, as applicable, unmodified standard customer Contract, the form or a copy of which has been made available to Buyer), (ii) bought or licensed any Intellectual Property or entered into any agreement with respect to the material Intellectual Property of any Person, (iii) entered into any agreement with respect to the development of any material Intellectual Property with a third party, or (iv) materially changed pricing or royalties charged by the Company or its Subsidiaries to, or any other financial terms of any Contract or other arrangement with, any of its customers, distributors, resellers, or licensees, or the pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or its Subsidiaries; (m) terminated, entered into or materially amended, waived, or modified the terms of any Material Contract; (n) entered into, renewed or materially amended any Affiliate Agreement; (o) commenced, settled or compromised any litigation; (p) (i) made any change in any of its methods, principles or practices of accounting or made any material reclassification of assets or liabilities, except as may be required by applicable Law or GAAP, or (ii) revalued any of the Company’s or its Subsidiaries’ assets (whether tangible or intangible), including writing off notes or accounts receivable, settle, discount or compromise any accounts receivable, or reverse any reserves other than in the ordinary course of business and consistent with past practice; (q) failed to manage its assets and liabilities, including by: (i) delaying or postponing the payment of accounts payable or accrued expenses outside the ordinary course of business, (ii) accelerating the collection of, or discounting, accounts receivable outside the ordinary course of business or factoring any accounts receivable, (iii) changing cash management policies, or (iv) engaging in any discounts or price reductions or altering the extension of credit terms to any customer, in each case substantially in excess of historic levels; (r) committed to make any capital expenditures that were not completed and fully paid prior to the Calculation Time in an aggregate amount in excess of $100,000; (s) made or changed any Tax election, adopted or changed any Tax accounting method, entered into any closing agreement in respect of Taxes, settle any claim or assessment relating to Taxes, consented to any extension or waiver of the limitation period applicable to any claim or assessment relating to Taxes; (t) changed any of the Company’s or its Subsidiaries’ accounting policies or procedures, including with respect to reserves for doubtful accounts, or payment or collection policies or practices; (u) amended any privacy policy of the Company or any of its Subsidiaries, or published any direct or indirect redemption, purchase or other acquisition by the Company or any new privacy policy of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (bv) except for engaged in any purchase or sale of any interest in real property, granted any security interest in any real property, agreed to lease, sublease, license or otherwise occupy any real property, or materially altered, amended, modified, violated or terminated any of the executionterms of any Real Property Lease; (w) (i) hired, delivery and performance by the Company of this Agreement and the Operative Agreementsoffered to hire or terminated any employees, and the transactions contemplated hereby or thereby, encourage any authorization, issuance, sale or other disposition by employees to resign from the Company or any Subsidiary of any shares of capital stock ofits Subsidiaries, or Option with respect toin each case other than as contemplated by this Agreement, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) granted any payment of consideration severance or termination pay (in cash or otherwise) to any Employee, including any officer, or (iii) paid or agreed to pay any special bonus or special remuneration to any director or Employee, or increased or agreed to increase the salaries, wage rates, or other compensation or benefits of any nature whatsoever Employee, in each case, excluding as expressly provided in the Employment Agreements; or (other than salaryx) engaged in or entered into any material transaction or commitment, commissions or consulting fees paid to relinquished any current or former officermaterial right, director, shareholder, manager, member, employee or consultant outside the ordinary course of the Company Company’s or anyany of its Subsidiaries’ business consistent with past practice.

Appears in 1 contract

Samples: Share Purchase Agreement

Absence of Changes. Since the Audited Financial Statement Latest Balance Sheet Date, the Company and the Subsidiaries have conducted the Business only in the ordinary course consistent with past practice and, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof3.1(s), there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (ai) any change in the assets, liabilities, financial condition, properties, business or operations of the Company or the Subsidiaries, other than changes occurring in the ordinary course of business consistent with past practices; (ii) any Lien placed on any of the properties of the Company or the Subsidiaries, other than Permitted Liens; (iii) any damage, destruction or loss, whether or not covered by insurance, to any material property or right of the Company or any Subsidiary; (iv) any declaration, setting aside or payment of any dividend distribution by the Company, or the making of any other distribution distribution, in respect of the capital stock (or equity interests) of the Company or any of its SubsidiariesUnits, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries own equity interests; (v) any resignation, termination or removal of any such capital stock (or equity interests) officer of or any Option with respect to the Company or any the Subsidiaries, material loss of its personnel of the Company or the Subsidiaries, or change in the terms and conditions of the employment of the Company’s or the Subsidiaries’ officers or key personnel; (bvi) any amendment or termination of, or waiver under, any Material Contract, except as otherwise contemplated by this Agreement; (vii) any acquisition or disposition of property, other than sales of Company Products in the ordinary course of business, for a purchase or sale price in excess of $50,000; (viii) any sale, disposition, transfer or license to any Person of any Company Intellectual Property (other than in the execution, delivery ordinary course of business consistent with past practice); or any acquisition or license from any Person of any Intellectual Property (other than “shrink wrap” and performance by similar generally available commercial end-user licenses to software that is not redistributed with the Company of this Agreement and Products); (ix) any material change in the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by manner in which the Company or any Subsidiary of extends discounts, credits or warranties to customers or otherwise deals with its customers; or (x) any shares of capital stock ofagreement or understanding whether in writing or otherwise, or Option with respect to, for the Company or the Subsidiaries to take any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; actions specified in paragraphs (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; through (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyix).

Appears in 1 contract

Samples: Merger Agreement (Solta Medical Inc)

Absence of Changes. Since the Audited Financial Statement DateDecember 31, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof2020, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in Material Adverse Effect. Without limiting the Business or Condition generality of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed set forth on Section 3.07 in Section 2.9 of the Disclosure Schedule, there has not occurred except in connection with the transactions contemplated by this Agreement, since December 31, 2020, the Audited Financial Statement DateCompany and its Subsidiaries have conducted their business in the ordinary course of business in all material respects and neither the Company nor any of its Subsidiaries has: (a) any declarationamended its certificate or articles of incorporation or formation, setting aside bylaws or payment limited liability company agreement (or equivalent Organizational Documents); (b) sold, transferred, assigned, conveyed, leased, licensed, pledged, encumbered or otherwise disposed of any dividend of its assets or other distribution properties except in respect the ordinary course of business; (c) canceled any debts owed to the capital stock (Company or equity interests) any of its Subsidiaries, or waived, compromised or released any material claims or rights in favor of the Company or any of its Subsidiaries, except for cancellations made or waivers granted in the ordinary course of business; (d) made any loan to any Person, other than loans to a Subsidiary of the Company, advancements of expenses made to Employees, directors, consultants and advisors and prepayments made to vendors, in each case in the ordinary course of business; (e) purchased, leased or acquired the right to own, use or lease, the assets, properties or business of any Person (including by merger, consolidation, acquisition of equity interest or assets, or otherwise) for a value in excess of $1,000,000 per acquisition or lease, or $3,000,000 in the aggregate for all such acquisitions or leases (excluding capital expenditures, leases and purchases or acquisitions of raw material, inventory or equipment, in each case, in the ordinary course of business); (f) incurred any Indebtedness of the type described in clauses (i), (ii), (iii), or (v) of the definition of “Indebtedness,” or assumed, guaranteed or endorsed or otherwise became responsible for, any Indebtedness of the type described in clauses (i), (ii), (iii), or (v) of the definition of “Indebtedness,” of any other Person in excess of $100,000 in the aggregate, other than (i) borrowings under any revolving facility under the Credit Agreement or any direct credit card line of credit and the accrual of interest on amounts outstanding, and (ii) capital leases, in each case, in the ordinary course of business; (g) mortgaged, pledged or indirect redemptionsubjected to any Lien (other than Permitted Liens), purchase any portion of its assets or its equity interests; (h) other acquisition than shares of Company Stock issued upon the exercise of an Option, issued, pledged, redeemed, sold or otherwise disposed of any of its equity interests; (i) made any material capital expenditures or commitments therefor, except in the ordinary course of business, or failed to make any material expenditures in connection with the normal maintenance, repair and replacement of the material assets used in connection the operation of its business in accordance with its past custom and practice; (j) materially changed its accounting methodologies, practices, estimation techniques, assumptions and principles, except as required by Law or GAAP; (k) granted or paid any material increase in the base compensation, or made any material change in the benefits provided to, of any of its directors, officers or Employees or individual independent contractors with an annual base salary greater than $150,000, other than in the ordinary course of business or as required by Law or existing contractual arrangement and other than any bonus or similar payments the payment of which would be reflected in the determination of Cash or Company Transaction Expenses; (l) adopted, amended or terminated any material Employee Benefit Plan for the benefit of any of its directors, officers or Employees, other than in the ordinary course of business or as required by Law and other than any bonus or similar payments the payment of which would be reflected in the determination of Cash or Company Transaction Expenses; (m) settled or compromised any Action against the Company or any of its Subsidiaries (i) that would involve or involved payment by the Company or any of its Subsidiaries of $500,000 in the aggregate, or (ii) that would impose any such capital stock (material restrictions on the business or equity interests) operations of or any Option with respect to the Company or any of its Subsidiaries; (bn) except suffered any material loss or destruction to its assets or properties material to the operation of its business (whether or not covered by insurance); (o) made any loan, investment or advance to, guaranteed for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock benefit of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or entered into any other compensation transaction (other than relating to the payment of compensation, benefits and expense reimbursements and lease payments in the ordinary course of business) with, any current or former officer, director, shareholder, manager, member, employee or consultant Stockholder of the Company or any Subsidiary; of their respective members, directors, managers, officers or Employees or any Affiliate thereof; (iip) made any material change to its cash management practices or its policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, inventory control, prepayment of expenses, payment of consideration trade accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits; (q) entered into any nature whatsoever master services agreement, blanket agreement or similar agreement that would constitute a Major Contract; (r) cancelled or terminated any insurance policy, and no insurance policy has been cancelled by any insurer; or (s) entered into any binding agreement or commitment to do any of the foregoing (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anythis Agreement).

Appears in 1 contract

Samples: Merger Agreement (Southwest Gas Holdings, Inc.)

Absence of Changes. Since the Audited Financial Statement Date, except Except as expressly contemplated by this Agreement or as set forth in Section 2.9 of Schedule 6.7, since the Disclosure Schedule or as disclosed Reference Balance Sheet Date, the Parent Companies have operated their businesses in the SEC Documents filed prior to the date hereof, Ordinary Course of Business and there has not been any material adverse change, or been: (1) any event or development which, individually series of events that has had or together with other such events, could that would reasonably be expected to result in have a material adverse changeParent Material Adverse Effect; (2) any acquisition by any Parent Company (i) by merging or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any business or any corporation, partnership, joint venture, limited liability company, association or other business organization or division thereof, or (ii) of any assets that are material, individually or in the Business or Condition of aggregate, to the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In additionParent Companies, without limiting the foregoingtaken as a whole, except as expressly contemplated hereby purchases of inventory and by raw materials in the Operative Agreements and except as disclosed in Section 2.9 Ordinary Course of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:Business; (a3) any declarationsale, setting aside lease, license, pledge or other disposition of any material asset of any Parent Company other than in the Ordinary Course of Business; (4) any amendment to any Parent Charter Documents (other than the Parent Charter Amendment which is contemplated to occur on or prior to the Closing Date); (5) (i) except for the Pre-Closing Dividend, any declaration or payment of any dividend dividends or other distribution in respect of any capital stock or other equity securities of any Parent Company (other than dividends and distributions by a wholly owned Subsidiary of the Parent to its parent), (ii) any split, combination or reclassification of any of the capital stock (or other equity interests) securities of Parent or issuance or authorization for the Company issuance of any other securities in respect of, in lieu of, or in substitution for shares of its capital stock or any other equity security, or the grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any shares of its Subsidiariescapital stock or any other equity securities other than as shown on Schedule 6.3, or (iii) any direct or indirect redemptionpurchase, purchase redemption or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of its capital stock of, or Option with respect to, the Company or any Subsidiary, other equity securities or any modification rights, warrants or amendment of options to acquire any right of any holder of any outstanding such shares of capital stock of, or Option with respect to, the Company or any Subsidiaryother equity securities; (i6) any increase amendment, modification, rescission, termination, waiver or release of any Parent Material Contract; (7) any Lien placed on any of the material assets or properties of any Parent Company other than Permitted Liens or purchase money or similar security interests in connection with the purchase of inventory or equipment in the Ordinary Course of Business; (8) any resignation, termination or removal of any officer or key employee of any Parent Company or change in the terms and conditions (including salary, rate bonus, severance and benefit terms) of commissions, rate of consulting fees or any other compensation the employment of any current officers or former officer, director, shareholder, manager, member, key employee or consultant of the any Parent Company or the establishment of any Subsidiary; new employee benefit plan or program or the amendment of any existing employee benefit plan or program (iiincluding, in each case, deferred compensation and bonus plans); (9) any payment of consideration of change in any nature whatsoever accounting policies, procedures or methods; (10) any transaction with any Affiliate (other than salary, commissions a Subsidiary of Parent) other than in the Ordinary Course of Business; or (11) any agreement or consulting fees paid understanding to take any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyactions specified in subsections (1)-(10) above.

Appears in 1 contract

Samples: Merger Agreement (DST Systems Inc)

Absence of Changes. Since the Audited Financial Statement Balance Sheet Date, except as set forth in Section 2.9 of Schedule 5.19, the Disclosure Schedule or as disclosed Company has conducted its operations in the SEC Documents filed prior to the date hereof, ordinary course and there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any declarationmaterial adverse change in the business, setting aside operations, properties, condition (financial or other), assets, liabilities (contingent or otherwise) or results of the Company; (b) any damage, destruction or loss (whether or not covered by insurance) materially adversely affecting the properties or business of the Company, individually or in the aggregate; (c) any change in the authorized capital stock of the Company or in its outstanding securities or any change in the respective Stockholder's ownership interests in the Company or any grant of any options, warrants, calls, conversion rights or commitments; (d) any declaration or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition of any of the capital stock of the Company; (e) any increase in the compensation payable or to become payable by the Company to the Stockholders or any of its Subsidiaries of any such capital stock (the Company's officers, directors, employees, consultants or equity interests) of or any Option agents, except for ordinary and customary bonuses and salary increases for employees in accordance with respect to the Company or any of its Subsidiariespast practice, which bonuses and salary increases are set forth in Schedule 5.19; (bf) any significant work interruptions, labor grievances or labor- related claims filed; (g) except for dispositions of assets, properties and rights in the execution, delivery and performance by the Company ordinary course of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, business consistent with past practices any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiarytransfer, or any modification agreement to sell or amendment transfer, any material assets, properties or rights of the Company to any right person, including, without limitation, any of the Stockholders and their Affiliates; (h) any holder of any outstanding shares of capital stock ofcancellation, or Option with respect toagreement to cancel, any indebtedness for borrowed money or other obligation owing to the Company or any SubsidiaryCompany; (i) any increase in salarythe indebtedness for borrowed money of the Company, rate other than accounts payable incurred in the ordinary course of commissionsbusiness, rate consistent with past practices or incurred in connection with the transactions contemplated by this Agreement; (j) except for dispositions of consulting fees assets, properties and rights in the ordinary course of business consistent with past practices, any plan, agreement or arrangement granting any other compensation preferential rights to purchase or acquire any interest in any of any current the assets, property or former officer, director, shareholder, manager, member, employee or consultant rights of the Company or requiring consent of any Subsidiary; party to the transfer and assignment of any such assets, property or rights; (iik) any payment purchase or acquisition of, or agreement, plan or arrangement to purchase or acquire, any property, rights or assets outside of consideration the ordinary course of the Company's businesses; (l) any waiver of any nature whatsoever (other than salary, commissions material rights or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant claims of the Company; (m) any material breach, amendment or termination of any Material Contract, Permit or other right to which the Company is a party or anyany of its property is subject; or (n) any other material transaction by the Company outside the ordinary course of business.

Appears in 1 contract

Samples: Acquisition Agreement (Quanta Services Inc)

Absence of Changes. Since the Audited Financial Company Statement Date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed Company has conducted its business in the SEC Documents filed prior to the date hereof, Ordinary Course consistent with past practice and there has not been any material adverse changebeen: (i) Any change in the assets, liabilities, financial condition or any event or development whichoperations of the Company from that reflected in the Company Financial Statements, other than changes in the Ordinary Course of Business, none of which individually or together with other such events, could in the aggregate has had or is reasonably be expected to result in have a material adverse change, in the Business Materially Adverse Effect; (ii) Any resignation or Condition termination of any key officers of the Company. None , and the Company, to the best of its Knowledge, does not know of the other representations impending resignation or warranties set forth termination of employment of any such officer; (iii) Any change in this Agreement shall be deemed the contingent obligations of the Company by way of guaranty, endorsement, indemnity, warranty or otherwise; (iv) Any cancellation, compromise or waiver by the Company of a valuable right or of a material debt owed to limit it; (v) Any direct or indirect loans made by the foregoing. In additionCompany to any stockholder, without limiting employee, officer or director of the foregoingCompany; (vi) Any change in any compensation arrangement or agreement with any employee, officer, director or stockholder, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:herein; (avii) any declaration, setting aside Any declaration or payment of any dividend or other distribution in respect of the capital stock (or equity interests) assets of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or redemption of any of its Subsidiaries of any such capital stock (or outstanding equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (bviii) except for the executionAny debt, delivery and performance obligation or liability incurred, assumed or guaranteed by the Company Company, except those for immaterial amounts; (ix) Any sale, transfer or lease of this Agreement and the Operative Agreementsassets of the Company; (x) Any physical damage, and the transactions contemplated hereby destruction or thereby, any authorization, issuance, loss (whether or a Materially Adverse Effect; (xi) Any issuance or sale or other disposition by the Company or any Subsidiary of any shares of the capital stock of, or Option with respect to, other securities of the Company or grant of any Subsidiaryoptions with respect thereto, or any modification or amendment of any right of any holder of any outstanding shares of the capital stock of, or Option with respect to, of the Company or any SubsidiaryCompany; (xii) Any mortgage, pledge or lien incurred with respect to any of the assets (tangible or intangible) of the Company; (xiii) Any discharge, satisfaction or payment of any obligation or liability other than current liabilities reflected in the Company Financial Statements and current liabilities incurred since the Company Statement Date, in each case in the Ordinary Course of Business; (xiv) Any transaction entered into by the Company other than in the Ordinary Course of Business; (xv) Any other event or condition of any character that, either individually or in the aggregate, has had or is reasonably likely to have a Materially Adverse Effect ; or (xvi) Any agreement by the Company to do any of the things described in the preceding clauses (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; through (iixv) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of an agreement with Parent and its representatives regarding the Company or anytransactions contemplated by this Agreement.)

Appears in 1 contract

Samples: Merger Agreement (Synergy 2000 Inc)

Absence of Changes. Since the Audited Financial Statement DateDecember 31, except as set forth in Section 2.9 1998 and until closing of the Disclosure Schedule or as disclosed this agreement, BRIGHT has conducted its business in the SEC Documents filed prior to the date hereof, ordinary course and there has not been been: (i) any material adverse changeMaterial Adverse Effect on the business, financial condition, liabilities, or assets of BRIGHT or any event development or development which, individually or together with other such events, could combination of developments of which management of BRIGHT has knowledge which is reasonably be expected likely to result in such an effect; (ii) any damage, destruction or loss, whether or not covered by insurance, having a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: Material Adverse Effect on BRIGHT; (aiii) any declaration, setting aside or payment of any dividend or other distribution (whether in respect of the capital stock (or equity interests) of the Company or any of its Subsidiariescash, stock, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interestsproperty) of or any Option with respect to the Company capital stock of BRIGHT; (iv) any increase or change in the compensation or benefits payable or to become payable by BRIGHT to any of its Subsidiaries; employees, except in the ordinary course of business consistent with past practice; (bv) any sale, lease, assignment, disposition, or abandonment of a material amount of property of BRIGHT, except for in the executionordinary course of business; (vi) any increase or modification in any bonus, delivery and performance by the Company of this Agreement and the Operative Agreementspension, and the transactions contemplated hereby or thereby, any authorization, issuance, sale insurance or other disposition by employee benefit plan, payment or arrangement made to, for, or with any of its employees; (vii) the Company granting of stock options, restricted stock awards, stock bonuses, stock appreciation rights and similar equity based awards; (viii) any resignation or any Subsidiary termination of employment of any shares officer of capital stock ofBRIGHT; and BRIGHT, to the best of its knowledge, does not know of the impending resignation or termination of employment of any such officer; (ix) any merger or consolidation with another entity, or Option with respect to, acquisition of assets from another entity except in the Company ordinary course of business; (x) any loan or advance by BRIGHT to any Subsidiaryperson or entity, or guaranty by BRIGHT of any modification loan or advance; (xi) any amendment or termination of any contract, agreement, or license to which BRIGHT is a party, except in the ordinary course of business; (xii) any mortgage, pledge, or other encumbrance of any asset of BRIGHT; (xiii) any waiver or release of any right or claim of BRIGHT, except in the ordinary course of business; (xiv) any holder of write off as uncollectible any outstanding shares of capital stock ofnote or account receivable or portion thereof-, or Option with respect to, the Company or any Subsidiary; (ixv) any increase in salary, rate of commissions, rate of consulting fees or agreement by BRIGHT to do any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anythings described in this Section.

Appears in 1 contract

Samples: Acquisition Agreement (Homelife Inc)

Absence of Changes. Since Except as disclosed in the Audited notes to the AUSA Financial Statement Date, except Statements or as set forth in Section 2.9 2.11 of the AUSA Disclosure Schedule or as disclosed Schedule, since the AUSA Balance Sheet Date, each of AUSA and the AUSA Subsidiaries has conducted its business only in the SEC Documents filed Ordinary Course of Business, and AUSA has not: (i) amended or otherwise modified its Governing Documents; (ii) issued or sold or authorized for issuance or sale, or granted any options or warrants or amended or made other agreements (other than this Agreement) of the type referenced in Section 2.4 with respect to, any shares of its capital stock or any other of its securities, or altered any term of any of its outstanding securities or made any change in its outstanding shares of capital stock or other ownership interests or its capitalization, whether by reason of a reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, stock dividend or otherwise or redeemed, purchased or otherwise acquired any of its or ALHC’s capital stock or agreed to do any of the foregoing (whether or not legally enforceable); (iii) recorded or accrued any item of revenue, except as a result of the provision of services or sale of products in the Ordinary Course of Business and consistent with prior practice; (iv) incurred any indebtedness, other than in conjunction with the insurance agent commission advances, in conjunction with a lending transaction or entered into any lending arrangements, entered into any lease that should be capitalized in accordance with GAAP or subjected to any encumbrance or other restriction any of its properties, business or assets except encumbrances or other restrictions that could not reasonably be expected to have a Material Adverse Effect; (v) discharged or satisfied any Encumbrance, or paid any obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due, other than current liabilities shown on the AUSA Balance Sheet as of the AUSA Balance Sheet Date and current liabilities incurred since that date hereofin the Ordinary Course of Business and consistent with prior practice; (vi) sold, there has not been transferred, leased to others or otherwise disposed of any material adverse changeproperties or assets or purchased, leased from others or otherwise acquired any material properties or assets except in the Ordinary Course of Business; (vii) canceled or compromised any debt or claim or waived or released any right of substantial value; (viii) terminated or received any notice of termination of any contract, lease, license or other agreement or any Governmental License, or suffered any event damage, destruction or development which, individually loss (whether or together with other such events, not covered by insurance) that could reasonably be expected to result in have a material adverse change, Material Adverse Effect; (ix) made any change in the rate of compensation, commission, bonus or other remuneration payable, or paid, agreed, or promised (in writing or otherwise) to pay, provide or modify, conditionally or otherwise, any bonus, extra compensation, pension, severance or vacation pay or any other benefit or perquisite of any other kind, to any director, officer, employee, salesman or agent of AUSA except in the Ordinary Course of Business consistent with prior practice and pursuant to or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as accordance with plans disclosed in Section 2.9 2.14 of the AUSA Disclosure Schedule, there has not occurred since Schedule that were in effect as of the Audited Financial Statement AUSA Balance Sheet Date:; (ax) made any declarationincrease in or commitment (whether or not legally enforceable) to increase or communicated any intention to increase any employee benefits, setting aside adopted or payment made any commitment to adopt any additional employee benefit plan or made any contribution, other than regularly scheduled contributions, to any AUSA Plan (as defined in Section 2.14); (xi) lost the employment services of a senior manager or other employee of equal or higher ranking; (xii) made any loan or advance to any Person other than travel and other similar routine advances in the Ordinary Course of Business consistent with past practice, or acquired any capital stock or other securities of any dividend other corporation or any ownership interest in any other distribution business enterprise; (xiii) instituted, settled or agreed to settle any material litigation, action or proceeding before any court or governmental body relating to AUSA or its properties or assets; (xiv) entered into any transaction, contract or commitment other than in respect the Ordinary Course of Business; (xv) changed any accounting practices, policies or procedures utilized in the preparation of the capital stock AUSA Financial Statements (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option including procedures with respect to the Company revenue recognition, payment of accounts payable or collection of accounts receivable); or (xvi) entered into any agreement or made any commitment to take any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company types of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; action described in subparagraphs (i) any increase in salary, rate through (xv) of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anythis Section 2.11.

Appears in 1 contract

Samples: Merger Agreement (Access Plans Inc)

Absence of Changes. Since the Audited Financial Statement Balance Sheet Date, Company and each Subsidiary has conducted its business in the ordinary course and, except as contemplated herein or as set forth in Section 2.9 of the Disclosure on Schedule or as disclosed in the SEC Documents filed prior to the date hereof6.25, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any declarationmaterial adverse change in the financial condition, setting aside assets, liabilities (contingent or otherwise), income or business of Company or any Subsidiary; (b) any damage, destruction or loss (whether or not covered by insurance) adversely affecting the properties or business of Company or any Subsidiary; (c) any change in the authorized capital of Company or any Subsidiary or in its outstanding securities or any change in its ownership interests or any grant of any options, warrants, calls, conversion rights or commitments; (d) any declaration or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiariesstock, or any direct or indirect redemption, purchase or other acquisition by the Company or of any of its Subsidiaries of any such the capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary (except for dividends or distributions to Company by a Subsidiary); (e) any increase in the compensation, bonus, sales commissions or fee arrangements payable or to become payable by Company or any Subsidiary to any of its officers, directors, stockholders, employees, consultants or agents, except for ordinary and customary bonuses and salary increases for employees in accordance with past practice; (f) any work interruptions, labor grievances or claims filed, or any similar event or condition of any shares of capital stock ofcharacter, which has had a Material Adverse Effect; (g) any sale or transfer, or Option with respect toany agreement to sell or transfer, any material assets, property or rights of Company or any Subsidiary to any person, including without limitation the Stockholder and her affiliates; (h) any cancellation, or agreement to cancel, any indebtedness or other obligation owing to Company or any Subsidiary, including without limitation any indebtedness or obligation of the Stockholder and her affiliates, provided that Company or any modification Subsidiary may negotiate and adjust bills in the course of good faith disputes with customers in a manner consistent with past practice; (i) any plan, agreement or amendment arrangement granting any preferential rights to purchase or acquire any interest in any of the assets, property or rights of Company or any Subsidiary or requiring consent of any right party to the transfer and assignment of any holder of such assets, property or rights; (j) any outstanding shares of capital stock purchase or acquisition of, or Option with respect toagreement, plan or arrangement to purchase or acquire, any property, rights or assets outside of the ordinary course of business of Company or any Subsidiary; (ik) any increase in salary, rate of commissions, rate of consulting fees or any other compensation waiver of any current material rights or former officer, director, shareholder, manager, member, employee or consultant claims of the Company or any Subsidiary; ; (iil) any payment of consideration breach, amendment or termination of any nature whatsoever material contract, agreement, license, permit or other right to which Company or any Subsidiary is a party; (m) any transaction by Company or any Subsidiary outside the ordinary course of business; (n) any capital commitment by Company or any Subsidiary, either individually or in the aggregate, exceeding $10,000; (o) any change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by Company or any Subsidiary or the revaluation by Company or any Subsidiary of any of its assets; (p) any creation or assumption by Company of any mortgage, pledge, security interest or lien or other encumbrance on any asset (other than salaryliens arising under existing lease financing arrangements which are not material and liens for Taxes not yet due and payable); (q) any entry into, commissions amendment of, relinquishment, termination or consulting fees paid non-renewal by Company or any Subsidiary of any contract, lease transaction, commitment or other right or obligation requiring aggregate payments by Company and its Subsidiaries in excess of $25,000; (r) any loan by Company or any Subsidiary to any current person or former officerentity, directorincurring by Company, shareholderof any indebtedness, managerguaranteeing by Company or any Subsidiary of any indebtedness, memberissuance or sale of any debt securities of Company or any Subsidiary or guaranteeing of any debt securities of others; (s) the commencement or notice or, to the knowledge of Company or any Subsidiary, threat of commencement, of any lawsuit or proceeding against, or investigation of, Company or any Subsidiary or any of their respective affairs; or (t) any negotiation or agreement by Company or any Subsidiary or any officer or employee or consultant thereof to do any of the Company or anythings described in the preceding clauses (a) through (s) (other than negotiations with Genesis and its representatives regarding the transactions contemplated by this Agreement).

Appears in 1 contract

Samples: Merger Agreement (Genesisintermedia Com Inc)

Absence of Changes. Since the Audited Financial Statement Datedate of the Company Balance Sheet, except the Group Companies have conducted their respective businesses in all material respects in the Ordinary Course of Business consistent with their past practices. Except as set forth in on Section 2.9 2.6 of the Company Disclosure Schedule Schedule, after the date of the Company Balance Sheet and on or before the date hereof: (a) there has not been any change, event, circumstance or condition to the Knowledge of the Company that, individually or in the aggregate, has had, or would reasonably be expected to have, a Company Material Adverse Effect; (b) except as required as a result of a change in applicable Laws or IFRS or as disclosed in the SEC Documents filed prior notes to the date hereofCompany Financial Statements, there has not been any material adverse change, change in any method of accounting or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and accounting practice by the Operative Agreements and except as disclosed in Section 2.9 of Company Taiwan Subsidiary; (c) the Disclosure Schedule, there has not occurred since the Audited Financial Statement DateGroup Companies have not: (ai) any declarationdeclared, setting accrued, set aside or payment of paid any dividend or made any other distribution in respect of the any shares of capital stock (stock; or equity interests) of the Company repurchased, redeemed or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of otherwise reacquired any shares of capital stock or other securities (except for Company Ordinary Shares from terminated employees of the Company); (ii) other than as contemplated by the Merger, sold, issued or granted, or authorized the issuance of, or Option with respect to, made any commitments to do any of the Company or foregoing of: (A) any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock ofor other security, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration option, warrant or right to acquire any capital stock or any other security, or (iii) any instrument convertible into or exchangeable for any capital stock or other security; (iii) amended the Company Memorandum, Company Articles or other charter or organizational documents of any nature whatsoever of the Group Companies; (iv) formed any Subsidiary or acquired any equity interest or other interest in any other Person; (v) lent money to any Person; incurred or guaranteed any Indebtedness for borrowed money; issued or sold any debt securities or options, warrants, calls or other rights to acquire any debt securities; guaranteed any debt securities of others; (vi) made any capital expenditure or commitment in excess of $100,000; (vii) made, changed or revoked any material Tax election; filed any material amendment to any Tax Return; filed any Tax Return in a manner inconsistent with past practice, adopted or changed any material accounting method in respect of Taxes; changed any annual Tax accounting period; entered into any Tax allocation agreement, Tax sharing agreement or Tax indemnity agreement, other than salary, commissions or consulting fees paid commercial contracts entered into in the Ordinary Course of Business and the primary purpose of which does not relate to Taxes; entered into any closing agreement with respect to any material Tax Liability; settled or compromised any claim, notice, audit report or assessment in respect of any material Tax Liability; applied for or entered into any ruling from any Taxing Authority with respect to Taxes; surrendered any right to claim a refund of a material amount of Taxes; or consented to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment; (viii) entered into, amended or terminated any Company Material Contract, or amended or terminated any material Company Permit, or apply for any new material Permit under applicable Health Care Laws; (ix) commenced a lawsuit other than for routine collection of bills; (x) failed to make any material payment with respect to any of the Group Companies’ accounts payable or Indebtedness in a timely manner in accordance with the terms thereof and consistent with past practices; (xi) incurred any Liability not expressly permitted pursuant to clauses (i) through (xii) of this Section 2.6(c); or (xii) agreed to take or take any of the actions specified in clauses (i) through (xi) of this Section 2.6(c). (d) there has not been any: (i) grant of or increase in any severance or termination pay to any employee, director or other service provider of any of the Group Companies, (ii) entry into any employment, consulting, deferred or equity compensation, retention, change in control, transaction bonus, severance or other similar plan or agreement (or any amendment to any such existing agreement) with any new or current employee, director or former officerother service provider of any if the Group Companies, director(iii) change in the compensation, shareholderbonus or other benefits payable or to become payable to the directors, managerofficers, memberemployees or consultants of any of the Group Companies, employee except in the Ordinary Course of Business consistent with past practice, or consultant as required by any pre-existing plan or arrangement set forth in Section 2.6(d) of the Company Disclosure Schedule, (iv) action to accelerate the vesting or anypayment of any compensation or benefit to any employee or other service provider of any of the Group Companies, (v) adoption, modification or termination of any Company Employee Program other than as required by applicable Law, or (vi) termination of any of the officers or key employees of any of the Group Companies; (e) none of the Group Companies has acquired or sold, pledged, leased, granted any Encumbrance or otherwise disposed of any material property or assets or agreed to do any of the foregoing except in the Ordinary Course of Business; (f) other than the grant of non-exclusive licenses in the Ordinary Course of Business, there has been no transfer (by way of a license or otherwise) of, or agreement to transfer to, any Person’s rights to any of the Company Intellectual Property; (g) there has been no notice delivered to the Company or its Subsidiaries of any claim of ownership by a third party of any of the Company Intellectual Property, or of infringement by any of the Group Companies of any Third Party Intellectual Property; and (h) there has not been any binding agreement to do any of the foregoing.

Appears in 1 contract

Samples: Merger Agreement (Windtree Therapeutics Inc /De/)

Absence of Changes. Since the Audited Financial Statement Latest Balance Sheet Date, except as set forth in Section 2.9 of on Schedule 5.8, the Disclosure Schedule or as disclosed Company and the NY Subsidiary have been operated in the SEC Documents filed prior to the date hereofordinary course, consistent with past practice, and there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any material adverse change in the business, operations, assets, condition (financial or otherwise), operating results, liabilities, general relations with employees, customers or suppliers of the Company or the NY Subsidiary (taken as a whole) or any material casualty loss or damage to the assets of the Company or the NY Subsidiary (taken as a whole), whether or not covered by insurance (a "Material Adverse Change"); (b) except for intercompany payments in the ordinary course of business, any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the capital stock (or equity interests) of the Company or any of its Subsidiariesthe NY Subsidiary, or any direct or indirect redemption, purchase or other acquisition by of any thereof, or any other payments of any nature outside the ordinary course of business to any Affiliate of the Company or any of its Subsidiaries of any such capital stock (the NY Subsidiary whether or equity interests) of not on or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, of the Company or the NY Subsidiary owned by such Affiliate (excluding salaries and benefits in ordinary course consistent with past practices at rates equal to those in effect on the Latest Balance Sheet Date); (c) any general uniform increase in the compensation of employees (including, without limitation, any increase pursuant to any bonus, pension, profit-sharing or other plan or commitment) of the Company or the NY Subsidiary, or any modification increase in any such compensation payable to any officer, director or amendment of key management employee; (d) any right of any holder of any outstanding shares of capital stock of, change in the tax or Option with respect to, other accounting methods or practices followed by the Company or the NY Subsidiary, any Subsidiarychange in depreciation or amortization policies or rates previously adopted or any write-up of inventory or other assets; (ie) any increase material change in salary, rate of commissions, rate of consulting fees the manner in which products or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant services of the Company or the NY Subsidiary are marketed (including, without limitation, any Subsidiary; change in prices), any material change in the manner in which the Company or the NY Subsidiary extends discounts or credit to customers or any material change in the manner or terms by which the Company or the NY Subsidiary collects its accounts receivable or otherwise deals with customers; (iif) any payment of consideration of failure by the Company or the NY Subsidiary to make scheduled capital expenditures or investments or any nature whatsoever (failure to pay trade accounts payable or any other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant Liability of the Company or anythe NY Subsidiary in the ordinary course consistent with past practices; (g) any agreement, whether in writing or otherwise, to take any of the actions specified in the foregoing clauses (a) through (f).

Appears in 1 contract

Samples: Stock Purchase Agreement (Personnel Group of America Inc)

Absence of Changes. Since the Audited Financial Statement Date, except as set forth in Section 2.9 of the Disclosure Schedule or Except as disclosed on the Certain Changes Schedule, since August 31, 2004 through the date of this Agreement, the Acquired Company and the Subsidiaries have conducted their businesses only in the SEC Documents filed prior to the date hereof, ordinary course consistent with past practice and there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Dateany: (a) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of capital stock of the capital stock (or equity interests) of the Company or any of its SubsidiariesAcquired Company, or any direct or indirect repurchase, redemption, purchase retirement or other acquisition by the Acquired Company of any outstanding shares of capital stock, or other securities of, or other equity or ownership interests in, the Acquired Company or any of its Subsidiaries of any such other capital stock (contribution to or equity interests) of or any Option with respect to investment in the Company or any of its SubsidiariesAcquired Company; (b) except for incurrence of any Encumbrance (other than any Permitted Lien or the executionEncumbrance of Assets pursuant to the Senior Secured Credit Facility, delivery and performance the PBGC Settlement Agreement or this Agreement) or the incurrence of any Liability other than Liabilities incurred since the date of the balance sheet contained in the Most Recent Financial Statements in the ordinary course of business consistent with past practice; (c) incurrence, assumption or guarantee by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Acquired Company or any Subsidiary of any shares indebtedness for borrowed money other than (i) borrowings in the ordinary course of business pursuant to the Senior Secured Credit Facility; and (ii) the incurrence, assumption or guarantee by the Acquired Company or a Subsidiary of any indebtedness for borrowed money on behalf of or for the benefit of any Affiliate or any other Subsidiary as permitted (and forgiven, discharged, released, cancelled (including by way of capital stock ofcontribution) or paid) pursuant to Section 5.07; (d) making of any loan, advance or capital contribution to, or Option with respect investment in, any Person other than (i) the making of any loan, advance or capital contribution to, or investment in, any Affiliated Medical Group or other third-party medical group contracting with the Acquired Company or any SubsidiarySubsidiary in the ordinary course of business consistent with past practice, (ii) the making of any loan, advance or capital contribution, or investment in, any Affiliate to the extent permitted pursuant to Section 5.07, or (iii) the making of any advance to any employee, consultant or independent contractor of the Acquired Company or any Subsidiary in the ordinary course of business consistent with past practice; (e) sale (other than sales or other dispositions of equipment deemed surplus or obsolete in the ordinary course of business), lease, pledge, transfer or other disposition of any material Asset or any Asset having a depreciated book value or estimated fair market value in excess of $250,000, individually, or $500,000, in the aggregate, other than the sale of accounts receivable in the ordinary course of business consistent with past practice; (f) (i) payment by the Acquired Company or any Subsidiary of any bonus or other similar non-recurring compensation (including severance or termination pay)(other than the payment of annual bonuses or other compensation in the ordinary course of business or as otherwise previously disclosed in writing to Purchaser) or increase by the Acquired Company or any Subsidiary of any bonus, salary or other compensation (including severance or termination pay) to any Management Level Employee or director of the Acquired Company or any Subsidiary (other than as previously disclosed in writing to Purchaser); (ii) increase by the Acquired Company or any Subsidiary of any bonus (other than such increases made on an annual basis in the ordinary course of business), salary or other compensation (including severance or termination pay) to any employee (other than any Medical Professional) of the Acquired Company or any Subsidiary (other than any increases to employees (other than Management Level Employees) which do not exceed 0.5% in the aggregate to all employees of the Acquired Company and the Subsidiaries); and (iii) entry into any employment, severance, management, consulting, deferred compensation or similar Contract with any employee of the Acquired Company or any Subsidiary (other than the entry into any Medical Professional Contract entered into in the ordinary course of business consistent with past practice or any Contract disclosed pursuant to Sections 3.15(a)(iv) and (v), which subsections are identified on the Contracts Schedule); (g) adoption of any Benefit Plan, or any modification increase in the benefits to or amendment payments under, any Benefit Plan that has resulted or would be reasonably expected to result in an increase in the aggregate costs of such benefits; (h) change in the accounting methods or principles used by the Acquired Company or any Subsidiary other than as required under any applicable Law or GAAP; (i) settlement or compromise of any right Proceeding with any Governmental Authority pursuant to which (A) there is a finding or admission of violation of Law, or (B) the settlement or compromise involves the imposition, through a corporate integrity agreement or otherwise, of any holder ongoing auditing, disclosure or reporting obligations or material changes in the conduct of any outstanding shares the Business on the part of capital stock of, or Option with respect to, the Acquired Company or any Subsidiary; (ij) any increase capital expenditure made, authorized or committed, except for such expenditures that are substantially consistent with and do not exceed the quarterly allocations in salarythe Capital Budget for the period commencing September 1, rate 2004 through the date of commissions, rate of consulting fees this Agreement; (k) change in the current assets or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant liabilities of the Acquired Company and the Subsidiaries, taken as a whole, other than in the ordinary course of business consistent with past practice; (l) change in profit sharing, bonus or other incentive compensation plans with Medical Professionals, except in the ordinary course of business consistent with past practice; or (m) agreement, whether oral or written, by the Acquired Company or a Subsidiary to do any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Stock Purchase Agreement (Laidlaw International Inc)

Absence of Changes. Since the Audited Financial Statement Date, except as set forth in Section 2.9 The business of the Disclosure Schedule or as disclosed Holding Company and the Management Entities has been conducted in the SEC Documents filed prior to the date hereof, ordinary course consistent with past practices and there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any event, occurrence, or development which has had or is reasonably expected to have a material adverse effect on the business, assets, liabilities, condition (financial or otherwise), prospects, or results of operations of the Company Entities; (b) any declaration, setting aside aside, or payment of any dividend or other distribution in with respect to any shares of capital stock of the capital stock (or equity interests) of the Company or any of its SubsidiariesHolding Company, or any direct or indirect redemptionrepurchase, purchase redemption or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Holding Company or any Subsidiary of any outstanding shares of capital stock or other securities of the Holding Company or any Subsidiary; (c) any issuance or sale of, or Option with respect togrant of an option, right of warrant to purchase, any equity interests of the Holding Company or any Subsidiary, or any modification security convertible into such equity interests, or an option warrant or right to acquire equity interests; (d) any amendment of any right of any holder term of any outstanding shares security of capital stock ofthe Holding Company or any Subsidiary; (e) any incurrence, assumption, or Option guarantee by the Holding Company or any Subsidiary of any Indebtedness for borrowed money; (f) any making of any loan, advance, or capital contributions to or investment in any Person by the Holding Company or any Subsidiary; (g) any transaction or commitment made, or any contract or agreement entered into, by the Holding Company or any Subsidiary relating to its assets or business, in either case, material to the Holding Company or any Subsidiary, other than transactions and commitments in the ordinary course of business consistent with respect to, past practices; (h) any change in any method of accounting or accounting practice by the Holding Company or any Subsidiary; (i) any increase (A) employment, deferred compensation, severance, retirement, change of control, retention or other similar agreement entered into by the Holding Company or any Subsidiary with any director, officer, or employee of the Holding Company or any Subsidiary (or any amendment to any such existing agreement), (B) grant of any severance, termination, retention, or change in control, pay by the Holding Company or any Subsidiary to any director, officer or employee of the Holding Company or any Subsidiary, or (C) change in compensation, salary, rate bonus or other benefits payable by the Holding Company or any Subsidiary to any director, officer, or employee of commissionsthe Holding Company or any Subsidiary, rate in each case other than with respect to employees who are not officers or directors in the ordinary course of consulting fees business consistent with past practices. (j) None of Sellers, the Holding Company, or any Subsidiary has amended, rescinded, or terminated (and not renewed) any existing material contract or arrangement, and no such material contract or arrangement has expired or terminated (and not been renewed) by its terms; (k) Neither the Holding Company nor any Subsidiary has made any capital expenditure (or series of related capital expenditures) that is either material or outside the ordinary course of business, or has acquired (by merger, consolidation, acquisition of stock or assets or otherwise) any corporation, partnership, other business organization or division or material assets thereof; (l) Neither Sellers, the Holding Company, nor any Subsidiary has sold, transferred, licensed, disposed of, or agreed to sell, transfer, license, or dispose of, any of its assets, properties, intellectual property rights or rights related to the business of the Company Entities, other than in the ordinary course of business consistent with past practice; (m) Neither Sellers, the Holding Company, nor any Subsidiary has created or incurred, or discharged, or satisfied any Lien (other than Permitted Liens) upon any of the assets or properties of the business of the Company Entities; (n) No material asset or property of the Holding Company or any Subsidiary has been destroyed, damaged, or otherwise lost (whether or not covered by insurance); (o) There has been no material revaluation by Sellers, the Holding Company or any Subsidiary of any of the assets or liabilities of the Holding Company or any Subsidiary, including without limitation, any material write-offs, material increases or decreases in any reserves or warranty expense, or any material write-up of the value of accounts receivable, inventory, property, plant, equipment or any other compensation asset; (p) Any acceleration of any current collection of accounts receivable or former officer, director, shareholder, manager, member, employee delay or consultant failure in the payment of accounts payable; (q) Any material changes in the facilities (including information technology infrastructure) of the Holding Company or any Subsidiary; and (iir) Neither Sellers, the Holding Company, nor any payment of consideration of Subsidiary has entered into any nature whatsoever commitment (other than salary, commissions contingent or consulting fees paid otherwise) to do any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Subscription Agreement

Absence of Changes. Since the Audited Financial Statement Date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof, there There has not been (i) any material or adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, change in the Business business, assets or Condition of the Company. None of the other representations condition, financial or warranties set forth in this Agreement shall be deemed to limit the foregoing. In additionotherwise, without limiting the foregoingoperation or prospects, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or Earthworks; (ii) neither the business, condition, operations nor prospects of the Company and/or Earthworks, nor any of their respective properties or assets has been adversely affected as a result of any legislative or regulatory change, any revocation or change in any franchise, license or right to do business, or any other event or occurrence, whether or not insured against; (iii) the Company has not issued any common membership interests or other limited liability company security or options, warrants or rights or agreements or commitments to purchase or issue such securities or grant such options, warrants or rights, (iv) the Company and/or Earthworks have not borrowed any amount or incurred or become subject to any liability (absolute, accrued or contingent), (v) the Company and/or Earthworks have not discharged or satisfied any lien or encumbrance or incurred or paid any obligation or liability (absolute, accrued or contingent), (vi) the Company and/or Earthworks have not declared or made any payment or distribution to members or purchased or redeemed any shares of its capital stock or other security, (vii) the Company and/or Earthworks have not mortgaged, pledged, encumbered or subjected to lien any of its Subsidiariesassets, tangible or intangible other than liens of current real property taxes not yet due and payable, (viii) the Company and/or Earthworks have not sold, assigned or transferred any of its tangible assets except in the ordinary course of business, or cancelled any debt or claim, (ix) the Company and/or Earthworks have not sold, assigned, transferred or granted any license with respect to any patents, trademarks, trade names, service marks, trade dress, copyrights, trade secrets, inventions, technology, know-how, confidential and proprietary information, computer software, domain names or other intangible asset (the “Intellectual Property”) related to the Z-Force Property, except for such Intellectual Property transferred from Earthworks to the Company, (x) the Company and/or Earthworks have not suffered any loss of property or waived any right of substantial value whether or not in the ordinary course of business, (xi) the Company and/or Earthworks have not made any commitments or change in key employee or officer compensation, (xii) the Company and/or Earthworks have not made any loan to any officer, manger or members of the Company or Earthworks, or any direct agreement or indirect redemptioncommitment therefore, purchase (xiii) the Company and/or Earthworks have not entered into any transaction except in the ordinary course of business or other acquisition as otherwise contemplated hereby, (xiv) the Company and/or Earthworks have not experienced any damage, destruction or loss (whether or not covered by insurance) adversely affecting its assets, property or business, (xv) the Company and/or Earthworks have not made any change in the accounting methods or practices followed by the Company or Earthworks, (xvi) the Company and/or Earthworks have not entered into or changed the terms of any material contract, agreement or instrument and (xvii) the Company and/or Earthworks have not entered into any commitment (contingent or otherwise) to do any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Interest Purchase Agreement (Baker Christopher P)

Absence of Changes. (a) Since the Audited Financial Statement Interim Balance Sheet Date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed Business has been conducted in the SEC Documents filed prior to the date hereof, Ordinary Course of Business and there has not been occurred any material adverse event, change, fact, condition, circumstance or any event or development whichoccurrence that, individually or together with other such eventsin the aggregate, has had, or that could reasonably be expected to result in have, a material adverse change, in Material Adverse Effect. (b) Since the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoingInterim Balance Sheet Date, except as expressly for the Carve-Out Transactions, the transactions contemplated hereby and by the Operative Agreements Labels Purchase Agreement, the transactions contemplated by the Canada Asset Purchase Agreement or the transactions contemplated by the Receipts Reorganization Documents, and except as disclosed in set forth on Section 2.9 4.7(b) of the Seller Disclosure ScheduleSchedules, there has not occurred since the Audited Financial Statement Date: neither any Group Company (a) nor any declaration, setting aside or payment of any dividend or other distribution Iconex Company in respect of the capital stock (Business, the Contributed Assets or equity interests) the Assumed Liabilities prior to the Reorganization or, to the Knowledge of Seller, after the Reorganization in respect of the Company Business on behalf of the Group Companies, the Contributed Assets or the Assumed Liabilities), have taken any of its Subsidiariesthe following actions: (i) amend the Organizational Documents of the Group Companies, effect any split, combination, reclassification or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option similar action with respect to the Company Acquired Interests or any other Equity Interests of the Group Companies or adopt or carry out any plan of complete or partial liquidation or dissolution; (ii) issue, sell, grant or otherwise dispose of any of the Acquired Interests, Equity Interests or other securities of the Group Companies, or amend any term of any of its Subsidiariesoutstanding Acquired Interests, or any other Equity Interests or other securities of the Group Companies; (biii) (A) repurchase, redeem, or otherwise acquire or cancel any of the Acquired Interests or any other Equity Interests of the Group Companies or (B) declare or pay any dividends or distributions on or in respect of any of its Equity Interests (except for the execution, delivery and performance (I) any dividend or distribution by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any a Subsidiary of any shares Group Company to such Group Company or (II) any cash dividend or distribution paid in full prior to the Closing); (iv) (A) change or revoke any material Tax election of capital stock the Group Companies, (B) adopt or change an annual accounting period or fiscal year end (whether for Tax purposes or otherwise), (C) adopt or change any accounting method with respect to Taxes, (D) amend any material Tax Return of the Group Companies, (E) enter into any closing agreement or settle any administrative proceeding or audit relating to material Taxes, (F) surrender any right to claim a refund of Taxes, (G) claim any Tax credits or (H) agree to waive or extend any statute of limitations period associated with the collection of any material Tax; (v) incur, assume, guarantee or otherwise become liable in respect of, or Option modify, any Indebtedness, except Indebtedness which will be paid in full (with respect to, all Encumbrances released) at or prior to Closing or Finance Lease Obligations incurred in the Company or any Subsidiary, or any modification or amendment Ordinary Course of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any SubsidiaryBusiness; (ivi) cause any increase of the Group Companies to (A) merge or consolidate with any Person, (B) acquire any material assets, except for acquisitions of assets that (I) were in salarythe Ordinary Course of Business and (II) were for amounts involving consideration of less than $100,000, rate or (C) make any loan, advance or capital contribution to, acquire any Equity Interests in, or otherwise make any investment in, any Person; (vii) permit any of commissions, rate of consulting fees or any other compensation its assets of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever Group Companies to become subject to an Encumbrance (other than salarya Permitted Encumbrance) or sell, commissions lease, license or consulting fees otherwise dispose of any of the assets of any of the Group Companies, other than sales of inventory or leases of equipment made in the Ordinary Course of Business; (viii) waive, cancel or assign any claims or rights except to the extent such waiver or cancelation occurs in the Ordinary Course of Business and is not material to any Group Company or the Business; (ix) (A) increase any benefits under any Company Benefit Plan or Iconex Benefit Plan (as in effect as of immediately prior to the Reorganization or to the Knowledge of Seller, after the Reorganization) or increase the compensation payable or paid under any Company Benefit Plan or Iconex Benefit Plan (as in effect as of immediately prior to the Reorganization or to the Knowledge of Seller, after the Reorganization), whether conditionally or otherwise, to any current or former employee, officer, manager, director, shareholderor individual independent contractor or other individual service provider of the Group Companies (or the Iconex Companies with respect to the Business prior to the Reorganization, or to the Knowledge of Seller, with respect to the Business on behalf of the Group Companies after the Reorganization), including any sole proprietorship or affiliated company, (B) enter into, adopt or amend any Contract that provides for bonus, severance or retention payments or change of control payments or benefits for which the Group Companies (or the Iconex Companies with respect to the Business prior to the Reorganization, or to the Knowledge of Seller, with respect to the Business on behalf of the Group Companies after the Reorganization) would be liable on or following the Closing, or (C) enter into, adopt or amend any Company Benefit Plan or Iconex Benefit Plan (as in effect as of immediately prior to the Reorganization or to the Knowledge of Seller, after the Reorganization); (x) enter into any Contract, providing for the employment or consultancy of any officer, manager, memberdirector, employee or consultant individual independent contractor of the Group Companies (or the Iconex Companies with respect to the Business prior to the Reorganization, or to the Knowledge of Seller, with respect to the Business on behalf of the Group Companies after the Reorganization), including any sole proprietorship or affiliated company, on a full-time, part-time, consulting or other basis providing for, (A) in the case of an employee, annual salary in excess of $100,000, or (B) in the case of a non-employee, annual cash payments in excess of $100,000; (xi) make any material change in its internal controls, its methods of accounting or accounting practices (including with respect to reserves), cash management practices or its policies, practices or procedures with respect to collection or recording of accounts receivable, establishment of reserves for uncollectible accounts, establishing credit, inventory control, prepayment of expenses, payment of trade accounts payable, accrual of other expenses, deferral of revenue, acceptance of customer deposits, payment practices or policies or its credit practices or policies; (xii) settle, agree to settle, waive or otherwise compromise any pending Action or, to the Knowledge of Seller, threatened Action, except to the extent such Action (A) does not involve potential payments by or to the Group Companies more than $100,000 following the Closing, (B) does not involve an admission of fault or liability, (C) does not impose any ongoing obligation on any Group Company (excluding customary confidentiality obligations as to the existence of such settlement, agreement, waiver or compromise) following the Closing, (D) does not involve any Government Entity, Major Customer or Major Supplier or (E) is not and would not otherwise reasonably be expected to be material to any Group Company or anythe Business; (xiii) cause any of the Group Companies to enter into any material new line of business or discontinue any material line of business or any material business operations; (xiv) other than with respect to (1) purchase orders entered into in the Ordinary Course of Business, (2) Contracts entered into to replace a Shared Contract using a form substantially the same as that agreed by Xxxxx and Seller prior to the Effective Date, (3) assignments or amendments necessary to assign a Restricted Contract using the form assignment and assumption agreement attached to the US Contribution Agreement, or (4) or termination of any services under the Transition Services Agreement that are no longer required by the Group Companies, enter into, renew, adopt, or modify or amend in material respect (including by accelerating material rights or benefits under), or waive any material right under, any Material Contract; (xv) except as required by Law or as provided in the US Employee Transition Agreement, adopt, enter into, modify, amend, or terminate any collective bargaining agreement or other labor agreement with any labor union or labor organization (including the CBA) or enter into or otherwise engage in any negotiations with or recognize any labor union, works council, or other labor organization as the bargaining representative of any employees of any Group Company (or the Iconex Companies with respect to the Business or any Business Employee); (xvi) implement any group employee layoffs or reductions-in-force of the Business Employees, terminate (other than for cause) any salaried Business Employee with base annual salary in excess of $100,000 or hire any salaried employee who would be a Business Employee with base annual salary in excess of $100,000; (xvii) enter into any Contract to do any of the things referred to in this Section 4.7(b).

Appears in 1 contract

Samples: Equity Purchase Agreement (Domtar CORP)

Absence of Changes. Since the Audited Financial Statement Latest Balance Sheet Date, except as set forth in Section 2.9 on SCHEDULE 5.8, ------------ each of the Disclosure Schedule or as disclosed Companies and its subsidiaries has been operated in the SEC Documents filed prior to the date hereofordinary course, consistent with past practice, and there has not been been: (i) any material adverse changechange or changes in the business, operations, assets, condition (financial or otherwise), operating results, liabilities, relations with employees, customers or suppliers, or prospects of any event Company or development whichany of its subsidiaries (it being agreed that any such change or changes shall only be deemed "material," for purposes of this clause (i) only, individually if such change or together with other such eventschanges have resulted, could or would reasonably be expected to result result, individually or in a material adverse changethe aggregate for all such changes, in Losses having the Business effect of reducing the value of such Company or Condition subsidiary by $500,000) or more, or (ii) any material casualty loss or damage to the assets of the Company. None any Company or any of the other representations its subsidiaries, whether or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and not covered by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:insurance; (ab) any declaration, setting aside or payment of any dividend or other distribution in on or with respect to any shares of the capital stock (or equity interests) of the any Company or any of its Subsidiariessubsidiaries, or any direct or indirect redemption, purchase or other acquisition by the of any thereof, or any other payments of any nature to any Affiliate of any Company or any of its Subsidiaries of any such capital stock (subsidiaries whether or equity interests) of not on or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the of such Company or its subsidiaries owned by such Affiliate (excluding salaries and benefits paid in the ordinary course of business consistent with past practices at rates equal to those in effect since December 31, 1996); (c) any Subsidiarygeneral uniform increase in the compensation of employees (including any increase pursuant to any bonus, pension, profit-sharing or other plan or commitment) of any Company or its subsidiaries, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other such compensation of payable to any current or former officer, director, shareholdermanager or key employee; (d) any change in the tax or other accounting methods or practices followed by any Company or its subsidiaries, managerany material change in depreciation or amortization policies or rates previously adopted or any write-up of inventory or other assets; (e) any material change in the manner in which products or services of any Company or its subsidiaries are marketed (including any material change in prices), memberany material change in the manner in which any Company or its subsidiaries extends discounts or credit to customers or any material change in the manner or terms by which any Company or its subsidiaries collects in accounts receivable or otherwise deals with customers; (f) any failure by any Company or its subsidiaries to pay trade accounts payable or any other Liability of such Company or subsidiary when due; or (g) any agreement, employee whether in writing or consultant otherwise, to take any of the Company or any Subsidiary; actions specified in the foregoing CLAUSES (iiA) any payment of consideration of any nature whatsoever through (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyF). ----------- ---

Appears in 1 contract

Samples: Stock Purchase Agreement (Pacer International Inc)

Absence of Changes. Since Except as disclosed in the Audited Company Financial Statement Date, except Statements or as set forth in Section 2.9 2.11 of the Seller Disclosure Schedule or as disclosed Schedule, since the Company Balance Sheet Date, the Company has conducted its business only in the SEC Documents filed prior Ordinary Course of Business, and the Company has not: (i) amended or otherwise modified its articles of incorporation or bylaws (or similar organizational document); (ii) issued or sold or authorized for issuance or sale, or granted any options or warrants or amended or made other agreements (other than this Agreement) of the type referenced in Section 2.4 with respect to, any shares of its capital stock or any other of its securities, or altered any term of any of its outstanding securities or made any change in its outstanding shares of capital stock or other ownership interests or its capitalization, whether by reason of a reclassification, recapitalization, stock split or combination, exchange or readjustment of shares, stock dividend or otherwise or redeemed, purchased or otherwise acquired any of its or its parent’s capital stock or agreed to do any of the foregoing (whether or not legally enforceable); (iii) recorded or accrued any item of revenue, except as a result of the provision of services in the Ordinary Course of Business; (iv) incurred any indebtedness for borrowed money, entered into any lease that should be capitalized in accordance with GAAP or subjected to any encumbrance or other restriction with respect to any of its properties, business or assets, except encumbrances or other restrictions that could not reasonably be expected to result in a Material Adverse Change; (v) discharged or satisfied any encumbrance, or paid any obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due, other than current liabilities shown on the Company Balance Sheet as of the Company Balance Sheet Date and current liabilities incurred since that date hereofin the Ordinary Course of Business; (vi) sold, there has not been transferred, leased to others or otherwise disposed of any material adverse changeproperties or assets or purchased, leased from others or otherwise acquired any material properties or assets except in the Ordinary Course of Business; (vii) canceled or compromised any debt or claim or waived or released any right of substantial value; (viii) terminated or received any notice of termination of any contract, lease, license or other agreement (other than one that has terminated or will terminate due to expiration of its stated term therein) or any Governmental License, or suffered any event damage, destruction or development which, individually loss (whether or together with other such events, not covered by insurance) that could reasonably be expected to result in a material adverse change, Material Adverse Change; (ix) made any change in the Business rate of compensation, commission, bonus or Condition other remuneration payable, or paid, agreed, or promised (in writing or otherwise) to pay, provide or modify, conditionally or otherwise, any bonus, extra compensation, pension, severance or vacation pay or any other benefit or perquisite of any other kind, to any director, officer, employee, salesman or agent of the Company. None Company except in the Ordinary Course of the other representations Business and pursuant to or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as accordance with plans disclosed in Section 2.9 2.14.2 of the Seller Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (a) any declaration, setting aside or payment of any dividend or other distribution Schedule that were in respect of the capital stock (or equity interests) effect as of the Company Balance Sheet Date; (x) made any increase in or commitment (whether or not legally enforceable) to increase, or communicated any intention to increase, any employee benefits, adopted or made any commitment to adopt any additional employee benefit plan or made any contribution, other than regularly scheduled contributions, to any Company Plan (as defined in Section 2.14.1); (xi) made any loan or advance to any Person other than travel and other similar routine advances in the Ordinary Course of Business, or acquired any capital stock or other securities of any other corporation or any of its Subsidiariesownership interest in any other business enterprise; (xii) instituted, settled or agreed to settle any direct material litigation, action or indirect redemption, purchase proceeding before any court or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect governmental body relating to the Company or any of its Subsidiariesproperties or assets; (bxiii) except for entered into any transaction, contract or commitment other than in the execution, delivery and performance by the Company Ordinary Course of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any SubsidiaryBusiness; (ixiv) changed any increase accounting practices, policies or procedures utilized in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant the preparation of the Company or any Subsidiary; Financial Statements (ii) any including procedures with respect to revenue recognition, payment of consideration accounts payable or collection of accounts receivable); or (xv) entered into any nature whatsoever (other than salary, commissions agreement or consulting fees paid made any commitment to take any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anytypes of action described in subparagraphs (i) through (xiv) of this Section 2.11.

Appears in 1 contract

Samples: Stock Purchase Agreement (Access Plans USA, Inc.)

Absence of Changes. Since the Audited Financial Statement DateJune 30, 2007, and except as set forth contemplated by this Agreement, Seller has conducted its business only in Section 2.9 the Ordinary Course of Business and, without limiting the generality of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereofforegoing: (a) There has been no event, there has not been any material adverse changecircumstance, or any event condition (whether or development which, individually not involving Seller) that has had or together with other such events, could reasonably be expected to result in have a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its SubsidiariesSeller Material Adverse Effect; (b) except for Seller has not mortgaged, pledged, or otherwise encumbered any of the executionAcquired Assets (other than Permitted Encumbrances); (c) Other than in the ordinary course of business, delivery Seller has not sold, assigned, licensed, leased, transferred, conveyed, or committed itself to sell, assign, license, lease, transfer, or convey any of the Acquired Assets; and performance Seller has not sold, assigned, licensed, leased, transferred, conveyed or committed itself to sell, assign, license, lease, transfer or convey any other asset or property, whether real, personal, or mixed, that would otherwise be included in the Acquired Assets if they were held by Seller as of the Company Closing Date; (d) Without limiting any other provision of this Agreement Section 4.6, Seller has not (i) transferred, assigned, or licensed to any Person or otherwise extended, amended, or modified any rights to any Seller Intellectual Property, or entered into any Contract to transfer or license to any Person future rights to any Seller Intellectual Property; (ii) purchased or in-licensed any Intellectual Property or executed any Contract with respect to the Intellectual Property of any Person other than Commercial Software Rights for internal operations licensed in the Ordinary Course of Business; (iii) entered into any Contract with respect to the development of any Intellectual Property with any third party; (iv) changed any prices or royalties set or charged by Seller to any customers or licensees; or (v) agreed to change or received any notice of a pending change in the prices or royalties set or charged by any Person who has licensed Intellectual Property to Seller; (e) Seller has not merged with, entered into any consolidation with, or acquired an equity interest in any Person or acquired a substantial portion of the assets or business of any Person or any division, line or business thereof, or otherwise acquired any material assets; (f) Seller has not made any material changes in its customary methods of operations, including without limitation, practices and the Operative Agreementspolicies relating to marketing, selling, and the transactions contemplated hereby pricing; (g) Seller has not entered into any Contract with any Employee (or therebywith any relative, any authorizationbeneficiary, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock ofspouse, or Option with respect to, Affiliate of such Employee); (h) Seller has not allowed any permit that would constitute an Assigned Permit if in place on the Company Closing Date to lapse or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiaryterminate; (i) Seller has not failed to maintain any increase Acquired Asset in salarygood repair and operation condition, rate ordinary wear and tear accepted; (j) There has been no destruction of, damage to, or loss of commissionsany of the Acquired Assets, rate and no event, circumstance, or condition has occurred that has impaired or reduced the value of consulting fees any Acquired Asset, and Seller has not written down or written up the value of any Acquired Asset or revalued any Acquired Asset, nor has it failed to write down, write up, or revalue any Acquired Asset under circumstances where it would have been required to do so under GAAP. (k) There has been no acceleration, termination, modification, cancellation, or amendment of any Assigned In-License Contract or any Additional Assigned Contract; (l) Seller has not cancelled, compromised, waived, or released any right or claim (or series of related rights and claims) relating to any Acquired Asset; (m) Seller has not made any express or deemed election with respect to Taxes; (n) Seller has not repurchased or redeemed, or otherwise paid any dividend or made any distribution with respect to, any shares of its outstanding capital stock or any other compensation outstanding securities; (o) Seller has not failed to pay any creditor any amount owed to such creditor when due, delayed or postponed the payment of accounts payable or other Liabilities or requested that any vendor or service provider hold or delay any invoices or billing statements; (p) Seller has not (i) granted any increase, or announced any increase, in the wages, salaries, compensation, bonuses, incentives, severance, pension or any other benefits payable by Seller to any Employee, including, without limitation, any increase or change pursuant to any Employee Plan; (ii) established or increased or promised to increase any benefits under any Employee Plan with respect to any Employee, except as required by Law; or (iii) otherwise amended in any manner its obligations to or relationship with any Employee, including, without limitation, any amendment to any other Employee Contract; (q) No Action or Proceeding has been commenced or threatened and to the knowledge of Seller, no reasonable basis exists for any Action or Proceeding against Seller or any Employee; (r) There has been no notice of any current claim or former officerpotential claim of ownership by any Person other than Seller of any Acquired Asset, directornor has there been any notice of any claim or potential claim that the ownership, shareholderoperation, managermaintenance, memberor use of any Acquired Asset, employee or consultant the sale, license, assignment, or transfer of any Acquired Asset, infringes or will infringe the Company Intellectual Property Rights of any other Person; (s) Seller has not received any notice of (i) any claim or potential claim of ownership by any Person other than Seller of any Seller Intellectual Property or any SubsidiaryIntellectual Property that was developed by or created by Seller; (ii) any payment of consideration direct, indirect, or contributory infringement or misappropriation of any nature whatsoever Intellectual Property of any Person (or of unfair competition or trade practices); or (iii) any offer to license from any Person any Intellectual Property Rights in the context of a possible need to do so to avoid infringement; and (t) There has been no agreement, whether in writing or otherwise, by Seller or any Employee to take any of the actions specified in this Section 4.6, and none of Seller or any Employee has granted any options to purchase, rights of first refusal, rights of first offer, or any similar rights with respect to any of such actions (in each case, other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of negotiations with Buyer and its representatives regarding the Company or anytransactions contemplated by this Agreement).

Appears in 1 contract

Samples: Asset Purchase Agreement (Occam Networks Inc/De)

Absence of Changes. Since the Audited Financial Statement Latest Balance Sheet Date, except as set forth in Section 2.9 on Schedule 4.8, the Company and each of the Disclosure Schedule or as disclosed its Subsidiaries have been operated in the SEC Documents filed prior to the date hereofordinary course of business, consistent with past practice, and there has not been any material adverse change, or been: (i) any event or development which, individually condition that has resulted in or together with other such events, could reasonably be expected to result in a material an adverse change, change in the Business business, operations, assets, condition (financial or Condition otherwise), operating results, liabilities, relations with employees, customers, suppliers or prospects of the Company. None Company or any of its Subsidiaries, or any casualty loss or damage to the assets or properties of the other representations Company or warranties set forth in this Agreement shall be deemed to limit the foregoing. In additionany of its Subsidiaries, without limiting the foregoing, except as expressly contemplated hereby and whether or not covered by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:insurance (a "Material Adverse Change"); (aii) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the capital stock (or equity interests) other securities of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition of any capital stock or other securities of the Company or any of its Subsidiaries, or any other payments of any nature directly or indirectly to or for the benefit of any Stockholder or any Affiliate of the Company (whether or not on or with respect to any shares of capital stock or other securities of the Company or any of its Subsidiaries owned by such Stockholder or Affiliate), other than salaries and benefits paid in the ordinary course of business, consistent with past practice; (iii) any general uniform increase in the compensation of employees (including any increase pursuant to any bonus, pension, profit-sharing or other plan or commitment) of the Company or any of its Subsidiaries, or any increase in or prepayment of any such compensation payable to or to become payable to any director, officer or key employee; (iv) any acquisition or disposition of assets or properties owned by the Company or any of its Subsidiaries Subsidiaries, other than the sale or other disposition of inventories for fair value in the ordinary course of business, consistent with past practice; (v) any such capital stock (agreement or equity interests) commitment on the part of the Company or any Option of its Subsidiaries to merge, amalgamate or consolidate with respect to or into, or otherwise acquire, any other Person or division thereof; (vi) any change in depreciation or amortization policies or rates previously adopted, any change in income or expense recognition or bad debt reserve, write-down or write-off policies previously adopted, any write-up or write-down of inventory or other assets or any other change in other accounting or in Tax reporting or methods or practices followed by the Company or any of its Subsidiaries; (bvii) except for any change in the execution, delivery and performance by manner in which products or services of the Company or any of this Agreement and the Operative Agreements, and the transactions contemplated hereby or therebyits Subsidiaries are marketed (including any change in prices), any authorizationchange in the manner in which the Company or any of its Subsidiaries extends discounts or credit to customers, issuance, sale or other disposition any change in the manner or terms by which the Company or any of its Subsidiaries collects accounts receivable; (viii) any failure by the Company or any Subsidiary of any shares of its Subsidiaries to make scheduled capital stock of, expenditures or Option with respect to, the Company or any Subsidiaryinvestments, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees failure to pay trade accounts payable or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant Liability of the Company or any Subsidiaryof its Subsidiaries when due; or (iiix) any payment of consideration of any nature whatsoever Contract or other understanding or arrangement (other than salarythis Agreement and the Related Documents), commissions whether in writing or consulting fees paid otherwise, to take any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyactions specified in the foregoing clauses (i) through (viii).

Appears in 1 contract

Samples: Stock Purchase Agreement (Tiger Telematics Inc)

Absence of Changes. Since the Audited Financial Statement PointeCom Balance Sheet Date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed 6.18, PointeCom has conducted, in all material respects, its operations in the SEC Documents filed prior to the date hereof, ordinary course and there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any declarationmaterial adverse change in the business, setting aside operations, properties, condition (financial or other), assets, liabilities (contingent or otherwise) or results of operations of PointeCom, individually or in the aggregate; (b) any damage, destruction or loss (whether or not covered by insurance) materially adversely affecting the properties or business of PointeCom, individually or in the aggregate; (c) except as contemplated by this Agreement or the transactions contemplated hereby, any change in the authorized capital stock of PointeCom or in its outstanding securities or any grant of any options, warrants, calls, conversion rights or commitments; (d) except as contemplated by this Agreement or the transactions contemplated hereby, any declaration or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition of any of the capital stock of PointeCom; (e) any increase in the compensation payable or to become payable by the Company PointeCom to its stockholders or to any of its Subsidiaries of any such capital stock (officers, directors, employees, consultants or equity interests) of or any Option agents, except for ordinary and customary bonuses and salary increases for employees in accordance with respect to the Company or any of its Subsidiariespast practice, which bonuses and salary increases are set forth in Schedule 6.14; (bf) any material labor disputes, labor grievances or labor claims filed; (g) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or therebyMerger, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiarytransfer, or any modification agreement to sell or amendment transfer, any material assets, properties or rights of PointeCom to any right of person; (h) any holder of any outstanding shares of capital stock ofcancellation, or Option with respect toagreement to cancel, the Company any material indebtedness or any Subsidiaryother material obligation owing to PointeCom; (i) any increase in salarythe indebtedness of PointeCom, rate other than related to the Class B Convertible Preferred Stock and accounts payable incurred in the ordinary course of commissionsbusiness, rate consistent with past practices or incurred in connection with the transactions contemplated by this Agreement; (j) any plan, agreement or arrangement granting any preferential rights to purchase or acquire any interest in any of consulting fees the assets, property or rights of PointeCom or requiring consent of any party to the transfer and assignment of any such assets, property or rights; (k) any purchase or acquisition of, or agreement, plan or arrangement to purchase or acquire, any property, rights or assets outside of the ordinary course of PointeCom's business; (l) any waiver of any material rights or claims of PointeCom; (m) any material breach, amendment or termination of any material contract, agreement, Permit or other right to which PointeCom is a party or any other compensation of any current or former officerits property is subject, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiaryexcept that which would not have a Material Adverse Effect on PointeCom; or (iin) any payment of consideration of any nature whatsoever (other material transaction by PointeCom, other than salaryas contemplated by this Agreement, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant outside the ordinary course of the Company or anybusiness.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Pointe Communications Corp)

Absence of Changes. Since November 30, 2012, the Audited Financial Statement Date, except as set forth in Section 2.9 of Corporation and it subsidiaries has carried on the Disclosure Schedule or as disclosed Business and conducted its operations and affairs only in the SEC Documents filed prior to the date hereof, ordinary and normal course consistent with past practice and there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any material adverse change in the condition (financial or otherwise), assets, liabilities, operations, earnings, or business of the Corporation or any of its subsidiaries or affilaites; (b) any damage, destruction or loss (whether or not covered by insurance) affecting the property or assets of the Corporation or any of its subsidiaries or affilaites; (c) any obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by the Corporation or any of its subsidiaries or affiliates, other than those incurred in the ordinary and normal course and consistent with past practice; (d) any payment, discharge or satisfaction of any Encumbrance, liability or obligation of the Corporation or any of its subsidiaries (whether absolute, accrued, contingent or otherwise, and whether due or to become due) other than payment of accounts payable and tax liabilities incurred in the ordinary course of business consistent with past practice; (e) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the capital stock (or equity interests) of the Company Corporation, or any of its Subsidiariessubsidiaries, or any direct or indirect redemption, purchase or other acquisition of any such shares; (f) any issuance or sale by the Company Corporation or any of its Subsidiaries of any such capital stock (or equity interests) of subsidiaries, or any Option with respect to Contract entered into by the Company Corporation or any of its Subsidiaries; (b) except subsidiaries, for the execution, delivery and performance issuance or sale by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company Corporation or any Subsidiary of its subsidiaries, of any shares of capital stock of, or Option with respect to, securities convertible into or exercisable for shares of the Company Corporation or any Subsidiary, of its subsidiaries; (g) any labour trouble adversely affecting the Corporation or any modification of its subsidiaries; (h) any licence, sale, assignment, transfer, disposition, pledge, mortgage or amendment granting of a security interest or other Encumbrance on or over any right property or assets of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company Corporation or any Subsidiaryof its subsidiaries, other than sales of inventory to customers in the ordinary and normal course of the Business; (i) any write-down of the value of any inventory or any write-off as uncorrectable of any accounts or notes receivable or any portion thereof of the Corporation or any of its subsidiaries in amounts exceeding $1,000.00 in each instance or $10,000.00 in the aggregate; (j) any cancellation of any debts or claims or any amendment, termination or waiver of any rights of value to the Corporation or any of its subsidiaries in amounts exceeding $1,000.00 in each instance or $10,000.00 in the aggregate; (k) any general increase in salary, rate the compensation of commissions, rate employees of consulting fees the Corporation or any other of its subsidiaries (including, without limitation, any increase pursuant to any Employee Plan or commitment), or any increase in any such compensation or bonus payable to any officer, employee, consultant or agent thereof (having an annual salary or remuneration in excess of $50,000.00) or the execution of any current employment contract with any officer or former officeremployee (having an annual salary or remuneration in excess of $30,000.00), directoror the making of any loan to, shareholderor engagement in any transaction with, managerany employee, member, employee officer or consultant director of the Company Corporation or any Subsidiary; of its subsidiaries; (iil) any payment capital expenditures or commitments of consideration the Corporation or any of its subsidiaries in excess of $30,000.00 in the aggregate, unless detailed on Schedule 6; (m) any nature whatsoever forward purchase commitments in excess of the require­ments of the Corporation or any of its subsidiaries for normal operating inventories or at prices higher than the current market prices; (n) any forward sales commitments other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant in the ordinary and normal course of the Company Business or anyany failure to satisfy any accepted order for goods or services; (o) any change in the accounting or tax practices followed by the Corporation or any of its subsidiaries; or (p) any change adopted in the depreciation or amortization policies or rates, or any change in the credit terms offered to customers of, or by suppliers to, the Corporation or any of its subsidiaries.

Appears in 1 contract

Samples: Share Purchase Agreement (Play La Inc.)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 3.6 of the Disclosure Schedule, since December 31, 2022, (x) there has not occurred since been a Material Adverse Effect, (y) the Audited Financial Statement Datebusiness of the Company has been conducted in all material respects in the ordinary course of business and (z) there has not been any: (a) any damage, destruction or loss, whether or not covered by insurance, in an amount in excess of $100,000; (b) amendment or other change to the Company Organizational Documents; (c) (i) declaration, setting aside or payment of any dividend or other distribution in any property in respect of the capital stock (or equity interests) any interest of the Company (other than a distribution of excess cash not needed in the operation of the business in the ordinary course to the Sellers); (ii) authorization for issuance, issuance, grant, sale, delivery, disposal of, pledge or other encumbrance of any Equity Interests of the Company; (iii) reclassification, combination or split of any of its Subsidiariesthe Equity Interests of the Company; (iv) adoption of a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization or any direct or indirect other reorganization; (v) redemption, purchase repurchase or other acquisition of any Equity Interests of any Person; or (vi) issuance of any notes, bonds or other debt securities of the Company; (d) termination of any Listed Contract (which, for the avoidance of doubt, shall not include the expiration of any Listed Contract in accordance with its terms or the termination of a Listed Contract by the counterparty thereto), amendment to any Listed Contract, cancellation, modification or waiver of any Indebtedness, insurance policy or material claims held by the Company or any of its Subsidiaries waiver of any material rights of value or entry into any Contract of a type that would be considered a Listed Contract if such capital stock (or equity interests) of or any Option with respect to Contract were in effect on the Company or any of its Subsidiariesdate hereof; (be) except mortgage, pledge or subjecting to any Lien (other than a Permitted Lien) of any portion of the Company’s assets; (f) sale, transfer, assignment, conveyance, license or other disposal of the Company’s assets or properties valued at more than $50,000 in the aggregate; (g) use of any cash or cash equivalents of the Company prior to the Closing on the Closing Date other than for the executionordinary course repayment of trade creditors for current Liabilities included in the calculation of Closing Working Capital; (h) entry into, delivery and performance by the Company establishment, adoption, termination, amendment or modification of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company Benefit Plan (or any Subsidiary compensation or benefit plan, policy, program, agreement or arrangement that would be a Benefit Plan if it were in existence as of any shares the date hereof), except modifications to welfare plans in connection with annual renewals and in the ordinary course of capital stock of, or Option business consistent with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiarypast practice; (i) (i) grant of any cash, bonus, equity or equity-based incentive award(s), severance or termination pay to any current or former employee or individual service provider, (ii) increase or decrease in salarythe compensation payable or benefits provided to any current or former employee or individual service provider, rate (iii) acceleration of commissionsthe funding, rate vesting or payment of consulting fees any compensation or benefit due under any Benefit Plan or otherwise, (iv) hire, engagement, termination, furlough or temporary layoff of any individual with annual compensation in excess of $75,000 or (v) cancellation or forgiveness of any loan made to any current or former employee or individual service provider; (j) incurrence or assumption of any Indebtedness or guarantee of any Indebtedness in excess of $100,000 in the aggregate; (k) payment, loan or advancement of any amount to, or sale, transfer or lease of any of the Company’s assets to, or entry into any agreement or arrangement with, any Related Party, except for advances in respect of business expenses made to employees in the ordinary course of business consistent with past practice; (l) acquisition, including by merging or consolidating with, or by purchasing any of the Equity Interests or a material portion of the assets of, or by any other manner, of any business or any Person or entry into any joint venture or partnership; (m) making or incurrence of any capital expenditures that, individually or in the aggregate, (i) are in excess of $100,000 or (ii) will impose any material restrictions on the conduct of the business of the Company after the Closing; (n) (i) material Tax election made, revoked or changed (ii) change in any annual Tax accounting period, (iii) adoption of or change in any material method of Tax accounting, (iv) filing of any amended Income Tax Return or other material Tax Return, (v) enter into any “closing agreement” with any taxing authority regarding a material amount of Tax, (vi) settlement of any Action or assessment in respect of a material amount of Tax, (vii) consent given to any extension or waiver of the limitations period applicable to any material Tax claim or assessment, or (viii) surrender any right to claim a refund, offset or other reduction in liability of or for a material amount of Taxes; (o) settlement or compromise of any Action involving the payment of, or an agreement to pay, $50,000 individually or $100,000 in the aggregate; (p) (i) change in any cash management practices and policies or practices and policies with respect to the collection of accounts receivable, establishment of reserves for uncollectible accounts or payment of trade accounts payable, or (ii) acceleration of the collection of or discounting of any accounts receivable, delay in the payment of accounts payable or accrued expenses, delay in the purchase of supplies or delay in any capital expenditures, repairs or maintenance; (q) sale, license, transfer, abandonment, permitting to lapse or other disposal of any Intellectual Property, other than non-exclusive licenses of Intellectual Property entered into in the ordinary course of business; (r) disclosure of any confidential information or trade secrets owned or Processed by or on behalf of the Company or included in the Company Intellectual Property (other than in the ordinary course of business subject to appropriate written obligations with respect to confidentiality, non-use and non-disclosure) or disclosure, license, escrow, or other making available, or grant of any rights to, any source code (other than source code disclosed to employees and contractors performing services for the Company that are subject to written confidentiality obligations with the Company); (s) making of any material adverse change to the operation or security of any Company IT Systems or the Company’s policies or procedures with respect to Personal Information, except as required by applicable Privacy Laws; (t) (i) modification, extension, termination or entry into any Labor Agreement or (ii) recognition or certification of any labor union, labor organization, works council, employee representative or group of employees as the bargaining representative for any employees of the Company; (u) implementation or announcement of any employee layoffs, furloughs, reductions in force, plant closings, material reductions in compensation or other similar actions that could implicate the WARN Act; (v) waiver or release of any noncompetition, nonsolicitation, nondisclosure or other restrictive covenant obligation of any current or former officer, director, shareholder, manager, member, employee or consultant independent contractor of the Company or any SubsidiaryCompany; or (iiw) any payment of consideration authorization of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company foregoing, or anycommitment or agreement to take actions, whether in writing or otherwise, to do any of the foregoing.

Appears in 1 contract

Samples: Unit Purchase Agreement (MultiPlan Corp)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof4.9, since December 31, 2014, there has not been any material adverse change, with respect or any event or development which, individually or together with other such events, could reasonably be expected related to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement DateAssets: (a) any declarationmaterial and unrepaired damage or destruction, setting aside or payment of any dividend loss or other distribution in respect of the capital stock (casualty, however arising and whether or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition not covered by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiariesinsurance; (b) any indebtedness incurred by Seller for borrowed money (except by endorsement for collection or for deposit of negotiable instruments received in the ordinary course of business and except for debts and liabilities incurred in the execution, delivery and performance by the Company ordinary course of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option business consistent with respect to, the Company or any Subsidiaryprior practices), or any modification agreement to incur any such indebtedness other than intercompany indebtedness; (c) any change in the accounting methods or practices of Seller or any change in depreciation or amortization policies or rates theretofore adopted; (d) any amendment or termination, or any written notice of termination, of any contract, agreement, lease, franchise or license to which Seller is a party or by which it is bound; (e) any liability or obligation incurred by Seller, except current liabilities for trade or business obligations incurred in the ordinary course of business consistent with past practice, or any cancellation or compromise by Seller of any debt or claim other than in the ordinary course of business consistent with past practice, or any waiver or release by Seller of any right of substantial value to the Business; (f) except in the ordinary course of business and consistent with past practice, any holder grant or extension of any outstanding shares power-of-attorney or guaranty in respect of capital stock ofthe obligation of any Person; (g) except for Permitted Encumbrances and other than in the ordinary course of business, any mortgage, pledge or Option other encumbering of any of the Assets; (h) any sale, transfer, lease, abandonment or other disposal of any material portion of the Assets (real, personal or mixed, tangible or intangible), except in the ordinary course of business consistent with respect to, the Company or any Subsidiarypast practice; (i) any assignment, transfer, licensing, grant or other disposal of any Intellectual Property (as defined in Section 4.9 hereof); (j) any grant by Seller of any general increase in salary, rate of commissions, rate of consulting fees or any other the compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company employees of Seller who are deemed by Seller to be employed by or working directly in the Business; or any Subsidiarygrant by Seller of any increase in compensation payable to or to become payable to any such employee; or any agreement by Seller entered into with any employee; except in the ordinary course of business and consistent with past practice; (iik) with respect to the Business, any capital expenditure made, or any commitment to make any capital expenditure, for any tangible or intangible capital assets, additions or improvements, except capital expenditures in the ordinary course of business and capital expenditures that do not exceed $10,000 in any instance or $50,000 in the aggregate; (l) any payment of consideration action taken or omitted to be taken that would result in the occurrence of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company foregoing; or (m) any sale or anyother transfer of any interest or rights in the Business.

Appears in 1 contract

Samples: Asset Purchase Agreement (AAC Holdings, Inc.)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 3.16 of the Seller Disclosure Schedule or as otherwise disclosed in this Agreement, since December 31, 2002, the SEC Documents filed prior US Wireless Sales Business has been conducted in the ordinary course consistent with Past Practices and with respect to the date hereof, US Wireless Sales Business there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any declarationsale, setting aside lease, transfer, or payment assignment of any dividend or other distribution in respect of the capital stock (tangible or equity interests) intangible assets of the Company US Wireless Sales Business, other than sales of Inventory or any services for a fair consideration in the ordinary course of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiariesbusiness; (b) except any Contract entered into other than in the ordinary course of business; (c) any acceleration, termination, modification, or cancellation of any Material Contract or other Contract; (d) any Lien other than a Permitted Lien created or imposed upon any of the Transferred Assets; (e) any cancellation, compromise, waiver, or release of any right or claim (or series of related rights and claims) included as Transferred Assets; (f) any material damage, destruction, or loss (whether or not covered by insurance) to the property of the US Wireless Sales Business, including the Transferred Assets; (g) any modification or change in the employment terms for any Transferred Employee; (h) any payment of any amount to any Person outside the execution, delivery ordinary cause of business with respect to any Liability (excluding any costs and performance by the Company of expenses incurred or which may be incurred in connection with this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by hereby) which would constitute an Assumed Liability if in existence as of the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any SubsidiaryClosing; (i) any increase change by Seller in salaryits accounting principles, rate of commissions, rate of consulting fees methods or practices or in the manner it keeps its books and records or any change by Seller of current practices with regard to sales, expenses, assets and liabilities; (j) any material change in the practices of pricing or discounting for sales of finished goods, ordering supplies and raw materials, shipping finished goods, accepting returns or honoring warranties, invoicing customers and collecting debts; (k) any deliveries or performance of services by Seller in connection with its backlog of orders other compensation than in the ordinary course or as otherwise provided under the terms of any current Assumed Contract with respect to such backlog; (l) any threat or former officernotification, directororally or in writing, shareholder, manager, member, employee by one or consultant more of the Company distributors, customers or suppliers who, individually or in the aggregate, are material to the US Wireless Sales Business of an intention to terminate or materially alter their respective business relationships or Assumed Contracts, nor has any Subsidiarysuch termination or material alteration of such relationships or Assumed Contracts occurred; or (iim) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid Contract by Seller with respect to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Asset Purchase Agreement (Aeroflex Inc)

Absence of Changes. Since the Audited Financial Statement DateDecember 31, 2009, except as set forth in on Section 2.9 3.14 of the Disclosure Schedule Schedules or as disclosed reflected in the SEC Documents filed prior to the date hereof, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement DateApril Balance Sheets: (a) the Companies and the Company Subsidiaries have conducted the Business in the ordinary course, in substantially the same manner in which it has been previously conducted and have not suffered any state of facts, change, development, occurrence or effect on the Business or their respective assets, properties, financial condition or results of operations, that, individually or in the aggregate, has had, or would reasonably be expected to have, a Material Adverse Effect; (b) there has not been any declaration, setting aside or payment of any dividend on, or other distribution (whether in cash, stock or property) in respect of, any of the capital stock (Equity Interests of the Companies or equity interests) any of the Company Subsidiaries or any purchase, redemption or other acquisition of any of the Companies’ or any of its the Company Subsidiaries, Equity Interests or any direct options, warrants, calls or indirect redemptionrights to acquire any such Equity Interests; (c) there has not been any split, purchase combination or other acquisition by reclassification of any of the Company Equity Interests of the Companies or any of its the Company Subsidiaries or any issuance or the authorization of any such capital stock (or equity interests) issuance of any other securities in respect of, in lieu of or any Option with respect to the Company or any of its Subsidiariesin substitution for such Equity Interests; (bd) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary;there has not been: (i) any grant by the Companies or Company Subsidiary to any Employee (each, a “Participant”) of any increase in salarycompensation, rate of commissionscommission opportunity, rate of consulting fees perquisites or benefits, any loan or any other compensation payment or award by the Companies or Company Subsidiary of any current bonus or former officer, director, shareholder, manager, member, employee or consultant award other than in the ordinary course of the Company or any Subsidiary; business consistent with past practice; (ii) any grant by the Companies or any Company Subsidiary to any Participant of, or any increase in or amendment of, severance, change in control, termination or similar compensation or benefits, (iii) any entry by the Companies or any Company Subsidiary into, any amendment of, or modification to or agreement to amend or modify (or announcement of an intention to amend or modify) or any termination of, (A) any Employee Plan or Employee Agreement, or similar agreement, commitment or obligation between the Companies or any Company Subsidiary and any Participant or any Labor Agreement, (B) any agreement between the Companies or any Company Subsidiary and any Participant the benefits of which are contingent, or the terms of which are materially altered, upon the occurrence of a transaction involving the Companies or any Company Subsidiary of the nature contemplated by this Agreement or (C) any trust or insurance contract or other agreement to fund or otherwise secure payment of consideration any compensation or benefit to be provided to any Participant (all such agreements under this clause (iii), collectively, “Benefit Agreements”); (iv) any payment to any Participant of any nature whatsoever (benefit not provided for under any Contract, or Benefit Agreement other than salarythe payment of regular cash compensation in the ordinary course of business consistent with past practice; or (v) any hiring, commissions termination, promotion, demotion or consulting fees paid other such actions of any Employee; (e) there has not been any damage, destruction or loss to any current assets or former officer, director, shareholder, manager, member, employee or consultant properties of the Companies or Company Subsidiaries or any other Person, whether or not covered by insurance, that individually or in the aggregate would reasonably be expected to have a Material Adverse Effect; (f) there has not been any adoption of or change in financial accounting methods, principles or practices by any Seller, a Company or anyany Company Subsidiary, except insofar as may have been required by a change in GAAP or Law; (g) there has not been any material Tax election made or changed, any Tax accounting method or practice adopted or changed, any settlement or compromise of any material Tax liability, any filing of any amended Tax Return, or any consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment, in each case relating to Taxes of or with respect to any Company or Company Subsidiary; (h) there has not been any payment, discharge, waiver or satisfaction, in any amount in excess of $100,000 in any one case, or $250,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of a Company or a Company Subsidiary), other than payments, discharges or satisfactions of liabilities in the ordinary course of business consistent with past practice; and (i) there has not been any licensing or other agreement with regard to the acquisition or disposition of any material Intellectual Property Rights or rights thereto. Since December 31, 2009, each Company and Company Subsidiary has continued all pricing, sales, receivables or payables practices in accordance with GAAP and in the ordinary course of business consistent with past practice and has not engaged, other than in a manner that is materially consistent with past practice, in: (j) any trade loading practices or any other promotional sales or discount activity with any customers or distributors with the effect of accelerating to pre-Closing periods sales to the trade or otherwise that would otherwise be expected (based on past practice) to occur in post-Closing periods, (k) any practice with the effect of accelerating to pre-Closing periods collections of receivables that would otherwise be expected (based on past practice) to be made in post-Closing periods, (l) any practice with the effect of postponing to post-Closing periods payments by the Company that would otherwise be expected (based on past practice) to be made in pre-Closing periods or (m) any other promotional sales, discount activity or inventory overstocking or understocking, in each case in this clause (d) in a manner outside the ordinary course of business or inconsistent with past practice.

Appears in 1 contract

Samples: Equity Interest Purchase Agreement (YRC Worldwide Inc.)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 3.8 of the Parent Disclosure Schedule or as disclosed Schedule, after the date of the Parent Balance Sheet, Parent and its Subsidiaries have conducted its business only in the SEC Documents filed prior to Ordinary Course of Business (except for the date hereofexecution and performance of this Agreement and the discussions, negotiations and transactions related thereto) and there has not been any material adverse change, or (a) Parent Material Adverse Effect and (b) neither Parent nor any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of its Subsidiaries has done any of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datefollowing: (a) any declarationdeclared, setting accrued, set aside or payment of paid any dividend or made any other distribution in respect of the any shares of its capital stock or repurchased, redeemed or otherwise reacquired any shares of its capital stock or other securities (or equity interests) except in connection with the payment of the Company exercise price and/or withholding Taxes incurred upon the exercise, settlement or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries vesting of any such capital stock (or equity interests) of or any Option with respect to award granted under the Company or any of its SubsidiariesParent Stock Plans); (b) sold, issued, granted, pledged or otherwise disposed of or encumbered or authorized any of the foregoing with respect to: (A) any capital stock or other security of Parent (except for Parent Common Stock issued upon the valid exercise of outstanding Parent Options); (B) any option, warrant or right to acquire any capital stock or any other security, other than option grants to employees in the Ordinary Course of Business; or (C) any instrument convertible into or exchangeable for any capital stock or other security of Parent; (c) except as required to give effect to anything in contemplation of the Closing, amended any of its Organizational Documents, or effected or been a party to any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction except, for the avoidance of doubt, the Contemplated Transactions; (d) formed any Subsidiary or acquired any equity interest or other interest in any other Entity or entered into a joint venture with any other Entity; (e) (A) lent money to any Person (except for the executionadvance of reasonable business expenses to employees, delivery directors and performance consultants in the Ordinary Course of Business), (B) incurred or guaranteed any indebtedness for borrowed money, or (C) guaranteed any debt securities of others; (f) other than as required by applicable Law or the Company terms of any Parent Benefit Plan as in effect on the date of this Agreement and Agreement: (A) adopted, terminated, established or entered into any Parent Benefit Plan; (B) caused any Parent Benefit Plan to be amended in any material respect; (C) paid any bonus or distributed any profit-sharing account balances or similar payment to, or increased the Operative Agreementsamount of the wages, and the transactions contemplated hereby salary, commissions, benefits or therebyother compensation or remuneration payable to, any authorizationof its directors, issuanceofficers or employees; (D) increased the severance or change-of-control benefits offered to any current, sale former or new employees, directors or consultants or (E) hired, terminated or gave notice of termination (other disposition by the Company than for cause) to any (x) officer or (y) employee whose annual base salary is or is expected to be more than $125,000 per year; (g) entered into any Subsidiary of collective bargaining agreement or similar agreement with any shares of capital stock oflabor union, or Option similar labor organization; (h) entered into any material transaction other than (A) in the Ordinary Course of Business or (B) in connection with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any SubsidiaryContemplated Transactions; (i) acquired any increase in salarymaterial asset or sold, rate of commissions, rate of consulting fees leased or any other compensation otherwise irrevocably disposed of any current of its assets or former officerproperties, directoror granted any Encumbrance with respect to such assets or properties, shareholderexcept in the Ordinary Course of Business; (j) sold, managerassigned, membertransferred, employee licensed, sublicensed or consultant of the Company or any Subsidiary; (ii) any payment of consideration otherwise disposed of any nature whatsoever material Parent IP (other than salarypursuant to non-exclusive licenses in the Ordinary Course of Business); (k) made, commissions changed or consulting fees paid revoked any material Tax election, failed to pay any income or other material Tax as such Tax becomes due and payable, filed any amendment making any material change to any current Tax Return, settled or former officercompromised any income or other material Tax liability, directorentered into any Tax allocation, shareholdersharing, manager, member, employee indemnification or consultant other similar agreement or arrangement (including any “closing agreement” described in Section 7121 of the Company Code (or anyany similar Law) with any Governmental Body, but excluding customary commercial contracts entered into in the Ordinary Course of Business the principal subject matter of which is not Taxes), requested or consented to any extension or waiver of any limitation period with respect to any claim or assessment for any income or other material Taxes (other than pursuant to an extension of time to file any Tax Return granted in the Ordinary Course of Business of not more than six months), or adopted or changed any material accounting method in respect of Taxes; (l) made any expenditures, incurred any Liabilities or discharged or satisfied any Liabilities, in each case, in amounts that exceed the aggregate amount of $300,000; (m) other than as required by Law or GAAP, taken any action to change accounting policies or procedures; (n) initiated or settled any Legal Proceeding; or (o) agreed, resolved or committed to do any of the foregoing.

Appears in 1 contract

Samples: Merger Agreement (Miragen Therapeutics, Inc.)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 Part 2.2 of the Disclosure Schedule Schedule, since December 31, 2008, the Seller has not: a) issued, sold, redeemed or as disclosed in repurchased any shares, bonds or other corporate securities or any rights, options or warrants with respect thereto (except pursuant to the SEC Documents filed prior to conversion or exercise of convertible securities, options or warrants outstanding on the date hereof), there has or amended any of the terms (including without limitation the vesting of) any such convertible securities, options or warrants; b) split, combined or reclassified any shares of its capital stock, or declared, set aside or paid any dividend or other distribution with respect to any shares of capital stock of Seller, whether in cash, stock or property, or any combination thereof; c) made any loan, advance or capital contribution to or investment in any person other than loans or advances to employees of Seller made in the Ordinary Course of Business; d) borrowed any amount or incurred or become subject to any liabilities (absolute or contingent) except current liabilities incurred in the Ordinary Course of Business; e) discharged or satisfied any claim or encumbrance or paid any obligation or liability (absolute or contingent), other than current liabilities paid in the Ordinary Course of Business; f) amended its Certificate of Incorporation, By-laws or other organizational document; g) instituted or settled any Litigation; h) mortgaged or pledged any of the Assets, tangible or intangible, or subjected itself or any portion of the Assets, tangible or intangible, to any claim, except claims for current property taxes not been yet due and payable; i) acquired or sold, assigned, transferred or otherwise disposed of any material adverse changeamount of tangible assets, except in the Ordinary Course of Business, or canceled any debts or claims; j) sold, assigned, licensed, sublicensed or transferred any intangible asset or intellectual property right, or disclosed any proprietary or confidential information to any person or entity not associated with the Seller, unless such person or entity, prior to such disclosure executed and delivered a non-disclosure agreement in favor of the Seller; k) suffered any non-operating loss in excess of $10,000, or aggregate non-operating losses in excess of $20,000, in either case regardless of whether in the Ordinary Course of Business or covered by insurance; l) waived any right of value in excess of $10,000, or aggregate rights in excess of $20,000 (including any insurance policy naming it as a beneficiary or a loss payable payee); m) suffered any labor trouble, or any event or development whichcondition of any character, individually having a Material Adverse Effect on the business or together plans of the Seller; n) materially decreased expenditures with respect to maintenance and repairs; o) made any single capital expenditure or commitment therefor in excess of $10,000, or aggregate capital expenditures or commitments therefor in excess of $20,000; p) done any of the following: (A) entered into, adopted or amended any employee benefit plan, (B) made any grant of any severance or termination pay to any director, officer, employee or individual providing services to Seller, (C) entered into any employment, deferred compensation, change in control or other similar agreement (or any amendment to any such eventsexisting agreement) with any director, officer, employee or individual providing services to Seller, (D) increased benefits payable under any existing severance or termination pay policies or employment agreements, or (E) increased compensation, bonus or other benefits payable to directors, officers, employees or individuals providing services to Seller, other than, in the case of clause (B), with respect to non-executive employees, and in the case of clause (E), in the Ordinary Course of Business; q) entered into any joint venture, partnership or similar arrangement; r) amended, modified or terminated any Contract identified on Schedule 1.1(a)(iv), other than in the Ordinary Course of Business, except for any such item that terminated in accordance with its terms, or taken any action that would constitute a violation of or default under any material Contract; s) changed its accounting methods, principles or practices, or revalued any of the Assets (including without limitation the writing down of the value of inventory or the writing off of notes or accounts receivable other than in the Ordinary Course of Business); t) taken, or failed to take, any action which could reasonably be expected to result in a material adverse changeprevent, in hinder or materially delay the Business or Condition ability of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed Seller to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and consummate the transactions contemplated hereby by this Agreement or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any SubsidiaryAncillary Agreements to which it is a party; (iu) any increase in salary, rate of commissions, rate of consulting fees or entered into any other compensation transaction other than in the Ordinary Course of Business or entered into any current other material transaction, whether or former officer, director, shareholder, manager, member, employee not in the Ordinary Course of Business; or v) agreed in writing or consultant otherwise to take any of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing actions.

Appears in 1 contract

Samples: Asset Purchase Agreement (Vuance)

Absence of Changes. Since the Audited Financial Statement Datedate of the Company Balance Sheet, except the Company and its Subsidiaries have conducted their respective businesses in all material respects in the Ordinary Course of Business consistent with their past practices. Except as set forth in on Section 2.9 2.6 of the Company Disclosure Schedule Schedule, after the date of the Company Balance Sheet and on or as disclosed in the SEC Documents filed prior to before the date hereof: (a) there has not been any change, event, circumstance or condition to the Knowledge of the Company that, individually or in the aggregate, has had, or would reasonably be expected to have, a Company Material Adverse Effect; (b) there has been no split, combination or reclassification of any of the outstanding shares of the capital stock of the Company, and the Company has not declared or paid any dividends on or made any other distributions (in either case, in stock or property) on or in respect of the outstanding shares of the capital stock of the Company; (c) none of the Company or its Subsidiaries has allotted, reserved, set aside or issued, authorized or proposed the allotment, reservation, setting aside or issuance of, or purchased or redeemed or proposed the purchase or redemption of, any shares in its capital stock or any class of securities convertible or exchangeable into, or rights, warrants or options to acquire, any such shares or other convertible or exchangeable securities; (d) except as required as a result of a change in applicable Laws or GAAP, there has not been any material adverse change, change in any method of accounting or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and accounting practice by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:Company or its Subsidiaries; (ae) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) none of the Company or its Subsidiaries has (i) acquired or sold, pledged, leased, encumbered or otherwise disposed of any material property or assets or agreed to do any of its Subsidiariesthe foregoing or (ii) incurred or committed to incur capital expenditures in excess of $100,000, in the aggregate; (f) there has been no transfer (by way of a license or otherwise) of, or agreement to transfer to, any direct or indirect redemption, purchase or other acquisition by Person’s rights to any of the Company Intellectual Property; (g) there has been no notice delivered to the Company or any of its Subsidiaries of any such capital stock claim of ownership by a third party of any of the Company Intellectual Property owned or developed by the Company or its Subsidiaries, or of infringement by any of the Company or its Subsidiaries of any Third Party Intellectual Property; (h) there has not been any: (i) grant of any severance or termination pay to any employee of the Company or its Subsidiaries; (ii) entry into any employment, deferred compensation, severance or other similar plan or agreement (or equity interestsany amendment to any such existing agreement) with any new or current employee of the Company or its Subsidiaries; (iii) change in the compensation, bonus or other benefits payable or to become payable to its directors, officers, employees or consultants, except as required by any Option with respect to pre-existing plan or arrangement set forth in Section 2.6 of the Company Disclosure Schedule; or (iv) termination of any of the officers or key employees of any of the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary;; or (i) there has not been any increase in salary, rate of commissions, rate of consulting fees or agreement to do any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Merger Agreement (Zalicus Inc.)

Absence of Changes. Since the Audited Financial Statement Date, except as set forth in Section 2.9 date of the Disclosure Schedule or as disclosed Latest Balance Sheet, ------------------ the Business has been conducted in the SEC Documents filed prior to the date hereof, ordinary course consistent with past practices and there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any declarationincurrence, setting aside assumption or payment guarantee by any Seller of any dividend or indebtedness other distribution than in respect the ordinary course of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option business consistent with respect to the Company or any of its Subsidiariespast practices; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby any transaction or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiarycommitment made, or any modification contract or agreement entered into, by any Seller relating to the Assets or the Business, other than transactions and commitments in the ordinary course of business consistent with past practices and those contemplated by this Agreement or the Other Agreements; (c) any change in any method of accounting or accounting practice by Sellers, except for any such change required by reason of a concurrent change in GAAP; (d) any (i) employment, bonus or wage or salary increase, deferred compensation, severance, retirement or other similar agreement entered into by any Seller with any employee that is employed in the Business (or any amendment to any such existing agreement), (ii) grant of any severance or termination pay by any Seller to any employee that is employed in the Business, (iii) change in compensation or other benefits payable by any Seller to any employee that is employed in the Business pursuant to any severance or retirement plans or policies thereof or otherwise, or (iv) any adoption or amendment of any right employee benefit plan, program or arrangement (other than as required under applicable law); (e) any sale, assignment, transfer, lease, license or other encumbrance of any holder Intellectual Property, and, except with respect to other third parties interested in purchasing the Assets prior to May 3, 2004, any disclosure of any outstanding shares proprietary confidential information to any person (other than to Buyer and its Affiliates and other than in the ordinary course of capital stock ofbusiness consistent with past practice in circumstances in which it has imposed reasonable confidentiality restrictions), or Option any abandonment of or lapse of any Intellectual Property; (f) cancellation or termination of any insurance policy maintained by or with respect to, to the Company Business; (g) any mortgage or pledge of any Subsidiaryof the Assets or allowing them to become subject to any Lien; (h) any extraordinary losses or waiver of any rights of the Business (whether or not in the ordinary course of business or consistent with past practice) in excess of $25,000 in the aggregate; (i) any increase commitments for capital expenditures in salary, rate respect of commissions, rate the Business that amount to more than $25,000 in the aggregate; (j) any delay or postponement of consulting fees the payment of any accounts payable or commissions or any other compensation liability or obligation relating to the Business, any agreement or negotiation with any party to extend the payment date of any current such accounts payable or former officer, director, shareholder, manager, member, employee commissions or consultant other liability or obligation or any acceleration of the Company collection of (or discount of) any accounts or notes receivable relating to the Business; (k) material changes in the manner in which the Business extends discounts or credits to customers or otherwise deals with customers; (l) any accounting method for Tax purposes adopted or changed, any amended Tax Return filed, any closing agreement or similar agreement with any Taxing authority consented to or entered into, any Tax claim consented to or settled or compromised or any Subsidiary; position inconsistent with any past practice on any Tax Return taken; (iim) any payment change in the method of consideration recording unmatched receivers on the books and records of Sellers; or (n) any nature whatsoever (other than salarycontract, commissions agreement or consulting fees paid understanding to do any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Asset Purchase Agreement (Angelica Corp /New/)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 Part 2.6 of the Disclosure Schedule, between the date of the Unaudited Interim Balance Sheet and the date of this Agreement, and with respect to clause (a), between the Unaudited Interim Balance Sheet Date and the Closing, there has not been, occurred since the Audited Financial Statement Dateor arisen: (a) any change, event, circumstance, development, occurrence or effect of any kind or character that has had or would reasonably be expected to have a Material Adverse Effect; (b) any change to the Certificate of Incorporation or bylaws of the Company or the certificate of incorporation or bylaws (or equivalent organizational documents) of any other Acquired Company; (c) any declaration, setting aside or payment of any dividend, or other distribution or capital return in respect of any shares of capital stock or other Ownership Interest of any Acquired Company, or any redemption, repurchase or other acquisition by any Acquired Company of any shares of capital stock or other Ownership Interest of any Acquired Company, except for any declarations, setting aside or payment of any dividend or other distribution in respect or return of capital from one or more Acquired Companies to another Acquired Company; (d) any sale, assignment, transfer, lease, license or other disposition, or agreement to sell, assign, transfer, lease, license or otherwise dispose of, any of the capital stock (tangible assets or equity interests) properties of the any Acquired Company or any Owned Intellectual Property having a value, in any individual case, in excess of its Subsidiaries$500,000, or any direct or indirect redemption, purchase or other acquisition by except granting non-exclusive licenses to customers in the Company or any ordinary course of its Subsidiaries business consistent with the past practices of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its SubsidiariesAcquired Companies; (be) except for the executionany acquisition (including by merger, delivery and performance by the Company consolidation or other combination, or acquisition of this Agreement and the Operative Agreementsstock or assets or otherwise), and the transactions contemplated hereby or therebysale, any authorization, issuance, sale transfer or other disposition by the any Acquired Company or any Subsidiary of any shares of capital stock ofcorporation, partnership, joint venture interest or Option with respect to, the Company or any Subsidiaryother business organization, or any modification division thereof or amendment any acquisition or disposition of any right assets, or portion of the assets, of any holder Acquired Company; (f) any material change in any method of financial accounting or financial accounting practice used by any outstanding shares of capital stock ofAcquired Company, or Option with respect to, the Company or any Subsidiaryother than such changes as are required by GAAP; (i) any increase change in salarythe Tax reporting or accounting principles, rate practices or policies, including with respect to (A) depreciation or amortization policies or rates or (B) the payment of commissionsaccounts payable or the collection of accounts receivable, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration settlement or compromise of any nature whatsoever material Tax Liability with any Governmental Body, (iii) any surrender of any right in respect of material Taxes, (iv) any consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of material Taxes, (v) any amendment of any material Tax Return, or (vi) any new, changed, or rescinded material Tax election; (h) (i) any grant of severance or termination pay in excess of $200,000, (ii) any material change to the senior management structure of any Acquired Company, including the hiring of additional officers or the termination of existing officers or (iii) any adoption, material amendment or termination of (other than salaryin connection with the transactions contemplated by this Agreement) any Company Employee Plan; in each case of clauses (i) through (iii) above, commissions except in the ordinary course of business consistent with past practice or consulting fees paid as required by a contractual obligation or as required by applicable Legal Requirement; or (i) any agreement, other than this Agreement, to take any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyactions specified in this Section 2.6.

Appears in 1 contract

Samples: Merger Agreement (Compass Group Diversified Holdings LLC)

Absence of Changes. Since Except as contemplated in this Agreement, reflected in the Audited Financial Statement Date, except as Latest Balance Sheet or set forth in Section 2.9 of the Disclosure on Schedule or as disclosed in the SEC Documents filed prior 3.22 to the date hereofCompany’s Disclosure Schedule, since the Latest Balance Sheet there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any material damage, destruction or casualty loss (whether or not covered by insurance) suffered by the Company or any Company Subsidiary; (b) any change in the financial condition, properties, assets, liabilities or business of the Company and the Company Subsidiaries, other than changes which individually or in the aggregate would not have a Materially Adverse Effect on the Company and the Company Subsidiaries taken as a whole; (c) any transaction engaged in by the Company or a Company Subsidiary which is material to the business or the assets of the Company and the Company Subsidiaries taken as a whole, except in the ordinary course of business; (d) any employment agreement or deferred compensation agreement entered into between the Company or a Company Subsidiary with any existing or prospective employee of such entity; or any increase, not in the ordinary course of business, in the compensation payable or to become payable by the Company or a Company Subsidiary; or the adoption by the Company or a Company Subsidiary of any new (or amendment to or alteration of any existing) bonus, incentive, compensation, pension, stock, matching gift, profit sharing, retirement, death benefit or other fringe benefit plan; (e) any increase in the aggregate Indebtedness or other liabilities or obligations incurred by the Company or a Company Subsidiary, except in the ordinary course of business; (f) any Lien created on any of the material assets of the Company or a Company Subsidiary, other than Permitted Liens created in the ordinary course of business; (g) any material labor dispute involving the employees of the Company or a Company Subsidiary; (h) any sale, assignment, transfer or other disposition or license of any material tangible or intangible assets of the Company or a Company Subsidiary, other than sales, assignments, transfers or other dispositions or licenses of (i) inventory or (ii) franchises, in each case made in the ordinary course of business; (i) any amendment of the Certificate of Incorporation or By-Laws or other organizational documents of the Company or any material Company Subsidiary; (j) any declaration, payment or setting aside or payment by the Company of any dividend or other distribution in respect of the capital stock (assets, pro rata or equity interests) of the Company or any of otherwise, to its Subsidiaries, shareholders or any direct or indirect redemptionpurchase, purchase redemption or retirement or other acquisition by the Company or of any shares of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiariesstock; (bk) except for any action taken which, if it had been taken after the executiondate hereof, delivery and performance by would have required the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby Parent’s consent pursuant to Section 5.1(a) or thereby, (l); or (l) any authorization, issuance, sale or other disposition agreement by the Company or a Company Subsidiary to do any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Merger Agreement (Sbarro Inc)

Absence of Changes. Since the Audited Financial Statement DateJune 30, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof, 1997 (a) there has not been any material adverse changechange in the business, operations, assets, Properties, liabilities, condition (financial or otherwise), results of operations, licenses or prospects of the Company and its Subsidiaries, taken as a whole, and (b) there has not been: (i) any event damage, destruction or development whichloss, individually whether or together with other such eventsnot covered by insurance, which has had or could reasonably be expected to result in have a Material Adverse Effect; (ii) any waiver by the Company or any of its Subsidiaries of a right of material value or of a material adverse changedebt owed to it; (iii) any satisfaction or discharge of any Lien or Encumbrance or payment of any obligation by the Company or any of its Subsidiaries, except m the ordinary course of business and which is not material m the business, operations, assets, Properties, liabilities, condition (financial or otherwise), results of operations, licenses or prospects of the Company and its Subsidiaries, taken as a whole; (iv) any sale, assignment or transfer by the Company or any of its Subsidiaries of any patents, trademarks, copyrights, trade secrets or other intangible assets or Properties; (v) any sale, assignment or transfer by the Company or any of its Subsidiaries of any tangible assets or Properties other than in the Business ordinary course of business; (vi) any resignation or Condition termination of employment of any officer of the Company or any of its Subsidiaries or, to the best of the Company. None 's knowledge after due inquiry, any impending or planned resignation or termination of employment of any such officer; (vii) any mortgage, pledge, transfer of a security interest in, or other Lien or Encumbrance, created by the other representations Company or warranties set forth in this Agreement shall be deemed any of its Subsidiaries, with respect to limit the foregoing. In addition, without limiting the foregoingany of their material Properties or assets, except as expressly contemplated hereby Liens or Encumbrances for taxes not yet due or payable and Liens or Encumbrances under equipment leases entered into in the ordinary course of business; (viii) any capital expenditures or commitments therefor by the Operative Agreements and except as disclosed Company or any of its Subsidiaries that aggregate in Section 2.9 excess of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:$100,000; (aix) any loans or guarantees made by the Company or any of its Subsidiaries to or for the benefit of its employees, officers, directors or consultants, or any members of their immediate families, other than travel advances and other advances made in the ordinary course of its business; (x) any declaration, setting aside or payment of any dividend or other distribution in respect of any of the capital stock (or other equity interests) securities of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or of any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to securities by the Company or any of its Subsidiaries; (bxi) except for the execution, delivery and performance by any material change in any compensation arrangement or agreement with any key employee of the Company or any of this Agreement and its Subsidiaries; (xii) to the Operative Agreements, and best of the transactions contemplated hereby or therebyCompany's knowledge, any authorizationother event or condition of any character which might materially and adversely affect the business, issuanceoperations, sale assets, Properties, liabilities, condition (financial or other disposition otherwise), results of operations, licenses or prospects of the Company or any of its Subsidiaries (as such business is presently conducted and as it is currently proposed to be conducted); or (xiii) any agreement or commitment by the Company or any Subsidiary of its Subsidiaries to do any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Securities Purchase Agreement (Clontech Laboratories Inc)

Absence of Changes. Except as specifically disclosed in the SEC Documents filed with the SEC prior to the date hereof, since December 31, 1999, there have been no material adverse changes in the financial condition, business, properties or prospects of the Company or of the Company and its Subsidiaries, taken as a whole, other than changes referred to in subsequent SEC Documents or the Offering Memorandum which have had a Material Adverse Effect. Except as set forth in Schedule 2(e), the Company does not know of any fact (other than matters of a general economic nature) which materially affects adversely or, so far as the Company can now foresee, will materially affect adversely the financial condition, business, properties or prospects of the Company, or of the Company and its Subsidiaries taken as a whole, or the ability of the Company to perform its obligations under this Agency Agreement. Since December 31, 1999, except with respect to matters of which the Audited Financial Statement DateCompany has notified you in writing or which have been specifically disclosed in the SEC Documents filed with the SEC prior to the date hereof, the Company has not incurred any liabilities or obligations, direct or contingent, not in the ordinary course of business, or entered into any transaction not in the ordinary course of business, which is material to the business of the Company, and, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof2(e), there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, change in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect toany incurrence of long-term debt by, the Company or any SubsidiaryCompany, or any modification issuance of options, warrants or amendment of any right of any holder of any outstanding shares of other rights to purchase the capital stock ofof the Company, or Option with respect any adverse change or any development involving, so far as the Company can now reasonably foresee, a prospective adverse change in the condition (financial or otherwise), net worth, results of operations, business, key personnel or properties which would be material to the business or financial condition of the Company, and the Company has not become a party to, and neither the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant business nor the property of the Company has become the subject of, any material litigation whether or any Subsidiary; (ii) any payment not in the ordinary course of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anybusiness.

Appears in 1 contract

Samples: Placement Agency Agreement (Proxymed Inc /Ft Lauderdale/)

Absence of Changes. Since December 31, 1996 through the Audited Financial Statement Datedate ------------------ hereof, except (i) as set forth in Schedule 2.1.5, (ii) as reflected or reserved against in the BHC Financial Statements, or (iii) as contemplated by (including, without limitation, Section 2.9 3.1.1) or in connection with this Agreement or the transactions contemplated hereby, the business of the Disclosure Schedule or as disclosed BHC Group has been conducted in the SEC Documents filed prior to ordinary course consistent with past practices and no member of the date hereofBHC Group has: (a) undergone any change in its business, there has not been any material adverse changefinancial condition, results of operations or any event properties (other than changes resulting solely from general economic or development whichpolitical conditions), that, individually or together with other such eventsin the aggregate, has had or could reasonably be expected to result in a material adverse change, have an Adverse Effect on the BHC Group ; (b) in the Business case of BHC Parent declared, set aside, made or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (a) any declaration, setting aside or payment of paid any dividend or other distribution in respect of its common stock or repurchased, redeemed or otherwise acquired any shares of its common stock, except in the capital ordinary course of business consistent with past practices; (c) issued or sold any shares of its common stock (or equity interests) any options, warrants or other similar rights, agreements or commitments of any kind to purchase any such shares or any securities convertible into or exchangeable for any such shares, except for issuances of Common Stock of BHC Parent pursuant to the exercise of BHC Options consistent with past practice of the Company BHC Group; (d) in the case of any member of the BHC Group, incurred, assumed, guaranteed (including by way of any agreement to "keep well" or of any similar arrangement) or prepaid any Indebtedness or amended the terms relating to any Indebtedness (including, without limitation, capital leases, payments in respect of the deferred purchase price of property, letters of credit, loan agreements and other agreements relating to the borrowing of money or extension of credit) or issued or sold any debt securities, except for any such incurrence, assumption, guarantee or prepayment of such Indebtedness or amendments of the terms of such Indebtedness in the ordinary course of business consistent with past practices in an aggregate amount not exceeding $5,000,000; (e) sold, transferred, assigned, conveyed, mortgaged, pledged or otherwise subjected to any Lien any of its Subsidiariesproperties or assets, tangible or any direct intangible, except for BHC Permitted Encumbrances or indirect redemption, purchase or other acquisition by in the Company or any ordinary course of its Subsidiaries of any such capital stock (or equity interests) of or any Option business consistent with respect to the Company or any of its Subsidiariespast practices; (bf) entered into (i) any agreement or commitment involving more than $1,000,000 that, pursuant to its terms, is not cancelable without penalty on 60 days' notice or less or (ii) any other agreement, commitment or other transaction, other than any agreement, commitment or other transaction involving an expenditure of not more than $500,000 or series of expenditures in the aggregate of not more than $1,000,000; (g) paid (or committed to pay) any bonus or other incentive compensation to any director, partner, officer or other employee or granted (or committed to grant) to any director, partner, officer or other employee any other increase in compensation, except for bonuses payable pursuant to any plan listed on Schedule 2.1.16 (a) base salary or wage increases, in each case in the executionordinary course of business consistent with past practices or pursuant to the terms of any written agreement or commitment existing at December 31, delivery and performance by the Company of this Agreement and the Operative Agreements1996; (h) entered into, and the transactions contemplated hereby adopted or therebyamended (or committed to enter into, adopt or amend) in any authorizationmaterial respect any employment, issuanceretention, sale change in control, collective bargaining, deferred compensation, retirement, bonus, profit-sharing, stock option or other disposition by equity, pension or welfare plan, contract or other arrangement with an independent contractor or agreement maintained for the Company or any Subsidiary benefit of any shares of capital stock ofdirector, partner, officer, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiaryother employee; (i) suffered any increase in salarystrike or other labor dispute or controversies, rate including unresolved grievances, arbitrations or unfair labor practice charges that has had or could reasonably be expected to have an Adverse Effect on the BHC Group; (j) amended its certificate of commissions, rate of consulting fees incorporation or by-laws or any other compensation Organizational Documents; (k) granted any rights or licenses under any of its trademarks or trade names or other BHC Intellectual Property or entered into any licensing or similar agreements or arrangements other than in the ordinary course of business consistent with past practices; (l) made any material changes in its general policies or practices relating to selling practices, discounts or other material terms of sale or accounting therefor other than in the ordinary course of business consistent with past practices; (m) changed in any material respect its accounting practices, policies or principles, other than any such changes as may be required under GAAP or other generally accepted accounting principles of the applicable jurisdiction; (n) suffered any damage, destruction or other casualty loss (whether or not covered by insurance) affecting its properties or assets which, individually or in the aggregate, could reasonably be expected to have an Adverse Effect on the BHC Group; or (o) taken any action or omitted to take any action that would result in the occurrence of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Merger Agreement (BHC Financial Inc)

Absence of Changes. Since the Audited Financial Statement Date, except as set forth in Section 2.9 of the Disclosure Schedule or Except as disclosed in Schedule 3.24, since July 31, 1998, the SEC Documents filed prior to Corporation has carried on the date hereof, Business and conducted its operations and affairs only in the ordinary and normal course consistent with past practice and there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any material adverse change in the condition (financial or otherwise), properties, assets, liabilities, operations, earnings, business or prospects of the Corporation; (b) any damage, destruction or loss (whether or not covered by insurance) affecting the property or assets of the Corporation; (c) any obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by the Corporation, other than those incurred in the ordinary and normal course of business, consistent with past practice; (d) any payment, discharge or satisfaction of any Encumbrance, liability or obligation of the Corporation (whether absolute, accrued, contingent or otherwise, and whether due or to become due) other than payment of accounts payable and tax liabilities incurred in the ordinary course of business consistent with past practice; (e) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the capital stock (or equity interests) of the Company or any of its Subsidiaries, Corporation or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiariesshares; (bf) except any issuance or sale by the Corporation, or any Contract entered into by the Corporation or Vendor, for the execution, delivery and performance issuance or sale by the Company of this Agreement and the Operative AgreementsCorporation, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares in the capital of or securities convertible into or exercisable for shares in the capital stock ofof the Corporation; (g) any labour trouble adversely affecting the Corporation; (h) any license, sale, assignment, transfer, disposition, pledge, mortgage or Option with respect togranting of a security interest or other Encumbrance on or over any property or assets of the Corporation, other than sales of inventory to customers in the Company or any Subsidiary, or any modification or amendment ordinary and normal course of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any SubsidiaryBusiness; (i) any write-down of the value of any inventory or any write-off as uncollectible of any accounts or notes receivable or any portion thereof of the Corporation in amounts exceeding $10,000 in each instance or $50,000 in the aggregate; (j) any cancellation of any debts or claims or any amendment, termination or waiver of any rights of value to the Corporation in amounts exceeding $10,000 in each instance or $50,000 in the aggregate; (k) any general increase in salarythe compensation of employees of the Corporation (including, rate of commissionswithout limitation, rate of consulting fees any increase pursuant to any Employee Plan or commitment), or any other increase in any compensation or bonus payable to any officer, employee, consultant or agent (having an annual salary or remuneration in excess of $25,000 or the execution of any current employment contract with any officer or former officeremployee (having an annual salary or remuneration in excess of $25,000) or the making of any loan to, directoror engagement in any transaction with, shareholderany employee, manager, member, employee officer or consultant director of the Company Corporation; (l) any capital expenditures or commitments of the Corporation in excess of $10,000 in the aggregate; (m) any forward purchase commitments in excess of the requirements of the Corporation for normal operating inventories or at prices higher than the market prices; (n) any forward sales commitments other than in the ordinary and normal course of the Business or any Subsidiary; failure to satisfy any accepted order for goods or services; (iio) any payment of consideration of change in the accounting or tax methods or practices followed by the Corporation; (p) any nature whatsoever change adopted by the Corporation in its depreciation or amortization policies or rates; or (q) any change in the credit terms offered to customers of, or by supplies to, the Corporation, other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant in the ordinary course of the Company or anybusiness.

Appears in 1 contract

Samples: Share Purchase Agreement (Equitex Inc)

Absence of Changes. (a) Since the Audited Financial Statement DateDecember 31, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof2021, there has not been any material adverse change, or any development, condition, occurrence, event or development whicheffect relating to the Company that, individually or together with other such eventsin the aggregate, could resulted in, or would reasonably be expected to result in in, a material adverse changeMaterial Adverse Effect. (b) Since the Interim Balance Sheet Date through the date of this Agreement, except (A) as expressly contemplated or permitted by this Agreement or (B) as set forth on Schedule 4.20, (1) the Company has, in all material respects, conducted its business and operated their properties in the Business ordinary course of business consistent with past practices and (2) the Company has not taken any of the following actions: (i) amendment or Condition modification of, or change to, the Organizational Documents of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:; (aii) any declarationsplit, setting aside combination, recapitalization or payment reclassification of any dividend or other distribution in respect shares of the its capital stock (or other equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiariessecurity); (biii) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition of any equity security or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any equity security of the Company except pursuant to Company Convertible Securities upon exercise of a Company Option outstanding as of the date hereof in accordance with its terms; (iv) making, declaration or payment of any dividends or distributions (whether in cash, stock or otherwise) on or in respect of any of its capital stock (or other equity security); redemption, purchase or acquisition of its capital stock; (v) material change in the Company’s cash management practices and their policies, practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable, payment and prepayment of expenses, payment of accounts payable, accrual of other expenses, deferral of revenue and acceptance of customer deposits; (vi) material change in any method of accounting or accounting practice of the Company, except as required by GAAP or applicable Laws and regulations; (vii) material adverse change to the Company’s privacy policy or to the security of the Company’ Systems, except as required by applicable Law; (viii) incurrence, assumption or guarantee of any indebtedness for borrowed money by the Company except unsecured current obligations and Liabilities incurred in the ordinary course of business consistent with past practice; (ix) transfer, assignment, sale or other disposition of any tangible or intangible asset shown or reflected in the balance sheet, other than sales of inventory in the ordinary course of business consistent with past practice, or cancellation of any debts; (x) transfer, assignment or grant of any exclusive license or exclusive sublicense of material rights under or with respect to any material Owned Intellectual Property; (xi) capital investment in, or any Subsidiary loan to, any other Person; (xii) other than in the ordinary course of business consistent with past practice, entry into, acceleration, termination (excluding any expiration in accordance with its terms), material modification to or cancellation of any shares Material Contract or Company IP Agreement or waiver or release of any material rights, claims or benefits under any Material Contract or Company IP Agreement; (xiii) capital expenditure in excess of $100,000 of the amounts set forth in the capital expenditure budget made available to the Acquiror; (xiv) imposition of any material Lien (other than Permitted Liens) upon any of the Company’s properties, capital stock or assets, tangible or intangible; (xv) except for the Amended Letter Agreement or as required by applicable Law or the terms of a Benefit Plan in effect as of the date hereof and other than in the ordinary course of business and consistent with past practice (A) increase in the compensation or benefits payable under any Benefit Plan to or in respect of any current or former employee, officer, director, individual independent contractor or individual consultant of the Company, (B) establishment, adoption, entry into, amendment, modification, termination or taking any action to accelerate rights under any Benefit Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date hereof, (C) acceleration of the vesting, settlement or payment (or otherwise fund or secure any payment or settlement) of any compensation or benefit for any current or former employee, officer, director, individual independent contractor or individual consultant, (D) grant or provision of any severance or termination payments or benefits to any current or former employee, officer, director, individual independent contractor or individual consultant or increase the amount payable in respect of any such payments or benefits, (E) entry into any new Contract to provide employment of any individual and any such Contracts that provides for severance, retention, change in control, transaction bonus or other similar payments to such individuals, or (F) hiring or termination of the employment of (other than for “cause”), any officer, employee, individual independent contractor or individual consultant of the Company; (xvi) establishment, adoption, amendment, modification or termination of any collective bargaining agreement; (xvii) adverse employment action (including layoffs, furloughs, wage reductions or deferrals) in respect of any officer, employee or individual independent contractor’s service, compensation or benefits that would create a Material Adverse Effect. (xviii) any loan or advance to (or cancellation or forgiveness of any loan to) any of its stockholders or current or former directors, officers and employees or any Affiliate or family member thereof, or entry into, or modification or termination of, any transaction, agreement or arrangement with any of its stockholders or current or former directors or officers or any Affiliate or family member thereof; (xix) entry into a new line of business that is unrelated to the current Business or abandonment or discontinuance of existing lines of business; (xx) except for the Merger, adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law; (xxi) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $75,000 individually or $175,000 in the aggregate, except for purchases or leases of inventory, services and supplies in the ordinary course of business consistent with past practice; (xxii) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or Option by any other manner, any business or any Person or any division thereof; (xxiii) action by the Company to make, change or rescind any Tax election, amend any Tax Return or file refund claim with respect toto Tax, settle or compromise any claim, investigation, audit, controversy or assessment in respect of Taxes, change any annual Tax accounting period, adopt or change any method of Tax accounting, surrender any right to claim a Tax refund, consent to any extension or waiver of the Company statute of limitations period applicable to any Tax claim, investigation, audit, controversy or assessment, enter into any Subsidiarypower of attorney with respect to Taxes, or take any modification action, omit to take any action or amendment enter into any other transaction that, in each case, (A) is outside of any right the ordinary course of any holder business or inconsistent with the Company’s past practices and (B) would reasonably be expected to have the effect of any outstanding shares materially increasing the Tax liability of capital stock of, or Option with respect to, the Company Acquiror or any Subsidiary; (ixxiv) any increase in salarypayment, rate of commissionsdischarge, rate of consulting fees compromise, waiver, release, assignment or any other compensation settlement of any current material rights or former officerpending or threatened Actions (whether civil, directorcriminal, shareholderadministrative or investigative) against the Company (A) involving payments in excess of $75,000 in any single instance or in excess of $175,000 in the aggregate, manager(B) seeking injunctive or other equitable relief which imposes any materially adverse restrictions on the operations of the Company, member, employee or consultant (C) by any of the Company Stockholders or their Affiliates, or (D) which relates to the transactions contemplated by this Agreement; (xxv) entry into, renewal, modification or amendment of any Company Affiliate Agreement (or any SubsidiaryContract, that if existing on the date hereof, would have constituted a Company Affiliate Agreement); (xxvi) voluntary failure to maintain, cancellation of or material change in coverage under any insurance policy in form and amount equivalent in all material respects to the insurance coverage currently maintained with respect to the Company and its assets and properties; or (iixxvii) authorization of, or commitments or agreements to do, any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Merger Agreement (Starco Brands, Inc.)

Absence of Changes. Since the Audited Financial Statement Date, except Except as otherwise expressly permitted or required by this Agreement or set forth in Section 2.9 3.5 of the Company Disclosure Schedule or as disclosed Letter, since the Company Balance Sheet Date, (i) the Company and the Subsidiaries have conducted the Business only in the SEC Documents filed prior to the date hereofordinary course of business consistent with past practice, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, (ii) there has not occurred since a Material Adverse Effect with respect to the Audited Financial Statement DateCompany and the Subsidiaries, taken as a whole, and (iii) neither the Company nor any Subsidiary has taken any of the following actions: (a) any declarationamended its certificate of incorporation or bylaws or equivalent organizational or governing documents; (b) adopted a plan of complete or partial liquidation, setting aside or payment of any dividend dissolution, consolidation, restructuring, recapitalization or other distribution reorganization other than the this Agreement and the Merger; (c) declared or paid any dividends on or make any other distributions (whether in cash, stock or other property) in respect of any of its Equity Interests, or split, combine or reclassify any of its Equity Interests or issue or authorize the capital stock issuance of any Equity Interests or other securities in respect of, in lieu of or in substitution for its Equity Interests, or repurchased or otherwise acquired, directly or indirectly, any of its Equity Interests except for Permitted Issuances; (d) entered into, extended, modified, terminated or equity interestsrenewed any Material Contract, other than in the ordinary course of business consistent with past practice; (e) issued, delivered, granted or sold or authorized the issuance, delivery, grant or sale of, or purchased or proposed the purchase of, any Company Voting Debt or any Equity Interests, or authorized or entered into any Contracts obligating it to issue any Equity Interests of the Company or any Subsidiary, other than: (i) the issuance of its Subsidiariesshares of Company Common Stock pursuant to the exercise of Company Options that are outstanding as of the Agreement Date, and (ii) the repurchase of any shares of Company Capital Stock from former employees, non-employee directors and consultants in accordance with Contracts providing for the repurchase of shares in connection with any termination of service; (f) terminated the employment of any employee other than in the ordinary course of business consistent with past practice or for cause; (g) made any direct loans or indirect redemption, purchase or advances (other acquisition by than routine expense advances to employees of the Company or any Subsidiary consistent with past practice) to, or any investments in or capital contributions to, any Person, or forgive or discharge in whole or in part any outstanding loans or advances, or prepay any indebtedness for borrowed money (other than purchases of U.S. Treasury securities or U.S. government agency securities, which have maturities of sixty (60) days or less or similar investments that are consistent with current cash management practices of the Company and the Subsidiaries); (h) transferred or licensed from any Person any rights to any Intellectual Property, other than licenses for “shrink wrap” and other similar generally commercially available software that have an individual acquisition cost of $35,000 or less; (i) transferred or licensed to any Person any rights to any Company Intellectual Property, or transferred or provided a copy of any Company Source Code to any Person (including any current or former employee or consultant of the Company or any contractor or commercial partner of the Company), other than (A) nonexclusive licenses of Company Products in the ordinary course of business consistent with past practice and (B) providing access to Company Source Code to employees and consultants of the Company involved in the development of the Company Products on a need to know basis in the ordinary course of business consistent with past practice and in connection with Acquirer’s due diligence of the Company and the Subsidiaries; (j) sold, leased or otherwise disposed of any of its Subsidiaries of tangible or intangible assets (other than Company Intellectual Property), or enter into any such capital stock (or equity interests) of or any Option Contract with respect to the foregoing; (k) incurred any indebtedness for borrowed money or guarantee any such indebtedness other than borrowings under the Company Credit Facility; (l) made any capital expenditures, capital additions or capital improvements in excess of $100,000 individually or $200,000 in the aggregate; (m) materially changed the amount of, or terminated, any insurance coverage; (n) initiated or settled any Legal Proceedings involving the Company or any of its Subsidiaries; (bo) (i) adopted or amended any employee or compensation benefit plan, including any stock issuance or stock option plan, or amend any compensation, benefit, entitlement, grant or award provided or made under any such plan, except in each case as required under ERISA, Applicable Law or as necessary to maintain the qualified status of such plan under the Code, (ii) amended any deferred compensation plan within the meaning of Section 409A of the Code and the regulations thereunder, except to the extent necessary to meet the requirements of such Section or Notice, (iii) paid any special bonus or special remuneration to any employee or non-employee director or consultant (other than the Spot Awards and Employee Referral Bonus Program described in Schedule 5.2(o) of the Company Disclosure Letter) or (iv) increase the salaries, wage rates or fees of its employees or consultants other than in the ordinary course of business consistent with past practice; (p) acquired by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any Person, or entered into any Contract with respect to a joint venture, strategic alliance or partnership; (q) made or changed any material election in respect of Taxes, adopted or changed any accounting method in respect of Taxes, entered into any Tax sharing or similar agreement (excluding commercial agreements entered into the ordinary course of business not primarily related to Taxes) or material closing agreement, assume any Liability for the execution, delivery and performance by the Company Taxes of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by Person other than the Company or any Subsidiary of its Subsidiaries (whether by Contract or otherwise), settled any shares claim or assessment in respect of capital stock ofmaterial Taxes, or Option with consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any SubsidiaryTaxes; (ir) changed accounting methods or practices (including any increase change in salarydepreciation or amortization policies) or revalued any of its assets (including writing down the value of inventory or writing off notes or accounts receivable otherwise than in the ordinary course of business), rate of commissionsexcept in each case as required by changes in GAAP; (s) entered into any agreement for the purchase, rate of consulting fees sale or any other compensation lease of any current real property other than any lease renewals or former officer, director, shareholder, manager, member, employee or consultant extensions of the Company or leases; or (t) entered into any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid Contract to any current or former officer, director, shareholder, manager, member, employee or consultant take an of the Company or anyforegoing actions.

Appears in 1 contract

Samples: Merger Agreement (Model N, Inc.)

Absence of Changes. Since the Audited Financial Statement DateMarch 31, except 2006, other than as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior and Schedule 2.4 to this Subscription Agreement, the Company has not (i) incurred any debts, obligations or liabilities, absolute, accrued, contingent or otherwise, whether due or to become due, except current liabilities incurred in the usual and ordinary course of business and consistent with past practices, having individually or in the aggregate a Material Adverse Effect, (ii) made or suffered any changes in its contingent obligations by way of guaranty, endorsement (other than the endorsement of checks for deposit in the usual and ordinary course of business), indemnity, warranty or otherwise, (iii) discharged or satisfied any liens or paid any obligation or liability other than current liabilities shown on the balance sheet dated as of March 31, 2006, and current liabilities incurred since the date hereofof the balance sheet dated as of March 31, there has not been 2006, in each case in the usual and ordinary course of business and consistent with past practices, (iv) mortgaged, pledged or subjected to lien any material adverse changeof its assets, tangible or intangible, (v) sold, transferred or leased any of its assets except in the usual and ordinary course of business and consistent with past practices, (vi) cancelled or compromised any debt or claim, or waived or released any event right, of material value, (vii) suffered any physical damage, destruction or development whichloss (whether or not covered by insurance) adversely affecting the properties, individually business or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition prospects of the Company. None , (viii) entered into any transaction other than in the usual and ordinary course of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) business except for the execution, delivery and performance by the Company of this Subscription Agreement and the Operative Agreements, other Offering Documents and the transactions contemplated hereby related agreements referred to herein and therein, (ix) declared or thereby, paid any authorization, issuance, sale dividends on or made any other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option distributions with respect to, the Company or purchased or redeemed, any Subsidiaryof its outstanding equity securities, (x) suffered or experienced any change in, or any modification condition affecting, its condition (financial or amendment otherwise), properties, assets, liabilities, business operations, results of any right of any holder of any outstanding shares of capital stock of, operations or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (prospects other than salarychanges, commissions events or consulting fees paid to conditions in the usual and ordinary course of its business and consistent with past practices, having (either by itself or in conjunction with all such other changes, events and conditions) a Material Adverse Effect or (xi) made any current change in the accounting principles, methods or former officer, director, shareholder, manager, member, employee practices followed by it or consultant of the Company depreciation or anyamortization policies or rates theretofore adopted.

Appears in 1 contract

Samples: Subscription Agreement (Msgi Security Solutions, Inc)

Absence of Changes. Since the Audited Financial Statement DateBalance Sheet Date through the date of this Agreement, except as set forth the Company and its Subsidiaries have been operated in Section 2.9 of the Disclosure Schedule or as disclosed all material respects in the SEC Documents filed prior to the date hereof, ordinary course consistent with past practice and there has not been been: (a) any material adverse changeevents, changes, occurrences, effects or any event or development whichcircumstances that, individually or together with other such eventsin the aggregate, could have had or would reasonably be expected to result in have a Company Material Adverse Effect; (b) any payment, discharge, satisfaction or settlement of any material adverse changeclaim or obligation of the Company or any of its Subsidiaries, except in the Business or Condition ordinary course of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:business consistent with past practice; (ac) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the capital stock (or other equity interests) interests of the Company or any of its Subsidiaries, Subsidiaries or any direct or indirect redemption, purchase or other acquisition by acquisition, retirement or extinguishment for value of any such shares or equity interests; (d) any issuance or sale, or any Contract entered into for the issuance or sale, of any shares of capital stock or other equity interests or securities convertible into or exchangeable or exercisable for shares of capital stock or other equity interests of the Company or any of its Subsidiaries; (e) any sale, lease, license, assignment, pledge, encumbrance, transfer or other disposition of any material asset of the Company or any of its Subsidiaries (excluding in all events sales of inventory to customers in the ordinary course of business consistent with past practice), or any sale, license, assignment, pledge, encumbrance, transfer or other disposition of any such capital stock (or equity interests) of material Intellectual Property or any Option with respect other material intangible assets of the Company or any of its Subsidiaries; (f) any cancellation of any material debts or claims or any amendment, termination or waiver of any rights of material value to the Company or any of its Subsidiaries; (bg) except for any change in the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby accounting methods or thereby, any authorization, issuance, sale or other disposition accounting practices followed by the Company or any Subsidiary of any shares of capital stock ofchange in depreciation or amortization policies or rates, other than as may be necessary to conform to changes in GAAP or Option regulatory requirements with respect to, the Company thereto; (h) any material Tax election or any Subsidiary, material liability incurred for Taxes other than in the ordinary course of business or any modification or amendment filing of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiaryan amended Tax Return; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation incurrence of any current capital expenditures or former officercommitments or additions to property, director, shareholder, manager, member, employee plant or consultant equipment of the Company or any Subsidiaryand its Subsidiaries, taken as a whole, other than in the ordinary course of business; or (iij) any payment of consideration of agreement, whether in writing or otherwise, to take any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyactions specified in the foregoing items (b) through (i).

Appears in 1 contract

Samples: Merger Agreement (Associated Materials, LLC)

Absence of Changes. Since the Audited Financial Statement Latest Balance Sheet Date, except as set forth in Section 2.9 of the Disclosure on Schedule or as disclosed 7.8, ------------ each Company has been operated in the SEC Documents filed prior to the date hereofordinary course of business, consistent with past practice, and there has not been any material adverse change, or been: (a) any event or development which, individually condition which has resulted in or together with other such events, could reasonably be expected to result in a material an adverse change, change in the Business business, operations, assets, condition (financial or Condition otherwise), operating results, liabilities, relations with employees, customers or suppliers, or prospects of any Company, or any casualty loss or damage to the assets of any Company. None of the other representations , whether or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and not covered by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:insurance (a "Material Adverse Change"); ----------------------- (ab) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the capital stock (or equity interests) of the Company or any of its SubsidiariesCompany, or any direct or indirect redemption, purchase or other acquisition by the Company of any thereof, or any of its Subsidiaries other payments of any such capital stock nature directly or indirectly to or for the benefit of any Shareholder or Affiliate of any Company (whether or equity interests) of not on or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock ofof such Company owned by such Shareholder or Affiliate) other than salaries and benefits paid in the usual and ordinary course of business; (c) any general uniform increase in the compensation of employees (including any increase pursuant to any bonus, pension, profit-sharing or Option with respect to, the Company other plan or commitment) of any SubsidiaryCompany, or any modification increase in or amendment prepayment of any right such compensation payable or to become payable to any officer, director or key employee; (d) any acquisition or disposition of assets or properties other than the sale or other disposition of inventories for fair value in the ordinary course of business; (e) any agreement or commitment on the part of any holder Company to merge, amalgamate or consolidate with or into, or otherwise acquire, any other Person or division thereof; (f) any change in depreciation or amortization policies or rates previously adopted, any change in income or expense recognition or bad debt reserve, write-down or write-off policies previously adopted, any write-up or write-down of inventory or other assets or any other change in other accounting or in tax reporting or methods or practices followed by any Company; (g) any change in the manner in which products or services of any outstanding shares of capital stock ofCompany is marketed (including any change in prices), any change in the manner in which any Company extends discounts or Option with respect to, the Company credit to customers or any Subsidiarychange in the manner or terms by which any Company collects accounts receivable; (h) any failure by any Company to make scheduled capital expenditures or investments or any failure to pay trade accounts payable or any other Liability of such Company when due; or (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever agreement (other than salarythis Agreement and the Related Agreements), commissions whether in writing or consulting fees paid otherwise, to take any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyactions specified in the foregoing clauses (a) through (i).

Appears in 1 contract

Samples: Asset Purchase Agreement (Pacer International Inc/Tn)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 SCHEDULE 4.1.8, since the Balance Sheet Date, each of the Disclosure Schedule or as disclosed Xxxxxx and PPCT has conducted its business only in the SEC Documents filed ordinary course consistent with prior to the date hereof, there practice and has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datenot: (a) suffered any declarationXxxxxx or PPCT Material Adverse Effect; (b) declared, setting aside set aside, made or payment of paid any dividend or other distribution in respect of the its capital stock or membership interests, or otherwise purchased or redeemed, directly or indirectly, any shares of its capital stock or membership interests; (c) issued or equity sold any shares of its capital stock or membership interests, or any securities convertible into or exchangeable for any such shares or membership interests, or issued, sold, granted or entered into any subscriptions, options, warrants, conversion or other rights, agreements, commitments, arrangements or understandings of any kind, contingent or otherwise, to purchase or otherwise acquire any such shares or membership interests, or any securities convertible into or exchangeable for any such shares or membership interests; (d) incurred any indebtedness for borrowed money, issued or sold any debt securities or prepaid any debt (including, without limitation, any borrowings from or prepayments to any shareholder or member), except for borrowings and prepayments in the ordinary course of the Company business; (e) mortgaged, pledged or otherwise subjected to any Lien, any of its Subsidiariesproperties or assets, tangible or intangible, except for (i) mortgages and encumbrances which secure indebtedness which is properly reflected in the Xxxxxx and PPCT Latest Balance Sheet; (ii) Liens filed of record; (iii) Liens for taxes accrued but not yet payable; (iv) Liens arising as a matter of law in the ordinary course of business with respect to obligations incurred after the Balance Sheet Date; PROVIDED that the obligations secured by such Liens are not delinquent or are being contested in good faith; (v) such imperfections of title and encumbrances, if any, as do not materially detract from the value of or materially interfere with the present use of any of such properties or assets or the pending sale of any of such owned properties or assets; and (vi) capital leases, if any, with third parties for fair and adequate consideration (collectively, "Permitted Liens"); (f) forgiven, canceled, compromised, waived or released any debts, claims or rights, except for debts of, or claims and rights against, persons other than any shareholder or member that have been forgiven, canceled, compromised, waived or released in the ordinary course of business; (g) paid or committed to pay any bonus, other incentive compensation, change in control or similar compensation to any officer, director, employee, manager, shareholder, member or affiliate, or granted or committed to grant to any officer, director, employee, manager, shareholder, member or affiliate any other increase in, or additional, compensation in any form; (h) entered into, instituted, adopted or amended or committed to enter into, institute, adopt or amend any employment, consulting, retention, change-in-control, collective bargaining, bonus or other incentive compensation, profit-sharing, health or other welfare, stock option or other equity, pension, retirement, vacation, severance, deferred compensation or other employment, compensation or benefit plan, policy, agreement, trust, fund or arrangement in respect of or for the benefit of any officer, director, employee, manager, shareholder, member or affiliate; (i) encountered any labor union organizing activity or had any actual or threatened employee strikes, work stoppages, slowdowns or lockouts, or had any material adverse change in its relations with its employees, agents, customers or suppliers; (j) amended either of its articles of incorporation or articles of organization, its bylaws or operating agreement; (k) changed in any respect its accounting practices, policies or principles; (l) incurred, assumed, guaranteed or otherwise become directly or indirectly liable with respect to any liability or obligation in excess of $10,000 in each case or $25,000 in the aggregate at any one time outstanding (whether absolute, accrued, contingent or otherwise and whether direct or indirect, or as guarantor or otherwise with respect to any liability or obligation of any other person) other than agreements for purchases of goods or services in the ordinary course of business; (m) sold any assets with a value in excess of $10,000 in each case or $25,000 in the aggregate, other than inventory in the ordinary course of business; (n) received any notice of termination of any Contract which, in any case or in the aggregate, would have or result in a Xxxxxx or PPCT Material Adverse Effect; (o) transferred or granted any rights under, or entered into any settlement regarding the breach or infringement of, any United States or foreign patents, copyrights, trademarks, service marks, trade names, trade dress, logos, business and product names, slogans, inventions, trade secrets, industrial models, formulas, processes, designs, confidential and technical information, manufacturing, engineering and technical drawings, product specifications, know-how, and intellectual property rights to or similar to and registrations and applications for registration relating to any of the foregoing ("Intellectual Property"), or modified any existing rights with respect thereto; (p) suffered any damage, destruction or loss (whether or not covered by insurance), or any direct employment-related problem, that, individually or indirect redemptionin the aggregate, purchase would have or other acquisition by the Company result in a Xxxxxx or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its SubsidiariesPPCT Material Adverse Effect; (bq) except for made any capital expenditures or capital additions or improvements in excess of an aggregate of $25,000; (r) instituted, settled or agreed to settle any litigation, action or proceeding before any court or governmental body involving amounts in excess of $25,000; (s) entered into any transaction, Contract or commitment other than in the executionordinary course of business, delivery and performance or paid or agreed to pay any legal, accounting, brokerage or finder's fees, taxes or other expenses in connection with, or incurred any severance pay obligations by reason of, this Agreement, the Company of this Agreement and the Operative Agreements, and other Transaction Agreements or the transactions contemplated hereby or thereby, ; or (t) taken any authorization, issuance, sale action or other disposition by omitted to take any action that would result in the Company or any Subsidiary occurrence of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Merger Agreement (Mixson Corp /De/)

Absence of Changes. Since the Audited Company Financial Statement Date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof, there has not been any material adverse change, change in the Business or Condition of the Company or any event occurrence or development event, which, individually or together with other such events, in the aggregate could be reasonably be expected to result in a have any material adverse change, change in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedulehereby, there has not occurred since the Audited Company Financial Statement Date: (a) the entering into of any Contract, commitment or transaction or the incurrence of any Liabilities outside of the ordinary course of business consistent with past practice; (b) the entering into of any Contract in connection with any transaction involving a Business Combination other than those related to this contemplated Merger transaction; (c) the alteration, or entering into of any Contract or other commitment to alter, its interest in any Corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest on the date hereof; (d) the entering into of any strategic alliance, joint development or joint marketing Contract other than joint marketing or development efforts in the ordinary course of business consistent with past practice; (e) any amendment or other modification (or agreement to do so), except in the ordinary course of business consistent with past practice, or violation of the terms of, any of the Contracts set forth or described herein; (f) the entering into of any transaction with any officer, director, shareholder, Affiliate or Associate of the Company, other than pursuant to any Contract in effect on the Company Financial Statement Date and disclosed to Parent pursuant to the Schedules; (g) the entering into or amendment of any Contract pursuant to which any other Person is granted manufacturing, marketing, distribution, licensing or similar rights of any type or scope with respect to any products of the Company or Company Intellectual Property other than as contemplated by the Contracts or Licenses of the Company disclosed herein or otherwise in the ordinary course of business consistent with past practice; (h) the commencement of any Action or Proceeding (other than any investigation of which the Company is not aware); (i) except as set forth in Schedule 2.7(i), the declaration, setting aside or payment of any dividend dividends on or making of any other distribution distributions (whether in cash, stock or property) in respect of the capital stock (or equity interests) of the any Company or any of its SubsidiariesShares, or any direct split, combination or indirect redemptionreclassification of any Company Shares or issuance or authorization of the issuance of any other securities in respect of, purchase in lieu of or in substitution for Company Shares, or the repurchase, redemption or other acquisition by the Company acquisition, directly or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the executionindirectly, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock ofCompany Shares by the Company except for repurchases of Company Shares upon termination of employment; (j) except as set forth in Schedule 2.7(j), the issuance, grant, delivery, sale or authorization of or proposal to issue, grant, deliver or sell, or Option with respect topurchase or proposal to purchase, the any Company Shares or any Subsidiary, or any modification or amendment of any right the rights of any holder of any outstanding shares Company Shares, nor have there been any agreements, arrangements, plans or understandings with respect to any such modification or amendment; (k) except as set forth in Schedule 2.7(k), any amendments to the Company’s Articles of capital stock Incorporation or By-Laws; (l) any transfer (by way of a License or otherwise) to any Person of rights to any Company Intellectual Property other than non-exclusive transfers to the Company’s customers, distributors or other licensees in the ordinary course of business consistent with past practice; (m) any disposition or sale of, waiver of rights to, license or lease of, or Option incurrence of any Lien on, any Assets and Properties (other than Company Intellectual Property) of the Company, other than dispositions of inventory, or licenses of products to Persons in the ordinary course of business of the Company consistent with respect topast practice; (n) any purchase or lease of any Assets and Properties of any Person or the making of any capital expenditures, lease commitments or other capital commitments by the Company other than acquisitions of inventory, leasing of office space, or licenses of products, in the ordinary course of business of the Company, consistent with past practice and in an amount not in excess of one hundred thousand dollars ($100,000) unless otherwise approved by Parent; (o) the making of any capital expenditures or commitments by the Company for additions to property, plant or equipment of the Company constituting capital assets individually or in the aggregate in an amount exceeding twenty-five thousand dollars ($25,000); (p) except as set forth in Schedule 2.7(p) the write-off or write-down or making of any determination to write off or write-down, or revalue, any- of the Assets and Properties of the Company, or change in any reserves or liabilities associated therewith; (q) except as set forth in Schedule 2.7(q), the payment, discharge or satisfaction of any claim or Liability, other than the payment, discharge or satisfaction in the ordinary course of business of Liabilities reflected or reserved against in the Company Financial Statements or incurred in the ordinary course of business since the Financial Statement Date; (r) except as set forth in Schedule 2.7(r), the failure to pay or otherwise satisfy material Liabilities of the Company or any Subsidiaryits Subsidiaries when due; (is) the incurrence of any increase Indebtedness or guarantee of any such Indebtedness or issuance or sale of any debt securities of the Company or guarantee of any debt securities of others, except as otherwise incurred in the normal course of business; (t) the grant of any severance or termination pay to any director, officer employee or consultant, except payments made as required by Law or pursuant to written Contracts outstanding on the date hereof, (u) set forth in Schedule 2.7(u), a salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manageremployee, member, employee independent contractor or consultant of the Company or any Subsidiary; Company; (iiv) any except as set forth in Schedule 2.7(v), the payment of any consideration of any nature whatsoever (other than than, in the normal course of business, salary, commissions or consulting fees and customary benefits and out of pocket expenses paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company) to any current or former officer, director, shareholder, employee, independent contractor or consultant of the Company; (w) the establishment or modification of (i) targets, goals, pools or similar provisions under any employment Contract or other employee compensation arrangement or independent contractor Contract or other compensation arrangement or (ii) salary ranges, increased guidelines or similar provisions in respect of any employment Contract or other employee compensation arrangement or independent contractor Contract or other compensation arrangement, except for those made in the ordinary course of business; (x) the adoption, entering into, amendment, modification or termination (partial or complete) of any Plan; (y) the payment of any discretionary or stay bonus; (z) any action which would be reasonably likely to interfere with Parent’s ability to account for or complete the transactions contemplated hereby; (aa) the making or changing of any election in respect of Taxes, adopt or change any accounting method in respect of Taxes, the entering into of any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement, settlement or compromise of any claim or assessment in respect of Taxes, or consent to any extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes with any Taxing Authority or otherwise; (bb) Except as set forth in Schedule 2.7(bb), the making of any change in the accounting policies, principles, methods, practices or procedures of the Company (including without limitation for bad debts, contingent liabilities or otherwise, respecting capitalization or expense of research and development expenditures, depreciation or amortization rates or timing of recognition of income and expense); (cc) other than in the ordinary course of business, the making of any representation or proposal to, or engagement in substantive discussions with, any of the holders (or their representatives) of any Indebtedness, or to or with any party which has issued a letter of credit which benefits the Company; (dd) the commencement or termination of, or change in, any line of business; (ee) the cancellation, amendment or failure to renew any insurance policy other than in the ordinary course of business consistent with past practice, or failure to use commercially reasonable efforts to give all notices and present all claims under all such policies in a timely fashion; (ff) any amendment, failure to renew, or failure to use commercially reasonable efforts to maintain, its existing Approvals or failure to observe any Law or Order applicable to the conduct of the business of the Company or anythe Assets and Properties of the Company; (gg) any failure to pay or otherwise satisfy any obligations to procure, maintain, renew, extend or enforce any Company Intellectual Property, including, but not limited to, submission of required documents or fees during the prosecution of patent, trademark or other applications for Registered Intellectual Property rights; (hh) any physical damage, destruction or other casualty loss (whether or not covered by insurance) affecting any of the real or personal property or equipment of the Company individually or in the aggregate in an amount exceeding fifteen thousand dollars ($15,000); (ii) the repurchase, cancellation or modification of the terms of any Company Common Stock, or other financial instrument that derives the majority of its value from its convertibility into Company Common Stock, other than transactions entered into in the ordinary course of business and pursuant to contractual provisions in effect at the date of this Agreement; or (jj) any entering into any agreement to do any of the foregoing.

Appears in 1 contract

Samples: Merger Agreement (Shea Development Corp.)

Absence of Changes. Since the Audited Financial Statement Datedate of the Balance Sheet through the date hereof, (a) no Company Material Adverse Effect has occurred, and (b) without limiting the generality of the foregoing, except as set forth in Section 2.9 4.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth expressly provided for in this Agreement shall be deemed to limit Agreement, neither the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 Company nor any of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Dateits Subsidiaries has: (a) any declarationdeclared, setting set aside or payment of paid any dividend dividends on, or made any other distribution distributions (whether in cash, shares or property) in respect of any of its Equity Securities, or split, combined or reclassified any of its Equity Securities, or issued or authorized the capital stock issuance of any other securities in respect of, in lieu of or in substitution for its Equity Securities; (b) repurchased, redeemed or otherwise acquired, directly or indirectly, any of its Equity Securities (or equity interestsoptions, warrants or other rights exercisable therefor) other than pursuant to the terms of any Share Restriction Agreement; (c) issued, granted, delivered or sold any of its Equity Securities or any subscriptions, rights, warrants or options to acquire, or other agreements or commitments of any kind or character obligating it to issue, grant, deliver or sell any such Equity Securities or other convertible securities convertible into Company Shares, in each case, other than the issuance of Company Ordinary Shares pursuant to the exercise of Company Options or Company Warrants; (d) amended, restated or otherwise modified its Organizational Documents; (e) acquired or agreed to acquire by merging or consolidating with, or by purchasing any assets or Equity Securities of, or by any other manner, any business or any corporation, partnership, association or other business organization or division thereof, or otherwise acquired or agreed to acquire any assets that are material, individually or in the aggregate, to the Company’s or its Subsidiaries’ respective businesses; (f) sold, leased, licensed or otherwise disposed of any of its properties or assets (other than sale, lease, license or other disposition of any immaterial properties or assets of the Company or its Subsidiaries that were made in the ordinary course of business consistent with past practice), including the sale of any accounts receivable of the Company or granted or otherwise created or consented to the creation of any easement, covenant, restriction, assessment or charge materially affecting any owned property or leased property or any part thereof; (g) conveyed, assigned, subleased, licensed, exchanged, mortgaged, granted, subjected to any Encumbrance or otherwise transferred all or any portion of any owned property or leased property or any interest or rights therein, other than conveyance, assigns, subleases, licenses or other transfers (i) of any immaterial properties (or interest or rights therein) of the Company or its Subsidiaries and (ii) that were made in the ordinary course of business consistent with past practice); (h) adopted a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization; (i) paid any Indebtedness (other than (i) as expressly required by and in compliance with the required payment terms thereof and (ii) the payment of trade debt in the ordinary course of business consistent with past practice), or incurred any Indebtedness or guaranteed any Indebtedness or issued or sold any debt securities or guarantee any debt securities or other obligations of any third parties; (j) made any loans to any third party (other than loans or advances to employees for travel and business expenses in the ordinary course of business consistent with past practice) or purchased debt securities of a third party or amended the terms of any outstanding loan agreement; (k) paid, discharged, satisfied or made any expenditure or enter into any commitment or transaction obligating the Company or any of its Subsidiaries to make payments in an amount exceeding $20,000 individually or $50,000 in the aggregate (other than the payment of rent, payroll and interest obligations on Indebtedness of the Company or any of its Subsidiaries in the ordinary course of business and consistent with past practice); (l) (i) sold, licensed or transferred to any Person any rights to any Company Intellectual Property or Company Licensed Intellectual Property or entered into any agreement with respect to any Company Intellectual Property with any Person or with respect to any Intellectual Property of any Person (other than nonexclusive licenses to Company Intellectual Property or Company Licensed Intellectual Property pursuant to Contracts for the sale or license of Company Products in the ordinary course of business pursuant to the Company’s or its Subsidiaries’, as applicable, unmodified standard customer Contract, the form or a copy of which has been made available to Buyer), (ii) bought or licensed any Intellectual Property or entered into any agreement with respect to the material Intellectual Property of any Person, (iii) entered into any agreement with respect to the development of any material Intellectual Property with a third party, or (iv) materially changed pricing or royalties charged by the Company or its Subsidiaries to, or any other financial terms of any Contract or other arrangement with, any of its customers, distributors, resellers, or licensees, or the pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or its Subsidiaries; (m) terminated, entered into or materially amended, waived, or modified the terms of any Material Contract; (n) entered into, renewed or materially amended any Affiliate Agreement; (o) commenced, settled or compromised any litigation; (p) (i) made any change in any of its methods, principles or practices of accounting or made any material reclassification of assets or liabilities, except as may be required by applicable Law or GAAP, or (ii) revalued any of the Company’s or its Subsidiaries’ assets (whether tangible or intangible), including writing off notes or accounts receivable, settle, discount or compromise any accounts receivable, or reverse any reserves other than in the ordinary course of business and consistent with past practice; (q) failed to manage its assets and liabilities, including by: (i) delaying or postponing the payment of accounts payable or accrued expenses outside the ordinary course of business, (ii) accelerating the collection of, or discounting, accounts receivable outside the ordinary course of business or factoring any accounts receivable, (iii) changing cash management policies, or (iv) engaging in any discounts or price reductions or altering the extension of credit terms to any customer, in each case substantially in excess of historic levels; (r) committed to make any capital expenditures that were not completed and fully paid prior to the Calculation Time in an aggregate amount in excess of $100,000; (s) made or changed any Tax election, adopted or changed any Tax accounting method, entered into any closing agreement in respect of Taxes, settle any claim or assessment relating to Taxes, consented to any extension or waiver of the limitation period applicable to any claim or assessment relating to Taxes; (t) changed any of the Company’s or its Subsidiaries’ accounting policies or procedures, including with respect to reserves for doubtful accounts, or payment or collection policies or practices; (u) amended any privacy policy of the Company or any of its Subsidiaries, or published any direct or indirect redemption, purchase or other acquisition by the Company or any new privacy policy of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (bv) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby engaged in any purchase or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock ofinterest in real property, granted any security interest in any real property, agreed to lease, sublease, license or otherwise occupy any real property, or Option with respect tomaterially altered, amended, modified, violated or terminated any of the Company or any Subsidiary, or any modification or amendment terms of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any SubsidiaryReal Property Lease; (i) hired, offered to hire or terminated any increase in salaryemployees, rate of commissions, rate of consulting fees or encourage any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of employees to resign from the Company or any Subsidiary; of its Subsidiaries, in each case other than as contemplated by this Agreement, (ii) granted any payment of consideration severance or termination pay (in cash or otherwise) to any Employee, including any officer, or (iii) paid or agreed to pay any special bonus or special remuneration to any director or Employee, or increased or agreed to increase the salaries, wage rates, or other compensation or benefits of any nature whatsoever Employee, in each case, excluding as expressly provided in the Employment Agreements; or (other than salaryx) engaged in or entered into any material transaction or commitment, commissions or consulting fees paid to relinquished any current or former officermaterial right, director, shareholder, manager, member, employee or consultant outside the ordinary course of the Company Company’s or anyany of its Subsidiaries’ business consistent with past practice.

Appears in 1 contract

Samples: Share Purchase Agreement (Mimecast LTD)

Absence of Changes. Since the Audited Financial Statement Balance Sheet Date, Company and each Subsidiary has conducted its business in the ordinary course and, except as contemplated herein or as set forth in Section 2.9 of the Disclosure on Schedule or as disclosed in the SEC Documents filed prior to the date hereof4.25, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any declarationmaterial adverse change in the financial condition, setting aside assets, liabilities (contingent or otherwise), income or business of Company or any Subsidiary; (b) any damage, destruction or loss (whether or not covered by insurance) adversely affecting the properties or business of Company or any Subsidiary; (c) any change in the authorized capital of Company or any Subsidiary or in its outstanding securities or any change in its ownership interests or any grant of any options, warrants, calls, conversion rights or commitments; (d) any declaration or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiariesstock, or any direct or indirect redemption, purchase or other acquisition by the Company or of any of its Subsidiaries of any such the capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary (except for dividends or distributions to Company by a Subsidiary); (e) any increase in the compensation, bonus, sales commissions or fee arrangements payable or to become payable by Company or any Subsidiary to any of its officers, directors, stockholders, employees, consultants or agents, except for ordinary and customary bonuses and salary increases for employees in accordance with past practice; (f) any work interruptions, labor grievances or claims filed, or any similar event or condition of any shares of capital stock ofcharacter, which has had a Material Adverse Effect; (g) any sale or transfer, or Option with respect toany agreement to sell or transfer, any material assets, property or rights of Company or any Subsidiary to any person, including without limitation the Stockholders and her affiliates; (h) any cancellation, or agreement to cancel, any indebtedness or other obligation owing to Company or any Subsidiary, including without limitation any indebtedness or obligation of the Stockholders and her affiliates, provided that Company or any modification Subsidiary may negotiate and adjust bills in the course of good faith disputes with customers in a manner consistent with past practice; (i) any plan, agreement or amendment arrangement granting any preferential rights to purchase or acquire any interest in any of the assets, property or rights of Company or any Subsidiary or requiring consent of any right party to the transfer and assignment of any holder of such assets, property or rights; (j) any outstanding shares of capital stock purchase or acquisition of, or Option with respect toagreement, plan or arrangement to purchase or acquire, any property, rights or assets outside of the ordinary course of business of Company or any Subsidiary; (ik) any increase in salary, rate of commissions, rate of consulting fees or any other compensation waiver of any current material rights or former officer, director, shareholder, manager, member, employee or consultant claims of the Company or any Subsidiary; ; (iil) any payment of consideration breach, amendment or termination of any nature whatsoever material contract, agreement, license, permit or other right to which Company or any Subsidiary is a party; (m) any transaction by Company or any Subsidiary outside the ordinary course of business; (n) any capital commitment by Company or any Subsidiary, either individually or in the aggregate, exceeding $10,000; (o) any change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by Company or any Subsidiary or the revaluation by Company or any Subsidiary of any of its assets; (p) any creation or assumption by Company of any mortgage, pledge, security interest or lien or other encumbrance on any asset (other than salaryliens arising under existing lease financing arrangements which are not material and liens for Taxes not yet due and payable); (q) any entry into, commissions amendment of, relinquishment, termination or consulting fees paid non-renewal by Company or any Subsidiary of any contract, lease transaction, commitment or other right or obligation requiring aggregate payments by Company and its Subsidiaries in excess of $25,000; (r) any loan by Company or any Subsidiary to any current person or former officerentity, directorincurring by Company, shareholderof any indebtedness, managerguaranteeing by Company or any Subsidiary of any indebtedness, memberissuance or sale of any debt securities of Company or any Subsidiary or guaranteeing of any debt securities of others; (s) the commencement or notice or, to the knowledge of Company or any Subsidiary, threat of commencement, of any lawsuit or proceeding against, or investigation of, Company or any Subsidiary or any of their respective affairs; or (t) any negotiation or agreement by Company or any Subsidiary or any officer or employee or consultant thereof to do any of the Company or anythings described in the preceding clauses (a) through (s) (other than negotiations with Purchaser and its representatives regarding the transactions contemplated by this Agreement).

Appears in 1 contract

Samples: Stock Purchase Agreement (Genesisintermedia Com Inc)

Absence of Changes. Since December 31, 1999, the Audited Financial Statement Date, Company has conducted the Business in the ordinary course and except as set forth in Section 2.9 of the Disclosure on Schedule or as disclosed in the SEC Documents filed prior to the date hereof3.31, there has not been been: (a) any material adverse change, or any event or development which, individually change that by itself or together with other such eventschanges, could reasonably be expected has had or is likely to result in have a material adverse changeMaterial Adverse Effect; (b) any damage, destruction or loss (whether or not covered by insurance) having, individually or in the Business aggregate, a Material Adverse Effect; (c) any change in the authorized capital of the Company or Condition in its outstanding securities or any change in its ownership interests or any grant of any options, warrants, calls, conversion rights or commitments with respect to the securities of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: ; (ad) any declaration, setting aside declaration or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its SubsidiariesInterests, or any direct or indirect redemption, purchase or other acquisition of any of the Interests; (e) any increase in the compensation, bonus, sales commissions or fee arrangements payable or to become payable by the Company to any of its officers, directors, Members, employees, consultants or agents, except for ordinary and customary bonuses and salary increases for employees in accordance with past practice, or created, amended or terminated any Company Benefit Plan or Company Benefit Arrangement, provided however, that prior to Closing, the Company shall pay accrued bonuses to the employees and in the amounts set forth on Schedule 3.31(e); (f) any work interruptions, labor grievances or claims filed, or any similar event or condition of any character; (g) any sale, transfer or purchase of, or any agreement to sell, transfer or purchase, any rights, properties or Assets of the Company to or from any Person, including without limitation the Members or any Affiliates thereof, other than sales in the ordinary course of business; (h) any cancellation, or agreement to cancel, any indebtedness or other obligation owing to the Company, including without limitation any indebtedness or obligation of any Members or any Affiliate thereof, provided that the Company may negotiate and adjust bills in the course of good faith disputes with customers in a manner consistent with past practice; (i) any breach, amendment or termination or non-renewal of any Material Contract or Material Permit; (j) any capital expenditure or entry into any commitment or contract by the Company, either individually or in the aggregate, involving an obligation of more than $10,000; (k) any incurrence, creation or placement of any Lien on any of the Assets or Real Property; (l) any loan by the Company to any Person, incurring by the Company, of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others; (m) negotiation or agreement by the Company or any of its Subsidiaries of any such capital stock (officer or equity interests) of or any Option with respect employee thereof to the Company or do any of its Subsidiaries; the things described in the preceding clauses (ba) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; through (il) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anythan

Appears in 1 contract

Samples: LLC Interests Purchase Agreement (Aether Systems Inc)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 on SCHEDULE 5.8, since the date of the Disclosure Schedule or as disclosed Latest Seller SEC Report, each Seller has been operated in the SEC Documents filed prior to the date hereofordinary course, consistent with past practice, and there has not been been: (a) any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse than an immaterial change, in the business, operations, assets, condition (financial or otherwise), operating results, liabilities, employee relations or business prospects of the Business or Condition any casualty loss or damage to the assets of any Seller, whether or not covered by insurance; (b) any change in the Company. None customers, suppliers or the personnel of any Seller other than such routine changes which occur in the ordinary course of business and consistent with past practice; (c) any Liability including indebtedness (whether absolute, accrued, contingent or otherwise and whether due or to become due) incurred, or any transaction, contract or commitment entered into, amended or terminated, with respect to any Seller, other representations than items incurred or warranties set forth entered into on an arms' length basis in this Agreement shall be deemed to limit the foregoing. In additionordinary course of business and consistent with past practice; (d) any acceleration, without limiting the foregoingpayment, discharge or satisfaction of any Liability (including any claim) or Encumbrance by any Seller (whether fixed or contingent, matured or unmatured), except as expressly contemplated hereby on an arms' length basis in the ordinary course of business and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:consistent with past practice; (ae) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the capital stock (or equity interests) of the Company or any of its SubsidiariesSeller, or any direct or indirect redemption, purchase or other acquisition by the Company of any thereof, or any of its Subsidiaries other payments of any such capital stock (nature to any Affiliate of any Seller whether or equity interests) of not on or any Option with respect to the Company or any shares of its Subsidiariescapital stock of any Seller owned by such Affiliate; (bf) except any issuance or sale, or any Contract entered into for the executionissuance or sale, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock ofof a Foreign Subsidiary or securities convertible or exchangeable into or exercisable for such capital stock; (g) any labor trouble, problem or grievance adversely affecting the, assets or prospects of the Business or of any Seller, or, to the Best Knowledge of the Sellers, any basis for the occurrence of any such trouble, problem or grievance; (h) any license, sale, transfer, pledge, mortgage, or Option with respect to, the Company other disposition of any tangible or intangible asset of Leisegang GmbH or any SubsidiaryAsset Seller related to the Business, or any modification or amendment except on an arms' length basis in the ordinary course of any right of any holder of any outstanding shares of capital stock of, or Option business and consistent with respect to, the Company or any Subsidiarypast practice; (i) any write-down or write-up of the value of any inventory of Products of any Seller or any write-off as uncollectible of any accounts or notes receivable of any Seller related to the Business, or any portion thereof, or any amendment or waiver or termination of any claims or rights of value of the Business; (j) any general uniform increase in salarythe compensation of employees of the Foreign Subsidiaries (including, rate without limitation, any increase pursuant to any bonus, pension, profit-sharing or other plan or commitment), any increase in any such compensation payable to any officer, employee, consultant or agent thereof, the establishment or institution of commissionsany employee benefit plan or arrangement, rate the entering into by any of consulting fees the Sellers of any employment Contract with any officer or employee, or the making of any loan to, or, engagement in any transactions with, any officer, director or employee of Leisegang or the Foreign Subsidiaries; (k) any single capital expenditure of any Seller related to the Business or commitment therefor in excess of $25,000 for additions to property, plant or equipment; (l) any change in the tax or other accounting methods or practices (including any material Tax election) followed by any Seller or any change in depreciation or amortization policies or rates previously adopted; (m) any change in the manner in which Products or services of any Seller related to the Business are marketed (including, without limitation, any change in prices), or any change in the manner in which any Seller with respect to the Business extends discounts or credit to customers or otherwise deals with such customers; (n) any forward purchase commitments of the Business in excess of the requirements of any Seller's historical practices or normal operating inventories or needs, or at prices higher than current market prices; (o) any forward sales commitments of any Seller for the Business at prices lower than current market prices, or commitments of any Seller for the Business for the sale of merchandise or services in excess of the ability of a Seller to fulfill the same at its normal profit margin; (p) any termination of employment of any officer or key employee of a Foreign Subsidiary or any expression of intention by any such officer or key employee to terminate such employment with such Seller; (q) any failure by a Seller to operate the Business in the ordinary course consistent with past practice, including any failure by such Seller to make capital expenditures or investments or any failure to pay trade accounts payable or any other compensation obligation or liability of such Seller when due; (r) any action or contemplated action which would or could require a Foreign Subsidiary to pay, accrue or establish a reserve for the payment of any current severance, termination or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid similar obligation to any current or former officer, director, shareholder, manager, member, employee or consultant employee; (s) any account of any Seller in respect of the Company Business in excess of $25,000 subsequent to the date of the Latest Seller SEC Report (i) which has become delinquent in its payment, (ii) which has had asserted against it any claim, refusal to pay or anyright of set-off, or has been made subject to provisions for retainage of payments, (iii) the account debtor of which has refused or threatened to refuse to pay for any reason, (iv) the account debtor of which has become insolvent or bankrupt or (v) which has been pledged to any third Person; (t) any agreement by or on behalf of Leisegang GmbH to make any charitable contribution or to incur any nonbusiness expense in excess of $1,000 in the aggregate; (u) any other transaction entered into by any Seller other than in the ordinary course of its business and consistent with past practice which has had or might have an adverse effect on the Business or prospects of the Business or which involves aggregate payments related to the Business to or by such Seller in excess of $25,000; or (v) any agreement, whether in writing or otherwise, to take any of the actions specified in the foregoing clauses (a) through (u).

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement (Netoptix Corp)

Absence of Changes. Since the Audited Financial Statement Date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) Any change in the assets, liabilities, financial condition or operations of Raintree from that reflected in the Raintree Financial Statements, other than changes in the Ordinary Course of Business, none of which individually or in the aggregate has had or is expected to have a Material Adverse Effect on such assets, liabilities, financial condition or operations of Raintree; (b) Any resignation or termination of any declarationkey officers of Raintree; and Raintree, setting aside to its Knowledge, does not know of the impending resignation or termination of employment of any such officer; (c) Any material change, except in the Ordinary Course of Business, in the contingent obligations of Raintree by way of guaranty, endorsement, indemnity, warranty or otherwise; (d) Any damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the properties, business or prospects or financial condition of Raintree; (e) Any waiver by Raintree of a valuable right or of a material debt owed to it; (f) Any direct or indirect loans made by Raintree to any stockholder, employee, officer or director of Raintree, other than advances made in the Ordinary Course of Business; (g) Any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder; (h) Any declaration or payment of any dividend or other distribution in respect of the capital stock (or equity interests) assets of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any SubsidiaryRaintree; (i) any increase Any labor organization activity; (j) Any debt, obligation or liability incurred, assumed or guaranteed by Raintree, except those for immaterial amounts and for current liabilities incurred in salarythe Ordinary Course of Business; (k) Any sale, rate of commissions, rate of consulting fees assignment or any other compensation transfer of any current patents, trademarks, copyrights, trade secrets or former officerother intangible assets; (l) Any change in any material agreement to which Raintree is a party or by which it is bound which materially and adversely affects the business, directorassets, shareholderliabilities, managerfinancial condition, member, employee operations or consultant prospects of the Company Raintree; or (m) Any other event or any Subsidiary; (ii) any payment of consideration condition of any nature whatsoever character that, either individually or cumulatively, has materially and adversely affected the business, assets, liabilities, financial condition, operations or prospects of Raintree. For purposes of this subsection (other than salarym), commissions a material and adverse effect shall only be deemed to occur if its monetary impact exceeds, or consulting fees paid to any current or former officerwith the passage of time, director, shareholder, manager, member, employee or consultant of the Company or anywill exceed $10,000.

Appears in 1 contract

Samples: Merger Agreement (Netivation Com Inc)

Absence of Changes. Since July 4, 1999, other than in connection with the Audited Financial Statement Date, except as set forth in Section 2.9 of transactions contemplated by this Agreement or the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof, Ancillary Agreements: (a) there has not been any material adverse changechange or event in the business, prospects or financial condition of the Target Company Group taken as a whole, other than those relating to or as may be a result of (I) the transactions contemplated by this Agreement or the Ancillary Agreements, (II) generally applicable economic conditions or (III) the Target Company Group's industry in general; and (b) each member of the Target Company Group has conducted its business in the ordinary course consistent with past practice, and no member of the Target Company Group has: (i) purchased, redeemed or otherwise acquired any shares of its capital stock or issued or agreed to issue any capital stock or other equity securities (or securities convertible into or exchangeable for equity securities) or amended any of the terms of any equity securities outstanding on the date hereof, or declared, set aside or paid any event dividend or development whichmade any distribution with respect to its capital stock (whether in cash or in kind); (ii) incurred any long-term indebtedness for borrowed money or entered into any guarantee, or incurred any other obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due, except for liabilities and obligations incurred in the ordinary course of business consistent with past practice, none of which obligations or liabilities, individually or together with other such eventsin the aggregate, could would reasonably be expected to result have a Material Adverse Effect on the Target Company Group taken as a whole; (iii) mortgaged, pledged or subjected (or permitted to be subjected) to any Lien any of its properties or assets, except for Permitted Liens incurred in the ordinary course of business; (iv) except as required by GAAP, made any material change in its accounting methods, principles or practices; (v) other than in the ordinary course of business consistent with past practice, sold, assigned, transferred, conveyed, leased or otherwise disposed of any material assets of the Target Company Group or any Target Assets; (vi) other than in the ordinary course of business consistent with past practice, increased the benefits payable under or established any Benefit Plan or in any other fashion increased the compensation payable or to become payable to any officers or Employees of the Target Company Group, or entered into any Contract or other binding commitment to effect any of the foregoing; (vii) amended the Organizational Documents of any member of the Target Company Group; (viii) canceled or forgiven any material debts or claims, except in the ordinary course of business consistent with past practice; (ix) entered into any material Contract, lease or license (or series of related Contracts, leases and licenses) outside the ordinary course of business; (x) failed to replenish inventories and supplies in a material adverse changenormal and customary manner consistent with its prior practice, or made any purchase commitment in excess of the normal, ordinary and usual requirements of its business or at any price in excess of the then current market price, or made any change in its selling, pricing, advertising or personnel practices inconsistent with its prior practice; (xi) made any capital expenditures or capital additions or improvements, or commitments therefor, in excess of an aggregate of $50,000; (xii) delayed or postponed the Business payment of accounts payable and other liabilities outside the ordinary course of business; (xiii) except as permitted by Section 4.2.1, paid, loaned or Condition advanced any amount to, or sold, transferred or leased any property or asset (real, personal or mixed, tangible or intangible) to, any Seller or any Affiliate of any Seller (other than any member of the Company. None Target Company Group); (xiv) entered into any Contract with any Seller or any Affiliate of any Seller (other than any member of the Target Company Group) other representations or warranties set forth than Contracts entered into in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby ordinary course of business and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (a) any declaration, setting aside or payment of any dividend or other distribution consistent with past practice in respect of both type and terms; or (xv) taken any action or omitted to take any action that would result in the capital stock (or equity interests) occurrence of any of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Stock Purchase Agreement (Aavid Thermal Technologies Inc)

Absence of Changes. Since the Audited Financial Statement DateJanuary 1, 1996, except as set forth reflected in Section 2.9 the Financial Statements or the SEC Documents, neither the Company nor any Subsidiary has (i) declared or paid any dividends, or authorized or made any distribution upon or with respect to any class or series of its capital stock; (ii) incurred any indebtedness for money borrowed other than in the ordinary course or any other Liabilities other than in the ordinary course; (iii) made any loans or advances to any Person (other than advances for business or travel expenses) or guaranteed the obligations of any Person; (iv) sold, exchanged or otherwise disposed of any of its assets or rights, other than the sale, exchange or other disposition of its equipment and services in the ordinary course of business consistent with past practice; (v) incurred any change in the assets, Liabilities, financial condition, operating results, prospects or business of the Disclosure Schedule or as disclosed Company from that reflected in the SEC Documents filed prior Financial Statements, except changes in the ordinary course of business consistent with past practice that have not been, in the aggregate, materially adverse; (vi) suffered any damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the assets, properties, financial condition, operating results, prospects or business of the Company (as such business is presently conducted and as it is proposed to be conducted); (vii) waived a valuable right or a debt owed to it, except in the ordinary course of business consistent with past practice; (viii) satisfied or discharged any Lien, claim or encumbrance or payment of any obligation, except in the ordinary course of business consistent with past practice and that is not material to the date hereofassets, there has not been properties, financial condition, operating results, prospects or business of the Company or any Subsidiary (as such business is presently conducted and as it is proposed to be conducted); (ix) agreed to or made any material adverse changechange or amendment to any Material Contract, except in the ordinary course of business consistent with past practice; (x) made any material change in any compensation arrangement or agreement with any employee; (xi) permitted or allowed any of its assets to be subjected to any material Lien, other than Liens on equipment in the ordinary course of business consistent with past practice; (xii) written up the value of any inventory, notes or accounts receivable, or other assets; (xiii) licensed, sold transferred, pledged, modified, disclosed, disposed of or permitted to lapse any right to the use of any Intellectual Property Right; (xiv) made any change in any method of accounting or accounting practice or any change in depreciation or amortization policies or rates previously adopted; (xv) paid, lent or advanced any amount to, or sold, transferred or leased any assets to, or entered into any agreement or arrangement with, any of its Affiliates, except for directors' fees, and employment compensation to officers; (xvi) made capital expenditures or commitments therefor, other than such capital expenditures or commitments made in the ordinary course consistent with past practice and not exceeding, in the aggregate, Thirty Million Dollars ($30,000,000) for the period from September 30, 1996 through the Closing Date; and (xvii) to the Company's Knowledge, incurred or suffered any other event or development which, individually or together with other such events, condition of any character that could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect Material Adverse Effect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any.

Appears in 1 contract

Samples: Stock Purchase Agreement (Alliance Imaging Inc /De/)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 Schedule 3.1.10, since the date of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereofBalance Sheet, there has have not been any material adverse changechanges in the financial condition or results of operations of the Company, or except for any event or development which, individually or together with other such events, could changes that would not reasonably be expected to result in a material adverse change, in the Business or Condition of Material Adverse Effect on the Company. None Without limiting the generality of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except (i) as expressly contemplated hereby and by set forth in Schedule 3.1.10, (ii) as may be required to comply with Material Contracts, or (iii) as may be reasonably required to satisfy the Operative Agreements and except as disclosed condition in Section 2.9 5.1.5, since the date of the Disclosure ScheduleBalance Sheet, there has not occurred since neither the Audited Financial Statement Date:Company nor with respect to the Business, the Seller have taken any of the following actions (or permitted any of the following events to occur): (a) any declarationdeclared, setting aside set aside, made, set a record date for or payment of paid any dividend or other distribution in respect of the its capital stock (or equity interests) of the Company otherwise purchased or redeemed, directly or indirectly, any shares of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiariesstock; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby issued or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of sold any shares of any class of its capital stock of, or Option with respect to, the Company or any Subsidiaryother ownership interest, or any modification securities convertible into or amendment exchangeable for any such shares or interest, or issued, sold, granted or entered into any subscription, options, warrants, conversion or other rights, agreements, commitments, arrangements or understandings of any kind, contingently or otherwise, to purchase or otherwise acquire any such shares or interest or any securities convertible into or exchangeable for any such shares or interest; (c) incurred any material obligation or liability except current liabilities for trade or business obligations incurred in connection with the purchase of goods or services in the ordinary course of business; (d) discharged or satisfied any Lien, other than those required to be discharged or satisfied, or paid any obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due, other than (i) current liabilities shown on the Balance Sheet, (ii) current liabilities incurred since the date thereof in the ordinary course of business, and (iii) scheduled payments of principal or interest on any Indebtedness for Borrowed Money through the Closing Date; (e) subjected any of the Assets to any Lien other than any Permitted Lien; (f) sold, transferred, leased to others or otherwise disposed of any of the Assets, except in the ordinary course of business or fixed assets having an aggregate value of less than $250,000, or canceled or compromised any debt or claim in excess of $100,000 in each case or $250,000 in the aggregate, or waived or released any right of substantial value, except in the ordinary course of business; (g) received any holder written notice of termination of any outstanding shares Material Contract; (h) suffered any damage, destruction or loss (whether or not covered by insurance) in excess of capital stock of, or Option with respect to, the Company or $250,000 to any Subsidiaryof its assets; (i) changed in any material respect its tax or accounting practices, policies or principles except as required by any Applicable Law or GAAP; (j) granted or committed to grant any increase in any remuneration (including salary, rate of commissionsincentive, rate of consulting fees change in control, retention or any other severance compensation or benefits) of any current or former officeremployee making more than $100,000 per annum in base salary, director, shareholder, manager, member, employee or consultant any director or officer of the Company, other than in the ordinary course of business consistent with past practice, or, except as contemplated by Section 4.12, established, amended, or terminated any Company Benefit Plan; (k) made or committed to make any Subsidiary; capital expenditures or capital additions or improvements in excess of an aggregate of $250,000, except for capital expenditures or capital additions or improvements made in the ordinary course of business or contemplated by an approved budget of the Company; (iil) instituted, settled or agreed to settle any payment litigation, action or proceeding before any Governmental Authority relating to the Company, other than in the ordinary course of consideration of business; (m) transferred or granted any nature whatsoever material rights or licenses under, or entered into any settlement regarding the infringement of, its Proprietary Rights or entered into any licensing or similar agreements or arrangements with respect thereto (other than salaryany shrink-wrap Software license); (n) accelerated or delayed the payment of accounts payable, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant the collection of accounts receivable of the Company Company, other than in the ordinary course of business; (o) received any written notice from any material customer or anysupplier of an intention to discontinue or change in any material respect the terms of its relationship with the Company; or (p) made a commitment to take any of the foregoing actions.

Appears in 1 contract

Samples: Stock Purchase Agreement (Intermagnetics General Corp)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 Part 2.5 of the Disclosure Schedule or as specifically disclosed in the SEC Documents filed prior to Financial Statements (including the date hereofnotes thereto), there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Company Balance Sheet Date: (a) there have been no changes, events, occurrences or developments of the Company or any declarationSubsidiary which, setting individually or in the aggregate, have had or would reasonably be expected to have in the future a Material Adverse Effect; (b) neither the Company nor any Subsidiary has declared, accrued, set aside or payment of paid any dividend or made any other distribution in respect of the any capital stock (stock, and has not repurchased, redeemed or equity interests) of the Company or otherwise reacquired any of its Subsidiaries, or any direct or indirect redemption, purchase shares or other acquisition by the Company or any securities of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (c) neither the Company nor any Subsidiary has sold, issued or authorized the issuance of (i) any increase in salarycapital stock or other security of the Company or any Subsidiary (other than issuances of Company Common Stock pursuant to exercise of outstanding Company Stock Options), rate of commissions(ii) any Company Warrant, rate of consulting fees Company Stock Option or other right to acquire any capital stock or any other compensation security of the Company or any current Subsidiary (other than grants of Company Stock Options) or former officer, director, shareholder, manager, member, employee (iii) any instrument convertible into or consultant exchangeable for any capital stock or other security of the Company or any Subsidiary; ; (d) neither the Company nor any Subsidiary has amended or waived any of its rights under, or permitted the acceleration of vesting under (i) any provision of any agreement or grant letter awarding or evidencing any outstanding Company Warrant, Company Stock Option, or (ii) any payment share purchase agreement or restricted stock agreement; (e) there has been no amendment to the Company’s Certificate of consideration Incorporation, or any charter or organizational documents of any nature whatsoever Subsidiary and neither the Company nor any Subsidiary has effected or been a party to any recapitalization, reclassification of shares, split, reverse split or similar transaction; (f) neither the Company nor any Subsidiary has formed any subsidiary or acquired any equity or debt interest (other than trade receivables in the ordinary course of business consistent with past practices) in any other Entity; (g) other than expenditures included in the Company’s most recent budget as provided to Parent, the aggregate capital expenditures of the Company and the Subsidiaries, in the aggregate, have not exceeded $500,000; (h) except for insertion orders and purchase orders entered into in the ordinary course of business consistent with past practice or otherwise disclosed in Part 2.10(a) of the Disclosure Schedule, neither the Company nor any Subsidiary has amended or prematurely terminated, or waived any right or remedy under, any Material Agreement with a value per year in excess of $100,000; (i) except in the ordinary course of business consistent with past practice, neither the Company nor any Subsidiary has (i) acquired, leased or licensed any right or other asset from any other Person, (ii) sold or otherwise disposed of, or leased or licensed, any right or other asset to any other Person, or (iii) waived or relinquished any right, except, in each case, for rights or other assets acquired, leased, licensed or disposed of under $100,000; (j) neither the Company nor any Subsidiary has (i) written off as uncollectible, or established any extraordinary reserve with respect to, any Account Receivable or other Indebtedness in excess of $100,000 in the aggregate, or (ii) written off or written down any other of its assets or properties, or changed any reserves or liabilities associated therewith in excess of $100,000 in the aggregate; (k) other than intercompany indebtedness, neither the Company nor any Subsidiary has made any pledge of any of its assets or otherwise permitted any of its assets to become subject to any Encumbrance except for Permitted Liens; (l) neither the Company nor any Subsidiary has (i) lent money to any Person (other than pursuant to routine advances made to employees in the ordinary course of business consistent with past practice), or (ii) incurred or guaranteed any Indebtedness for borrowed money in excess of $100,000; (m) neither the Company nor any Subsidiary has (i) established or adopted any employee benefit plan, (ii) paid any bonus or made any profit-sharing or similar payment to any of its directors, officers or employees, (iii) other than in the ordinary course of business consistent with past practice, increased the amount of the wages, salary, commissions commissions, fringe benefits or consulting fees paid to other compensation or remuneration payable to, any current of its directors, officers or former officeremployees, directoror (iv) hired any new sales persons for whom annual compensation exceeds $350,000 or any other employees for whom base salary, shareholder, manager, member, target bonus and target commission exceeds $200,000; (n) there has been no resignation or termination of employment of any officer or employee or consultant of the Company or anyany Subsidiary or any notice, whether written or, to the Knowledge of the Company, oral, received from any officer or employee of the Company or any Subsidiary for whom annual compensation exceeds $200,000 of his intention to terminate or terminating his employment or retention with the Company or any Subsidiary; (o) neither the Company nor any Subsidiary has changed any of its methods of accounting or accounting practices in any respect, including any change with respect to reserves (whether for bad debts, contingent liabilities or otherwise); (p) neither the Company nor any Subsidiary has (i) failed to file any Tax Return or pay any Tax timely when due, (ii) made or changed any election with respect to any Tax, (iii) adopted or changed any accounting method in respect of any Taxes, (iv) entered into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, settlement or compromise of any claim or assessment in respect of any Taxes, or (v) consented to any extension or waiver of the limitation period applicable to any claim or assessment in respect of any Taxes with any Governmental Body or otherwise; (q) except in the ordinary course of business consistent with past practice, neither the Company nor any Subsidiary has failed to pay or otherwise satisfy any liabilities in excess of $50,000 in the aggregate when due; (r) neither the Company nor any Subsidiary has commenced or settled any Legal Proceeding; and no Legal Proceeding has been commenced or, to the Knowledge of the Company, threatened against the Company or any Subsidiary; and (s) neither the Company nor any Subsidiary has agreed or committed to take any of the actions referred to in clauses "(b)” through “(r)” above.

Appears in 1 contract

Samples: Confidentiality Agreement (Perion Network Ltd.)

Absence of Changes. Since the Audited Financial Statement Latest Balance Sheet Date, there has not been any Material Adverse Change affecting the Company or any of its Subsidiaries and, to the Company's Knowledge, no event (other than changes in general economic conditions affecting the Subject Business) has occurred or circumstance exists which is likely to result in such a Material Adverse Change. Without limiting the generality of the foregoing, since the Latest Balance Sheet Date, except as set forth in Section 2.9 of Schedule 4.8, the Disclosure Schedule or as disclosed Company and each Subsidiary has been operated in the SEC Documents filed prior to the date hereofordinary course, consistent with past practice, and there has not been any material adverse change, or any event or development which, individually or together with (other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except than as is expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:this Agreement): (a) other than in the ordinary course, and consistent with past practices, of such Person's Business, any payment, discharge or satisfaction of any Encumbrance or Liability by the Company or any Subsidiary or any cancellation by the Company or any Subsidiary of any debts or claims or any amendment, termination or waiver of any rights of value to such Persons; (b) any declaration, setting aside or payment of any dividend or other distribution in of any assets of any kind whatsoever with respect to any shares of the capital stock (or equity interests) of the Company or any of its SubsidiariesSubsidiary, or any direct or indirect redemption, purchase or other acquisition by of any such shares of the capital stock of the Company or any of its Subsidiaries Subsidiary; (c) any stock split, reverse stock split, combination, reclassification or recapitalization of any such capital stock (or equity interests) of or any Option with respect to the Company or any Subsidiary, or any issuance of its Subsidiariesany other security in respect of or in exchange for, any shares of any capital stock of the Company or any Subsidiary; (bd) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition issuance by the Company or any Subsidiary of any shares of their capital stock ofor any debt security or securities, rights, options or Option warrants convertible into or exercisable or exchangeable for any shares of such capital stock or debt security; (e) any license, sale, transfer, pledge, mortgage or other disposition of any tangible or intangible asset of the Company or any Subsidiary other than in the ordinary course of such Person's business and consistent with respect topast practices; (f) any termination or indication of an intention to terminate or not renew, any Contract between the Company or any Subsidiary and any other Person; (g) any write-down or write-up of the value of any asset of the Company or any Subsidiary, or any write-off of any accounts receivable or notes receivable of the Company or any Subsidiary or any portion thereof; (h) any increase in or modification of compensation payable or to become payable to any officer, employee, consultant or agent of the Company or any Subsidiary, other than any such increases in the ordinary course of business, consistent with past practice, or the entering into of any employment contract with any officer or employee; (i) any increase in or modification or amendment acceleration of any right of benefits payable or to become payable under any holder of any outstanding shares of capital stock ofbonus, pension, severance, insurance or Option with respect other benefit plan, payment or arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) made to, for or with any officer, employee, consultant or agent of the Company or any Subsidiary; (ij) any increase in salary, rate of commissions, rate of consulting fees or any other compensation the making of any current loan, advance or former capital contribution to or investment in any Person or the engagement in any transaction with any employee, officer, director, shareholder, manager, member, employee director or consultant shareholder of the Company or any Subsidiary; , other than advances to employees in the ordinary course of business for travel and similar business expenses; (iik) any payment change in the accounting methods or practices followed by the Company or any Subsidiary or any change in depreciation or amortization policies or rates theretofore adopted; (l) any deterioration in the aging of consideration the Company's or any Subsidiary's accounts payable or acceleration in the aging of the Company's or any Subsidiary's accounts receivable or other change in the Company's or any Subsidiary's working capital management practices; (m) other than in the ordinary course, and consistent with past practices, of such Person's business, any change in the manner in which the Company or any Subsidiary extends discounts or credit to customers or otherwise deals with customers; (n) any termination of employment of any nature whatsoever (other than salary, commissions officer or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant Designated Employee of the Company or anyany Subsidiary or any expression of intention to the Company or any Subsidiary by any officer or Designated Employee of the Company or any Subsidiary to terminate such office or employment with such Person; (o) except as contemplated hereby, any amendments or changes in the Company's or any Subsidiary's articles of incorporation or bylaws or other constating or governing documents; (p) any labor disputes or any union organizing campaigns; (q) to the Knowledge of the Company or any Subsidiary, the commencement of any Proceedings by or against the Company or any Subsidiary; or (r) any agreement, understanding, authorization or proposal, whether in writing or otherwise, for the Company or any Subsidiary to take any of the actions specified in items (a) through (q) above.

Appears in 1 contract

Samples: Recapitalization Agreement (Convergent Group Corp)

Absence of Changes. Since the Audited Financial Statement Date, except Except as expressly provided in this Agreement or as set forth in Section 2.9 on Part 5 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior alphabetical order corresponding to the date hereoffollowing subsections, since the Balance Sheet Date there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any declarationAny change or aggregate of changes known to the Indemnitors in the condition (financial or otherwise), setting aside business, operations, liquidity, property, assets, liabilities, obligations or payment of any dividend or other distribution in respect prospects of the capital stock Corporation and Subsidiaries resulting in a reduction of five percent (or equity interests5%) of the Company or any net worth of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its SubsidiariesCorporation; (b) except for the executionAny merger, delivery and performance consolidation or statutory share exchange or agreement to merge, consolidate or enter into a statutory share exchange by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company Corporation or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiaryanother Person, or any modification purchase of or investment in or agreement to purchase or invest by the Corporation or any Subsidiary in the business of another Person; (c) Any amendment to the Articles of any right Incorporation, Certificate of any holder Incorporation, partnership agreement or Bylaws of any outstanding shares of capital stock of, or Option with respect to, the Company Corporation or any Subsidiary; (id) Any General Increase in the compensation or rate of compensation payable or to become payable to any of their hourly employees or salaried employees ("GENERAL INCREASE" for purposes hereof shall mean any increase applicable to a class or group of employees and does not include increases granted to individual employees for merit, length of service, change in salaryposition or responsibility or other reasons applicable to specific employees and not generally to a class or group thereof); (e) Any mortgage, rate of commissions, rate of consulting fees pledge or other subjection to any other compensation Lien or option of any current property, asset, right or former officer, director, shareholder, manager, member, employee or consultant business of the Company Corporation or any Subsidiary; , other than (i) Liens for taxes not yet due and payable, (ii) any payment continuing statutory landlord's Lien for rent not yet due and payable, (iii) those incurred in the ordinary course of consideration business and (iv) those identified on Part 5 of the Schedule; (f) Any incurrence of any nature whatsoever indebtedness, obligations or liabilities (whether absolute, accrued, contingent, known or unknown, due or to become due) by the Seller except (i) those arising in the ordinary course of business and consistent with past practice or (ii) those to be paid in full on or before Closing; (g) Any assumptions, guarantees or endorsements by the Seller of the obligations of any Person, except (i) in the ordinary course of business and consistent with past practice or (ii) those to be paid in full on or before Closing; (h) Any actions taken or transactions entered into by the Corporation or any Subsidiary involving the Theaters and more than $12,500 per Theater, other than salaryin the ordinary course of business and consistent with past practice, commissions or consulting fees paid any capital expenditures or commitments therefor in excess of $12,500 per Theater; in each case, other than indebtedness, obligations or liabilities allowed for in paragraph (f) above; (i) Any creations, renewals, changes or terminations, or any notice of any proposed renewal, change or termination of any Continuing Contract or any contract by which the Property is bound; (j) To the Indemnitors' knowledge, any action or inaction which has caused or will cause a breach or default in any contract, agreement, obligation, lease or license to which the Corporation or any current Subsidiary is a party or former officerby which the Corporation or any Subsidiary or their property is bound and which is being assumed by Purchaser pursuant hereto; (k) Any sale, directorassignment, shareholderlease, managerabandonment or other disposition by the Corporation or any Subsidiary of any real property, memberor any sale, employee assignment, transfer, license, lapse, or consultant other disposition by the Corporation or any Subsidiary of any trademark, trade name, copyright (or pending application for any trademark or copyright), or other intangible asset; (l) Any sale, assignment or transfer of any contract, agreement, lease, or asset by the Corporation or any Subsidiary, except in the ordinary course of business and consistent with past practice; (m) To the Indemnitors' knowledge, any violation by the Corporation or any Subsidiary of, or any charge against the Corporation or any Subsidiary for alleged violations of, any governmental laws, rules, regulations or standards, including, without limitation, unlawful employment practices, occupational health and safety standards, and environmental control standards; (n) To the Indemnitors' knowledge, any labor dispute, or threat of a labor dispute, or any attempt or threat of any attempt by a union to organize any employees of the Company Corporation or anyany Subsidiary who are not now covered under an existing union or collective bargaining agreement; (o) Any material failure by the Seller to replenish inventories and supplies in a normal and customary manner consistent with prior practice; any purchase commitment by the Corporation or any Subsidiary in excess of the normal, ordinary and usual requirements of business or at any price in excess of the then current market price or upon terms and conditions more onerous than those usual and customary in the Corporation's or any Subsidiary's business; (p) Any arrangement for Discount Tickets or other similar arrangements (excluding free passes in the ordinary course of business); or (q) Any significant action taken or transaction entered into by the Corporation or any Subsidiary other than in the ordinary course of business, which do or could result in material indebtedness or material liability (including contingent liability) after Closing.

Appears in 1 contract

Samples: Property Purchase Agreement (Landmark Theatre Corp)

Absence of Changes. Since the Audited Financial Statement Date, except (a) Except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof6.09 hereto, since December 31, 1995, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salarydamage, rate of commissions, rate of consulting fees destruction or any other compensation of any current loss (whether or former officer, director, shareholder, manager, member, employee or consultant of not covered by insurance) which affects the Company or any Subsidiary; Purchased Assets; (ii) a material change in the operation of the Purchased Assets other than in the ordinary course of business; or (iii) any payment of consideration sale or removal of any of the Purchased Assets other than in the ordinary course of business. (b) Except as otherwise set forth on Schedule 6.09 hereto, since December 31, 1995, Seller has not with respect to the Business, other than in the ordinary course of business: (i) incurred any material obligation or liability (whether fixed, absolute, accrued, contingent, known or unknown, or otherwise, of any kind or nature whatsoever whatsoever); (ii) mortgaged, pledged or subjected to any lien, security interest or other encumbrance any of the Purchased Assets (other than salarymechanic's, commissions materialman's and similar statutory liens arising as a matter of law and purchase money security interests); (iii) transferred, leased or consulting fees paid otherwise disposed of any Purchased Assets or acquired any assets or properties to be used solely by or in connection with the activities of the Business; (iv) canceled or compromised any debt or claim related to the Business; (v) waived or released any rights of material value related to the Business; (vi) transferred or granted any rights under any concessions, leases, licenses, sublicenses, agreements, patents, inventions, trademarks, trade names, service marks or copyrights or with respect to any current know-how related to the Business; (vii) made or former officergranted any wage, director, shareholder, manager, member, employee salary or consultant benefit increase or paid any bonus applicable to any group or classification of employees generally (except for bonuses which may be granted by Seller to certain key employees in connection with the consummation of the Company transaction contemplated by this Agreement and which shall be payable by Seller), entered into or anyamended the terms of any employment contract with, or made any loan to, or entered into or amended the terms of any material transaction of any other nature with, any officer or employee engaged in the operations of the Business; (viii) entered into any agreement or commitment to take any action described in paragraphs (i) - (vii) of this paragraph 6.09(b); or (ix) in any event suffered any change which would materially and adversely affect the Purchased Assets or the Business, taken as a whole.

Appears in 1 contract

Samples: Asset Purchase Agreement (Fonda Group Inc)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 Schedule 3.9, since December 31, 2005, (i) the Stock Sale Companies have conducted the Stock Sale Business in the ordinary course, in substantially the same manner in which it has been previously conducted, (ii) there has been no Material Adverse Effect, and (iii) none of the Disclosure Schedule Stock Sale Companies (either directly or indirectly as disclosed in the SEC Documents filed prior to the date hereof, there has not been a result of any material adverse change, actions by Genworth or any event Affiliate of Genworth acting on behalf of or development which, individually or together with other such events, could reasonably be expected respect to result in a material adverse change, in the Business or Condition any of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In additionStock Sale Companies), without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datehas: (a) purchased, redeemed or otherwise acquired any declarationshares of its equity securities, setting aside or payment of issued, authorized the issuance of, or sold, granted or pledged (or agreed to do any dividend or other distribution in respect of the capital stock (or equity interestsforegoing with respect to) of the Company or any of its Subsidiariesequity securities, any securities convertible into or exchangeable for, or any direct option, warrant, conversion or indirect redemption, other right to purchase or other acquisition by the Company or acquire any of its Subsidiaries of any equity securities or granted or agreed to grant such capital stock (or equity interests) of or any Option with respect to the Company or any of its Subsidiariesrights; (b) except for short-term borrowings in the executionordinary course of business consistent with past practice not at any time in excess of $10,000,000 in the aggregate for all Stock Sale Companies, delivery incurred or assumed any indebtedness for borrowed money or issued any debt securities other than indebtedness on commercially reasonable terms not in excess of $500,000 in aggregate principal amount for all Stock Sale Companies, entered into any guaranty or authorized, declared, set aside or paid any dividends or other distributions in respect of its equity securities; (c) mortgaged, pledged or subjected to any Lien any of its properties or assets, tangible or intangible (including any Intellectual Property), except for Liens incurred in the ordinary course of business consistent with past practice or Permitted Liens; (d) except as required by Law, GAAP or the Applicable SAP, made any change in its accounting principles or the methods by which such principles are applied for financial reporting purposes or changed in any material respect its underwriting, hedging, asset/liability matching, investing or actuarial methods, principles, practices or policies; (e) changed in any material respect its pricing or marketing methods, principles, practices or policies, other than in the ordinary course consistent with past practice; (f) increased, or agreed to increase, the compensation or bonus of any officer or employee, other than (i) in the ordinary course of business consistent with past practice or (ii) to comply with applicable Law; or entered into any new, or amended any existing, employment contracts, severance agreements or consulting contracts or instituted or agreed to institute any increase in benefits (including severance benefits) or altered its employment practices or the terms and performance conditions of employment, in each case other than in the ordinary course of business consistent with past practice; provided, however, that all such agreements contemplated by this clause and existing as of the Company date hereof shall have been identified on Schedule 3.9; (g) sold, pledged, leased, licensed, granted, encumbered or disposed of this Agreement and or agreed to sell, pledge, lease, license, grant, encumber or dispose of any properties or assets of the Operative AgreementsStock Sale Companies, and other than in the transactions contemplated hereby ordinary course of business consistent with past practice; (h) canceled or therebyforgiven any debts or claims, or made any loans, advances or capital contributions to, or investments in, or received any capital contributions from, any authorizationother Person, issuance, sale or in each case other disposition by than in the Company or any Subsidiary ordinary course of any shares of capital stock of, or Option business consistent with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiarypast practice; (i) taken any increase action to forfeit, abandon, modify, waive, terminate or otherwise change any of its Permits, except as may be required in salaryorder to comply with applicable Law; (j) other than in the ordinary course of business consistent with past practice, rate issued or sold new kinds of commissionsPolicies, rate or amended existing kinds of consulting fees Policies except to the extent required to comply with applicable Law; (k) suffered any material casualty losses not covered by insurance; (l) amended its charter or bylaws or merged with or into any other compensation Person; (m) split, combined, subdivided or reclassified, or pledged or otherwise encumbered, any of its Capital Stock; (n) entered into or amended or terminated any transaction or Contract that has or would reasonably be expected to have a Material Adverse Effect; (o) ceased in any significant respect its lead generation or marketing activities other than in the ordinary course of business consistent with past practice; (p) terminated or amended any material reinsurance or coinsurance contract (including any surplus relief or financial reinsurance contract), whether as reinsurer or reinsured, other than in the ordinary course of business consistent with past practice; (q) made any payments to any Affiliates other than pursuant to Contracts which Contracts have been previously disclosed to the Buyer and are in effect as of the date hereof; (r) entered into any material joint ventures or partnerships or acquired (by merger, consolidation, reinsurance or acquisition of stock or assets) any material interest in any corporation, joint venture, partnership or other business organization other than in connection with investment portfolio transactions in the ordinary course of business consistent with past practices; (s) other than in the ordinary course of business and in amounts, individually not in excess of $100,000, settled or received a judgment in any Proceeding in which a Stock Sale Company was a party; (t) other than in the ordinary course of business, become or committed to become a plaintiff in any Proceeding, excluding counterclaims with respect to claims made under any Policy; (u) guaranteed or, other than in the ordinary course of business, assumed, endorsed or otherwise became liable or responsible (whether directly, contingently or otherwise) for the obligation of any current other Person; or (v) authorized or former officerentered into any Contract or other agreement, director, shareholder, manager, member, employee arrangement or consultant understanding to do any of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Stock Purchase Agreement (Genworth Financial Inc)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth reflected in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof------------------ Schedule, since June 30, 1996 there has not been been: (i) any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, change in the Business financial condition, assets, properties, liabilities, results of operations or Condition prospects of any of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:Consumers Companies; (aii) any declaration, setting aside or payment of any dividend (excluding intercompany dividends), or other distribution distribution, in respect of any of the capital stock (or equity interests) of any of the Company or any of its Subsidiaries, Consumers Companies or any direct or indirect redemption, purchase or other acquisition by any of the Company or Consumers Companies of any of its Subsidiaries capital stock, (iii) except for agents' contracts entered into in the ordinary course of business, any entry into or amendment of any such capital stock (employment or equity interests) deferred compensation agreement between any of or any Option with respect to the Company or Consumers Companies and any of its Subsidiariesofficers, directors, employees, agents or consultants; (biv) except for any issuance or sale by any of the executionConsumers Companies of any of its authorized capital stock, delivery and performance by the Company of this Agreement and the Operative Agreementsdebentures, and the transactions contemplated hereby or therebybonds, any authorization, issuance, sale notes or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiarycorporate securities, or any modification or amendment of the rights of the holders of any of its outstanding capital stock, debentures, bonds, notes or other securities; (v) any creation of any lien (other than deposits with State Insurance Departments and liens for current taxes not yet due), including, without limitation, any deposit for security made of, created on or in any asset or property of any of the Consumers Companies, or assumed by any of them with respect to any such asset or property; (vi) any material indebtedness or other material liability or obligation (whether absolute, accrued, contingent or otherwise) incurred, or other material transaction engaged in, by any of the Consumers Companies, except in the ordinary course of business; (vii) any material obligation or liability discharged or satisfied, other than the current liabilities reflected in the consolidated balance sheet of any of the Consumers Companies as of June 30, 1996 and current liabilities incurred since the date thereof in the ordinary course of business and except as contemplated by this Agreement; (viii) any sale, transfer or other disposition of any assets or properties of any of the Consumers Companies, except in the ordinary course of business or as contemplated by this Agreement; (ix) any amendment, termination or waiver of any material right of any holder of the Consumers Companies under any outstanding shares material contract, agreement or governmental license or permit except the termination of capital stock of, or Option the Joint Venture Agreement with respect to, Accel and the Company or any Subsidiarytermination of the Pennsylvania Automotive Association endorsement; (ix) any material change in the practices and policies customarily followed by any of the Consumers Companies (including, without limitation, any underwriting, actuarial, pricing, financial or accounting practices or policies); (xi) with respect to the Insurance Company Subsidiaries, any material increase or decrease in the percentage of its reinsured business, or any material increase in its lapse ratio, or any material decrease in the amount of its in-force business; (xii) any actual or, to the knowledge of the executive officers of Consumers, threatened labor trouble, strike, loss of employees or agents; (xiii) any increase in salary, rate of commissions, rate of consulting fees salaries or any other compensation of, or advances to, any employees, other than advances to non-executive employees in the ordinary course of any current or former officer, director, shareholder, manager, member, employee or consultant of business and the Company or any SubsidiaryEmployment Agreement to be entered into with Xxxxx Xxxxxx; or (iixiv) any payment transaction which was not in the ordinary course of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anybusiness consistent with past practice.

Appears in 1 contract

Samples: Merger Agreement (Consumers Financial Corp)

Absence of Changes. Since the Audited Financial Statement Smartposting Balance Sheet Date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereofotherwise explicitly permitted by this Agreement, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any declaration, setting aside event or payment condition of any dividend kind or other distribution in respect of the capital stock (character that has had or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option with respect would reasonably be expected to the Company or any of its Subsidiarieshave a Smartposting Material Adverse Effect; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby any declaration or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary payment of any shares of capital stock of, or Option with respect to, the Company or any Subsidiarydividend, or any modification authorization or payment of any distribution, on any of the share capital of Smartposting, or any redemption or repurchase of any Equity Securities of Smartposting; (c) any material damage, destruction or loss, whether or not covered by insurance, to any assets or properties of any Smartposting Group Company; (d) any waiver, not in the ordinary course of business consistent with past practice, by any Smartposting Group Company of a material right or of a material debt owed to it; (e) any satisfaction or discharge of any Encumbrance or payment of any Liabilities by any Smartposting Group Company, except in the ordinary course of business consistent with past practice or in an amount individually or among related Liabilities below US$150,000; (f) any change or amendment to the Constitutional Documents, each as amended, of any right Smartposting Group Company or material change to any material Contract or arrangement by which any Smartposting Group Company is bound or to which any of their respective material assets or properties is subject; (g) any material transaction entered into by any Smartposting Group Company other than in the ordinary course of business consistent with past practice; (h) the loss of the services of any holder key employee, or material change in the composition or duties of the executive officers of any outstanding shares of capital stock of, or Option with respect to, the Company or any SubsidiarySmartposting Group Company; (i) any increase issuance of (i) capital stock of any Smartposting Group Company, (ii) any options, warrants, rights of conversion or other rights, agreements, arrangements or commitments obligating Smartposting to issue, deliver or sell any capital stock of any Smartposting Group Company or (iii) any notes, bonds or other debt security; (j) any sale, assignment, transfer, lease or other disposition, or agreement to sell, assign, transfer, lease or otherwise dispose of, any of the fixed assets of any Smartposting Group Company having a value, in salaryany individual case, rate in excess of commissions, rate of consulting fees US$150,000 or any sale, transfer, assignment, abandonment, exclusive license or other compensation transfer of any current Smartposting Owned IP; (k) any acquisition (by merger, consolidation or former officerother combination, or acquisition of stock or assets or otherwise) by any Smartposting Group Company of any corporation, partnership or other business organization, or any division thereof; (l) any material change in any method of financial accounting or financial accounting practice used by any Smartposting Group Company, other than such changes as are required by K-GAAP; (i) any material Tax election (including any change in material Tax election), (ii) any adoption or change (or request to adopt or change) of any material method of Tax accounting, (iii) any entering into or amendment of (or request to enter into or amend) any agreement, settlement or compromise with respect to any material Tax liability, (iv) any filing or amendment of any income or other material Tax Return, (v) any surrender of any right to claim a refund, offset or other reduction of a material amount of Taxes, (vi) any consent to any extension or waiver of the statute of limitations for the assessment or collection of any Tax, or (vii) except in the ordinary course of business consistent with past practice, the acceleration or movement of any Tax deduction, attribute or benefit to the Pre-Closing Tax Period or the deferral of any Tax detriment or taxable income to the Post-Closing Tax Period; (n) other than as required by applicable Law or the terms of any Smartposting Benefit Plan, (i) entry into or material amendment of any Smartposting Benefit Plan, (ii) a material increase, individually or in the aggregate, in the compensation or benefits (including annual base salary or annual bonus opportunity) of any employee, director or officer of any Smartposting Group Company, (iii) hiring any new employee or other service provider with an annual base salary in excess of US$100,000, (iv) the grant or provision of any severance or termination payments or benefits to any director, shareholder, manager, memberofficer, employee or consultant of any Smartposting Group Company, (v) actions to accelerate the Company vesting or payment, or fund or in any Subsidiary; other way secure the payment, compensation or benefits under any Smartposting Benefit Plan or (vi) entry into or amendment of any collective bargaining agreements; (o) any incurrence, creation or assumption of (i) any Encumbrance on any assets or properties (other than Permitted Encumbrances) of any Smartposting Group Company, (ii) any Liability of any Smartposting Group Company for borrowed money, or (iii) any Liability of any Smartposting Group Company as a guarantor or surety with respect to the obligations of others, except for any Encumbrance or Liability that is not exceeding US$150,000; (p) any deferral of the payment of consideration any accounts payable other than in the ordinary course of business, or any discount, accommodation or other concession made other than in the ordinary course of business, in order to accelerate or induce the collection of any nature whatsoever receivable; (q) any Action or, to the Knowledge of Seller, investigation or audit, initiated against, or settled by, any Smartposting Group Company; (r) any capital expenditures or commitments for capital expenditures in excess of US$200,000 in the aggregate; (s) any other event or condition of any character that has had or could reasonably be expected to have, individually or in the aggregate, a Smartposting Material Adverse Effect; or (t) any agreement, other than salarythis Agreement, commissions or consulting fees paid to take any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyactions specified in this Section 3.11.

Appears in 1 contract

Samples: Share Purchase Agreement (IE LTD)

Absence of Changes. Since the Audited Financial Statement Date2000 Fiscal Year End, and except as set forth disclosed in the SEC Reports or in Section 2.9 3.9 of the Disclosure Schedule or as disclosed specifically required in this Agreement, the Seller and its Subsidiaries have conducted the Business only in the SEC Documents filed prior to the date hereof, Ordinary Course of Business and there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any declarationchange, setting aside event or circumstance which has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (b) any sale, lease, transfer, or assignment of any of the assets, tangible or intangible, of the Seller and/or any of its Subsidiaries (other than (i) sales of inventory in the Ordinary Course of Business, (ii) sales or other transfers of obsolete inventory in amounts and on terms consistent with past practice of the Seller and its Subsidiaries, or (iii) transfers of assets solely among the Selling Parties or among the Selling Parties and XX Xxxxxx); (c) any capital expenditure by the Seller and/or any of its Subsidiaries involving more than $75,000 singly or $200,000 in the aggregate; (d) any cancellation, compromise, waiver, or release by the Seller and/or any of its Subsidiaries of any material right or material claim or Indebtedness; (e) any material change with respect to the cash management, payment of accounts payable or Liabilities, billing, or collection policies or practices of the Seller and/or any of its Subsidiaries; (f) any material change in prompt payment or pre-payment rebates, most-favored pricing or other price protections or similar programs of the Seller and/or any of its Subsidiaries; (g) at any time prior to the Execution Date, any threat or notification (in writing or, to the Knowledge of the Seller and its Subsidiaries, orally) by or other indication that one or more material licensors, distributors, customers or suppliers of the Seller and/or any of its Subsidiaries that they (i) have terminated or intend to terminate their respective business relationships (or have modified or intend to modify such relationships) with the Seller and/or any of its Subsidiaries in a manner which is materially less favorable, in the aggregate, to the Seller and its Subsidiaries than on the 2000 Fiscal Year End, or (ii) have not agreed to, or will not agree to, do business with the Buyer after the Closing on terms and subject to conditions at least as favorable, in the aggregate, to the Buyer as provided to the Seller and/or one or more of its Subsidiaries on the 2000 Fiscal Year End; (h) any damage, impairment, destruction or loss (whether or not covered by insurance) to any property of the Seller and/or any of its Subsidiaries involving more than $50,000 singly or $100,000 in the aggregate; (i) except as may be required by Law, any modification or change in the application of GAAP from the manner in which it was applied in the 2000 Audited Financial Statements; (j) any change in the bonus target amounts or changes in the sales targets, earnings targets or other criteria for achievement or vesting of bonus payment rights under any employment agreements or bonus plans or arrangements of the Seller and/or any of its Subsidiaries; (k) any declaration or payment of any dividend dividends or distributions on any class of the Seller's capital stock; (l) any purchase, redemption or other distribution in respect acquisition or retirement by the Seller of the its capital stock of any class, or other return of capital or distribution of any assets to its stockholders as such; (m) any purchase, redemption or equity interests) of other acquisition or retirement by the Company Seller or any of its Subsidiaries, or any direct election by the Seller or indirect redemptionany of its Subsidiaries to pay cash interest on or in respect of, purchase any notes issued pursuant to or other in connection with the Indenture; (n) any issuance of any equity security or amendment of any term or provision of any equity security by GB Canada; (o) any acquisition by the Company Seller or any of its Subsidiaries of any such capital stock (or equity interests) securities of or other interests in any Option with respect other Person; (p) any increase in compensation or payment of any bonus or other compensation to any senior officer of the Company Seller or any of its Subsidiaries, except for normal salary payments in accordance with the normal payroll practices of the Seller; (bq) except for any assumption or other transfer of any Retained Liability from any of the executionSelling Parties to any of GB Canada, delivery and performance MEI, Inc. and/or 8 Candles Productions; or (r) any commitment by the Company Seller and/or any of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, its Subsidiaries to do any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Asset Purchase Agreement (Golden Books Family Entertainment Inc)

Absence of Changes. Since Except with respect to the Audited Financial Statement Date, except transactions contemplated by this Agreement and the Closing Documents or as set forth in Section 2.9 Schedule 3.08, since the date of the Disclosure Schedule or as disclosed most recent Annual Financial Statements, the Company has: (a) conducted its business only in the SEC Documents filed prior ordinary and usual course and consistent with past practice; (b) not (i) amended or proposed to amend its charter or bylaws, (ii) split, combined or reclassified any shares of its capital stock or (iii) declared, set aside or paid any dividend or distribution on any shares of its capital stock, whether payable in cash, stock, Assets and Properties or otherwise; (c) not issued, sold, pledged or disposed of, or agreed to issue, sell, pledge or dispose of, any shares of its capital stock or any Commitment or any Debt or equity securities convertible into or exchangeable for any shares of its capital stock; (d) not (i) created, incurred, assumed, guaranteed or become contingently liable with respect to any Debt or canceled any Debts owed to it, (ii) redeemed, purchased, acquired or offered to purchase or acquire any shares of its capital stock or any Commitments or any Debt or equity security convertible into or exchangeable for any shares of its capital stock, (iii) purchased, acquired or leased any Assets and Properties other than in the date hereofordinary course of business consistent with past practice, there has not been (iv) made any material adverse changecapital expenditure or commitment therefor other than in the ordinary course of business, consistent with past practice, (v) sold, pledged, leased, disposed of or encumbered any of its Assets and Properties other than sales of inventory in the ordinary course of business, (vi) purchased or acquired any businesses or the securities or other Debt or equity interests of any Person, (vii) made any loan or advance to, or any event investment in, any Person, (viii) entered into any Contract, or development whichamended, individually modified or together terminated any Contract, other than in the ordinary course of business consistent with past practice, (ix) made any payment or distribution to the Company except in the ordinary course of business and consistent with past practices (which payments or distributions are set forth on Schedule 3.08), or (x) changed its policies with respect to the extension of credit to customers, suppliers or distributors; (e) not (i) entered into or amended, or committed itself to enter into or amend, any employment, severance, consulting, compensation or special pay Contract, with respect to termination of employment or otherwise, or other similar Contracts with any directors, officers or key employees, (ii) paid or agreed to pay any pension, retirement allowance or other employee benefit to any such eventsdirector, officer or key employee, whether past or present (other than for benefit entitlements under Employee Plans and Agreements in effect as of the date of the Annual Financial Statements in accordance with the terms of such Employee Plans and Agreements), or (iii) paid any bonuses to, or increased the compensation of, any Employee (including Sellers); (f) not adopted, entered into or amended, or committed itself to adopt, enter into or amend, any of the Employee Plans and Agreements, except as required to comply with changes in applicable Law; (g) maintained its financial Books and Records on a consistent basis, with, to the best of Sellers' knowledge, no deviation from requirements of GAAP accounting principles other than as set forth in Schedule 3.08, and not made any change in its accounting systems, methods or practices; (h) maintained with financially responsible insurance companies insurance on its tangible Assets and Properties and its businesses in such amounts and against such risks and Losses as are consistent with past practice; (i) not engaged in any transaction or sustained any Loss which had, or could reasonably be expected to result in a material adverse changehave, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (a) any declarationbeen, setting aside or payment of any dividend or other distribution in respect of the capital stock (or equity interests) of the Company or any of its Subsidiaries, or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such capital stock (or equity interests) of or any Option a Material Adverse Effect with respect to the Company Company; (j) not suffered any physical damage, destruction or Loss to its Assets and Properties (whether or not insured) in excess of $5,000 in the aggregate; (k) used its customary efforts to preserve intact its business organizations and goodwill, kept available the services of its present officers and key employees, used its customary efforts to preserve its business relationships with customers, suppliers, dealers, distributors, franchisees and others having business relationships with it and not engaged in any action, directly or indirectly, with the intent to adversely impact the transactions contemplated by this Agreement or any of its Subsidiariesthe Closing Documents; (bl) except for the executionnot increased or made any other change in, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or therebycharge against, any authorization, issuance, sale of the Reserves or other disposition by written off or written down any of the Company or any Subsidiary of any shares of capital stock of, or Option with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary;Receivables; and (im) not entered into any increase in salary, rate of commissions, rate of consulting fees or Contract to do any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyforegoing.

Appears in 1 contract

Samples: Stock Purchase Agreement (Dolphin Knowledge)

Absence of Changes. Since Except as set forth on Schedule 3.8 and except for changes in general economic conditions and general changes in the industry in which the Subject Business is conducted, since the Latest Audited Financial Statement Balance Sheet Date, there has not been any Material Adverse Change affecting the Company or the Subsidiaries and no event has occurred or circumstance exists which may result in such a Material Adverse Change. Without limiting the generality of the foregoing, since the Latest Audited Balance Sheet Date, except as set forth in Section 2.9 of Schedule 3.8, the Disclosure Schedule or as disclosed Company and the Subsidiaries have been operated in the SEC Documents filed prior to the date hereofordinary course of business, consistent with past practice, and there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Datebeen: (a) any discharge or satisfaction of any Encumbrance other than those then required to be discharged or satisfied prior to Closing, or payment of any obligation or Liability, other than current Liabilities shown on the Latest Audited Balance Sheet and current Liabilities incurred in the ordinary course of business consistent with prior practice, or any cancellation, forgiveness or compromise by the Company or the Subsidiaries of any debts or claims other than in the ordinary course of business or any waiver or release of any right of substantial value to the Company and the Subsidiaries; (b) any declaration, setting aside or payment of any dividend or other distribution in of any assets of any kind whatsoever with respect to any shares of the capital stock (or equity interests) of the Company or any of its the Subsidiaries, or any direct or indirect redemption, purchase or other acquisition of any such shares of the capital stock of the Company or the Subsidiaries; (c) any stock split, reverse stock split, combination, reclassification or recapitalization of any capital stock of the Company or the Subsidiaries, or any issuance of any other security in respect of or in exchange for, any shares of any capital stock of the Company or the Subsidiaries; (d) any issuance by the Company or any of its the Subsidiaries of any shares of their capital stock or any debt security or securities, rights, options or warrants convertible into or exercisable or exchangeable for any shares of such capital stock or debt security; (e) any license, sale, transfer, pledge, mortgage or equity interests) other disposition of any tangible or any Option with respect to intangible asset of the Company or any the Subsidiaries, except for inventory sold in the ordinary course of its Subsidiariesbusiness; (bf) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby any termination or thereby, any authorization, issuance, sale or other disposition receipt by the Company or any Subsidiary the Subsidiaries of any shares notice of capital stock of, termination or Option with respect to, non-renewal of any Contract between the Company or the Subsidiaries and any Subsidiary, other Person involving payments in excess of $100,000 in the aggregate; (g) any write-down or any modification or amendment write-up of the value of any right asset of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or the Subsidiaries, or, other than in the ordinary course of business, any Subsidiarywrite-off of any accounts receivable or notes receivable of the Company or the Subsidiaries or any portion thereof in excess of $50,000 in the aggregate; (h) any increase in or modification of compensation payable or to become payable to any officer, employee, consultant or agent of the Company or the Subsidiaries, other than any such increases in the ordinary course of business, consistent with past practice, or the entering into of any employment contract with any officer or employee; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation modification or acceleration of any current benefits payable or former to become payable under any bonus, pension, severance, insurance or other benefit plan, payment or arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) made to, for or with any officer, directoremployee, shareholder, manager, member, employee consultant or consultant agent of the Company or any Subsidiary; the Subsidiaries; (iij) any payment of consideration the making of any nature whatsoever (other than salaryloan, commissions advance or consulting fees paid capital contribution to or investment in any current Person or former the engagement in any transaction with any employee, officer, director, shareholder, manager, member, employee director or consultant Shareholder of the Company or anythe Subsidiaries, other than advances to employees in the ordinary course of business for travel and similar business expenses; (k) any change in the accounting methods or practices followed by the Company or the Subsidiaries or any change in depreciation or amortization policies or rates theretofore adopted; (l) any material deterioration in the aging of the Company's or the Subsidiaries' accounts payable or material acceleration in the aging of the Company's or the Subsidiaries' accounts receivable or other change in the Company's or the Subsidiaries' working capital management practices; (m) any material change in the manner in which the Company or the Subsidiaries extend discounts or credit to customers or otherwise deals with customers; (n) any termination of employment of any officer or key employee of the Company or the Subsidiaries; (o) except as contemplated hereby, any amendments or changes in the Company's or the Subsidiaries' articles or certificate of incorporation or bylaws (or other governing documents); (p) any labor disputes or any union organizing campaigns; (q) the commencement of any litigation or other action by or against the Company or the Subsidiaries; or (r) any agreement, understanding, or authorization, whether in writing or otherwise, for the Company or the Subsidiaries to take any of the actions specified in items (a) through (q) above.

Appears in 1 contract

Samples: Merger Agreement (Providence Service Corp)

Absence of Changes. Since the Audited Financial Statement Date, except as set forth in Section 2.9 of the Company Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereofSchedule, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in effect on the Business or Condition of the Company. None Company and its Subsidiaries, or any occurrence or event which, individually or in the aggregate, could be reasonably expected to have any material adverse effect on the Business or Condition of the other representations or warranties set forth Company and its Subsidiaries, in each case taking the Company together with its Subsidiaries as a whole. Since the beginning of its 2000 fiscal year, the Company has operated its business in accordance with the 2000-01 Operating Plan (a true, correct and complete copy of which has been provided to and approved by Broadcom prior to the date of this Agreement shall be deemed to limit the foregoingAgreement). In addition, without limiting the generality of the foregoing, except as expressly contemplated hereby and by the Operative Agreements this Agreement and except as disclosed in Section 2.9 of the Company Disclosure Schedule, there has not occurred since the Audited Financial Statement Date: (a) neither the Company nor any declarationof its Subsidiaries has entered into any Contract, setting aside commitment or payment transaction or incurred any Liabilities outside of the ordinary course of business consistent with past practice; (b) neither the Company nor any dividend of its Subsidiaries has entered into any Contract in connection with any transaction involving a Business Combination; (c) neither the Company nor any of its Subsidiaries has altered in any material respect, or entered into any Contract or other distribution commitment to alter in respect any material respect, its interest in any corporation, association, joint venture, partnership or business entity in which the Company or its Subsidiaries directly or indirectly holds any equity interest (or any right to acquire any equity interest) on the date hereof; (d) neither the Company nor any of its Subsidiaries has entered into any strategic alliance, joint development or joint marketing Contract; (e) there has not been any material amendment or other material modification (or agreement to make any material amendment or other material modification) or breach of the capital stock terms of, any of the Contracts set forth or described in the Company Disclosure Schedule; (f) neither the Company nor any of its Subsidiaries has entered into any transaction with any officer, director, shareholder, Affiliate or equity interests) Associate of the Company or any of its Subsidiaries, other than pursuant to any Contract in effect on the Audited Financial Statement Date and disclosed to Broadcom pursuant to (and so identified in) Section 2.9(f), Section 2.18(a)(1), Section 2.18(a)(2) or any direct or indirect redemption, purchase Section 2.20 of the Company Disclosure Schedule or other acquisition by than pursuant to any contract of employment and listed pursuant to Section 2.18(a)(1) or Section 2.18(a)(2) of the Company Disclosure Schedule; (g) neither the Company nor any of its Subsidiaries has entered into or amended in any material respect any Contract pursuant to which any other Person is granted manufacturing, marketing, distribution, licensing or similar rights of any type or scope with respect to any product of the Company or any of its Subsidiaries of or any such capital stock (or equity interestsCompany Intellectual Property other than as contemplated by the Contracts and Licenses disclosed in Section 2.9(g) of the Company Disclosure Schedule; (h) no Action or any Option with respect Proceeding has been commenced or, to the knowledge of the Company and its Subsidiaries, threatened by or against the Company or any of its Subsidiaries; (bi) except for the execution, delivery and performance by the Company has not declared or set aside or paid any dividends on or made any other distributions (whether in cash, stock or property) in respect of this Agreement and any Company Capital Stock or Equity Equivalents, or effected or approved any split, combination or reclassification of any Company Capital Stock or Equity Equivalents or issued or authorized the Operative Agreementsissuance of any other securities in respect of, and the transactions contemplated hereby in lieu of or therebyin substitution for shares of Company Capital Stock or Equity Equivalents, any authorizationor repurchased, issuanceredeemed or otherwise acquired, sale directly or other disposition by the Company or any Subsidiary of indirectly, any shares of capital stock ofCompany Capital Stock or Equity Equivalents, or Option except repurchases of Company Capital Stock pursuant to agreements with respect to, the Company or any Subsidiary, or any modification or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiary; (i) any increase in salary, rate of commissions, rate of consulting fees or any other compensation of any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or any Subsidiary; (ii) any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyCompany

Appears in 1 contract

Samples: Merger Agreement (Broadcom Corp)

Absence of Changes. Since the Audited Financial Statement Latest Balance Sheet Date, except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed on SCHEDULE -------- 6.8, each Company has been operated in the SEC Documents filed prior to the date hereofordinary course, consistent with past --- practice, and there has not been been: (i) any material adverse changechange in the business, operations, assets, condition (financial or otherwise), operating results, liabilities, relations with employees, customers or suppliers, or prospects of any Company, or any event casualty loss or development whichdamage to the assets of any Company, individually whether or together with other such events, could reasonably be expected to result in not covered by insurance (a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:"MATERIAL ADVERSE CHANGE"); ----------------------- (aii) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the capital stock (or equity interests) of the Company or any of its SubsidiariesCompany, or any direct or indirect redemption, purchase or other acquisition by the Company of any thereof, or any of its Subsidiaries other payments of any such capital stock (nature to any Affiliate of any Company whether or equity interests) of not on or any Option with respect to the Company or any of its Subsidiaries; (b) except for the execution, delivery and performance by the Company of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by the Company or any Subsidiary of any shares of capital stock ofof such Company owned by such Affiliate (excluding salaries and benefits paid in the ordinary course of business consistent with past practices, and dividends paid in accordance with this Agreement); (iii) any general uniform increase in the compensation of employees (including any increase pursuant to any bonus, pension, profit-sharing or Option with respect to, the Company other plan or commitment) of any SubsidiaryCompany, or any modification increase in any such compensation payable to any officer, director or amendment of any right of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiarykey employee; (iiv) any increase change in salarythe tax or other accounting methods or practices followed by any Company, rate any change in the depreciation or amortization policies or rates previously adopted or any write-up of commissionsinventory or other assets; (v) any change in the manner in which products or services of any Company are marketed (including any change in prices), rate of consulting fees any change in the manner in which any Company extends discounts or credit to customers or any change in the manner or terms by which any Company collects accounts receivable or otherwise deals with customers; (vi) any failure by any Company to make scheduled capital expenditures or investments or any failure to pay trade accounts payable or any other compensation Liability of such Company when due; or (vii) any current agreement, whether in writing or former officerotherwise, director, shareholder, manager, member, employee or consultant to take any of the Company or any Subsidiary; actions specified in the foregoing CLAUSES (iiI) any payment through (VI). ----------- ---- SCHEDULE 6.8 sets forth the aggregate amount of consideration all dividends and distributions ------------ paid by the Companies since December 31, 1997, including the date and amount of any nature whatsoever (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyeach such payment.

Appears in 1 contract

Samples: Stock Purchase Agreement (Pacer International Inc)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 of the Disclosure Schedule or as disclosed in the SEC Documents filed prior to the date hereof, there has not been any material adverse change, or any event or development which, individually or together with other such events, could reasonably be expected to result in a material adverse change, in the Business or Condition of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 3.6 of the Disclosure Schedule, since the Most Recent Balance Sheet Date, the Company and its Subsidiaries and their respective businesses have been operated in the ordinary course consistent with past practice and there has not occurred since the Audited Financial Statement Datebeen: (a) any change in the business or financial condition of the Company or any of its Subsidiaries that has resulted or is reasonably likely to result in any Company Material Adverse Effect; (b) any obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due), in excess of $50,000 in the aggregate, incurred by the Company or any of its Subsidiaries, other than obligations under customer contracts, current obligations and other liabilities incurred in the ordinary course of business consistent with past practice; (c) any payment, discharge, satisfaction or settlement of any claim or obligation of the Company or any of its Subsidiaries, in excess of $50,000 in the aggregate, except in the ordinary course of business consistent with past practice; (d) any declaration, setting aside or payment of any dividend or other distribution in with respect to any shares of the capital stock (or equity interests) of the Company or any of its Subsidiaries, Subsidiaries or any direct or indirect redemption, purchase or other acquisition by of any such shares; (e) any issuance or sale, or any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable for shares of capital stock of the Company or any of its Subsidiaries (other than the issuance of shares of Common Stock upon the exercise of outstanding Options); (f) any sale, assignment, pledge, encumbrance, transfer or other disposition of any such capital stock (or equity interests) material asset of the Company or any Option of its Subsidiaries (excluding in all events sales of assets no longer useful in the operation of the business and sales of inventory to customers in the ordinary course of business consistent with respect to past practice), or any sale, assignment, transfer or other disposition of any material Intellectual Property or any other material intangible assets of the Company or any of its Subsidiaries; (bg) except for the execution, delivery and performance by the Company any creation of this Agreement and the Operative Agreements, and the transactions contemplated hereby or thereby, any authorization, issuance, sale or other disposition by Encumbrance on any property of the Company or any Subsidiary of its Subsidiaries, except for Encumbrances created in the ordinary course of business consistent with past practice; (h) any write-down of the value of any shares asset of capital stock of, or Option with respect to, the Company or any Subsidiary, of its Subsidiaries or any modification or amendment write-off as uncollectible of any right accounts or notes receivable of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company or any Subsidiaryof its Subsidiaries or any portion thereof, other than write-downs or write-offs that are reserved for on the consolidated balance sheet contained in the Company Financials or which do not exceed $100,000 in the aggregate; (i) any increase cancellation of any debts or claims in salary, rate excess of commissions, rate of consulting fees $50,000 in the aggregate or any amendment, termination or waiver of any rights of material value to the Company and its Subsidiaries, taken as a whole; (j) any capital expenditures or commitments or additions to property, plant or equipment of the Company and its Subsidiaries, in excess of $50,000 in the aggregate, other than in the ordinary course of business and consistent with the Company’s capital expenditure budget (a copy of which has been made available to the Buyer); (k) any increase outside of the ordinary course of business in the compensation of any current or former officer, director, shareholder, manager, member, employee or consultant employees of the Company or any Subsidiary; of its Subsidiaries (ii) including any payment of consideration of any nature whatsoever (other than salary, commissions or consulting fees paid increase pursuant to any current written bonus, pension, profit-sharing or former officerother benefit or compensation plan, directorpolicy or arrangement or commitment, shareholdercopies of which have been made available to Buyer), manager, member, employee or consultant any increase in any such compensation or bonus payable to any executive officer or director of the Company or anyany of its Subsidiaries having an annual salary or remuneration in excess of $200,000; (l) any damage, destruction or loss not covered by insurance affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or loss in excess of $100,000; (m) any change in the independent public accountants of the Company and its Subsidiaries or any change in the accounting methods or accounting practices followed by the Company or any of its Subsidiaries or any change in depreciation or amortization policies or rates; (n) any acquisition (by merger, consolidation or acquisition of stock or assets) of any corporation, partnership or other business organization or division thereof or collection of assets constituting all or substantially all of a business or business unit; (o) any adoption, entering into, amendment, alteration or termination of any Plan (in each case, other than as required by applicable Law) or any employment agreement with any executive-level employee; (p) any amendment to or change the Company’s or any of its Subsidiary’s certificate of incorporation, by-laws or other organizational documents; or (q) any agreement, whether in writing or otherwise, to take any of the actions specified in the foregoing items (a) through (p), subject to any dollar thresholds set forth in items (a) through (p) above.

Appears in 1 contract

Samples: Merger Agreement (Spherion Corp)

Absence of Changes. Since the Audited Financial Statement Date, except Except as set forth in Section 2.9 3.1(g) of the Disclosure Schedule or and except as disclosed contemplated by the Asset Sale Agreement, since January 1, 2001, CASS has been operated in the SEC Documents filed prior to the date hereofordinary course, consistent with past practice, and there has not been been: (i) any material adverse changeCASS Material Adverse Effect; (ii) any damage, destruction or loss, whether or not covered by insurance, having or which could have a CASS Material Adverse Effect; (iii) any Liability created, assumed, guaranteed or incurred, or any event material transaction, contract or development whichcommitment entered into, individually or together with by CASS other such events, could reasonably be expected to result in a material adverse change, than in the Business or Condition ordinary course of the Company. None of the other representations or warranties set forth in this Agreement shall be deemed to limit the foregoing. In addition, without limiting the foregoing, except as expressly contemplated hereby and by the Operative Agreements and except as disclosed in Section 2.9 of the Disclosure Schedule, there has not occurred since the Audited Financial Statement Date:CASS's business; (aiv) any payment, discharge or satisfaction of any material Encumbrance or Liability by CASS or any cancellation by CASS of any material debts or claims or any amendment, termination or waiver of any rights of material value to CASS; (v) any declaration, setting aside or payment of any dividend or other distribution in of any assets of any kind whatsoever with respect to any shares of the capital stock (or equity interests) of the Company or any of its Subsidiaries, CASS or any direct or indirect redemption, purchase or other acquisition by the Company or any of its Subsidiaries of any such shares of the capital stock (or equity interests) of or any Option with respect to the Company or any of its SubsidiariesCASS; (bvi) except for the executionany stock split, delivery and performance by the Company reverse stock split, combination, reclassification or recapitalization of this Agreement and the Operative Agreementsany CASS Common Stock, and the transactions contemplated hereby or therebyany issuance of any other security in respect of or in exchange for, any authorization, issuance, sale or other disposition shares of CASS Common Stock; (vii) any issuance by the Company or any Subsidiary CASS of any shares of its capital stock or any debt security or securities, rights, options or warrants convertible into or exercisable or exchangeable for any shares of its capital stock or debt security; (viii) any license, sale, transfer, pledge, mortgage or other disposition of any material tangible or intangible asset (including any Intellectual Property Rights (as defined in Section 3.1(k)) of CASS other than in the ordinary course of business; (ix) any termination of, or Option with respect towritten indication of an intention to terminate or not renew, any material contract, license, commitment or other agreement between CASS and any other person; (x) except as set forth on Schedule 3.1(g)(x), any material write-down or write-up of the Company or value of any Subsidiaryasset of CASS, or any modification or amendment write-off of any right accounts receivable or notes receivable of any holder of any outstanding shares of capital stock of, or Option with respect to, the Company CASS or any Subsidiaryportion thereof in any event in excess of $20,000 in the aggregate; (ixi) any increase in salaryor modification of compensation payable or to become payable to (A) any director, rate manager or officer of commissionsCASS or (B) any employee of CASS other than in the ordinary course of business, rate of consulting fees consistent with past practices, or any other compensation the entering into of any current employment contract with any officer or former employee; (xii) any increase in or modification or acceleration of any benefits payable or to become payable under any bonus, pension, severance, insurance or other benefit plan, payment or arrangement (including, but not limited to, the granting of stock options, restricted stock awards or stock appreciation rights) made to, for or with any director, officer, directoremployee, shareholderconsultant, manager, membermember or agent of CASS other than in the ordinary course of business, consistent with past practices; (xiii) any loan, advance or capital contribution to or investment in any person or the engagement in any transaction with any employee, officer, director or securityholder of CASS other than advances to employees in the ordinary course of business, consistent with past practices, for travel and similar business expenses; (xiv) any change in the accounting methods or practices followed by CASS or any change in depreciation or amortization policies or rates theretofore adopted; (xv) any material change in the manner in which CASS extends discounts or credit to customers or otherwise deals with customers; (xvi) any termination of employment of any officer or key employee of CASS or, to the knowledge of CASS or consultant Stockholder, any expression of intention by any officer or key employee of CASS to resign from such office or employment with CASS; (xvii) any amendments or changes in CASS's governing instruments, including CASS's Certificate of Incorporation or by-laws; (xviii) any labor dispute or any union organizing campaign; (xix) the commencement of any litigation or other action by or against CASS; or (xx) any agreement, understanding, authorization or proposal, whether in writing or otherwise, for CASS to take any of the Company or any Subsidiary; actions specified in items (iii) any payment of consideration of any nature whatsoever through (other than salary, commissions or consulting fees paid to any current or former officer, director, shareholder, manager, member, employee or consultant of the Company or anyxix) above.

Appears in 1 contract

Samples: Agreement and Plan of Reorganization (Alloy Online Inc)