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, 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 the Most Recent Fiscal Period End, there has not been any material adverse change in the Business Condition of event having a Material Adverse Effect on the Company. Without limiting the generality of the foregoing, since that date, except as set forth in Section 5.9 of the Company's Disclosure Letter:
(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 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 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;
(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 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, 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 (Convergent Communications Inc /Co)
Events Subsequent to Most Recent Fiscal Period End. Since Between the Most Recent Fiscal Period EndEnd and the date of this Agreement, there has not been any material adverse change in the Business Condition of the Company that has had a Material Adverse Effect on the Company. Without limiting the generality of the foregoing, since that datebetween the Most Recent Fiscal Period End and the date of this Agreement:
(a) the Company has not sold, leased, transferred, or assigned any material 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 written or oral agreement, contract, lease lease, binding understanding, instrument, note, option, warranty purchase order, license, policy 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 party or by which it is bound bound, other than in the Ordinary Course of Business 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, 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 other than in the Ordinary Course of 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, except for Loans made in the Ordinary Course of Business not in excess of $50,000 in the aggregate;
(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;indebtedness for borrowed money, except for indebtedness created, incurred, assumed prepaid or guaranteed in the Ordinary Course of Business not in excess of $50,000 in the aggregate; EXECUTION VERSION
(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) except as reflected in Section 5.3(a) or Section 5.3(b) of the Company Disclosure Schedule, there has not been (i) any change in the Company's authorized or issued capital stock, (ii) any grant of any stock option or other 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 by the Company 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 with respect to any employee who is not terminable at will by the Company 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);; EXECUTION VERSION
(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 material adverse change in its relations with, or any material loss or threat of material 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 material loss or threat of loss of, any of it its 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 in any material respect 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 and except as disclosed in the Disclosure Schedule, there has not been occurred any material adverse change in the Business Condition of the CompanyMaterial Adverse Effect. Without limiting the generality of the foregoing, since that date:
(ai) the The Company has not sold, leased, transferred, or assigned any assets or propertiesof its assets, tangible or intangible, other than for a fair consideration in the Ordinary Course of Business;
(ii) The Company has not entered into any agreements, contracts, leases, or licenses either involving more than $100,000 in the aggregate, having a term greater than 12 months or 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 No party (including any of the Company) has accelerated, terminated, made modifications tomodified, or canceled cancelled any agreementagreements, contractcontracts, leaseleases, or license licenses involving more than $100,000 in the aggregate to which the Company is a Party party or by which it is bound and the bound;
(iv) The Company has not modifiedimposed or allowed to be imposed any Security Interest upon any of its assets, canceled tangible or waived intangible;
(v) The Company has not made any capital expenditures involving more than $25,000 per expenditure and $100,000 in the aggregate 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;
(dvi) 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 The Company has not made any capital investment in, or any loan to, or any acquisition of the securities or assets of, any other Person;
(gvii) the The Company has not issued any note, 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 involving more than $100,000 in the aggregate;
(hviii) The Company has not delayed or postponed the payment of accounts payable and other Liabilities outside the Ordinary Course of Business;
(ix) The Company has not cancelled, compromised, waived, or released any right or claim either involving more than $100,000 in the aggregate and outside the Ordinary Course of Business;
(x) The Company has not granted any license or sublicense of any rights under or with respect to any Company Intellectual Property;
(ixi) there There has been no change made or authorized in the Certificate of Incorporation charter or bylaws of any of the Company;
(jxii) there The Company has not been (i) issued, sold, or otherwise disposed of any change in the Company's authorized of its capital stock or issued capital securities convertible into or exchangeable for such 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 the Company rights to purchase or obtain any of any shares of any such capital stock or securities;
(vixiii) any declaration The Company has not declared, set aside, or payment of 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 or other distribution or payment in respect of shares of capital stocksecurities;
(kxiv) the The Company has not experienced any damage, destruction, or loss (whether or not covered by insurance) to its property in excess of involving more than $10,000 100,000 in the aggregate of all such damage, destruction and lossesaggregate;
(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 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 and employees or their Affiliates, and, "Associates" (as defined in any event, any such transaction was on fair and reasonable terms no less favorable to Rule 12b-2 under 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 thereofExchange Act);
(nxvi) the 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;
(oxvii) the The Company has not granted any increase in the base any compensation of any of its directors or directors, officers, or, except in the Ordinary Course of Business, any of its or other employees;
(pxviii) the 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 and employees (or taken any such action with respect to any other Employee Benefit Plan);
(qxix) the The Company has not made any other change in employment terms for any of its directors or directors, officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(rxx) 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 The Company has not made a change in or pledged to make any of its banking charitable or safe deposit arrangements;
(w) the Company has not entered into any transaction other than in capital contribution outside the Ordinary Course of Business;
(xxi) There has not been any other material occurrence, event, incident, action, failure to act, or transaction outside the Ordinary Course of Business involving the Company; and
(xxxii) the The Company has not become obligated increased, or experienced any change in assumptions underlying or method of calculating, any bad debt, contingency, tax or other reserves or changed its accounting practices, methods or assumptions (including changes in estimates or valuation methods); or written down the value of any assets; and
(xxiii) The Company has not committed to do any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Period End. Since June -------------------------------------------------- 30, 2000 (the "Most Recent Fiscal Period End") to the date hereof, there ----------------------------- has not been any material adverse change in the Business Condition of Material Adverse Effect with respect to the Company. Without limiting the generality of the foregoing, except as set forth in Schedule 5.1(h) and except as otherwise contemplated under this Agreement, --------------- since that datethe Most Recent Fiscal Period End:
(ai) neither the Company nor any of its Subsidiaries has not sold, leased, transferred, assigned or assigned otherwise disposed of any assets or propertiesof its assets, tangible or intangible, other than for a fair consideration in the Ordinary Course of Business;
(ii) neither the Company nor any of its Subsidiaries has entered into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, or licenses) either involving more than $250,000 or 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 Person (including the CompanyCompany and each of its Subsidiaries) has accelerated, terminated, made modifications tomodified, or canceled any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) involving more than $250,000 to which the Company or any of its Subsidiaries is a Party party or by which it is bound and bound;
(iv) neither the Company nor any of its Subsidiaries has not modifiedimposed any Security Interest upon any of its assets, canceled tangible or waived intangible;
(v) neither the Company nor any of its Subsidiaries has made any capital expenditure (or settled any debts series of related capital expenditures) either involving more than $100,000 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;
(dvi) none of the assets of the Company, tangible or intangible, has become subject to any Security Interest;
(e) neither the Company nor any of its Subsidiaries 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, or any acquisition of the securities or assets of, any other PersonPerson (or series of related capital investments, loans, and acquisitions) either involving more than $100,000 or outside the Ordinary Course of Business;
(gvii) neither the Company nor any of its Subsidiaries has not issued any note, bond, or other debt security or created, incurred, assumed, prepaid or guaranteed any indebtedness for borrowed money and or capitalized lease obligations, obligation either involving more than $50,000 individually or extended or modified any existing indebtedness$250,000 in the aggregate;
(hviii) neither the Company nor any of its Subsidiaries has not delayed or postponed the payment of accounts payable or other Liabilities outside the Ordinary Course of Business;
(ix) neither the Company nor any of its Subsidiaries has canceled, compromised, waived, or released any right or claim (or series of related rights and claims) either involving more than $100,000 or outside the Ordinary Course of Business;
(x) neither the Company nor any of its Subsidiaries has granted any license or sublicense of any rights under or with respect to any Company Intellectual PropertyProperty other than in the Ordinary Course of Business;
(ixi) there has been no change made or authorized in the Certificate of Incorporation charter or bylaws or other organizational documents of the CompanyCompany or any of its Subsidiaries;
(jxii) there neither the Company nor any of its Subsidiaries 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 the Company of any shares of any such capital stock 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 its capital stock;
(kxiii) neither the Company nor any of its Subsidiaries 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;
(xiv) neither the Company nor any of its Subsidiaries has 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 losses250,000;
(lxv) neither the Company nor any of its Subsidiaries 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, employees, or employees or their Affiliates, and, in any event, any such transaction was on fair and reasonable terms no less favorable to Affiliate thereof outside 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;
(nxvi) neither the Company nor any of its Subsidiaries 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;
(oxvii) neither the Company nor any of its Subsidiaries has not granted or agreed to make any increase in the base compensation of or remuneration payable or to become payable by the Company or any of its directors Subsidiaries to any of its or their directors, officers, or, except in and employees outside the Ordinary Course of Business, ;
(xviii) neither the Company nor any of its employees;
(p) the Company Subsidiaries has not adopted, amended, modified, or terminated any bonus, profit-profit sharing, incentive, severanceseverance (including early retirement and redundancy), or other plan, contract, or commitment for the benefit of any of its or their directors, officers, or and employees (or taken any such action with respect to any other Employee Benefit PlanPlan or any other arrangement for providing benefits to any employee or employees of a Subsidiary);
(qxix) neither the Company nor any of its Subsidiaries has not made any other change in employment terms for any of its directors or their directors, officers, and the Company has not made any other change in employment terms for any other employees outside the Ordinary Course of Business;
(rxx) neither 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, nor any of its major customers, distributors Subsidiaries has made or partnerspledged to make any charitable or other capital contribution outside the Ordinary Course of Business;
(sxxi) 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 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 transaction outside the Ordinary Course of a similar characterBusiness involving the Company or any of its Subsidiaries;
(u) the Company has not changed any of the accounting principles followed by it or the method of applying such principles;
(vxxii) the Company has not made a any change in the accounting methods or practices it follows, whether for general financial or tax purposes, or any of its banking change in depreciation or safe deposit arrangementsamortization policies or rates adopted therein other than changes required by changes in GAAP;
(wxxiii) the Company has not entered into (nor has any transaction other than Subsidiary) suffered any dispute involving any employee or former employee that may reasonably be expected to result in a Material Adverse Effect to the Ordinary Course of Business; andCompany;
(xxxiv) the Company has not become obligated (nor has any Subsidiary) received any notice of violation of any law, rule or regulation, of any Governmental Entity, nor received any claim for damages arising out of actual or alleged negligence or other tort, or breach of contract (whether or not fully covered by insurance); and
(xxv) neither the Company nor any of its Subsidiaries has committed or agreed, in writing or otherwise, to do any of the foregoingforgoing.
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Events Subsequent to Most Recent Fiscal Period End. Since the Most Recent Fiscal Period EndBalance Sheet Date, there has not been any material adverse change Material Adverse Effect or any development that can reasonably be expected to result in a Material Adverse Effect and each of the Company and its subsidiaries has conducted its business in the Business Condition ordinary course, consistent with past practices, including with respect to quantity and frequency (“Ordinary Course of the CompanyBusiness”). Without limiting the generality of the foregoing, except as set forth in Section 3.34 of the Disclosure Schedule, since that datethe Balance Sheet Date:
(a) neither the Company nor any of its subsidiaries has not sold, leased, transferred, or assigned any of its assets, other than immaterial assets sold, leased, transferred or properties, tangible or intangible, outside assigned in the Ordinary Course of Business;
(b) neither the Company nor any of its subsidiaries 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 either involving more than $10,000 per annum 50,000 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;
(c) no party (including the Company or any of its subsidiaries) has accelerated, terminated (other than upon the expiration of its term), modified, or canceled any Contract (or series of related contracts) involving more than $25,000 to which the Company or any of its subsidiaries is or was a party or by which it is or was bound;
(d) none neither the Company nor any of the assets its subsidiaries has imposed or suffered to exist any lien upon any of the Companyits assets, tangible or intangible, has become subject to any Security Interestother than Permitted Liens;
(e) neither the Company nor any of its subsidiaries 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, outside of the Ordinary Course of Business and not exceeding involving more than $10,000 in the aggregate of all such capital expenditures25,000;
(f) neither the Company nor any of its subsidiaries 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) either involving more than $10,000 or outside the Ordinary Course of Business;
(g) neither the Company nor any of its subsidiaries 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 obligations, obligations involving more than $10,000 singly or extended or modified any existing indebtedness$25,000 in the aggregate;
(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 by-laws of the CompanyCompany or any of its subsidiaries;
(i) neither the Company nor any of its subsidiaries has 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;
(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 neither the Company nor any 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 its subsidiaries has not experienced any damage, destruction, or loss (whether or not covered by insurance) to any material amount of the assets of the Company and its property in excess of $10,000 in the aggregate of all such damage, destruction and lossessubsidiaries taken as a whole;
(lk) neither the Company nor any of its subsidiaries 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, with or paid any bonuses in excess of an aggregate of $10,000 tofor the benefit of, any of the Company’s or its Affiliatessubsidiaries’ stockholders, directors, officers, or employees or their Affiliates, and, (except for payment of compensation to officers and employees 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);
(nl) neither the Company nor any of its subsidiaries 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 agreement 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 Benefit Plan;
(m) neither the benefit of Company nor any of its directors, officerssubsidiaries has discharged or satisfied any lien, or employees paid, canceled, compromised or otherwise satisfied any obligation, indebtedness or liability (absolute or taken any such action with respect to any contingent) other Employee Benefit Plan);
(q) than the Company has not made any other change payment in employment terms for any the Ordinary Course of its directors Business of current liabilities shown on the Balance Sheet or officers, and incurred since the Company has not made any other change date thereof in employment terms for any other employees outside the Ordinary Course of Business;
(rn) neither 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, nor any of its major customers, distributors subsidiaries has made any material change in any method of accounting or partnersany accounting practice;
(so) except as expressly contemplated by this Agreement there has not been any other transaction outside of the Ordinary Course of Business involving 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 supplierssubsidiaries;
(tp) neither 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 nor any of its banking subsidiaries has (i) increased the rate of compensation payable or safe deposit arrangements;
to become payable by it to any of its officers, directors, employees or agents, except for increases in the Ordinary Course of Business or required under the terms of employment agreements, (wii) granted, made or accrued any bonus, incentive compensation, service award or other like benefit, contingently or otherwise, to or for the Company has not entered into credit of any transaction of its officers, directors, employees or agents, other than in the Ordinary Course of Business, or made any employee welfare, pension, retirement, profit sharing or similar payment except pursuant to regularly scheduled payments required pursuant to the existing plans and arrangements described in the Disclosure Schedule or (iii) paid or granted any right to receive any material (either individually or in the aggregate) severance or termination pay to any officer, director, employee or agent outside the Ordinary Course of Business; and
(xq) neither the Company nor any of its subsidiaries has not become obligated entered into or made any contract, agreement or commitment to do any of the foregoing. The Company covenants and agrees that from the date hereof through the Closing Date, it will not, and it will cause its subsidiaries not to, take any action inconsistent with this Section 3.34.
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