Absence of Specified Changes. Except as disclosed on Schedule 2.16, in the Company's Current Report on Form 8-K dated May 19, 1997, in the Company's Annual Report on Form 10-K, in the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1997, or as contemplated by the transactions to be consummated at the Closing, since December 28, 1996, there has not been with respect to the Company (including any Subsidiary) any: (a) action which would result in a material adverse change, whether direct or indirect, in the business, operations, condition (financial or otherwise), prospects, liabilities or assets of the Company and the Company does not know of any change that is threatened or pending which could have a Material Adverse Effect; (b) transaction not in the ordinary course of business, including without limitation any sale of all or substantially all of the assets of the Company or any merger of the Company and any other entity; (c) unfulfilled commitments requiring expenditures by the Company exceeding $250,000 (excluding commitments expressly described elsewhere in this Agreement or the Schedules hereto or which were undertaken in the ordinary course of business consistent with past practice); (d) material damage, destruction or loss, whether or not insured; (e) failure to maintain in full force and effect substantially the same level and types of insurance coverage as in effect on December 28, 1996 or destruction, damage to, or loss of any asset of the Company (whether or not covered by insurance) that materially and adversely affects the business, operations, condition (financial or otherwise), prospects, liabilities or assets of the Company; (f) change in accounting principles, methods or practices, investment practices, claims, payment and processing practices or policies regarding intercompany transactions; (g) revaluation of any assets or material write down of the value of any inventory; (h) loan or payment to any stockholder or any declaration, setting aside, or payment of a dividend (whether in cash or in shares of capital stock) or other distribution in respect of its capital stock, or any direct or indirect redemption, purchase or other acquisition of any shares of its capital stock; (i) issuance or sale of any shares of capital stock or of any other equity security or any security convertible into or exchangeable or exercisable for equity securities (except pursuant to the exercise of outstanding derivative securities or otherwise pursuant to currently authorized and outstanding employee stock options) or the repricing of any such share of capital stock, other equity security or securities convertible into or exchangeable or exercisable for equity securities; (j) amendment to its Certificate of Incorporation or By-laws other than those disclosed on Schedule 2.06; (k) sale, assignment or transfer of any tangible or intangible asset, including any rights to intellectual property, in the aggregate in excess of $50,000, except in the ordinary course of business consistent with past practice;
Appears in 2 contracts
Samples: Securities Purchase Agreement (Danskin Inc), Securities Purchase Agreement (Danskin Investors LLC)
Absence of Specified Changes. Except as disclosed set forth on Schedule 2.163.8 annexed hereto, in or with respect to the Company's Current Report on Form 8-K dated May 19VIL Transaction, and except as would not have a Material Adverse Effect, since February 28, 1997, in to the Company's Annual Report on Form 10-K, in the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1997, or as contemplated by the transactions to be consummated at the Closing, since December 28, 1996knowledge of Xxxxx and Xxxxxx, there has not been with respect to the Company (including any Subsidiary) any:
(a) action which would result in a material adverse change, whether direct or indirect, in the business, operations, condition (financial or otherwise), prospects, liabilities or assets of the Company and the Company does transactions not know of any change that is threatened or pending which could have a Material Adverse Effect;
(b) transaction not in the ordinary course of business, including without limitation any sale of all or substantially all of the assets of the Company or any merger of the Company and any other entity;
(c) unfulfilled commitments requiring expenditures by the Company exceeding $250,000 (excluding commitments expressly described elsewhere in this Agreement or the Schedules hereto or which were undertaken in the ordinary course of business consistent with past practice), which transactions have a value individually in excess of $100,000 or in excess of $250,000 in the aggregate;
(db) material sale or transfer of any assets or properties, except in the ordinary course of business consistent with past practice;
(c) damage, destruction or loss, whether or not insured, adversely affecting its properties, assets, business or prospects;
(ed) failure to maintain in full force and effect substantially the same level and types of adequate insurance coverage as in effect on December 28, 1996 or for destruction, damage to, or loss of any asset of the Company (whether or not covered by insurance) that materially and adversely affects the business, operations, condition (financial or otherwise), prospects, liabilities or assets of the Companyits assets;
(fe) change in accounting principles, methods or practices, practices or investment practices, claims, payment and processing practices or policies regarding intercompany transactions;
(gf) revaluation of any assets or material write down of the value of any inventory;
(h) loan or payment to any stockholder or any declaration, setting aside, or payment of a dividend (whether in cash or in shares of capital stock) or other distribution in respect of its capital stock, or any direct or indirect redemption, purchase or other acquisition of any shares of its capital stock;
(ig) issuance or sale of any shares of its capital stock or of any other equity security or of any security convertible into or exchangeable for its equity securities, except as described in Section 3.2;
(h) amendment to its organizational documents;
(i) granting or exercisable for equity securities (except pursuant to the exercise of outstanding derivative securities or otherwise pursuant to currently authorized and outstanding employee stock options) or the repricing filing of any such share material Lien against any of its shares of capital stockstock or any of its properties or assets, other equity security real, personal or securities convertible into mixed, tangible or exchangeable or exercisable for equity securitiesintangible;
(j) amendment to sale, transfer or lease of any properties or assets (real, personal or mixed, tangible or intangible) to, or execution of any agreement with, its Certificate of Incorporation officers or By-laws other than those disclosed on Schedule 2.06directors;
(k) sale, assignment personal injury on any of its premises or transfer of any tangible or intangible asset, including any rights in connection with its business that may give rise to intellectual property, in the aggregate a material claim in excess of $50,000the applicable insurance coverage;
(l) increase in the compensation payable to or to become payable by it to any of its officers, employees or agents, except for normal compensation adjustments to salaries or wages to its non-officers, and to its officers as required by an applicable employment agreement, in each case made in the ordinary course of business consistent with past practice;; or
(m) agreement or understanding legally obligating it to take any of the actions described above in this Section 3.8.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Safety Components International Inc), Stock Purchase Agreement (Safety Components International Inc)
Absence of Specified Changes. Except as disclosed on set forth in Schedule 2.162.8, in attached hereto, and except as provided under Section 1.4 regarding adjustments to the Company's Current Report on Form 8-K dated May 19Unaudited Balance Sheet, 1997since the Balance Sheet Date, the Company has conducted its business only in the Company's Annual Report on Form 10-K, in the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1997, or as contemplated by the transactions to be consummated at the Closingordinary course and there has not, since December 28that date, 1996, there has not been with respect to the Company (including any Subsidiary) any:
(a) action which would result in a material adverse change, whether direct or indirect, in Material transaction by the business, operations, condition (financial or otherwise), prospects, liabilities or assets of the Company and the Company does not know of any change that is threatened or pending which could have a Material Adverse EffectCompany;
(b) transaction not in Material capital expenditure by the ordinary course of business, including without limitation any sale of all or substantially all of the assets of the Company or any merger of the Company and any other entityCompany;
(c) unfulfilled commitments requiring expenditures by the Company exceeding $250,000 (excluding commitments expressly described elsewhere in this Agreement or the Schedules hereto or which were undertaken Material adverse change in the ordinary course financial condition, liabilities, assets, business, or prospects of business consistent with past practice)the Company;
(d) material damage, destruction or loss, whether or not insured;
(e) failure to maintain in full force and effect substantially the same level and types of insurance coverage as in effect on December 28, 1996 or destructionDestruction, damage to, or loss of any asset assets of the Company (whether or not covered by insurance) that materially and adversely affects the financial condition, business, operationsor prospects of the Company;
(e) Labor trouble or other event or condition of any character materially and adversely affecting the financial condition, condition (financial business, assets, or otherwise), prospects, liabilities or assets prospects of the Company;
(f) Change in accounting methods or practices (including without limitation, any change in accounting principles, methods depreciation or practices, investment practices, claims, payment and processing practices amortization policies or policies regarding intercompany transactionsrates) by the Company;
(g) revaluation Material re-valuation by the Company of any assets or material write down of the value of any inventoryits assets;
(h) loan or payment to any stockholder or any declarationDeclaration, setting aside, or payment of a dividend (whether in cash or in shares of capital stock) or other distribution in respect to the shares of its capital stockthe Company, or any direct or indirect redemption, purchase purchase, or other acquisition by the Company of any shares of its capital stockshares;
(i) issuance Any sale or sale transfer of any shares asset of capital stock the Company, except inventory in the ordinary course of business, cash on hand, or of any in banks or other equity security or any security convertible into or exchangeable or exercisable for equity securities (except pursuant to depositories and the exercise of outstanding derivative securities or otherwise pursuant to currently authorized and outstanding employee stock options) or the repricing of any such share of capital stock, other equity security or securities convertible into or exchangeable or exercisable for equity securitiesassets described herein;
(j) amendment to its Certificate of Incorporation Amendment or By-laws other than those disclosed on Schedule 2.06;
(k) sale, assignment or transfer termination of any tangible contract, agreement, lease, or intangible asset, including any rights license to intellectual property, in which the aggregate in excess of $50,000Company is a party, except in the ordinary course of business and which has not had a materially adverse effect on the Company's assets, operations, or prospects;
(k) Loan by the Company to any person or entity (other than extensions of credit to customers in the ordinary course of business), or guaranty by the Company of any loan;
(l) Waiver, discharge, or release of any right or claim of the Company, except in the ordinary course of business and consistent with past prior practice;
(m) Mortgage, pledge, or other encumbrance of any asset of the Company, or any borrowing, other than in the ordinary course of business;
(n) Issuance or sale by the Company of any of its shares of Company Shares or of any other of its securities;
(o) Cancellation of any policy of liability insurance of Company or any refusal of any carrier to renew or continue any existing liability insurance of Company, or any increase in premiums for any such insurance exceeding 10% of the amount of the premium in effect on January 1, 1999;
(p) Adoption of any employee benefit, bonus, welfare, or other plan;
(q) Change in the Company's banking or safe deposit arrangements or authority of any person in respect thereof;
(r) Institution, settlement, or agreement to settle any litigation, action, or proceeding by or against the Company or of the Seller before any court or governmental body relating to the Company, or Seller or its property.
Appears in 1 contract
Absence of Specified Changes. Except as disclosed set forth on Schedule 2.16, in the Company's Current Report on Form 8-K dated May 19, 1997, in the Company's Annual Report on Form 10-K, in the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1997, or as contemplated by the transactions to be consummated at the ClosingStub Period Statements and SCHEDULE 6.3 hereof, since December 28, 1996the Last Fiscal Year End and up to and through the Closing Date, there has not been with respect to the Company (including any Subsidiary) any:
(a) action which would result in a material adverse change, whether direct or indirect, in the business, operations, condition (financial or otherwise), prospects, liabilities or assets of Transactions by the Company and the Company does not know of any change that is threatened or pending which could have a Material Adverse Effect;
(b) transaction not except in the ordinary course of business. As used throughout this Agreement, including without limitation any sale the term "in the ordinary course of all business" shall be deemed to mean the Company's commercial transactions of financial medical claims with its providers, payors and claim-traders (regardless of volume or substantially all of duration) and the assets of support services relating thereto;
(b) Capital expenditure or purchase commitments by the Company or any merger of the Company and any other entityexceeding $5,000 which are not for resale;
(c) unfulfilled commitments requiring expenditures by Material adverse change in the financial condition, liabilities, assets, business or prospects of the Company, or any other acts, omissions, incidents, events, circumstances or conditions generally affecting the economy or any segment thereof, including, without limitation, the business segment in which the Company exceeding $250,000 does business currently actually known by Shareholders, but unknown to the Buyer after reasonable inquiry (excluding commitments expressly described elsewhere in this Agreement or the Schedules hereto or which were undertaken in the ordinary course of business consistent with past practice"General Conditions");
(d) material damage, destruction or loss, whether or not insured;
(e) failure to maintain in full force and effect substantially the same level and types of insurance coverage as in effect on December 28, 1996 or destructionDestruction, damage to, or loss of any asset assets of the Company (whether or not covered by insurance) that materially and adversely affects the financial condition, business or prospects of the Company;
(e) To the knowledge of the Shareholders after reasonable investigation, labor trouble or other employment related event or condition adversely affecting the financial condition, business, operations, condition (financial assets or otherwise), prospects, liabilities or assets prospects of the Company;
(f) Change in accounting methods or practices (including, without limitation, any change in accounting principles, methods depreciation or practices, investment practices, claims, payment and processing practices amortization policies or policies regarding intercompany transactionsrates) by the Company;
(g) revaluation Revaluation by the Company of any assets or material write down of the value of any inventoryits Assets;
(h) loan Increase in the salary or payment other compensation payable or to become payable by the Company to any stockholder of its officers, directors, employees, or any consultants or the declaration, setting aside, payment or commitment or obligation of any kind for the payment by the Company of a dividend (whether in cash or in shares of capital stock) bonus or other distribution in respect of its capital stock, additional salary or compensation to any direct or indirect redemption, purchase or other acquisition of any shares of its capital stocksuch person;
(i) issuance or sale of any shares of capital stock or of any other equity security or any security convertible into or exchangeable or exercisable for equity securities (except pursuant to the exercise of outstanding derivative securities or otherwise pursuant to currently authorized and outstanding employee stock options) or the repricing of any such share of capital stock, other equity security or securities convertible into or exchangeable or exercisable for equity securities;
(j) amendment to its Certificate of Incorporation or By-laws other than those disclosed on Schedule 2.06;
(k) sale, assignment Sale or transfer of any tangible or intangible asset, including any rights to intellectual property, in material asset of the aggregate in excess of $50,000Company, except in the ordinary course of business consistent with past practicebusiness;
(j) Execution, creation, amendment or termination of any contract, agreement or license to which the Company is a party, except in the ordinary course of business;
(k) Loan by the Company to any person or entity, or guaranty by the Company of any loan;
(l) Voluntary waiver or release of any material right or claim of the Company;
(m) Mortgage, pledge or other encumbrance of any asset of the Company, except for those items listed in Section 6.14 (i) - (iii);
(n) To the knowledge of the Shareholders after reasonable investigation (or to the current actual knowledge of the Shareholders, if such matter is of a nature warranted by any other provision of this Agreement to be true only to such current actual knowledge), other event or condition of any character that has or might reasonably have a material adverse effect on the financial condition, business, Stock or prospects of the Company;
(o) Loss of significant providers, third party payors or claim-traders resulting in a material adverse change in number of transactions or revenue to the Company. As used in this subsection (o) only, the term "significant" shall mean, if a provider-group, a loss of a group comprised of more than ten (10) physicians or users; or if an individual provider, the cumulative loss of more than ten (10) physicians in a five (5) day work week; and if a payor or a claim-trader, the loss of one (1) or more;
Appears in 1 contract
Samples: Stock Purchase Agreement (Proxymed Inc /Ft Lauderdale/)
Absence of Specified Changes. Except as disclosed on set forth in Schedule 2.16, in the Company's Current Report on Form 8-K dated May 19, 1997, in the Company's Annual Report on Form 10-K, in the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1997, or as contemplated by the transactions to be consummated at the Closing3.17, since December 2831, 19962017, the business of Company has been conducted only in the ordinary course and there has not been been, with respect to Company, the Company (including any Subsidiary) Business or Company's assets, any:
(a) action which would result in a material adverse change, whether direct transaction or indirect, in the business, operations, condition (financial or otherwise), prospects, liabilities or assets of the Company and the Company does not know of any change that is threatened or pending which could have a Material Adverse Effect;
(b) transaction contract not in the ordinary course of business, including without limitation any sale of all or substantially all any of the Company's assets of the Company or any merger of the Company and any other entity;
(cb) unfulfilled commitments requiring expenditures by the Company exceeding $250,000 (excluding commitments expressly described elsewhere in this Agreement event, occurrence, or the Schedules hereto development that has had or which were undertaken could reasonably be expected to have, individually or in the ordinary course of business consistent with past practice)aggregate, a Material Adverse Effect;
(dc) material damage, destruction or loss, whether or not insured;
(e) failure to maintain in full force and effect substantially the same level and types of insurance coverage as in effect on December 28, 1996 or destruction, damage to, or loss of any asset of the Company (whether or not covered by insurance) that materially and adversely affects the business, operations, condition (financial or otherwise), prospects, liabilities or assets of the Company;
(fd) change in accounting principles, methods or practices, investment practices, claims, payment and processing practices or policies regarding intercompany transactions;
(ge) revaluation of any assets or material write write-up or write-down of the value of any inventoryasset;
(h) loan or payment to any stockholder or any declaration, setting aside, or payment of a dividend (whether in cash or in shares of capital stock) or other distribution in respect of its capital stock, or any direct or indirect redemption, purchase or other acquisition of any shares of its capital stock;
(i) issuance or sale of any shares of capital stock or of any other equity security or any security convertible into or exchangeable or exercisable for equity securities (except pursuant to the exercise of outstanding derivative securities or otherwise pursuant to currently authorized and outstanding employee stock options) or the repricing of any such share of capital stock, other equity security or securities convertible into or exchangeable or exercisable for equity securities;
(j) amendment to its Certificate of Incorporation or By-laws other than those disclosed on Schedule 2.06;
(kf) sale, assignment or transfer outside of the ordinary course of business, or encumbrance, of any tangible of Company's assets;
(g) borrowing of money or intangible assetincurrence of any Lien;
(h) unbudgeted and/or undisclosed capital expenditure(s) or capital commitment(s) requiring an expenditure of monies in the future by Company;
(i) payment of any dividend or other distribution with respect to, including or the redemption or repurchase of any rights of the Membership Interests or any other equity interest in Company;
(j) issuance of any shares of membership interests or other equity interest in Company;
(k) any capital investment in, or any loan to, any other Person;
(l) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(m) any loan to, or entry into any other transaction with, any of its directors, officers, or employees;
(n) action by the Company to intellectual propertymake, change, or rescind any Tax election, amend any Tax Return, or take any position on any Tax Return, take any action, omit to take any action, or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Purchaser in respect of any Post-Closing Tax Period;
(o) amendment, termination or revocation of, a failure to perform obligations under, or the occurrence of any default (or other event that, with or without the giving or receipt of notice or the passage of time or both, would result in a notice of cancellation, acceleration or termination) under, any contract or agreement to which Company is, or as of December 31, 2016, was, a party;
(p) increase, or commitment to increase, the salary or other compensation payable or to become payable to any of its officers, managers, employees, agents or independent contractors, or the payment of any bonus to the foregoing persons, except, in the aggregate in excess of $50,000each case, except in the ordinary course of business and consistent with past practice;; or
(q) agreement or understanding, whether in writing or otherwise, to take any of the actions described above in this Section 3.17.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Progressive Care Inc.)
Absence of Specified Changes. Except as disclosed on set forth in Schedule 2.16, in the Company's Current Report on Form 8-K dated May 19, 1997, in the Company's Annual Report on Form 10-K, in the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1997, or as contemplated by the transactions to be consummated at the Closing3.17, since December 2831, 19962017, the business of Company has been conducted only in the ordinary course and there has not been been, with respect to Company, the Company (including any Subsidiary) Business or Company's assets, any:
(a) action which would result in a material adverse change, whether direct transaction or indirect, in the business, operations, condition (financial or otherwise), prospects, liabilities or assets of the Company and the Company does not know of any change that is threatened or pending which could have a Material Adverse Effect;
(b) transaction contract not in the ordinary course of business, including without limitation any sale of all or substantially all any of the Company's assets of the Company or any merger of the Company and any other entity;
(cb) unfulfilled commitments requiring expenditures by the Company exceeding $250,000 (excluding commitments expressly described elsewhere in this Agreement event, occurrence, or the Schedules hereto development that has had or which were undertaken could reasonably be expected to have, individually or in the ordinary course of business consistent with past practice)aggregate, a Material Adverse Effect;
(dc) material damage, destruction or loss, whether or not insured;
(e) failure to maintain in full force and effect substantially the same level and types of insurance coverage as in effect on December 28, 1996 or destruction, damage to, or loss of any asset of the Company (whether or not covered by insurance) that materially and adversely affects the business, operations, condition (financial or otherwise), prospects, liabilities or assets of the Company;
(fd) change in accounting principles, methods or practices, investment practices, claims, payment and processing practices or policies regarding intercompany transactions;
(ge) revaluation of any assets or material write write-up or write-down of the value of any inventoryasset;
(h) loan or payment to any stockholder or any declaration, setting aside, or payment of a dividend (whether in cash or in shares of capital stock) or other distribution in respect of its capital stock, or any direct or indirect redemption, purchase or other acquisition of any shares of its capital stock;
(i) issuance or sale of any shares of capital stock or of any other equity security or any security convertible into or exchangeable or exercisable for equity securities (except pursuant to the exercise of outstanding derivative securities or otherwise pursuant to currently authorized and outstanding employee stock options) or the repricing of any such share of capital stock, other equity security or securities convertible into or exchangeable or exercisable for equity securities;
(j) amendment to its Certificate of Incorporation or By-laws other than those disclosed on Schedule 2.06;
(kf) sale, assignment or transfer outside of the ordinary course of business, or encumbrance, of any tangible of Company's assets;
(g) borrowing of money or intangible assetincurrence of any Lien;
(h) unbudgeted and/or undisclosed capital expenditure(s) or capital commitment(s) requiring an expenditure of monies in the future by Company;
(i) payment of any dividend or other distribution with respect to, including or the redemption or repurchase of any rights of the Membership Interests or any other equity interest in Company; Company;
(j) issuance of any shares of membership interests or other equity interest in
(k) any capital investment in, or any loan to, any other Person;
(l) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(m) any loan to, or entry into any other transaction with, any of its directors, officers, or employees;
(n) action by the Company to intellectual propertymake, change, or rescind any Tax election, amend any Tax Return, or take any position on any Tax Return, take any action, omit to take any action, or enter into any other transaction that would have the effect of increasing the Tax liability or reducing any Tax asset of Purchaser in respect of any Post-Closing Tax Period;
(o) amendment, termination or revocation of, a failure to perform obligations under, or the occurrence of any default (or other event that, with or without the giving or receipt of notice or the passage of time or both, would result in a notice of cancellation, acceleration or termination) under, any contract or agreement to which Company is, or as of December 31, 2016, was, a party;
(p) increase, or commitment to increase, the salary or other compensation payable or to become payable to any of its officers, managers, employees, agents or independent contractors, or the payment of any bonus to the foregoing persons, except, in the aggregate in excess of $50,000each case, except in the ordinary course of business and consistent with past practice;; or
(q) agreement or understanding, whether in writing or otherwise, to take any of the actions described above in this Section 3.17.
Appears in 1 contract
Absence of Specified Changes. Except as disclosed set forth on Schedule 2.16, in the Company's Current Report on Form 8-K dated May 19, 1997, in the Company's Annual Report on Form 10-K, in the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1997, or as contemplated by the transactions to be consummated at the Closing4.11 annexed hereto, since December 28October 31, 1996, there has not been with respect to the Company (including any Subsidiary) Seller any:
(a) action event which would result in a material adverse change, whether direct has had or indirect, in the business, operations, condition (financial or otherwise), prospects, liabilities or assets of the Company and the Company does not know of any change that which is threatened or pending which could reasonably likely to have a Material Adverse Effect;
(b) transaction not in the ordinary course of business, including without limitation any sale of all or substantially all of the assets of the Company Seller or any merger of the Company Seller and any other entity;
(c) unfulfilled commitments requiring expenditures by the Company exceeding $250,000 (excluding commitments expressly described elsewhere in this Agreement or the Schedules hereto or which were undertaken in the ordinary course of business consistent with past practice);
(d) material damage, destruction or loss, whether or not insured, affecting the Business, as currently conducted by the Seller or as proposed to be conducted by the Purchaser after the Closing, or any assets of the Seller;
(ed) failure to maintain in full force and effect substantially the same level and types of insurance Insurance coverage as in effect on December 28October 31, 1996 or for destruction, damage to, or loss of any asset of the Company Seller (whether or not covered by insurance) that materially and adversely affects the business, operations, condition (financial or otherwiseInsurance), prospects, liabilities or assets of the Company;
(fe) change in accounting principles, methods or practices, investment practices, claims, payment and processing practices or policies regarding intercompany transactions, except for such changes as were necessary to conform with GAAP;
(f) revaluation of any assets of the Seller;
(g) revaluation of any assets or material write down of the value of any inventory;
(h) loan or payment to any stockholder or any declaration, setting aside, or payment of a dividend (whether in cash or in shares of capital stock) or other distribution in respect of its the Seller's capital stock, or any direct or indirect redemption, purchase or other acquisition of any shares of its the Seller's capital stock;
(ih) issuance or sale of any shares of capital stock or of any other equity security or of any security convertible into or exchangeable or exercisable for equity securities (except pursuant to the exercise of outstanding derivative securities or otherwise pursuant to currently authorized and outstanding employee stock options) or the repricing of any such share of capital stock, other equity security or securities convertible into or exchangeable or exercisable for equity securities;
(ji) amendment to its the Certificate of Incorporation or By-laws other than those disclosed on Schedule 2.06or equivalent organizational documents of the Seller;
(kj) sale, assignment disposition of or transfer lapse of any tangible Intangible Property or intangible assetSoftware of the Seller, including or any rights license, permit or authorization to intellectual propertyuse any of the foregoing, in the aggregate in excess of $50,000, except other than dispositions or lapses in the ordinary course of business consistent with past practiceof Intangible Property or Software not material to the Seller or the Business;
(k) creation of any Lien, other than in the ordinary course of business;
(l) discharge or satisfaction of any Lien or payment or cancellation of any liability, other than in the ordinary course of business;
(m) cancellation of any assets, debt or claims or waiver or release of any Contract, right or claim, other than cancellations, waivers and releases in the ordinary course of business which do not exceed $1,000 in the aggregate;
(n) indebtedness incurred or any commitment to borrow money, any incurrence of a contingent liability or any guaranty or commitment to guarantee the indebtedness of others entered into, by the Seller, other than expenditures incurred or commitments made pursuant to clause (p) below or customary transactions in the ordinary course of business not in excess of $1,000 in the aggregate;
(o) capital expenditure or capital commitment requiring an expenditure of monies, other than customary transactions in the ordinary course of business not in excess of $1,000 in the aggregate;
(p) increase or commitment to increase the salary or other compensation payable or to become payable to any of its officers, directors or employees, agents or independent contractors, or the payment of any bonus to the foregoing Persons;
(q) loan or extension of credit to officers or employees; or
(r) agreement or understanding to take any of the actions described above in this Section 4.11.
Appears in 1 contract
Absence of Specified Changes. Except as disclosed on Schedule 2.16, in the Company's Current Report on Form 8-K dated May 19, 1997, in the Company's Annual Report on Form 10-K, in the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1997, or as contemplated by the transactions to be consummated at the Closing3.12, since December 28September 30, 1996, there has not been with respect to the Company (including any Subsidiary) Assets or the Business of the Seller any:
(a) action which would result in a material adverse change, whether direct or indirect, in the business, operations, condition (financial or otherwise), prospects, liabilities or assets of the Company and the Company does not know of any change that is threatened or pending which could have a Material Adverse Effect;
(b) transaction not in the ordinary course of business, including without limitation any sale of all or substantially all of the assets Assets of the Company Seller or any merger of the Company Seller and any other entity;
(cb) unfulfilled commitments commitment as of the date of this Agreement requiring (i) expenditures by the Company exceeding Seller which are made in the ordinary course of business and exceed $250,000 10,000 (excluding commitments expressly described elsewhere in this Agreement or the Schedules hereto hereto, payroll or other compensation payments and fringe benefits and related Taxes, Tax obligations, and intercompany charges) or (ii) expenditures by the Seller which were undertaken are not in the ordinary course of business consistent with past practice)and exceed $10,000;
(d) material damage, destruction or loss, whether or not insured;
(ec) failure to maintain in full force and effect substantially the same level and types of insurance coverage as in effect on December 28September 30, 1996 or destruction, damage to, or loss of any asset of the Company (whether or not covered by insurance) that materially and adversely affects the business, operations, condition (financial or otherwise), prospects, liabilities or assets of the Company1996;
(fd) material change in accounting principles, methods or practices, investment practices, claims, payment and processing practices or policies regarding intercompany transactions, in each case, with respect to the Business;
(ge) material revaluation of any assets Assets or material write down of the value of any inventoryinventory for the Business;
(h) loan or payment to any stockholder or any declaration, setting aside, or payment of a dividend (whether in cash or in shares of capital stock) or other distribution in respect of its capital stock, or any direct or indirect redemption, purchase or other acquisition of any shares of its capital stock;
(i) issuance or sale of any shares of capital stock or of any other equity security or any security convertible into or exchangeable or exercisable for equity securities (except pursuant to the exercise of outstanding derivative securities or otherwise pursuant to currently authorized and outstanding employee stock options) or the repricing of any such share of capital stock, other equity security or securities convertible into or exchangeable or exercisable for equity securities;
(j) amendment to its Certificate of Incorporation or By-laws other than those disclosed on Schedule 2.06;
(kf) sale, assignment or transfer of any material tangible or intangible assetAsset, including any rights to intellectual property, property included in the aggregate in excess of $50,000Assets, except in the ordinary course of business;
(g) disposition of or lapse of any material patent, trademark, trade name, service mark or copyright or any application for the foregoing, or assignment xx any software or technology, or disposition of any license, permit or authorization to use any of the foregoing;
(h) mortgage, pledge or other encumbrance, including liens and security interests, of any tangible or intangible Asset;
(i) cancellation of any debt or waiver or release of any material Contract (as hereinafter defined), right or claim, except for cancellations, waivers and releases in the ordinary course of business which do not exceed $10,000 in the aggregate;
(j) any capital expenditure or capital commitment requiring an expenditure of monies in the future, any incurrence of a contingent liability or any guaranty or commitment to guaranty the indebtedness of others entered into, by the Seller, other than customary transactions in the ordinary course of business not in excess of $10,000 in the aggregate;
(k) amendment, termination or revocation of, or a failure in any material respect to perform obligations or the occurrence of any default under, any material Contract to which the Seller is, or as of September 30, 1996 was, a party or of any material license, permit or franchise required for the continued operation of the Business as conducted by the Seller on September 30, 1996;
(l) increase or commitment to the increase of the salary or other compensation payable or to become payable to any of its employees, agents or independent contractors engaged in the Business, or the payment of any bonus to the foregoing persons except in the ordinary course of business and consistent with past practicepractice and applicable policies and procedures of the Seller;
(m) payment or cancellation of any liability other than payment of current liabilities in the ordinary course of business; or
(n) agreement or understanding to take any of the actions described above in this Section 3.12.
Appears in 1 contract
Absence of Specified Changes. Except as disclosed listed on Schedule 2.16, in the Company's Current Report on Form 8-K dated May 19, 1997, in the Company's Annual Report on Form 10-K, in the Company's Quarterly Report on Form 10-Q for the period ended June 30, 1997, or as contemplated by the transactions to be consummated at the Closing3.15, since December 2831, 19962005, there has not been with respect to the Company (including any Subsidiary) any:
(a) action which would result in a material adverse changeMaterial Adverse Effect on the financial condition, whether direct or indirectLiabilities, in the assets, business, operations, condition (financial operating results or otherwise), prospects, liabilities or assets prospects of the Company and Business and/or the Company does not know of any change that is threatened or pending which could have a Material Adverse EffectPurchased Assets;
(b) transaction not in the ordinary course of business, including without limitation any sale of all or substantially all of the assets of the Company or any merger of the Company and any other entity;
(c) unfulfilled commitments requiring expenditures by the Company exceeding $250,000 (excluding commitments expressly described elsewhere in this Agreement or the Schedules hereto or which were undertaken in the ordinary course of business consistent with past practice);
(d) material damage, destruction or loss, whether or not insured;
(e) failure to maintain in full force and effect substantially the same level and types of insurance coverage as in effect on December 28, 1996 or destruction, damage to, to or loss of any asset Business assets of the Company Seller (whether or not covered by insurance) that materially and adversely affects has had or may have a Material Adverse Effect on the assets, financial condition, business, operationsoperating results or prospects of the Business;
(c) labor disputes, condition preliminary union organization or requests for union representation concerning the Business;
(financial d) increase in the salary or otherwiseother compensation or benefits payable or to become payable to any of the employees of Seller whose duties relate to the Business (“Employees”), prospects, liabilities other than those increases provided to Employees in the Ordinary Course of Business;
(e) sale or assets transfer of the Companyany Business asset of Seller;
(f) change in accounting principlesexecution, methods creation, amendment, nonrenewal or practicestermination of any contract, investment practices, claims, payment and processing practices agreement or policies regarding intercompany transactionslicense pertaining to the Business;
(g) revaluation of additional indebtedness for borrowed money involving or relating to the Business or any assets or material write down of the value of any inventoryPurchased Assets;
(h) loan creation or payment to assumption by Seller of any stockholder or any declarationmortgage, setting asidelien, or payment of a dividend (whether in cash or in shares of capital stock) Security Interest, pledge or other distribution in respect encumbrance on any of its capital stock, or any direct or indirect redemption, purchase or other acquisition of any shares of its capital stockthe Purchased Assets;
(i) issuance or sale waiver of any shares of capital stock rights or cancellation or forgiveness of any other equity security claims or indebtedness related to any security convertible into Purchased Asset or exchangeable or exercisable for equity securities (except pursuant to the exercise of outstanding derivative securities or that would otherwise pursuant to currently authorized and outstanding employee stock options) or the repricing of any such share of capital stock, other equity security or securities convertible into or exchangeable or exercisable for equity securitiesbe a Purchased Assets;
(j) amendment to its Certificate any receipt by Seller of Incorporation (i) notice of any loss of, (ii) material order cancellation by, (iii) material pricing or By-laws other than those disclosed on Schedule 2.06contract changes with respect to, (iv) material dispute with or (v) material complaints from, any Customers;
(k) saleinitiation, assignment receipt or transfer settlement of any tangible action, arbitration, audit, hearing, investigation, litigation, lawsuit or intangible assetother similar proceeding affecting the Business or the Purchased Assets;
(l) other event or condition of any character that has or might reasonably have a Material Adverse Effect on the financial condition, including any rights to intellectual propertybusiness, assets, operating results or prospects of the Business and/or the Purchased Assets;
(m) conduct or activity concerning the Business and/or the Purchased Assets which has not been in the aggregate in excess Ordinary Course of $50,000, except Business; or
(n) agreement by Seller to do any of the things described in the ordinary course of business consistent with past practice;preceding clauses (a) through (m).
Appears in 1 contract
