Certain Changes or Events. As to BUYER:
5.5.1 there will have been no change in the Condition of BUYER, except for changes which have not been, in the aggregate, materially adverse to BUYER;
5.5.2 there will be no revocation or change in any Contract or Permit or right to do business, and no other event or occurrence of any character, whether insured against, which results, or could reasonably be expected to result, in a material adverse change in the Condition of BUYER;
5.5.3 BUYER will not have authorized or made any distributions, or declare or pay any dividends, upon or with respect to any of its capital stock, or other equity interests, nor will BUYER have redeemed, purchased, or otherwise acquired, or issued or sold, any of its capital stock or other equity interests except as may benefit all shareholders and as disclosed to the SEC;
5.5.4 BUYER is a publicly listed company engaged in acquiring a quantity of Micro-Brands as well as deploying its proprietary technology under license to retailers. This transaction is consistent with the purpose of the BUYER;
5.5.5 BUYER will have not incurred any indebtedness for borrowed money or made any loans or advances that encumber the TARGET without the express permission of SELLERS now or during the STANDBY PERIOD;
5.5.6 There will have been no waiver by BUYER of a material right or of a material debt owed to BUYER;
5.5.7 BUYER will not have failed to satisfy or discharge any Lien, except in the ordinary course of business and which is not material to the Condition of BUYER; and
5.5.8 There has been no material change in any compensation, arrangement or agreement with any employee, director, shareholders, or AFFILIATE of BUYER that affects SELLER or TARGET.
Certain Changes or Events. Except as set forth in Schedule 4.8 of the Company Disclosure Schedule or as otherwise contemplated by this Agreement, from the Latest Balance Sheet Date to the date of this Agreement there has not been, occurred or arisen:
(a) any material damage to, or destruction or loss of, any of the material assets or properties of the Company and its Subsidiaries, taken as a whole;
(b) any issuance of capital stock or membership interests or options, warrants, rights, or other securities convertible into or exchangeable or exercisable for shares, units or other equity or voting interest of the Company or any of its Subsidiaries;
(c) any declaration, setting aside or payment of any dividend, or other distribution or capital return in respect of any capital stock or membership interests of the Company or any of its Subsidiaries, or any redemption, repurchase or other acquisition by the Company or any of its Subsidiaries of any shares of capital stock or membership interests of the Company or its Subsidiaries;
(d) any sale, assignment, transfer, lease, exclusive license or other disposition, or agreement to sell, assign, transfer, lease, license or otherwise dispose of, any of the fixed assets of the Company or its Subsidiaries having a value, in any individual case, in excess of $50,000;
(e) any acquisition (by merger, consolidation or other combination, or acquisition of stock or assets or otherwise) by the Company or any of its Subsidiaries of any corporation, partnership or other business organization, or any division thereof, for consideration;
(f) any material change in any method of accounting or accounting practice used by the Company, other than such changes as are required by GAAP;
(g) any material Tax election (including any change in election);
(i) any entry into, or material amendment of, any employment, deferred compensation, severance, retention, change in control, termination or similar agreement by the Company or any of its Subsidiaries, other than any new employment agreement providing for normal, recurring compensation of less than $100,000 per annum; (ii) any entry into, or amendment of, any collective bargaining Contract or other Contract with any labor organization, union or association by the Company or any of its Subsidiaries; (iii) any increase in the compensation or benefits payable, or to become payable, to any Company Employee, or any officer, director or Management Committee member of the Company or any of its Subsidiaries; (iv) any action ...
Certain Changes or Events. From the date hereof until the Closing, except with the prior written consent of Parent (such consent not to be unreasonably withheld, delayed or conditioned) or except as set forth on Section 5.03 of the Company Disclosure Schedule, the Company shall not, and shall cause its Subsidiaries and the Affiliated Medical Practices not to:
(a) take any action to amend its certificate of incorporation or bylaws or other governing instruments;
(b) issue, sell or otherwise dispose of any of its authorized but unissued capital stock other than in connection with the exercise of a Company Option, or issue any option to acquire its capital stock, or any securities convertible into or exchangeable for its capital stock or split, combine or reclassify any shares of its capital stock, or create any phantom stock, stock appreciation rights plan or similar plan;
(c) declare or pay any dividend or make any other distribution in cash or property on any capital stock;
(d) merge or consolidate with or into any Person;
(e) sell or otherwise dispose of or encumber any of its properties or assets other than in sales or dispositions in the Ordinary Course of Business or in connection with normal repairs, renewals and replacements;
(f) create any subsidiary, acquire any capital stock or other equity securities of any third party or acquire any equity or ownership interest in any business or entity, except as set forth on Schedule 9.15(a);
(g) (i) create, incur or assume any Indebtedness for borrowed money or secured by real or personal property, except for trade payables incurred in the Ordinary Course of Business, (ii) grant or incur any Liens on any real or personal property that did not exist on the date hereof except in the Ordinary Course of Business, (iii) incur any liability or obligation (absolute, accrued or contingent) not covered by clause (i) except in the Ordinary Course of Business, (iv) write-off any guaranteed checks, notes or accounts receivable except in the Ordinary Course of Business, (v) write-down the value of any asset or investment on its books or records, except for depreciation and amortization in the Ordinary Course of Business, (vi) make any commitment for any capital expenditure in excess of $500,000 in the case of any single expenditure or $1,500,000 in the case of all capital expenditures except with respect to any capitalized internal software development, (vii) enter into any contract or agreement, except those that are (x) entered into in the Ordina...
Certain Changes or Events. As to TARGET between Effective Date and the Closing:
4.5.1 there will have been no change in the Condition of TARGET, except for changes which have not been, in the aggregate, materially adverse to TARGET;
4.5.2 there will be no revocation or change in any Contract or Permit or right to do business, and no other event or occurrence of any character, whether insured against, which results, or could reasonably be expected to result, in a material adverse change in the Condition of TARGET;
4.5.3 TARGET will not authorize or made any distributions, or declare or pay any dividends, upon or with respect to any of its capital stock, nor will TARGET have redeemed, purchased, or otherwise acquired, or issued or sold, any of its capital stock;
4.5.4 TARGET will have not entered into any material Contract, other than in the ordinary course of business (in this Agreement, ordinary course of business means ordinary course and consistent with past practice);
4.5.5 TARGET will have not incurred any indebtedness for borrowed money or made any loans or advances to any Person, other than as disclosed on the TARGET Financial Statements;
4.5.6 there will have been no waiver by TARGET of a material right or of a material debt owed to TARGET;
4.5.7 TARGET will not have failed to satisfy or discharge any Lien, except in the ordinary course of business and which is not material to the Condition of TARGET; and
4.5.8 there will not have been any material change in any compensation, arrangement or agreement with any employee, director, shareholders, or Affiliate of TARGET.
4.5.9 the Parties acknowledge that TARGET is in the process of moving its production facility from California to the Salt Lake City Area to reduce costs and at the time of the execution of the Agreement production has ceased while the TARGET is executing minimal sales from inventory.
Certain Changes or Events. Except as contemplated ------------------------- hereby and as set forth in Schedule 5.14 attached hereto, since December 31, ------------- 2003, through the date hereof, the Corporation has not: (a) incurred any loss (whether or not covered by insurance) with respect to any of its assets which caused a financial loss to the Corporation of Fifty Thousand Dollars ($50,000.00) or more, (b) undertaken any material change in accounting methods, principles or practices except as required by GAAP; (c) redeemed, repurchased or otherwise reacquired any of its equity securities; (d) made any increase in the benefits under, or established any material bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option, stock purchase or other employee benefit plan, or effected any increase in the compensation payable or to become payable to directors, officers or employees of the Business, except for any of the foregoing that are within the Ordinary Course of Business; (e) entered into any contract (or lease) or any material amendment to any contract (or lease) to which the Corporation is party or by which the Corporation is bound and for which the Corporation's aggregate obligations to pay money thereunder would be in excess of $50,000 or the Corporation would be obligated for a term in excess of three (3) years; (f) abandoned or permitted to lapse any of the Owned or Licensed Intellectual Property that is material to the Business; (g) permitted, allowed or suffered any of the assets of the Corporation to be subject to any Lien other than any such Liens incurred in the Ordinary Course of Business or Liens related to credit agreements in existence on the date hereof, or would not cause a Material Adverse Event; (h) acquired or made any investment in (by merger, exchange, consolidation, purchase or otherwise) any Person; (i) forgiven any material indebtedness owing to the Corporation or the waiver or release by the Corporation of any claims or rights of material value; (j) made any loan or advance to, or guarantee for the benefit of, any Person, in an amount in excess of $50,000; (k) incurred or assumed any liabilities, obligations or indebtedness for borrowed money or guaranteed any such liabilities or indebtedness in an amount in excess of $50,000, other than trade accounts payable incurred in the Ordinary Course of Business; (l) made any commitment by the Corporation to make any capital expenditure in excess of $25,000 per item or...
Certain Changes or Events. Since the Balance Sheet Date, except as set forth in Section 4.8(a) of the Company Disclosure Schedule, the Company has conducted the Business in the ordinary course consistent with past practice, and there has not been any event or development that would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
Certain Changes or Events. As to BUYER:
5.5.1 there will have been no change in the Condition of BUYER, except for changes which have not been, in the aggregate, materially adverse to BUYER;
5.5.2 there will be no revocation or change in any Contract or Permit or right to do business, and no other event or occurrence of any character, whether insured against, which results, or could reasonably be expected to result, in a material adverse change in the Condition of BUYER;
5.5.3 BUYER will not authorize or made any distributions, or declare or pay any dividends, upon or with respect to any of its capital stock, or other equity interests, nor will BUYER have redeemed, purchased, or otherwise acquired, or issued or sold, any of its capital stock or other equity interests except as may benefit all shareholders and as disclosed to the SEC.;
5.5.4 BUYER is a public Company engaged in acquiring a number of Micro-Brands a well as deploying its proprietary technology under license to other retailers. This transaction is consistent with the purpose of the BUYER.
5.5.5 BUYER will have not incurred any indebtedness for borrowed money or made any loans or advances that encumber the Target without the express permission of SELLERS now or during the Standby Period;
5.5.6 there will have been no waiver by BUYER of a material right or of a material debt owed to BUYER;
5.5.7 BUYER will not have failed to satisfy or discharge any Lien, except in the ordinary course of business and which is not material to the Condition of BUYER; and
5.5.8 there has been no material change in any compensation, arrangement or agreement with any employee, director, shareholders, or Affiliate of BUYER that effects SELLER or TARGET.
Certain Changes or Events. From the date hereof until the Closing, except with the prior written consent of Parent or except as set forth on Section 5.03 of the Company Disclosure Schedule, the Company shall not, and shall cause its Subsidiaries to:
(a) take any action to amend its articles of incorporation or bylaws or other governing instruments;
(b) issue, sell or otherwise dispose of any of its authorized but unissued capital stock other than in connection with the exercise of a Company Stock Option, or issue any option to acquire its capital stock, or any securities convertible into or exchangeable for its capital stock or split, combine or reclassify any shares of its capital stock, or create any phantom stock, stock appreciation rights plan or similar plan;
(c) declare or pay any dividend or make any other distribution in cash or property on any capital stock;
(d) merge or consolidate with or into any Person;
(e) sell or otherwise dispose of or encumber any of its properties or assets other than sales or dispositions of inventory in the Ordinary Course of Business or in connection with normal repairs, renewals and replacements;
(f) create any subsidiary, acquire any capital stock or other equity securities of any third party or acquire any equity or ownership interest in any business or entity;
(g) (i) create, incur or assume any Indebtedness for borrowed money or secured by real or personal property, except for trade payables incurred in the Ordinary Course of Business or borrowings made in the Ordinary Course of Business under the Company LOC, (ii) grant or incur any Liens on any real or personal property that did not exist on the date hereof except in the Ordinary Course of Business, (iii) incur any liability or obligation (absolute, accrued or contingent) not covered by clause (i) except in the Ordinary Course of Business, (iv) write-off any guaranteed checks, notes or accounts receivable except in the Ordinary Course of Business, (v) write-down the value of any asset or investment on its books or records, except for depreciation and amortization in the Ordinary Course of Business, (vi) make any commitments for any capital expenditures in excess of $250,000 in the aggregate, or (vii) enter into any contract or agreement, except those that are (x) entered into in the Ordinary Course of Business and involve an expenditure of less than $250,000 for any such contract or agreement (exclusive of any indemnification obligations under such contract or agreement for which no claim...
Certain Changes or Events. From the date hereof until the ---------------------------- Closing, except as specifically provided herein or with the prior written consent of Parent and Acquisition Subsidiary, none of the Company or the Holders shall, and none of the Holders shall cause the Company to, (a) take any action to amend the Company's Articles of Incorporation or By-Laws, (b) issue, sell or otherwise dispose of any of the Company's authorized but unissued capital stock, redeem any issued and outstanding capital stock of the Company or issue any option to acquire capital stock of the Company, or any securities convertible into or exchangeable for capital stock of the Company, (c) declare or pay any dividend or make any other distribution in cash or property on the Company's capital stock (other than dividends payable in respect of Company Preferred Stock), (d) merge or consolidate the Company with or into any corporation, (e) make or allow the Company to become liable for any wage or salary increase, bonus, profit-sharing or incentive payment to any of its officers, directors, employees or stockholders, or otherwise establish, sponsor or amend any Company Benefit Plan except as required by law or pursuant to any agreement or Company Benefit Plan disclosed on Schedule 3.19 hereto, (f) sell or otherwise dispose of or encumber any of the Company's properties or assets other than in sales or dispositions in the ordinary course of business consistent with past practice or in connection with normal repairs, renewals and replacements, (g) modify, amend or cancel any of the Company's existing leases or enter into any commitments, contracts, agreements, leases, warranties, guarantees or understandings other than in the ordinary course of business consistent with past practice, (h) fail to operate the Business in the customary manner and in the ordinary and regular course of business consistent with past practice and to maintain in good condition the Company's business premises, plant, fixtures, furniture and equipment, reasonable wear and tear excepted, (i) cancel or compromise any debt or claim related to the Company's assets, other than in the ordinary course of business, (j) waive or release any rights of value relating to the Company's assets, other than in the ordinary course of business, (k) transfer or grant any rights in or under any concessions, leases, licenses, agreements, patents, inventions, trademarks, trade names, service marks, brand marks, brand names or copyrights, or...
Certain Changes or Events. Since September 30, 2007 and prior to the date hereof, except as expressly contemplated by this Agreement, (i) the Company and the Subsidiaries have conducted their businesses only in the ordinary course of business and in a manner consistent with past practice, and (ii) neither the Company nor any Subsidiary has: (A) suffered any damage, destruction or loss (regardless of whether covered by insurance), other than in the ordinary course of business, that has had or would be reasonably expected to have a Material Adverse Effect; or (B) taken any action that would be prohibited by Section 5.01 if taken after the date hereof.
