Events Subsequent to Most Recent Fiscal Period End. Since the Most Recent Fiscal Period End, there has not been any material adverse change in the Business Condition of the Company. Without limiting the generality of the foregoing and except as set forth in Section 5.9 of the Company Disclosure Letter, since that date: (a) the Company has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, outside the Ordinary Course of Business; (b) the Company has not entered into, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company Agreement") or extended or modified the terms of any Company Agreement which (i) involves the payment of greater than $10,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company other than in the Ordinary Course of Business, (iii) involves the sale of any material assets, or (iv) involves any license of any Company Intellectual Property; (c) no Party (including the Company) has accelerated, terminated, made modifications to, or canceled any agreement, contract, lease, or license to which the Company is a Party or by which it is bound and the Company has not modified, canceled or waived or settled any debts or claims held by it, outside the Ordinary Course of Business, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course of Business; (d) none of the assets of the Company, tangible or intangible, has become subject to any Security Interest; (e) the Company has not made any capital expenditures except in the Ordinary Course of Business and not exceeding $10,000 in the aggregate of all such capital expenditures; (f) the Company has not made any capital investment in, or any loan to, any other Person; (g) the Company has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligations, or extended or modified any existing indebtedness; (h) the Company has not granted any license or sublicense of any rights under or with respect to any Company Intellectual Property; (i) there has been no change made or authorized in the Certificate of Incorporation or bylaws of the Company; (j) there has not been (i) any change in the Company's authorized or issued capital stock, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock; (k) the Company has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property in excess of $10,000 in the aggregate of all such damage, destruction and losses; (l) the Company has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer access, supplies or utility services; (m) the Company has not made any loan to, or entered into any other transaction with, or paid any bonuses in excess of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof; (n) the Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement; (o) the Company has not granted any increase in the base compensation of any of its directors or officers, or, except in the Ordinary Course of Business, any of its employees; (p) the Company has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other Employee Benefit Plan); (q) the Company has not made any other change in employment terms for any of its directors or officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business; (r) 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 major customers, distributors or partners; (s) 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 it major suppliers; (t) the Company has not received notice and does not have Knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character; (u) the Company has not changed any of the accounting principles followed by it or the method of applying such principles; (v) the Company has not made a change in any of its banking or safe deposit arrangements; (w) the Company has not entered into any transaction other than in the Ordinary Course of Business; and (x) the Company has not become obligated to do any of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Infospace Com Inc)
Events Subsequent to Most Recent Fiscal Period End. Since Except as disclosed in the Most Recent Fiscal Period EndSEC Reports or the Disclosure Schedule, since December 31, 1999, there has not been any material adverse change Material Adverse Effect and each Company Party has conducted its business and affairs in the Business Condition Ordinary Course of the CompanyBusiness. Without limiting the generality of the foregoing and except as set forth in Section 5.9 of the Company Disclosure Letterforegoing, since that dateDecember 31, 1999:
(a) none of the Company Parties has not sold, leased, transferred, or assigned any assets of its Assets, other than (i) immaterial Assets or properties(ii) Assets sold, tangible leased, transferred or intangible, outside assigned in the Ordinary Course of Business;
(b) none of the Company Parties has not entered into, assumed or become bound under or obligated by into any agreement, contract, lease Contract or commitment license (collectively a "Company Agreement"or series of related Contracts) or extended or modified the terms of any Company Agreement which (i) involves the payment of greater involving more than $10,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company other than in the Ordinary Course of Business, (iii) involves the sale of any material assets, or (iv) involves any license of any Company Intellectual Property;
(c) no Party (including the Company) has accelerated, terminated, made modifications to, or canceled any agreement, contract, lease, or license to which the Company is a Party or by which it is bound 250,000 and the Company has not modified, canceled or waived or settled any debts or claims held by it, outside the Ordinary Course of Business, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course of Business;
(c) none of the Company Parties has accelerated, terminated (other than upon the expiration of its term), modified, or canceled any Contract (or series of related Contracts) and involving more than $250,000 to which the Company or any of its Subsidiaries is or was a party or by which it is or was bound;
(d) none of the assets Company Parties has imposed or suffered to exist any Lien upon any of the CompanyAssets, tangible or intangible, has become subject to any Security Interestother than Permitted Liens;
(e) none of the Company Parties has not purchased, leased or acquired any Assets or made any capital expenditures except or operating expenditure (or series of related capital or operating expenditures), capital addition or improvement, in either case, not contemplated by the Ordinary Course of Business Company's current annual operating budget and not exceeding involving more than $10,000 in the aggregate of all such capital expenditures250,000;
(f) none of the Company Parties has not made any capital investment in, or any loan to, or any acquisition of the securities or assets of, any other PersonPerson (or series of related capital investments, loans, and acquisitions) not contemplated by the Company's current annual operating budget and involving more than $250,000;
(g) none of the Company Parties has not issued any note, bond or other debt security or Redeemable Equity or created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and or capitalized lease obligationsobligations involving more than $250,000 singly or $500,000 in the aggregate (other than indebtedness for money borrowed by a Subsidiary from the Company, or extended or modified any existing indebtednessin each case incurred in the Ordinary Course of Business);
(h) the Company has not granted any license or sublicense of any rights under or with respect to any Company Intellectual Property;
(i) there has been no change made or authorized in the Certificate of Incorporation charter or bylaws of the CompanyCompany or in the charter, bylaws, operating agreement or other organizational documents of any of its Subsidiaries (except for the designation of the Series B Preferred Stock);
(i) the Company has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash, securities, property or otherwise) or redeemed, purchased, or otherwise acquired any of its capital stock, or granted any Rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(j) there has not been (i) any change in the Company's authorized or issued capital stock, (ii) any grant of any stock option or right to purchase shares of capital stock none of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock;
(k) the Company Parties has not experienced any damage, destruction, or loss (whether or not covered by insurance) to any material amount of its property in excess of $10,000 in the aggregate of all such damage, destruction and lossesAssets;
(lk) none of the Company Parties has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer access, supplies or utility services;
(m) the Company has not made any loan toto any Person, (other than accounts receivable in the Ordinary Course of Business) or entered into any other transaction with, with or paid any bonuses in excess for the benefit of an aggregate of $10,000 to, any of its Affiliatesthe Company's stockholders, directors, officers, or employees or their Affiliates, andemployees, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company each case involving more than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof$25,000;
(nl) none of the Company Parties has not entered into discharged or satisfied any employment contract or collective bargaining agreement, written or oralLien, or modified paid, canceled, compromised or otherwise satisfied any obligation, indebtedness or Liability (absolute or contingent) other than the terms of any existing such contract or agreement;
(o) the Company has not granted any increase in the base compensation of any of its directors or officers, or, except payment in the Ordinary Course of Business, any Business of its employees;
(p) current Liabilities shown on the Company has not adopted, amended, modified, Balance Sheet or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for incurred since the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other Employee Benefit Plan);
(q) the Company has not made any other change date thereof in employment terms for any of its directors or officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(rm) none of the Company Parties has not suffered any adverse change (A) increased the rate of compensation payable or any threat of any adverse change in its relations with, or any loss or threat of loss of, to become payable by it to any of its major customersofficers, distributors directors, employees or partners;
(s) agents, except for increases in the Company has not suffered any adverse change Ordinary Course of Business or any threat required under the current terms of any adverse change in its relations withemployment agreements, or (B) granted, made or accrued any loss bonus, incentive compensation, service award or threat other like benefit, contingently or otherwise, to or for the credit of loss of, any of it major suppliers;
(t) the Company has not received notice and does not have Knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character;
(u) the Company has not changed any of the accounting principles followed by it or the method of applying such principles;
(v) the Company has not made a change in any of its banking officers, directors, employees or safe deposit arrangements;
(w) the Company has not entered into any transaction agents, other than in the Ordinary Course of Business, or made or provided under any employee welfare, pension, retirement, profit sharing or similar payment or benefit except pursuant to regularly scheduled payments required pursuant to the current terms of the Employee Benefit Plans described in the Disclosure Schedule or (C) paid or granted any right to receive any severance or termination pay to any officer, director, or agent;
(n) except as disclosed in the Financial Statements, none of the Company Parties has made any material change in any method of accounting or any accounting practice; and
(xo) none of the Company Parties has not become obligated entered into any Contract to do any of the foregoing.
Appears in 1 contract
Samples: Securities Purchase Agreement (TPG Advisors Iii Inc)
Events Subsequent to Most Recent Fiscal Period End. Since Except as set forth in Schedule 4.7, since the Most Recent Fiscal Period EndBalance Sheet Date, there has have not been any material adverse change events, occurrences, changes or effects, which, individually or in the Business Condition of the Companyaggregate, have had or are reasonably likely to have a Material Adverse Effect. Without limiting the generality of the foregoing and except as set forth in Section 5.9 of the Company Disclosure Letterforegoing, since that date:
(a) the Company Seller has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, outside material to the Ordinary Course Celtics Basketball Businesses, other than transactions in the ordinary course of Businessbusiness;
(b) the Company Seller has not entered into, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company Agreement") commitment, or extended or modified the terms of any Company Agreement Assumed Contract, Assumed Lease or NBA Document which and which (i) involves the payment of greater than $10,000 50,000 per annum or and which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company other than in the Ordinary Course ordinary course of Businessbusiness, (iii) involves the sale of any material assetsasset with a sale price of more than $50,000, or (iv) involves any license of any Company Seller Intellectual Property;
(c) no Party party (including the CompanySeller) has accelerated, terminated, made modifications to, or canceled any agreement, contract, lease, or license that, individually or in the aggregate, is material to which the Company is a Party Celtics Basketball Businesses or by which it is bound the Acquired Assets and the Company Seller has not modified, canceled or waived or settled any debts or claims held by itthem, outside the Ordinary Course ordinary course of Businessbusiness, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course ordinary course of Businessbusiness;
(d) none of the assets of the Company, tangible or intangible, Acquired Assets has become subject to any Security InterestLien except for Permitted Liens;
(e) the Company Seller has not made any capital expenditures relating to any of the Celtics Basketball Businesses or the Acquired Assets except in the Ordinary Course ordinary course of Business business and not exceeding $10,000 50,000 in the aggregate of all such capital expenditures;
(f) the Company has not made any capital investment in, or any loan to, any other Person;
(g) the Company has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligations, or extended or modified any existing indebtedness;
(h) the Company Seller has not granted any license or sublicense of any rights under or with respect to any Company Intellectual Propertyof the Acquired Assets;
(ig) there has been no change made or authorized in the Certificate of Incorporation or bylaws of the Company;
(j) there has not been (i) any change in the Company's authorized or issued capital stock, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock;
(k) the Company Seller has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its any of the Acquired Assets or any other property relating to the Celtics Basketball Businesses in excess of $10,000 50,000 in the aggregate of all such damage, destruction and losses;
(lh) the Company has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer access, supplies or utility services;
(m) the Company has not made any loan to, or entered into any other transaction with, or paid any bonuses in excess of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof;
(n) the Company Seller has not entered into any employment contract which is not terminable at will without significant penalty or severance payment or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreementagreement which relates to the Celtics Basketball Businesses or their employees;
(oi) the Company Seller has not granted any increase in the base compensation or other benefits (including, without limitation, severance benefits) of any of its directors or officers, orthe employees of the Celtics Basketball Businesses, except in the Ordinary Course ordinary course of Business, any of its employeesbusiness;
(pj) the Company has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other Employee Benefit Plan);
(q) the Company has not made any other change in employment terms for any of its directors or officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(r) the Company Seller has not suffered any significant adverse change or any threat of any significant adverse change in its relations with, or any loss or threat of loss of, any of its the major customers, distributors distributors, partners or partnerssuppliers of any of the Celtics Basketball Businesses;
(sk) the Company has not suffered any adverse change or any threat of any adverse change in its relations withExcept as may be required by GAAP, or any loss or threat of loss of, any of it major suppliers;
(t) the Company has not received notice and does not have Knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character;
(u) the Company Seller has not changed any of the accounting principles followed by it or the method of applying such principlesprinciples with respect to any of the Celtics Basketball Businesses;
(vl) the Company has not made a change in any of its banking or safe deposit arrangements;
(w) the Company Seller has not entered into any material transaction relating to any of the Celtics Basketball Businesses or the Acquired Assets other than in the Ordinary Course ordinary course of Businessbusiness; and
(xm) the Company Seller has not become obligated to do any of the foregoing.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Boston Celtics Limited Partnership /De/)
Events Subsequent to Most Recent Fiscal Period End. Since the Most Recent Fiscal Period End, there has not been any material adverse change in the Business Condition of the CompanyNexcom. Without limiting the generality of the foregoing and except as set forth in Section 5.9 of the Company Disclosure Letterforegoing, since that date:
(a) the Company Nexcom has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, outside the Ordinary Course of Business;
(b) except for those agreements, contracts, leases and commitments identified in Section 5.17 of the Company Nexcom Disclosure Schedule, Nexcom has not entered into, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company AgreementNEXCOM AGREEMENT") or extended or modified the terms of any Company Nexcom Agreement which (i) involves the payment of greater than $10,000 25,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company Nexcom other than in the Ordinary Course of Business, (iii) involves the sale of any material assets, or (iv) involves any OEM relationship, or (v) involves any license of any Company Intellectual PropertyNexcom's technology;
(c) no Party party (including the CompanyNexcom) has accelerated, terminated, made modifications to, or canceled any agreement, contract, lease, or license to which the Company Nexcom is a Party party or by which it is bound and the Company Nexcom has not modified, canceled or waived or settled any debts or claims held by it, outside the Ordinary Course of Business, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course of Business;
(dx) none of xxxx xx the assets of the CompanyNexcom, tangible or intangible, has become subject to any Security Interest;
(e) the Company Nexcom has not made any capital expenditures except in the Ordinary Course of Business and not exceeding $10,000 25,000 in the aggregate of all such capital expenditures;
(f) the Company Nexcom has not made any capital investment in, or any loan to, any other Person;
(g) the Company Nexcom has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligations, or extended or modified any existing indebtedness;
(h) the Company Nexcom has not granted any license or sublicense of any rights under or with respect to any Company Intellectual Property;
(i) there has been no change made or authorized in the Certificate Articles of Incorporation or bylaws of the CompanyNexcom;
(j) there Nexcom has not been (i) any change in the Company's authorized or issued capital stockdeclared, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirementset aside, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of paid any dividend or other made any distribution with respect to its capital stock (whether in cash or payment in respect kind) or redeemed, purchased, or otherwise acquired any of shares of its capital stock;
(k) the Company Nexcom has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property in excess of $10,000 in the aggregate of all such damage, destruction and losses;
(l) the Company Nexcom has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer accessinventory shipments, supplies or utility services;
(m) the Company Nexcom has not made any loan to, or entered into any other transaction with, or paid any bonuses in excess of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company Nexcom than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof;
(n) the Company Nexcom has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement;
(o) the Company Nexcom has not granted any increase in the base compensation of any of its directors or officers, or, except in the Ordinary Course of Business, any of its employees;
(p) the Company has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other Employee Benefit Plan);
(q) the Company has not made any other change in employment terms for any of its directors or officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(r) 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 major customers, distributors or partners;
(s) 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 it major suppliers;
(t) the Company has not received notice and does not have Knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character;
(u) the Company has not changed any of the accounting principles followed by it or the method of applying such principles;
(v) the Company has not made a change in any of its banking or safe deposit arrangements;
(w) the Company has not entered into any transaction other than in the Ordinary Course of Business; and
(x) the Company has not become obligated to do any of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Integrated Silicon Solution Inc)
Events Subsequent to Most Recent Fiscal Period End. Since the Most Recent Fiscal Period Endmost recent fiscal period end, the Acquiree has conducted its business in the ordinary course of business and there has not been any material adverse change in the Business Condition of the Company. Without limiting the generality of the foregoing and except as set forth in Section 5.9 of the Company Disclosure Letter, since that date:
(a) the Company has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, outside the Ordinary Course of Business;
(b) the Company has not entered into, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company Agreement") or extended or modified the terms of any Company Agreement which (i) involves the payment of greater than $10,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company other than in the Ordinary Course of Business, (iii) involves the sale of any material assets, or (iv) involves any license of any Company Intellectual Property;
(c) no Party (including the Company) has accelerated, terminated, made modifications to, or canceled any agreement, contract, lease, or license to which the Company is a Party or by which it is bound and the Company has not modified, canceled or waived or settled any debts or claims held by it, outside the Ordinary Course of Business, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course of Business;
(d) none of the assets of the Company, tangible or intangible, has become subject to any Security Interest;
(e) the Company has not made any capital expenditures except in the Ordinary Course of Business and not exceeding $10,000 in the aggregate of all such capital expenditures;
(f) the Company has not made any capital investment in, or any loan to, any other Person;
(g) the Company has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligations, or extended or modified any existing indebtedness;
(h) the Company has not granted any license or sublicense of any rights under or with respect to any Company Intellectual Property;
(i) there has been no change made or authorized in the Certificate of Incorporation or bylaws of the Company;
(j) there has not been occurred (i) any change in the Company's authorized change, event or issued capital stock, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock;
(k) the Company has not experienced any damage, destruction, or loss condition (whether or not covered by insurance) that has resulted in, or would result in, a Material Adverse Effect on the Acquiree; (ii) any acquisition, sale or transfer of any asset material to its property in excess the ongoing business of $10,000 the Acquiree other than in the aggregate ordinary course of all such damagebusiness; (iii) any change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Acquiree, destruction and losses;
(l) except as required by concurrent changes in GAAP or any revaluation by the Company has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer access, supplies or utility services;
(m) the Company has not made any loan to, or entered into any other transaction with, or paid any bonuses in excess of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof;
(n) the Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement;
(o) the Company has not granted any increase in the base compensation Acquiree of any of its directors or officers, orassets, except in as required by GAAP; (iv) any declaration, setting aside, or payment of a dividend or other distribution with respect to the Ordinary Course Acquiree capital stock, or any direct or indirect redemption, purchase or other acquisition by the Acquiree of Business, any of its employees;
shares of the Acquiree capital stock; (pv) any contract entered into by the Company has not adoptedAcquiree or any of its Subsidiaries, amended, modifiedother than in the ordinary course of business, or terminated any bonus, profit-sharing, incentive, severanceamendment or termination of, or other plandefault under, contractany contract to which the Acquiree is a party or by which it is bound, which individually or commitment for in the benefit aggregate would have a Material Adverse Effect on the Acquiree; (vi) any amendment or change to the Acquiree Certificate of Incorporation or bylaws of the Acquiree; (vii) any increase in of the compensation or benefits payable or to become payable by the Acquiree to any of its directors, officers, officers or employees employees; (or taken viii) any such action with respect to any other Employee Benefit Plan);
(q) the Company has not made any other change in employment terms for any the interest rate, risk management and hedging policies, procedures or practices of its directors or officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(r) the Company has not suffered any adverse change or any threat of any adverse change in its relations withAcquiree, or any loss or threat of loss offailure to comply with such policies, any of its major customers, distributors or partners;
(s) the Company has not suffered any adverse change or any threat of any adverse change in its relations withprocedures and practices, or (ix) any loss negotiation or threat of loss of, any of it major suppliers;
(t) agreement by the Company has not received notice and does not have Knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character;
(u) the Company has not changed any of the accounting principles followed by it or the method of applying such principles;
(v) the Company has not made a change in any of its banking or safe deposit arrangements;
(w) the Company has not entered into any transaction other than in the Ordinary Course of Business; and
(x) the Company has not become obligated Acquiree to do any of the foregoingthings described in the preceding clauses (i) through (viii) (other than negotiations with the Acquiror).
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Period End. Since the Most Recent Fiscal Period EndSeptember 30, there has not been any material adverse change in the Business Condition of the Company. Without limiting the generality of the foregoing and 2006, except as set forth in Section 5.9 4.6 of the Company Disclosure LetterSchedule, since that dateas permitted or contemplated by this Agreement, or as consented to by Parent in writing, there has not been:
(a) any transaction entered into or carried out by the Company has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, outside of its Subsidiaries other than in the Ordinary Course of Business;
(b) any Indebtedness incurred or any borrowing or agreement to borrow funds by the Company has not entered intoor any of its Subsidiaries, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company Agreement") or extended or modified the terms of any Company Agreement which (i) involves the payment of greater than $10,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company other than in the Ordinary Course of Business, (iii) involves ; any incurring by the sale Company or any of its Subsidiaries of any other material assetsobligation or liability (contingent or otherwise), except obligations and liabilities incurred in the Ordinary Course of Business; or (iv) involves any license endorsement, assumption or guarantee of payment or performance of any loan or obligation of any other Person by the Company Intellectual Propertyor any of its Subsidiaries;
(c) no Party (including any material change in the Company’s or any of its Subsidiaries’ method of doing business or any change in its accounting principles or practices or its method of application of such principles or practices;
(d) has acceleratedany mortgage, terminatedpledge, made modifications tolien, Security Interest, hypothecation, charge or other encumbrance imposed or agreed to be imposed on or with respect to the properties or assets of the Company or any of its Subsidiaries;
(e) any lien, mortgage, Security Interest, pledge, hypothecation, charge or other encumbrance of the Company or any of its Subsidiaries discharged or satisfied, or canceled any agreementobligation or liability (absolute or contingent) paid, contract, lease, or license to which the Company is a Party or by which it is bound and the Company has not modified, canceled or waived or settled any debts or claims held by it, outside the Ordinary Course of Business, or waived or settled any rights or claims of a substantial value, whether or not other than in the Ordinary Course of Business;
(df) none any sale, license, lease or other disposition of, or any agreement to sell, lease or otherwise dispose of, any of the material properties or assets of the Company, tangible other than sales of inventory or intangible, has become subject to any Security Interest;
equipment (ewhether obsolete or otherwise) the Company has not made any capital expenditures except in the Ordinary Course of Business and not exceeding $10,000 in the aggregate of all such capital expenditures;
(f) the Company has not made any capital investment in, or any loan to, any other PersonBusiness;
(g) any issuance or sale of any equity securities of the Company has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligationsCompany, or extended or modified any existing indebtedness;
(h) the Company has not granted any license or sublicense alteration of any rights under or with respect to terms of any Company Intellectual Property;
(i) there has been no change made or authorized in the Certificate of Incorporation or bylaws outstanding equity securities of the Company;
(jh) there has not been (i) any change in the Company's authorized or issued capital stock, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock;
(k) the Company has not experienced any damage, destruction, destruction or loss (whether or not covered by insurance) to any material property or assets of the Company or its property in excess of $10,000 in the aggregate of all such damage, destruction and lossesSubsidiaries;
(li) the Company has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer access, supplies or utility services;
(m) the Company has not made any loan to, or entered entry into any contract to which any Company or any Subsidiary is a party, other transaction with, or paid any bonuses than in excess of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof;
(n) the Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement;
(o) the Company has not granted any increase in the base compensation of any of its directors or officers, or, except in the Ordinary Course of Business, any of its employees;
(p) the Company has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other Employee Benefit Plan);
(q) the Company has not made any other change in employment terms for any of its directors or officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(rj) to the Company has not suffered Knowledge of the Company, any adverse change or any threat disclosure of any adverse change in its relations with, or proprietary confidential information to any loss or threat of loss of, Person that is not subject to any of its major customers, distributors or partnersconfidentiality agreement;
(sk) any (i) bonus or increase in the compensation or benefits of any employee or officer of 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 it major suppliers;
Subsidiary (t) the Company has not received notice and does not have Knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character;
(u) the Company has not changed any of the accounting principles followed by it or the method of applying such principles;
(v) the Company has not made a change in any of its banking or safe deposit arrangements;
(w) the Company has not entered into any transaction other than in the Ordinary Course of Business; and) or (ii) amendment, modification or termination of any Employee Benefit Plan;
(xl) any hiring or firing of members of Company’s or any Subsidiary’s senior management (it being acknowledged and agreed that the senior management of any of the Company’s foreign Subsidiaries shall consist of any individual holding the position of General Manager, Managing Director or such equivalent or higher position, as applicable);
(m) any capital expenditures or commitments therefor (other than in the Ordinary Course of Business and in amounts sufficient to support the Company’s and its Subsidiaries’ ongoing business operations);
(n) any delay or postponement in the repair and maintenance of its properties or the payment of accounts payable, accrued liabilities and other obligations and liabilities;
(o) any settlement of any claim or lawsuit;
(p) any termination of any of the business relationships between the Company or any of its Subsidiaries, on the one hand, and any distributor, licensee, licensor, or supplier of the Company or any of its Subsidiaries, on the other hand, or modified any of such relationships in a manner which is materially less favorable to the Company or any of its Subsidiaries, or has been threatened or notified of any intention (orally or in writing) by any such dealer, franchisee, distributor, licensee, licensor or supplier to effect any such termination or modification (and no Company Shareholder nor the Company has not become obligated any Knowledge of any facts which would form the basis for any such termination or modification);
(q) any acquisition of any other business or entity (or any significant portion or division thereof), whether by merger, consolidation or reorganization or by the purchase of its assets or stock;
(r) any declaration of, or any payment of, any dividend or distribution (whether in cash, stock or property or otherwise) in respect of any Shares; or
(s) any agreement by the Company or any Subsidiary to do any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Period End. Since the Most Recent Fiscal Period End, except (i) as set forth on Section 4.1(d) of the Disclosure Schedule, (ii) as permitted or contemplated by this Agreement, or (iii) as consented to by Stoneridge in writing, there has not been been:
(i) any material adverse change in the Business Condition business or financial condition of the Company. Without limiting the generality of the foregoing and except as set forth in Section 5.9 of the Company Disclosure Letter, since that date:
(a) the Company has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, outside the Ordinary Course of BusinessOld BCS;
(b) the Company has not entered into, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company Agreement") or extended or modified the terms of any Company Agreement which (i) involves the payment of greater than $10,000 per annum or which extends for more than one (1) year, (ii) involves any payment transaction entered into or obligation to any Affiliate of the Company carried out by Old BCS other than in the Ordinary Course ordinary course of Business, business;
(iii) involves any material borrowing or agreement to borrow funds by Old BCS; any incurring by Old BCS of any other material obligation or Liability, contingent or otherwise, except liabilities incurred in the sale ordinary course of business that would not, separately or in the aggregate, reasonably be expected to have a material adverse effect on the business or financial condition of Old BCS; or any endorsement, assumption or guarantee of payment or performance of any material assets, loan or obligation of any other person by Old BCS;
(iv) involves any license material change in Old BCS’s method of doing business or any Company Intellectual Propertymaterial change in its accounting principles or practices or its method of application of such principles or practices;
(cv) no Party (including the Company) has acceleratedany material mortgage, terminatedpledge, made modifications tolien, security interest, hypothecation, charge or canceled any agreement, contract, lease, other encumbrance imposed or license agreed to which the Company is a Party or by which it is bound and the Company has not modified, canceled or waived or settled any debts or claims held by it, outside the Ordinary Course of Business, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course of Business;
(d) none of the assets of the Company, tangible or intangible, has become subject to any Security Interest;
(e) the Company has not made any capital expenditures except in the Ordinary Course of Business and not exceeding $10,000 in the aggregate of all such capital expenditures;
(f) the Company has not made any capital investment in, or any loan to, any other Person;
(g) the Company has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligations, or extended or modified any existing indebtedness;
(h) the Company has not granted any license or sublicense of any rights under be imposed on or with respect to any Company Intellectual Propertythe properties or assets of Old BCS;
(i) there has been no change made or authorized in the Certificate of Incorporation or bylaws of the Company;
(j) there has not been (i) any change in the Company's authorized or issued capital stock, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of any dividend material lien, mortgage, security interest, pledge, hypothecation, charge or other distribution encumbrance of Old BCS discharged or payment satisfied, or any material obligation or Liability, absolute or contingent, paid, except as contemplated in respect of shares of capital stockthis Agreement;
(kvii) the Company has not experienced any damagesale, destructionlease or other disposition of, or loss (whether any agreement to sell, lease or not covered by insurance) to its property in excess otherwise dispose of, any of $10,000 the material properties or assets of Old BCS, other than sales of inventory in the aggregate ordinary course of all such damage, destruction and lossesbusiness;
(lviii) the Company has not suffered any repeated, recurring material loan or prolonged shortage, cessation or interruption of communications, customer access, supplies or utility servicesadvance made by Old BCS to any person;
(mix) any elimination of any material reserve established on Old BCS’s books or any changing of the Company has not made method of accrual unless there is any loan to, change of significant facts or entered into any other transaction with, circumstances pertaining to such reserve which would justify its elimination or paid any bonuses change in excess method of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof;accrual; or
(nx) the Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement;
(o) the Company has not granted any increase in the base compensation or other payment to any director, officer or employee, whether now or hereafter payable or granted, other than payment of bonuses or increases in base compensation in the ordinary course of business, or entry into or amendments of the terms of any of its directors employment or officers, or, except in the Ordinary Course of Business, any of its employees;
(p) the Company has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken incentive agreement with any such action with respect to any other Employee Benefit Plan);
(q) the Company has not made any other change in employment terms for any of its directors or officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(r) 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 major customers, distributors or partners;
(s) 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 it major suppliers;
(t) the Company has not received notice and does not have Knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character;
(u) the Company has not changed any of the accounting principles followed by it or the method of applying such principles;
(v) the Company has not made a change in any of its banking or safe deposit arrangements;
(w) the Company has not entered into any transaction other than in the Ordinary Course of Business; and
(x) the Company has not become obligated to do any of the foregoingperson.
Appears in 1 contract
Samples: Asset Purchase and Contribution Agreement (Stoneridge Inc)
Events Subsequent to Most Recent Fiscal Period End. Since the Most Recent -------------------------------------------------- Fiscal Period End, except (i) as set forth on Section 4.6 of the Disclosure Schedule, (ii) as permitted or contemplated by this Agreement, or (iii) as consented by Buyer in writing, there has not been been: any material adverse change in the Business Condition of the Company. Without limiting the generality of the foregoing and except as set forth in Section 5.9 business or financial condition of the Company Disclosure Letter, since that date:
(a) the Company has not sold, leased, transferred, taken as a whole; any transaction entered into or assigned any assets or properties, tangible or intangible, outside the Ordinary Course of Business;
(b) the Company has not entered into, assumed or become bound under or obligated carried out by any agreement, contract, lease or commitment (collectively a "Company Agreement") or extended or modified the terms of any Company Agreement which (i) involves the payment of greater than $10,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company other than in the Ordinary Course of Business, (iii) involves the sale of ; any material assets, borrowing or (iv) involves any license of any Company Intellectual Property;
(c) no Party (including the Company) has accelerated, terminated, made modifications to, or canceled any agreement, contract, lease, or license agreement to which the Company is a Party or borrow funds by which it is bound and the Company has not modified, canceled or waived or settled any debts or claims held by it, outside the Ordinary Course of Business, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course of Business;
(d) none of the assets of the Company, tangible or intangible, has become subject to any Security Interest;
(e) the Company has not made any capital expenditures except in the Ordinary Course of Business and not exceeding $10,000 in the aggregate of all such capital expenditures;
(f) the Company has not made any capital investment in, or any loan to, any other Person;
(g) the Company has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligations, or extended or modified any existing indebtedness;
(h) the Company has not granted any license or sublicense of any rights under or with respect to any Company Intellectual Property;
(i) there has been no change made or authorized in the Certificate of Incorporation or bylaws of the Company;
(j) there has not been (i) any change in the Company's authorized or issued capital stock, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock;
(k) the Company has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property in excess of $10,000 in the aggregate of all such damage, destruction and losses;
(l) the Company has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer access, supplies or utility services;
(m) the Company has not made any loan to, or entered into any other transaction with, or paid any bonuses in excess of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof;
(n) the Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement;
(o) the Company has not granted any increase in the base compensation of any of its directors or officers, or, except in the Ordinary Course of Business, any of its employees;
(p) the Company has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other Employee Benefit Plan);
(q) the Company has not made any other change in employment terms for any of its directors or officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(r) 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 major customers, distributors or partners;
(s) 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 it major suppliers;
(t) the Company has not received notice and does not have Knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character;
(u) the Company has not changed any of the accounting principles followed by it or the method of applying such principles;
(v) the Company has not made a change in any of its banking or safe deposit arrangements;
(w) the Company has not entered into any transaction other than in the Ordinary Course of Business; and
(x) any incurring by the Company has not become obligated of any other material obligation or liability (contingent or otherwise), except liabilities incurred in the Ordinary Course of Business; or any endorsement, assumption or guarantee of payment or performance of any material loan or obligation of any other Person by the Company; any material change in the Company's method of doing business or any material change in its accounting principles or practices or its method of application of such principles or practices; any material mortgage, pledge, lien, security interest, hypothecation, charge or other encumbrance imposed or agreed to do be imposed on or with respect to the properties or assets of the Company, other than in the Ordinary Course of Business; any material lien, mortgage, security interest, pledge, hypothecation, charge or other encumbrance of the Company discharged or satisfied, or any obligation or liability (absolute or contingent) paid, other than in the Ordinary Course of Business and liabilities incurred and obligations under contracts entered into after the Most Recent Financial Statement, in the Ordinary Course of Business; any sale, lease or other disposition of, or any agreement to sell, lease or otherwise dispose of, any of the foregoingmaterial properties or assets of the Company, other than sales of inventory in the Ordinary Course of Business; any material loan or advance made by the Company to any Person; any elimination of any material reserve established on the Company's books or any changing of the method of accrual unless there is any change of significant facts or circumstances pertaining to such reserve which would justify its elimination or change in method of accrual; any increase in the base compensation or other payment to any director, officer or employee, whether now or hereafter payable or granted (other than payment of bonuses or increases in base compensation in the Ordinary Course of Business), or entry into or amendments of the terms of any employment or incentive agreement with any such person; any issuance or sale of any equity securities of the Company, or any alteration of any terms of any outstanding equity securities of the Company; or any declaration of, or any payment of, any dividend or distribution (whether in cash, stock or property or otherwise) in respect of any Shares, including, without limitation, any Subchapter S distribution or any similar distribution.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Period End. Since the Most Recent Fiscal Period End, there has not been any material adverse change in the Business Condition business, financial condition, operations, results of operations or future prospects of the CompanyParent. Without limiting the generality of the foregoing and foregoing, except as set forth provided to the contrary in Section 5.9 of the Company Disclosure Letter, this Agreement since that date:
(ai) the Company Parent has not sold, leased, transferred, or assigned any assets or propertiesof its assets, tangible or intangible, outside other than for a fair consideration in the Ordinary Course of Business;
(bii) except as otherwise disclosed in this Agreement, the Company Parent has not entered into, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company Agreement") or extended or modified the terms of any Company Agreement which (i) involves the payment of greater than $10,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company other than in the Ordinary Course of Business, (iii) involves the sale of any material assets, or (iv) involves any license of any Company Intellectual Property;
(c) no Party (including the Company) has accelerated, terminated, made modifications to, or canceled into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses);
(iii) except as listed elsewhere herein, no party (including Target) has accelerated, terminated, modified, or canceled any agreement, contract, lease or license (or series of related agreements, contracts, leases, and licenses) to which the Company Parent is a Party party or by which it is bound and the Company has not modified, canceled or waived or settled any debts or claims held by it, outside the Ordinary Course of Business, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course of Businessbound;
(div) none the Parent has not imposed any Security Interest upon any of the assets of the Companyits assets, tangible or intangible, has become subject to any Security Interestexcept as listed elsewhere herein;
(ev) except as listed elsewhere herein, the Company Parent has not made any capital expenditures except in the Ordinary Course expenditure (or series of Business and not exceeding $10,000 in the aggregate of all such related capital expenditures);
(fvi) the Company Parent has not made any capital investment in, or any loan to, or any acquisition of the securities or assets of, any other PersonPerson (or series of related capital investments, loans, and acquisitions);
(gvii) the Company Parent has not issued any note, debenture, bond, or other debt security or created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and or capitalized lease obligations, or extended or modified any existing indebtednessobligation;
(hviii) the Company Parent has not delayed or postponed the payment of accounts payable and other Liabilities;
(ix) the Parent has not canceled, compromised, waived, or released any right or claim (or series of related rights and claims);
(x) the Parent has not granted any license or sublicense sub-license of any rights under or with respect to any Company Intellectual Property;
(ixi) there has been no change made or authorized in the Certificate of Incorporation charter or bylaws of the CompanyParent except for the change of domicile merger;
(jxii) there the Parent has not been (i) any change in the Company's authorized or issued capital stockissued, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirementsold, or other acquisition by the Company otherwise disposed of any shares of capital stock, or granted any such capital stock options, warrants, or other rights to purchase or obtain (viincluding upon conversion, exchange, or exercise) any declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock;
(kxiii) the Company Parent has not declared, set aside, or paid any dividend or made any distribution with respect to shares of capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any hares of capital stock;
(xiv) the Parent has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property in excess of $10,000 in the aggregate of all such damage, destruction and lossesproperty;
(lxv) the Company has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer access, supplies or utility services;
(m) the Company Parent has not made any loan to, or entered into any other transaction with, or paid any bonuses in excess of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereofemployees;
(nxvi) except as disclosed elsewhere herein, the Company Parent has not entered into any employment contract or collective bargaining agreementcontract, written or oral, or modified the terms of any existing such contract or agreement or entered into any collective bargaining agreement;
(oxvii) the Company Parent has not granted any increase in the base compensation of any of its directors directors, officers or officers, or, except in the Ordinary Course of Business, Family Members or any of its employeesemployee;
(pxviii) the Company Parent has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees Family Members (or taken any such action with respect to any other Employee Benefit Plan);
(qxix) the Company Parent has not made any other change in employment terms for any of its directors or and officers, and ;
(xx) the Company Parent has not made or pledged to make any charitable or other change in employment terms for any other employees outside the Ordinary Course of Businesscapital contribution;
(rxxi) the Company there 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 major customers, distributors or partners;
(s) 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 it major suppliers;
(t) the Company has not received notice and does not have Knowledge of any actual or threatened labor trouble or strike, or been any other occurrence, event event, incident, action, failure to act, or condition of a similar charactertransaction involving the Parent;
(uxxii) the Company Parent has not changed terminated or amended any of insurance policies nor has any insurance company done so with regard to a policy paid for by the accounting principles followed by it or the method of applying such principles;
(v) the Company has not made a change in any of its banking or safe deposit arrangements;
(w) the Company has not entered into any transaction other than in the Ordinary Course of BusinessParent; and
(xxxiii) the Company has Parent is not become obligated committed to do any of the foregoing.
Appears in 1 contract
Samples: Amalgamation Agreement (Go Call Inc)
Events Subsequent to Most Recent Fiscal Period End. Since the Most Recent Fiscal Period End, there has not been any material adverse change in the Business Condition business, operations, assets (including intangible assets), liabilities (contingent or otherwise), results of the Companyoperations or financial performance, or condition (financial or otherwise) of Seller. Without limiting the generality of the foregoing and except as set forth in Section 5.9 of the Company Disclosure Letterforegoing, since that date:
(a) the Company Seller has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, outside the Ordinary Course ordinary course of Businessbusiness;
(b) the Company Seller has not entered into, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company AgreementContract") or extended or modified the terms of any Company Agreement Contract which (i) involves the payment of greater than $10,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company Seller other than in the Ordinary Course ordinary course of Businessbusiness, (iii) involves the sale of any material assets, or (iv) involves any license of any Company Seller Intellectual Property;
(c) no Party party (including the CompanySeller) has accelerated, terminated, made modifications to, or canceled any agreement, contract, lease, or license to which the Company Seller is a Party party or by which it is bound and the Company Seller has not modified, canceled or waived or settled any debts or claims held by it, outside the Ordinary Course ordinary course of Businessbusiness, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course ordinary course of Businessbusiness;
(dx) none of xxxx xx the assets of the CompanySeller, tangible or intangible, has become subject to any Security InterestLien;
(e) the Company Seller has not made any capital expenditures except in the Ordinary Course ordinary course of Business business and not exceeding $10,000 in the aggregate of all such capital expenditures;
(f) the Company Seller has not made any capital investment in, or any loan to, any other Person;
(g) the Company Seller has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligations, or extended or modified any existing indebtedness;
(h) the Company Seller has not granted any license or sublicense of any rights under or with respect to any Company Seller Intellectual Property;
(i) there has been no change made or authorized in the Certificate of Incorporation or bylaws of the CompanySeller, except as contemplated by this Agreement;
(j) other than the grant of the Retention Options hereunder or the issuance of Seller Common Stock pursuant to the exercise of employee stock options granted under the Plans outstanding as of the date hereof, there has not been (i) any change in the CompanySeller's authorized or issued capital stock, (ii) any grant of any stock option or right to purchase shares of capital stock of the CompanySeller, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirement, or other acquisition by the Company Seller of any shares of any such capital stock or (vi) any declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock;
(k) the Company Seller has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property in excess of $10,000 in the aggregate of all such damage, destruction and losses;
(l) the Company Seller has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer access, supplies or utility services;
(m) the Company Seller has not made any loan to, or entered into any other transaction with, or paid any bonuses in excess of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company Seller than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof;
(n) the Company Seller has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement;
(o) the Company Seller has not granted any increase in the base compensation of any of its directors or officers, or, except in the Ordinary Course ordinary course of Businessbusiness, any of its employees;
(p) the Company has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other Employee Benefit Plan);
(q) the Company has not made any other change in employment terms for any of its directors or officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(r) 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 major customers, distributors or partners;
(s) 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 it major suppliers;
(t) the Company has not received notice and does not have Knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character;
(u) the Company has not changed any of the accounting principles followed by it or the method of applying such principles;
(v) the Company has not made a change in any of its banking or safe deposit arrangements;
(w) the Company has not entered into any transaction other than in the Ordinary Course of Business; and
(x) the Company has not become obligated to do any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Period End. Since the Most Recent Fiscal Period Endend of the Company's most recent fiscal year, there has not been any material adverse change in the Business Condition Material Adverse Effect of the Company. Without limiting the generality of the foregoing and except as set forth in Section 5.9 of the Company Disclosure Letterforegoing, since that date:
(a) the Company has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, outside the Ordinary Course of Business;
(b) the Company has not entered into, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company AgreementCOMPANY AGREEMENT") or extended or modified the terms of any Company Agreement which (i) involves the payment of greater than $10,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company other than in the Ordinary Course of Business, (iii) involves the sale of any material assets, or (iv) involves any license of any Company Intellectual Property;
(c) no Party (including the Company) has accelerated, terminated, made modifications to, or canceled any agreement, contract, lease, or license to which the Company is a Party or by which it is bound and the Company has not modified, canceled or waived or settled any debts or claims held by it, outside the Ordinary Course of Business, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course of Business;
(d) none of the assets of the Company, tangible or intangible, has become subject to any Security Interest;
(e) the Company has not made any capital expenditures except in the Ordinary Course of Business and not exceeding $10,000 in the aggregate of all such capital expenditures;
(f) the Company has not made any capital investment in, or any loan to, any other Person;
(g) the Company has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligations, or extended or modified any existing indebtedness;
(h) the Company has not granted any license or sublicense of any rights under or with respect to any Company Intellectual Property;
(i) there has been no change made or authorized in the Certificate Articles of Incorporation or bylaws of the Company;
(j) there has not been (i) any change in the Company's authorized or issued capital stock, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock;
(k) the Company has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property in excess of $10,000 in the aggregate of all such damage, destruction and losses;
(l) the Company has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer access, supplies or utility services;
(m) the Company has not made any loan to, or entered into any other transaction with, or paid any bonuses in excess of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof;
(n) the Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement;
(o) the Company has not granted any increase in the base compensation of any of its directors or officers, or, except in the Ordinary Course of Business, any of its employees;employees and all amounts accrued and unpaid as of the date of execution of this Agreement to directors, officers and employees are and have been accrued on a basis consistent with the Company's preexisting salaries in the Ordinary Course of Business.
(p) the Company has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other Employee Benefit Plan);
(q) the Company has not made any other change in employment terms for any of its directors or officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(r) 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 major customers, distributors or partners;
(s) 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 it major suppliers;
(t) the Company has not received notice and does not have Knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character;
(u) the Company has not changed any of the accounting principles followed by it or the method of applying such principles;
(v) the Company has not made a change in any of its banking or safe deposit arrangements;
(w) the Company has not entered into any transaction other than in the Ordinary Course of Business; and
(x) the Company has not become obligated to do any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Period End. Since the Most Recent Fiscal Period End, there has not been any material adverse change in the Business Condition of Material Adverse Effect on the Company. Without limiting the generality of the foregoing foregoing, and except as set forth in Section 5.9 6.9 of the Company Disclosure Letter, since that datethe Most Recent Fiscal Period End:
(a) the Company has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, outside the Ordinary Course of Business;
(b) the Company has not entered into, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company Agreement") or extended or modified the terms of any Company Agreement such agreement, contract, lease or commitment which (i) involves the payment of greater than $10,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company other than in the Ordinary Course of BusinessCompany, (iii) involves the sale of any material assets, or (iv) involves any license of any Company Intellectual Property;
(c) no Party person (including the Company) has accelerated, terminatedtermi- nated, made modifications to, or canceled any agreement, contract, lease, or license to which the Company is a Party party or by which it is bound and the Company has not modified, canceled or waived or settled any debts or claims held by it, outside the Ordinary Course of Business, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course of Business;
(d) none of the assets of the Company, tangible or intangible, has become subject to any Security Interest;
(e) the Company has not made any capital expenditures except in the Ordinary Course of Business and not exceeding $10,000 in the aggregate of all such capital expenditures;
(f) the Company has not made any capital investment in, or any loan to, any other Person;
(g) the Company has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligations, or extended or modified any existing indebtedness;
(h) other than in the Ordinary Course of Business, the Company has not granted any license or sublicense of any rights under or with respect to any Company Intellectual Property;
(i) there has been no change made or authorized in the Certificate Certifi- cate of Incorporation or bylaws of the Company;
(j) there has not been (i) any change in the Company's authorized or issued capital stock, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rightsrights with respect to such capital stock, (v) any purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of any dividend or other distribution or payment in respect of shares of such capital stock;
(k) the Company has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property in excess of $10,000 in the aggregate of all such damage, destruction and losses;
(l) the Company has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer access, supplies or utility services;
(m) the Company has not made any loan to, or entered into any other transaction with, or paid any bonuses in excess of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof;.
(n) the Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement;
(o) the Company has not granted any increase in the base compensation compen- sation of any of its directors or elected officers, or, except in the Ordinary Course of Business, any of its employees;
(p) the Company has not adopted, amended, modified, or terminated termi- nated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other Employee Benefit PlanPlan except as may be required by applicable law);
(q) other than in the Ordinary Course of Business, the Company has not made any other change in employment terms for any of its directors or elected officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Businessemployees;
(r) the Company has not suffered any material adverse change or any threat of any material adverse change in its relations with, or any loss or threat of loss of, any of its major customers, distributors or partners;
(s) the Company has not suffered any material adverse change or any threat of any material adverse change in its relations with, or any loss or threat of loss of, any of it major suppliers;
(t) the Company has not received notice and does not have Knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar characterstrike involving the Company's employees;
(u) the Company has not changed any of the accounting principles followed by it or the method of applying such principles;
(v) the Company has not made a change in any of its banking or safe deposit arrangements;
(w) the Company has not entered into any transaction other than in the Ordinary Course of Business; and
(x) the Company has not become obligated to do take any of the foregoingactions set forth in the foregoing provisions of this SECTION 6.9.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Infospace Com Inc)
Events Subsequent to Most Recent Fiscal Period End. Since the Most Recent Fiscal Period End, there has not been any material adverse change in the Business Condition of the CompanyEPub. Without limiting the generality of the foregoing and except as set forth in Section 5.9 of the Company Disclosure Letterforegoing, since that date:
(a) the Company EPub has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, outside the Ordinary Course of Business;
(b) except for those agreements, contracts, leases and commitments identified in Section 5.17 of the Company EPub Disclosure Letter, EPub has not entered into, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company EPub Agreement") or extended or modified the terms of any Company EPub Agreement which (i) involves the payment of greater than $10,000 25,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company EPub other than in the Ordinary Course of Business, (iii) involves the sale of any material assets, or (iv) involves any OEM relationship, or (v) involves any license of any Company Intellectual PropertyEPub's technology;
(c) no Party party (including the CompanyEPub) has accelerated, terminated, made modifications to, or canceled any agreement, contract, lease, or license to which the Company EPub is a Party party or by which it is bound and the Company EPub has not modified, canceled or waived or settled any debts or claims held by it, outside the Ordinary Course of Business, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course of Business;
(d) none of the assets of the CompanyEPub, tangible or intangible, has become subject to any Security Interest;
(e) the Company EPub has not made any capital expenditures except in the Ordinary Course of Business and not exceeding $10,000 25,000 in the aggregate of all such capital expenditures;
(f) the Company EPub has not made any capital investment in, or any loan to, any other Person;
(g) the Company EPub has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligations, or extended or modified any existing indebtedness;
(h) the Company EPub has not granted any license or sublicense of any rights under or with respect to any Company Intellectual Property;
(i) there has been no change made or authorized in the Certificate of Incorporation or bylaws of the CompanyEPub;
(j) there EPub has not been (i) any change in the Company's authorized or issued capital stockdeclared, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirementset aside, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of paid any dividend or other made any distribution with respect to its capital stock (whether in cash or payment in respect kind) or redeemed, purchased, or otherwise acquired any of shares of its capital stock;
(k) the Company EPub has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property in excess of $10,000 in the aggregate of all such damage, destruction and losses;
(l) the Company EPub has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer accessinventory shipments, supplies or utility services;
(m) the Company EPub has not made any loan to, or entered into any other transaction with, or paid any bonuses in excess of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company EPub than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof;
(n) the Company EPub has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement;
(o) the Company EPub has not granted any increase in the base compensation of any of its directors or officers, or, except in the Ordinary Course of Business, any of its employees;
(p) the Company EPub has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other Employee Benefit Plan);
(q) the Company EPub has not made any other change in employment terms for any of its directors or officers, and the Company EPub has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(r) the Company EPub 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 major customers, distributors or partnersdealers;
(s) the Company EPub 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 it major suppliers;
(t) the Company EPub has not received notice and does not have Knowledge or had knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character;
(u) the Company EPub has not changed any of the accounting principles followed by it or the method of applying such principles;
(v) the Company EPub has not made a change in any of its banking or safe deposit arrangements;
(w) the Company EPub has not entered into any transaction other than in the Ordinary Course of Business; and
(x) the Company has EPub is not become obligated to do any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Period End. Since the Most Recent Fiscal Period End, there has not been any material adverse change in the Business Condition of the CompanyEPub. Without limiting the generality of the foregoing and except as set forth in Section 5.9 of the Company Disclosure Letterforegoing, since that date:
(a) the Company EPub has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, outside the Ordinary Course of Business;
(b) except for those agreements, contracts, leases and commitments identified in Section 5.17 of the Company EPub Disclosure Letter, EPub has not entered into, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company AgreementEPUB AGREEMENT") or extended or modified the terms of any Company EPub Agreement which (i) involves the payment of greater than $10,000 25,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company EPub other than in the Ordinary Course of Business, (iii) involves the sale of any material assets, or (iv) involves any OEM relationship, or (v) involves any license of any Company Intellectual PropertyEPub's technology;
(c) no Party party (including the CompanyEPub) has accelerated, terminated, made modifications to, or canceled any agreement, contract, lease, or license to which the Company EPub is a Party party or by which it is bound and the Company EPub has not modified, canceled or waived or settled any debts or claims held by it, outside the Ordinary Course of Business, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course of Business;
(d) none of the assets of the CompanyEPub, tangible or intangible, has become subject to any Security Interest;
(e) the Company EPub has not made any capital expenditures except in the Ordinary Course of Business and not exceeding $10,000 25,000 in the aggregate of all such capital expenditures;
(f) the Company EPub has not made any capital investment in, or any loan to, any other Person;
(g) the Company EPub has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligations, or extended or modified any existing indebtedness;
(h) the Company EPub has not granted any license or sublicense of any rights under or with respect to any Company Intellectual Property;
(i) there has been no change made or authorized in the Certificate of Incorporation or bylaws of the CompanyEPub;
(j) there EPub has not been (i) any change in the Company's authorized or issued capital stockdeclared, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirementset aside, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of paid any dividend or other made any distribution with respect to its capital stock (whether in cash or payment in respect kind) or redeemed, purchased, or otherwise acquired any of shares of its capital stock;
(k) the Company EPub has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property in excess of $10,000 in the aggregate of all such damage, destruction and losses;
(l) the Company EPub has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer accessinventory shipments, supplies or utility services;
(m) the Company EPub has not made any loan to, or entered into any other transaction with, or paid any bonuses in excess of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company EPub than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof;
(n) the Company EPub has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement;
(o) the Company EPub has not granted any increase in the base compensation of any of its directors or officers, or, except in the Ordinary Course of Business, any of its employees;
(p) the Company EPub has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other Employee Benefit Plan);
(q) the Company EPub has not made any other change in employment terms for any of its directors or officers, and the Company EPub has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(r) the Company EPub 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 major customers, distributors or partnersdealers;
(s) the Company EPub 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 it major suppliers;
(t) the Company EPub has not received notice and does not have Knowledge or had knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character;
(u) the Company EPub has not changed any of the accounting principles followed by it or the method of applying such principles;
(v) the Company EPub has not made a change in any of its banking or safe deposit arrangements;
(w) the Company EPub has not entered into any transaction other than in the Ordinary Course of Business; and
(x) the Company has EPub is not become obligated to do any of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Softbank Holdings Inc Et Al)
Events Subsequent to Most Recent Fiscal Period End. Since the Most -------------------------------------------------- Recent Fiscal Period End, except (i) as set forth on Section 4.6 of the Disclosure Schedule, (ii) as permitted or contemplated by this Agreement, or (iii) as consented by Buyer in writing, there has not been been:
(a) any material adverse change in the Business Condition of the Company. Without limiting the generality of the foregoing and except as set forth in Section 5.9 business or financial condition of the Company Disclosure Letter, since that date:
(a) the Company has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, outside the Ordinary Course of Businesstaken as a whole;
(b) the Company has not any transaction entered into, assumed into or become bound under or obligated carried out by any agreement, contract, lease or commitment (collectively a "Company Agreement") or extended or modified the terms of any Company Agreement which (i) involves the payment of greater than $10,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company other than in the Ordinary Course of Business, (iii) involves the sale of any material assets, or (iv) involves any license of any Company Intellectual Property;
(c) no Party (including any material borrowing or agreement to borrow funds by the Company) has accelerated, terminated, made modifications to, or canceled any agreement, contract, lease, or license to which the Company is a Party or by which it is bound and the Company has not modified, canceled or waived or settled any debts or claims held by it, outside other than in the Ordinary Course of Business; any incurring by the Company of any other material obligation or liability (contingent or otherwise), except liabilities incurred in the Ordinary Course of Business; or waived any endorsement, assumption or settled guarantee of payment or performance of any rights material loan or claims obligation of a substantial valueany other Person by the Company;
(d) any material change in the Company's method of doing business or any material change in its accounting principles or practices or its method of application of such principles or practices;
(e) any material mortgage, whether pledge, lien, security interest, hypothecation, charge or not other encumbrance imposed or agreed to be imposed on or with respect to the properties or assets of the Company, other than in the Ordinary Course of Business;
(df) none any material lien, mortgage, security interest, pledge, hypothecation, charge or other encumbrance of the assets of the CompanyCompany discharged or satisfied, tangible or intangibleany obligation or liability (absolute or contingent) paid, has become subject to any Security Interest;
(e) the Company has not made any capital expenditures except other than in the Ordinary Course of Business and not exceeding $10,000 in the aggregate of all such capital expenditures;
(f) the Company has not made any capital investment in, or any loan to, any other Person;
(g) the Company has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money liabilities incurred and capitalized lease obligations, or extended or modified any existing indebtedness;
(h) the Company has not granted any license or sublicense of any rights obligations under or with respect to any Company Intellectual Property;
(i) there has been no change made or authorized in the Certificate of Incorporation or bylaws of the Company;
(j) there has not been (i) any change in the Company's authorized or issued capital stock, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock;
(k) the Company has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property in excess of $10,000 in the aggregate of all such damage, destruction and losses;
(l) the Company has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer access, supplies or utility services;
(m) the Company has not made any loan to, or contracts entered into any other transaction with, or paid any bonuses in excess of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, andafter the Most Recent Financial Statement, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof;
(n) the Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement;
(o) the Company has not granted any increase in the base compensation of any of its directors or officers, or, except in the Ordinary Course of Business, any of its employees;
(p) the Company has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other Employee Benefit Plan);
(q) the Company has not made any other change in employment terms for any of its directors or officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(rg) the Company has not suffered any adverse change sale, lease or any threat of any adverse change in its relations withother disposition of, or any loss agreement to sell, lease or threat of loss otherwise dispose of, any of its major customers, distributors the material properties or partners;
(s) 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 it major suppliers;
(t) the Company has not received notice and does not have Knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character;
(u) the Company has not changed any assets of the accounting principles followed by it or the method of applying such principles;
(v) the Company has not made a change in any of its banking or safe deposit arrangements;
(w) the Company has not entered into any transaction Company, other than sales of inventory in the Ordinary Course of Business; and;
(xh) any material loan or advance made by the Company has not become obligated to do any Person;
(i) any elimination of any material reserve established on the Company's books or any changing of the foregoingmethod of accrual unless there is any change of significant facts or circumstances pertaining to such reserve which would justify its elimination or change in method of accrual;
(j) any increase in the base compensation or other payment to any director, officer or employee, whether now or hereafter payable or granted (other than payment of bonuses or increases in base compensation in the Ordinary Course of Business), or entry into or amendments of the terms of any employment or incentive agreement with any such person;
(k) any issuance or sale of any equity securities of the Company, or any alteration of any terms of any outstanding equity securities of the Company; or
(l) any declaration of, or any payment of, any dividend or distribution (whether in cash, stock or property or otherwise) in respect of any Shares, including, without limitation, any Subchapter S distribution or any similar distribution.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Period End. Since the Most Recent Fiscal Period End, there has not been any material adverse change in the Business Condition of the CompanySIS. Without limiting the generality of the foregoing and except as set forth in Section 5.9 of the Company Disclosure Letterforegoing, since that date:
(a) the Company SIS has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, outside the Ordinary Course of Business;
(b) except for those agreements, contracts, leases and commitments identified in Section 5.17 of the Company SIS Disclosure Schedule, SIS has not entered into, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company AgreementSIS AGREEMENT") or extended or modified the terms of any Company SIS Agreement which (i) involves the payment of greater than $10,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company SIS other than in the Ordinary Course of Business, (iii) involves the sale of any material assets, or (iv) involves any OEM relationship, or (v) involves any license of any Company Intellectual PropertySIS's technology;
(c) to the knowledge of SIS, no Party party (including the CompanySIS) has accelerated, terminated, made modifications to, or canceled any agreement, contract, lease, or license to which the Company SIS is a Party party or by which it is bound and the Company SIS has not modified, canceled or waived or settled any debts or claims held by it, outside the Ordinary Course of Business, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course of Business;
(d) none of the assets of the CompanySIS, tangible or intangible, has become subject to any Security Interest, except as set forth on Section 5.8 of the SIS Disclosure Schedule;
(e) the Company SIS has not made any capital expenditures except in the Ordinary Course of Business and not exceeding $10,000 in the aggregate of all such capital expenditures;
(f) the Company SIS has not made any capital investment in, or any loan to, any other Person;
(g) the Company SIS has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligations, or extended or modified any existing indebtedness, except as provided in Section 9.1(i) hereof;
(h) the Company SIS has not granted any license or sublicense of any rights under or with respect to any Company Intellectual Property;
(i) there has been no change made or authorized in the Certificate Articles of Incorporation or bylaws of the CompanySIS;
(j) there SIS has not been (i) issued, sold, or otherwise disposed of any change in the Company's authorized or issued of its capital stock, (ii) or granted any grant of any stock option or right to purchase shares of capital stock of the Companyoptions, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirementwarrants, or other acquisition by rights to purchase or obtain (except upon the Company of any shares conversion, exchange or exercise of any such capital stock or (visecurities which are described on Section 5.3 of the SIS Disclosure Schedule) any declaration or payment of any dividend or other distribution or payment in respect of shares of its capital stock;
(k) the Company SIS has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock (other than with respect to any Dissenting Shares (as defined herein));
(l) SIS has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property in excess of $10,000 in the aggregate of all such damage, destruction and losses;
(lm) the Company SIS has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer accessinventory shipments, supplies or utility services;
(mn) the Company SIS has not made any loan to, or entered into any other transaction with, or paid any bonuses in excess of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company SIS than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof;
(no) the Company SIS has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms of any existing such contract or agreement;
(op) the Company SIS has not granted any increase in the base compensation of any of its directors or officers, or, except in the Ordinary Course of Business, any of its employees;
(pq) the Company SIS has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other Employee Benefit Plan);
(qr) the Company SIS has not made any other change in employment terms for any of its directors or officers, and the Company SIS has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(rs) the Company SIS has not suffered any material adverse change or any threat of any material adverse change in its relations with, or any loss or threat of loss of, any of its major customers, distributors or partnersdealers;
(st) the Company SIS has not suffered any material adverse change or any threat of any material adverse change in its relations with, or any loss or threat of loss of, any of it major suppliers;
; (tu) the Company SIS has not received notice and does not have Knowledge or had knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character;
(uv) the Company SIS has not changed any of the accounting principles followed by it or the method of applying such principles, except as described on Schedule 5.6 of the SIS Disclosure Schedule;
(vw) the Company SIS has not made a change in any of its banking or safe deposit arrangements;
(wx) the Company SIS has not entered into any transaction other than in the Ordinary Course of Business; and
(xy) the Company SIS has not become obligated committed to do any of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Aspec Technology Inc)
Events Subsequent to Most Recent Fiscal Period End. Since March 31, 2006 to the Most Recent Fiscal Period Enddate of this Agreement, there neither the Business nor any of the Purchased Assets has not been suffered any material adverse change that would reasonably be expected to result in the Business Condition of the Companya Sellers’ Material Adverse Effect. Without limiting the generality of the foregoing and foregoing, since such date except as set forth provided in Section 5.9 this Agreement, the Ancillary Agreements, the Bridge Notes and the transactions contemplated hereby and thereby, neither the Sellers nor any Subsidiary of a Seller have, as it relates to the Business, any of the Company Disclosure Letter, since that datePurchased Assets or any of the Assumed Liabilities:
(a) the Company has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, outside the Ordinary Course of Business;
(b) except as otherwise set forth in Section 3.13(b) of the Company has not entered intoSellers’ Disclosure Letter, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company Agreement") Contract or extended or modified the terms of any Company Agreement which (i) involves the payment of greater than $10,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate Contract of the Company other than type required to be listed in Section 3.18 of the Ordinary Course of Business, (iii) involves the sale of any material assets, or (iv) involves any license of any Company Intellectual PropertySellers’ Disclosure Letter;
(c) no Party (including the Company) has acceleratedhad any party accelerate, terminatedterminate, made make modifications to, or canceled cancel any agreement, contract, lease, or license Assumed Contract to which the Company Sellers or any of their Subsidiaries is a Party party or by which it is bound any of them are bound, and the Company neither Sellers nor any of their Subsidiaries has not modified, canceled or waived or settled any debts or claims held by itthem, outside the Ordinary Course of Business, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course of Business;
(d) none permitted any of the assets Purchased Assets of the CompanySellers or any of their respective Subsidiaries, tangible or intangible, has to become subject to any Security InterestLien and no Lien held for the benefit of Sellers or their Subsidiaries related to the Business has been released or discharged;
(e) the Company has not made any capital expenditures except in the Ordinary Course of Business and not exceeding $10,000 50,000 in the aggregate of all such capital expenditures, other than in connection with the purchase of inventory held for sale;
(f) the Company has not made any capital investment in, or any loan to, any Person other Personthan a Seller in an amount in excess of $50,000;
(g) the Company has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligations, or extended or modified any existing indebtedness;
(h) the Company has not granted experienced a change in relations with their employees or any license or sublicense of any rights under or with respect their Subsidiaries as a group that would reasonably be expected to any Company Intellectual Propertyresult in a Sellers’ Material Adverse Effect;
(i) there has been no authorized or permitted any change made or authorized in the Certificate of Incorporation or bylaws Bylaws of the CompanySellers or any of their respective Subsidiaries;
(j) there has not been (i) any change in the Company's authorized or issued capital stock, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock;
(k) the Company has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its any Purchased Assets or any of Sellers or any of their respective Subsidiaries’ other property in excess of $10,000 50,000 in the aggregate of all such damage, destruction and losseslosses whether or not covered by insurance;
(k) cancelled, amended or renewed any insurance policy that provides coverage with respect to the Purchased Assets, the Business or any Hired Employee;
(l) the Company has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer access, supplies or utility servicesservices which has had or would reasonably be expected to have a Sellers’ Material Adverse Effect;
(m) except as otherwise set forth in Section 3.13(m) of the Company has not made Sellers’ Disclosure Letter, (i) adopted, entered into or modified any loan toSellers’ Employee Plan, or (ii) entered into any other transaction withcollective bargaining agreement, or paid any bonuses (iii) paid, announced, promised or granted, whether orally or in excess of an aggregate of $10,000 towriting, any of its Affiliatesincrease in the wages, directorssalaries, officerscompensation, bonuses, incentives, pensions, severance or employees termination payments, fringe benefits or their Affiliatesother benefits to any Employees, andincluding without limitation any increase or change pursuant to any Sellers’ Employee Plan (except as required by law or, with respect to non-executive Employees only, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereofOrdinary Course of Business);
(n) except in connection with the Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms sale of any existing such contract or agreement;
(o) the Company has not granted any increase in the base compensation of any of its directors or officers, or, except Sellers’ regular products in the Ordinary Course of Business, entered into a sale, lease, license, transfer or other disposition of any products in connection with which, or entry into, renewal of, or modification or amendment in any material respect of any Contract under which Sellers or any of its employees;
their Subsidiaries provided or is obligated to provide any (pi) the Company has not adopted, amended, modified, warranties or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect indemnities relating to any other Employee Benefit Plan);
(q) the Company has not made any other change in employment terms for any of its directors or officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(r) 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 major customers, distributors or partners;
(s) 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 it major suppliers;
(t) the Company has not received notice and does not have Knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character;
(u) the Company has not changed any of the accounting principles followed by it products or the method of applying such principles;
(v) the Company has not made a change in any of its banking or safe deposit arrangements;
(w) the Company has not entered into any transaction other than in the Ordinary Course of Business; and
(x) the Company has not become obligated to do any of the foregoing.,
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Period End. Since March 31, 2006 to the Most Recent Fiscal Period Enddate of this Agreement, there neither the Business nor any of the Purchased Assets has not been suffered any material adverse change that would reasonably be expected to result in the Business Condition of the Companya Sellers’ Material Adverse Effect. Without limiting the generality of the foregoing and foregoing, since such date except as set forth provided in Section 5.9 this Agreement, the Ancillary Agreements, the Bridge Notes and the transactions contemplated hereby and thereby, neither the Sellers nor any Subsidiary of a Seller have, as it relates to the Business, any of the Company Disclosure Letter, since that datePurchased Assets or any of the Assumed Liabilities:
(a) the Company has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, outside the Ordinary Course of Business;
(b) except as otherwise set forth in Section 3.13(b) of the Company has not entered intoSellers’ Disclosure Letter, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company Agreement") Contract or extended or modified the terms of any Company Agreement which (i) involves the payment of greater than $10,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate Contract of the Company other than type required to be listed in Section 3.18 of the Ordinary Course of Business, (iii) involves the sale of any material assets, or (iv) involves any license of any Company Intellectual PropertySellers’ Disclosure Letter;
(c) no Party (including the Company) has acceleratedhad any party accelerate, terminatedterminate, made make modifications to, or canceled cancel any agreement, contract, lease, or license Assumed Contract to which the Company Sellers or any of their Subsidiaries is a Party party or by which it is bound any of them are bound, and the Company neither Sellers nor any of their Subsidiaries has not modified, canceled or waived or settled any debts or claims held by itthem, outside the Ordinary Course of Business, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course of Business;
(d) none permitted any of the assets Purchased Assets of the CompanySellers or any of their respective Subsidiaries, tangible or intangible, has to become subject to any Security InterestLien and no Lien held for the benefit of Sellers or their Subsidiaries related to the Business has been released or discharged;
(e) the Company has not made any capital expenditures except in the Ordinary Course of Business and not exceeding $10,000 50,000 in the aggregate of all such capital expenditures, other than in connection with the purchase of inventory held for sale;
(f) the Company has not made any capital investment in, or any loan to, any Person other Personthan a Seller in an amount in excess of $50,000;
(g) the Company has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligations, or extended or modified any existing indebtedness;
(h) the Company has not granted experienced a change in relations with their employees or any license or sublicense of any rights under or with respect their Subsidiaries as a group that would reasonably be expected to any Company Intellectual Propertyresult in a Sellers’ Material Adverse Effect;
(i) there has been no authorized or permitted any change made or authorized in the Certificate of Incorporation or bylaws Bylaws of the CompanySellers or any of their respective Subsidiaries;
(j) there has not been (i) any change in the Company's authorized or issued capital stock, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock;
(k) the Company has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its any Purchased Assets or any of Sellers or any of their respective Subsidiaries’ other property in excess of $10,000 50,000 in the aggregate of all such damage, destruction and losseslosses whether or not covered by insurance;
(k) cancelled, amended or renewed any insurance policy that provides coverage with respect to the Purchased Assets, the Business or any Hired Employee;
(l) the Company has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer access, supplies or utility servicesservices which has had or would reasonably be expected to have a Sellers’ Material Adverse Effect;
(m) except as otherwise set forth in Section 3.13(m) of the Company has not made Sellers’ Disclosure Letter, (i) adopted, entered into or modified any loan toSellers’ Employee Plan, or (ii) entered into any other transaction withcollective bargaining agreement, or paid any bonuses (iii) paid, announced, promised or granted, whether orally or in excess of an aggregate of $10,000 towriting, any of its Affiliatesincrease in the wages, directorssalaries, officerscompensation, bonuses, incentives, pensions, severance or employees termination payments, fringe benefits or their Affiliatesother benefits to any Employees, andincluding without limitation any increase or change pursuant to any Sellers’ Employee Plan (except as required by law or, with respect to non-executive Employees only, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereofOrdinary Course of Business);
(n) except in connection with the Company has not entered into any employment contract or collective bargaining agreement, written or oral, or modified the terms sale of any existing such contract or agreement;
(o) the Company has not granted any increase in the base compensation of any of its directors or officers, or, except Sellers’ regular products in the Ordinary Course of Business, entered into a sale, lease, license, transfer or other disposition of any products in connection with which, or entry into, renewal of, or modification or amendment in any material respect of any Contract under which Sellers or any of its employeestheir Subsidiaries provided or is obligated to provide any (i) warranties or indemnities relating to products or the Business, (ii) service level guarantees or assurances, or commitments under which Sellers would be required to deliver any future product or upgrade, or (iii) pricing, discounting, service or maintenance terms or provisions;
(o) revalued any of their respective assets or properties (whether tangible or intangible), including writing off notes or accounts receivable;
(p) the Company has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other Employee Benefit Plan);
(q) the Company has not made any other change in employment terms for any of its directors or officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(r) 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 major customers, distributors or partners;
(s) 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 it major suppliers;
(t) the Company has not received notice and does not have Knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar character;
(u) the Company has not changed any of the accounting principles followed by it them or the method of applying such principles;
(vq) the Company has not made a change in any of its banking or safe deposit arrangements;
(w) the Company has not entered into any transaction other than in the Ordinary Course of Business;
(r) made or changed any material election with respect to Taxes, adopted or changed any material accounting method with respect to Taxes, amended any Tax Return, entered into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, settled or compromised on any claim, notice, audit report or assessment with respect to Taxes, or consented to any extension or waiver of the limitation period applicable to any claim or assessment with respect to Taxes, in each case, to the extent related to any Purchased Asset; and
(xs) the Company has not become obligated to do any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Period End. Since Subject to Section 3.7, since the Most Recent Fiscal Period End, there has not been any material adverse change in the Business Condition business, operations, assets (including intangible assets), liabilities (contingent or otherwise), results of operations or financial performance, or condition (financial or otherwise) of the CompanyBusinesses. Without limiting the generality of the foregoing and except as set forth in Section 5.9 of the Company Disclosure Letterforegoing, since that date:
(a) None of the Company Sellers has not sold, leased, transferred, or assigned any assets or properties, tangible or intangible, used in or relating to the Businesses outside the Ordinary Course ordinary course of Businessbusiness;
(b) None of the Company Sellers has not entered into, assumed or become bound under or obligated by any agreement, contract, lease or commitment (collectively a "Company AgreementCONTRACT") or extended or modified the terms of any Company Agreement Contract which relates to or involves any of the Businesses or the Purchased Assets and which (i) involves the payment of greater than $10,000 50,000 per annum or which extends for more than one (1) year, (ii) involves any payment or obligation to any Affiliate of the Company other person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with any Seller ("AFFILIATE," collectively "AFFILIATES") other than in the Ordinary Course ordinary course of Businessbusiness, (iii) involves the sale of any material assetsasset with a sale price of more than $50,000, or (iv) involves any license of any Company Seller Intellectual Property;
(c) no Party party (including any of the CompanySellers) has accelerated, terminated, made modifications to, or canceled any agreement, contract, lease, or license relating to which any of the Company is a Party Businesses or by which it is bound the Purchased Assets and none of the Company Sellers has not modified, canceled or waived or settled any debts or claims held by itthem, outside the Ordinary Course ordinary course of Businessbusiness, or waived or settled any rights or claims of a substantial value, whether or not in the Ordinary Course ordinary course of Businessbusiness;
(d) none of the assets of the Company, tangible or intangible, Purchased Assets has become subject to any Security InterestLien;
(e) the Company has Sellers have not made any capital expenditures relating to any of the Businesses or the Purchased Assets except in the Ordinary Course ordinary course of Business business and not exceeding $10,000 50,000 in the aggregate of all such capital expenditures;
(f) None of the Company Sellers has not made any capital investment in, or any loan to, any other Person;
(g) the Company has not created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and capitalized lease obligations, or extended or modified any existing indebtedness;
(h) the Company has not granted any license or sublicense of any rights under or with respect to any Company Intellectual Propertyof the Purchased Assets;
(ig) there has been no change made or authorized in the Certificate of Incorporation or bylaws None of the Company;
(j) there Sellers has not been (i) any change in the Company's authorized or issued capital stock, (ii) any grant of any stock option or right to purchase shares of capital stock of the Company, (iii) the issuance of any security convertible into such capital stock, (iv) the grant of any registration rights, (v) any purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock or (vi) any declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock;
(k) the Company has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its any of the Purchased Assets or any other property relating to the Businesses in excess of $10,000 50,000 in the aggregate of all such damage, destruction and losses;
(lh) None of the Company Sellers has not suffered any repeated, recurring or prolonged shortage, cessation or interruption of communications, customer access, supplies or utility services;
(m) the Company has not made any loan to, or entered into any other transaction with, or paid any bonuses in excess of an aggregate of $10,000 to, any of its Affiliates, directors, officers, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to the Company than would be obtained in a comparable arm's length transaction with a Person which is not such a director, officer or employee or Affiliate thereof;
(n) the Company has not entered into any employment contract which is not terminable at will without significant penalty or severance payment or collective bargaining 20 agreement, written or oral, or modified the terms of any existing such contract or agreementagreement which relates to the Businesses or their employees;
(oi) None of the Company Sellers has not granted any increase in the base compensation or other benefits (including, without limitation, severance benefits) of any of its directors or officers, orthe employees of the Businesses, except in the Ordinary Course ordinary course of Business, any of its employeesbusiness;
(pj) None of the Company Sellers has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, or employees (or taken any such action with respect to any other Employee Benefit Plan);
(q) the Company has not made any other change in employment terms for any of its directors or officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(r) the Company has not suffered any significant adverse change or any threat of any significant adverse change in its relations with, or any loss or threat of loss of, any of its the major customers, distributors distributors, partners or partnerssuppliers of any of the Businesses;
(sk) None of the Company Sellers 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 it major suppliers;
(t) the Company has not received notice and does not have Knowledge knowledge of any actual or threatened labor trouble or strike, or any other occurrence, event or condition of a similar charactercharacter relating to any of the Businesses;
(ul) None of the Company Sellers has not changed any of the accounting principles followed by it or the method of applying such principlesprinciples with respect to any of the Businesses;
(vm) None of the Company Sellers has not made a change in any of its banking or safe deposit arrangements;
(w) the Company has not entered into any transaction relating to any of the Businesses or the Purchased Assets other than in the Ordinary Course ordinary course of Businessbusiness; and
(xn) None of the Company Sellers has not become obligated to do any of the foregoing.
Appears in 1 contract
