Conduct in the Ordinary Course. Since December 31, 2008, the Company has conducted its business in the ordinary course and there has not occurred: (a) Any Material Adverse Effect on the Company not reflected in the Company Financial Statements, including any Liabilities or obligations, other than changes in the ordinary course of business; (b) Any damage, destruction or loss, whether covered by insurance or not, that individually or in the aggregate would have a Material Adverse Effect on the Company; (c) Any declaration, setting aside or payment or other distribution in respect of any Company Capital Stock, or, except as set forth in Section 3.10(c) of the Company Disclosure Schedule, any direct or indirect redemption, purchase or other acquisition of any Company Capital Stock by the Company; (d) Any approval or action to put into effect any general increase in any compensation or benefits payable to any class or group of employees of any Target Company, any increase in the compensation or benefits payable or to become payable by any Target Company to any of its directors, officers or employees or any bonus, service award, percentage compensation or other benefit paid, granted or accrued to or for the benefit of any employee, the adoption of any amendment to the exercisability or vesting of any employee stock warrants or option (including any of the Company Warrants) or the vesting of any unvested shares of Company Common Stock or, except as set forth in Section 3.10(c) of the Company Disclosure Schedule, the authorization of any cash payments in exchange for such options or unvested shares, or the adoption of any other amendment in any employee benefit plan or compensation commitment or any severance agreement or employment contract to which any employee is a party; (e) Any Lien created or suffered by any Target Company with respect to any of its Assets and Properties, except Permitted Liens; (f) Any (A) incurrence, assumption or guarantee by any Target Company of any debt for borrowed money other than trade indebtedness incurred in the ordinary course of business consistent with past practice; (B) waiver or compromise by it of a valuable right or of a debt owed to it greater than $10,000; (C) satisfaction or discharge of any Lien or payment of any obligation by it, other than in the ordinary course of business consistent with past practice; (D) issuance or sale of any securities convertible into or exchangeable for debt securities of any Target Company; or (E) issuance or sale of options or other rights to acquire from any Target Company, directly or indirectly, debt securities of any Target Company or any securities convertible into or exchangeable for any such debt securities; (g) Any entry into, amendment of, relinquishment, termination or nonrenewal by any Target Company of any contract, lease, commitment or other right or obligation other than in the ordinary course of business consistent with past practice and with a contractual value of less than $10,000; (h) Any transfer or grant of a right of any Target Company’s Intellectual Property other than non-exclusive licenses granted in the ordinary course of business consistent with past practice; (i) Any resignation or termination of employment of any employee; and, except as set forth in Section 3.10(i) of the Company Disclosure Schedule, the Company does not know of the impending resignation or termination of employment of any such employee; (j) Any making of any loan, advance or capital contribution to, or investment in, any Person other than advances made in the ordinary course of business consistent with past practice of the Company; or (k) Any agreement or arrangement made by the Company to take any action which, if taken prior to the date hereof, would have made any representation or warranty set forth in this Section 3.10 untrue or incorrect as of the date when made.
Appears in 2 contracts
Samples: Merger Agreement (Double Eagle Petroleum Co), Merger Agreement (Petrosearch Energy Corp)
Conduct in the Ordinary Course. Since December 31Except as set forth in Schedule 2.11, 2008since the Balance Sheet Date, the Company has conducted its business in the ordinary course consistent with past practice and there has not occurred:
(a) Any change, event or condition which has had or, to the Company’s knowledge, after due inquiry, could reasonably be expected to have a Company Material Adverse Effect on the Company not reflected in the Company Financial Statements, including any Liabilities or obligations, other than changes in the ordinary course of businessEffect;
(b) Any damage, destruction amendments or loss, whether covered by insurance or not, that individually or changes in the aggregate would have a Material Adverse Effect on Certificate of Incorporation or Bylaws of the Company;
(c) Any material loss, damage or destruction to or interruption in the use of any of the Company’s assets and properties;
(d) Any issuance, redemption, repurchase or other acquisition of shares of Company capital stock (other than issuances pursuant to exercise of the Company Options or repurchases of Company Common Stock at cost from employees or consultants in accordance with the terms of the documents providing for the right to repurchase those shares in connection with their termination of service), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the Company capital stock; or any authorization of any Company Capital Stock, or, except as set forth in Section 3.10(c) of the Company Disclosure Schedule, any direct or indirect redemption, purchase or other acquisition of any Company Capital Stock by the Companyforegoing;
(de) Any approval or action to put into effect any general increase in any compensation or benefits payable to any class or group modification of employees of any Target Company, any increase in the compensation or benefits payable or to become payable by any Target the Company to any of its directors, officers service providers or employees changes pursuant to employment agreements currently in effect or any bonus, service award, percentage compensation or other benefit paid, granted or accrued to or for the benefit of any employee, the adoption of any amendment to the exercisability or vesting of any employee stock warrants or option (including any of the Company Warrants) or the vesting of any unvested shares of Company Common Stock orchanges in position, except as set forth in those permissible pursuant to Section 3.10(c4.1(n) of the Company Disclosure Schedule, the authorization of any cash payments in exchange for such options or unvested shares, or the adoption of any other amendment in any employee benefit plan or compensation commitment or any severance agreement or employment contract to which any employee is a party;
(e) Any Lien created or suffered by any Target Company with respect to any of its Assets and Properties, except Permitted Liensbelow;
(f) Any increase in or modification of any compensation, bonus, pension, insurance or other employee benefit plan, payment or arrangement (including, without limitation, the granting of stock options, restricted stock awards or stock appreciation rights) made to, for or with any of its service providers;
(g) Any sale of the property or assets of the Company individually in excess of $25,000 or in the aggregate in excess of $50,000 other than inventory sales in the ordinary course of business consistent with past practice;
(h) Any alteration in any terms of any outstanding security of the Company, except as expressly contemplated in this Agreement and the Agreement of Merger with respect to the Company Options; or any grant or issuance of (i) any option, call, warrant or right to acquire any Company capital stock or (ii) any instrument convertible into or exchangeable for any Company capital stock that is not set forth on Schedules 2.2(b) or 2.2(c).
(i) Any (A) incurrence, assumption or guarantee by any Target the Company of any debt for borrowed money other than trade indebtedness incurred in the ordinary course of business consistent with past practicemoney; (B) waiver or compromise by it of a valuable right or of a debt owed to it greater than $10,000it; (C) satisfaction or discharge of any Lien lien, claim, or encumbrance or payment of any obligation by it, other than it except that which is in the ordinary course of the Company’s business as consistent with past practicepractice and which is not material to the Company Business Condition; (D) issuance or sale of any securities convertible into or exchangeable for debt securities of any Target the Company; or (E) issuance or sale of options or other rights to acquire from any Target the Company, directly or indirectly, debt securities of any Target the Company or any securities convertible into or exchangeable for any such debt securities;
(gj) Any creation or assumption by the Company of any mortgage, pledge, security interest or lien or other encumbrance on any of its assets or properties (other than liens or encumbrances arising under existing lease financing arrangements, purchase money security interests arising in the ordinary course of the Company’s business and liens for Taxes not yet due and payable);
(k) Any making of any loan, advance or capital contribution to, or investment in, any person other than advances to employees in the ordinary course of business of the Company and extensions of trade credit in connection with the sale of inventory in the ordinary course of business and consistent with past practice and not exceeding the value of such inventory;
(l) Any entry into, amendment of, relinquishment, termination or nonrenewal by any Target the Company of any material contract, lease, commitment or other right or obligation other than in the ordinary course of business consistent with past practice and with a contractual value of less than $10,000practice;
(hm) Any transfer or grant of a right of any Target Company’s under the Company Intellectual Property (as defined in Section 2.16) other than non-exclusive licenses those transferred or granted in the ordinary course of business consistent with past practice;
(in) Any labor dispute, other than routine individual grievances, or, to the Company’s knowledge, after due inquiry, any activity or proceeding by a labor union or representative thereof to organize any employees of the Company;
(o) Any resignation or termination of employment of any employeeof its employees; and, except as set forth in Section 3.10(i) of and the Company Disclosure Schedule, the Company does has not know been notified by any employee of the impending resignation or termination of employment of any such employeesuch, or any other, employee as of the date hereof;
(jp) Any making change to the methods of any loan, advance accounting or capital contribution toaccounting practice of, or investment inany material Tax election by, any Person other than advances made the Company;
(q) Any capital expenditures which would exceed $10,000 individually or $50,000 in the ordinary course of business consistent with past practice of the Companyaggregate; or
(kr) Any agreement or arrangement made by the Company to take any action which, if taken prior to the date hereof, would have made any representation or warranty set forth in this Section 3.10 2.11 untrue or incorrect as of the date when made.
Appears in 1 contract
Samples: Merger Agreement (Quantum Corp /De/)
Conduct in the Ordinary Course. Since December Except as set forth in SCHEDULE 3.12, and except for the negotiation or documentation of this Agreement and the transactions contemplated hereby and for the relocation of the Company's offices to 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx, since January 31, 20082000, the Company has conducted its business in the ordinary course consistent with past practice and there has not occurred:
(a) Any change event or condition which has had or to the knowledge of Company could reasonably be expected to have a Material Adverse Effect on the Company not reflected in the Company Financial Statements, including any Liabilities or obligations, other than changes in the ordinary course of businessEffect;
(b) Any damage, destruction amendments or loss, whether covered by insurance or not, that individually or changes in the aggregate would have a Material Adverse Effect on Articles of Incorporation or Bylaws of the Company;
(c) Any material loss, damage or destruction to or interruption in the use of any of the Company's assets and properties;
(d) Any issuance, redemption, repurchase or other acquisition of shares of Company capital stock (other than issuances pursuant to exercise of the Company Options or Company Warrants or repurchases of Common Stock at cost in the ordinary course under the terms of agreements provided to Parent), or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the Company capital stock; or any authorization of any Company Capital Stockof the foregoing.
(e) Any increase in or modification of any compensation, orbonus, pension, insurance or other benefit plan, payment or arrangement (including, without limitation, the granting of stock options, restricted stock awards or stock appreciation rights) made to, for or with any of its service providers, or changes pursuant to employment agreements currently in effect or changes in position except as set forth in Section 3.10(cto the extent permitted by SECTION 5.1(N);
(f) Any sale of the property or assets of the Company Disclosure Scheduleindividually in excess of $50,000 or in the aggregate in excess of $150,000 other than inventory sales in the ordinary course of business consistent with past practice and disposals of obsolete or surplus office furniture and equipment;
(g) Except as expressly contemplated in this Agreement with respect to the Company Options, any direct or indirect redemption, purchase or other acquisition alteration in any term of any Company Capital Stock by outstanding security of the Company;
(d) Any approval or action to put into effect any general increase in any compensation or benefits payable to any class or group of employees of any Target Company, any increase in the compensation or benefits payable or to become payable by any Target Company to any of its directors, officers or employees or any bonus, service award, percentage compensation or other benefit paid, granted or accrued to or for the benefit of any employee, the adoption of any amendment to the exercisability or vesting of any employee stock warrants or option (including any of the Company Warrants) or the vesting of any unvested shares of Company Common Stock or, except as set forth in Section 3.10(c) of the Company Disclosure Schedule, the authorization of any cash payments in exchange for such options or unvested shares, or the adoption of any other amendment in any employee benefit plan or compensation commitment or any severance agreement or employment contract to which any employee is a party;
(e) Any Lien created or suffered by any Target Company with respect to any of its Assets and Properties, except Permitted Liens;
(fh) Any (A) incurrence, assumption or guarantee by any Target the Company of any debt for borrowed money other than trade indebtedness incurred in the ordinary course of business consistent with past practicemoney; (B) waiver or compromise by it of a valuable right or of a debt owed to it greater than $10,000it; (C) satisfaction or discharge of any Lien lien, claim, or encumbrance or payment of any obligation by it, other than in the ordinary course of business consistent with past practiceit material to its Business Condition; (D) issuance or sale of any securities convertible into or exchangeable for debt securities of any Target the Company; or (E) issuance or sale of options or other rights to acquire from any Target the Company, directly or indirectly, debt securities of any Target the Company or any securities convertible into or exchangeable for any such debt securities;
(gi) Any creation or assumption by the Company of any mortgage, pledge, security interest or lien or other encumbrance on any of its assets or properties (other than liens or encumbrances arising under existing lease financing arrangements, purchase money security interests arising in the ordinary course of the Company's business and liens for Taxes not yet due and payable);
(j) Any making of any loan, advance or capital contribution to, or investment in, any person other than advances to employees in the ordinary course of business of the Company and extensions of trade credit in connection with the sale of Inventory in the ordinary course of business and consistent with past practice and not exceeding the value of such Inventory;
(k) Any entry into, amendment of, relinquishment, termination or nonrenewal by any Target the Company of any contract, lease, commitment or other right or obligation other than in the ordinary course of business consistent with past practice and with a contractual value except for the entry of less than $10,000the lease relating to the Company's premises at 000 Xxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx;
(hl) Any transfer or grant of a right of any Target Company’s under the Company Intellectual Property Rights (as defined in SECTION 3.17) other than non-exclusive licenses those transferred or granted in the ordinary course of business consistent with past practice;
(im) Any labor dispute, other than routine individual grievances, or any activity or proceeding by a labor union or representative thereof to organize any employees of the Company;
(n) Any resignation or termination of employment of any employeeof its employees; and, except as set forth in Section 3.10(i) of and the Company Disclosure Schedule, the Company does has not know been notified by any employee of the impending resignation or termination of employment of any such employee;
(j) Any making of any loan, advance or capital contribution tosuch, or investment inany other, any Person other than advances made in the ordinary course of business consistent with past practice of the Companyemployee; or
(ko) Any change to the methods of accounting or accounting practice of, or any Tax election by, the Company.
(p) Any capital expenditures which would exceed $ 200,000 in the aggregate.
(q) Any agreement or arrangement made by the Company to take any action which, if taken prior to the date hereof, would have made any representation or warranty set forth in this Section 3.10 SECTION 3.12 untrue or incorrect as of the date when made.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Credence Systems Corp)