Events Subsequent. (i) Since the Most Recent Fiscal Month End, the Business of the Seller has been operated in the Ordinary Course of Business and there has not been any material adverse change in the business, financial condition, operations or results of operations of the Seller and, to the Knowledge of the Seller, except as may arise as a result of the awareness, announcement or consummation of the transactions contemplated by this Agreement, no event has occurred or circumstance exists that is reasonably likely to result in such a material adverse change. (ii) Without limiting the generality of the foregoing clause (i), except as set forth in (section)3(h)(ii) of the Disclosure Schedule, since the Most Recent Fiscal Year End: (A) to the Knowledge of the Seller, no party (including the Seller) has accelerated, terminated, modified, or cancelled any agreement, contract, lease or license (or series of related agreements, contracts, leases and licenses) involving more than $25,000 to which the Seller is a party or by which it or the Acquired Assets is bound; (B) the Seller has not created, incurred, assumed or guaranteed any capitalized lease obligation in effect on the date hereof involving more than $25,000 in the aggregate; (C) the Seller has not delayed or postponed the payment of accounts payable or other Liabilities outside the Ordinary Course of Business; (D) the Seller has not granted any increase in the base compensation of any of its directors, officers or employees outside the ordinary course of business or made any other change in employment terms for any of its directors, officers or employees outside the Ordinary Course of Business; (E) to the Knowledge of the Seller, no material supplier, representative, distributor, lessee or lessor who is a party to a Contract included in the Assumed Liabilities or Acquired Assets has (A) terminated or given written notice of its intent to terminate its relationship with the Seller, or (B) threatened in writing to terminate its relationship with the Seller; (F) to the Knowledge of the Seller, no customer has (1) terminated or modified its relationship with the Seller in any material respect, (2) given notice (whether written or oral)or threatened to terminate or modify its relationship with the Seller in any material respect (including any material adjustments to such customer's off-invoice warranty allowances, if any), (3) made any return or series of returns of products of the Business which are materially in excess of typical returns from such customer or (4) given notice (whether written or oral) or threatened to make any such return materially in excess of typical returns from such customer; provided, however, that in the case of (1) and (2), fluctuations in purchase quantity in the ordinary course of business or due to seasonality of the Business, weather or other conditions affecting the industry generally, shall not be deemed to have modified a customer's relationship with the Seller; and (G) the Seller has not committed to any of the foregoing. (iii) Without limiting the generality of the foregoing clause (i), except as set forth in (section)3(h)(iii) of the Disclosure Schedule, since the Most Recent Month End: (A) except for inventory sold in the Ordinary Course of Business, the Seller has not sold, leased, transferred, or assigned any of its assets, tangible or intangible, with a value in excess of $15,000 individually or $25,000 in the aggregate other than for a fair consideration; (B) the Seller has not entered into any agreement, contract, lease, pricing arrangement or license (or series of related agreements, contracts, leases, pricing arrangements and licenses) involving more than $25,000; (C) the Seller has not imposed or permitted to be imposed any Security Interest upon any of the Acquired Assets which will remain in effect after the Closing; (D) the Seller has not made any capital expenditure (or series of related capital expenditures) involving more than $25,000; (E) the Seller has not made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans and acquisitions) involving more than $25,000, other than purchases of inventory from vendors in the ordinary course of business; (F) the Seller has not cancelled, compromised, waived, or released any right or claim (or series of related rights and claims) either involving more than $25,000 or outside the Ordinary Course of Business; (G) the Seller has not experienced any damage, destruction, or loss to the Acquired Assets (whether or not covered by insurance) in connection with which the Seller has repair or replacement costs in excess of $25,000 in the aggregate; (H) the Seller has not made any loan to, or entered into any other transaction with, any of its directors, officers, employees or stockholder outside the Ordinary Course of Business; (I) the 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; (J) the Seller 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 and employees (or taken any such action with respect to any other Employee Benefit Plan); (K) the Seller has not made or pledged to make any charitable or other capital contribution outside the Ordinary Course of Business; (L) the Seller has not changed any accounting method used by the Seller with respect to the Business; and (M) the Seller has not committed to any of the foregoing.
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Events Subsequent. (i) Since to the Most Recent Fiscal Month End, the Business Date of the Seller has been operated in Latest Balance Sheet. Except as contemplated by this Agreement, since the Ordinary Course date of Business and the Latest Balance Sheet, there has not been any material adverse change in the business, financial condition, operations or results of operations operations, or properties of the Seller and, to the Knowledge of the Seller, except as may arise Business and Target taken as a result of the awareness, announcement or consummation of the transactions contemplated by this Agreement, no event has occurred or circumstance exists that is reasonably likely to result in such a material adverse change.
(ii) whole. Without limiting the generality of the foregoing clause (i), except as set forth in (section)3(h)(ii) of the Disclosure Scheduleforegoing, since the Most Recent Fiscal Year Endthat date:
(Ai) neither Seller nor Target has entered into any Material Agreement outside the Ordinary Course of Business that is an Assumed Liability and that relates to the Knowledge any of the Seller, Acquired Assets;
(ii) no party (including the Seller) has accelerated, terminated, modified, or cancelled canceled any agreement, contract, lease or license (or series Material Agreement relating to any of related agreements, contracts, leases and licenses) involving more than $25,000 to which the Seller is a party or by which it or the Acquired Assets is bound;
(B) the Seller has not created, incurred, assumed or guaranteed any capitalized lease obligation in effect on the date hereof involving more than $25,000 in the aggregate;
(C) the Seller has not delayed or postponed the payment of accounts payable or other Liabilities outside the Ordinary Course of Business;
(Diii) Seller has not imposed any Security Interest upon any of the Acquired Assets, the imposition of which, individually or in the aggregate, would have a Material Adverse Effect;
(iv) Seller has not issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any indebtedness for borrowed money or capitalized lease obligation that is an Assumed Liability;
(v) Seller has not entered into any employment or collective bargaining agreement or modified the terms of any existing such agreement with respect to the Personal Lines Employees;
(vi) Seller has not granted any increase in the base compensation of any of its directors, officers or employees outside the ordinary course of business or made any other change in employment terms for any of its directors, officers or employees Personal Lines Employees outside the Ordinary Course of Business;
(Evii) to the Knowledge of the Seller, no material supplier, representative, distributor, lessee or lessor who is a party to a Contract included in the Assumed Liabilities or Acquired Assets has (A) terminated or given written notice of its intent to terminate its relationship with the Seller, or (B) threatened in writing to terminate its relationship with the Seller;
(F) to the Knowledge of the Seller, no customer has (1) terminated or modified its relationship with the Seller in any material respect, (2) given notice (whether written or oral)or threatened to terminate or modify its relationship with the Seller in any material respect (including any material adjustments to such customer's off-invoice warranty allowances, if any), (3) made any return or series of returns of products of the Business which are materially in excess of typical returns from such customer or (4) given notice (whether written or oral) or threatened to make any such return materially in excess of typical returns from such customer; provided, however, that in the case of (1) and (2), fluctuations in purchase quantity in the ordinary course of business or due to seasonality of the Business, weather or other conditions affecting the industry generally, shall not be deemed to have modified a customer's relationship with the Seller; and
(G) the Seller has not committed to any of the foregoing.
(iii) Without limiting the generality of the foregoing clause (i), except as set forth in (section)3(h)(iii) of the Disclosure Schedule, since the Most Recent Month End:
(A) except for inventory sold in the Ordinary Course of Business, the Seller has not sold, leased, transferred, or assigned any of its assets, tangible or intangible, with a value in excess of $15,000 individually or $25,000 in the aggregate other than for a fair consideration;
(B) the Seller has not entered into any agreement, contract, lease, pricing arrangement or license (or series of related agreements, contracts, leases, pricing arrangements and licenses) involving more than $25,000;
(C) the Seller has not imposed or permitted to be imposed any Security Interest upon any of the Acquired Assets which will remain in effect after the Closing;
(D) the Seller has not made any capital expenditure (or series of related capital expenditures) involving more than $25,000;
(E) the Seller has not made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans and acquisitions) involving more than $25,000, other than purchases of inventory from vendors in the ordinary course of business;
(F) the Seller has not cancelled, compromised, waived, or released any right or claim (or series of related rights and claims) either involving more than $25,000 or outside the Ordinary Course of Business;
(G) the Seller has not experienced any damage, destruction, or loss to the Acquired Assets (whether or not covered by insurance) in connection with which the Seller has repair or replacement costs in excess of $25,000 in the aggregate;
(H) the Seller has not made any loan to, or entered into any other transaction with, any of its directors, officers, employees or stockholder outside the Ordinary Course of Business;
(I) the 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;
(J) the Seller has not adopted, amended, modified, modified or terminated any bonus, profit-sharing, incentive, severance severance, or other plan, contract, or commitment for the benefit of any of its directors, officers and employees the Personal Lines Employees (or taken any such action with respect to any other Employee Benefit Plan);
(K) the Seller has not made or pledged to make any charitable or other capital contribution that is an Assumed Liability outside the Ordinary Course of Business;
(L) the Seller has not changed any accounting method used by the Seller with respect to the Business; and
(Mviii) the Seller has not committed entered into any amendment, modification, termination, alteration, sublease agreements or assignments regarding or affecting any lease dealing with real estate which are Assumed Liabilities and relate to any of Acquired Assets. Nothing in this Section 7(c) or elsewhere in this Agreement shall prohibit Seller from causing Target to assume the foregoingAssumed Liabilities prior to the Closing.
Appears in 1 contract
Events Subsequent. (ia) Since the Most Recent Fiscal Month End, the Business Except as set forth on Schedule 2.8(a) of the Seller Disclosure Schedules, since December 31, 2009 through the date hereof, there has been not been, and no event or circumstance has occurred that could reasonably be expected to have, any Material Adverse Effect on Parent or any Seller, except for the transactions contemplated hereby, and Parent and each Seller have operated the Business only in the Ordinary Course of Business and Business.
(b) Except as set forth on Schedule 2.8(b) of the Seller Disclosure Schedules, since December 31, 2009 through the date hereof, there has not been any material adverse change in any:
(i) damage, destruction or other casualty, whether or not covered by insurance, materially affecting the business, financial condition, operations Business or results of operations of the Seller and, to the Knowledge of the Seller, except as may arise as a result of the awareness, announcement or consummation of the transactions contemplated by this Agreement, no event has occurred or circumstance exists that is reasonably likely to result in such a material adverse change.Purchased Assets;
(ii) Without limiting material decrease in the generality value of any of the foregoing clause (i)Purchased Assets, except as set forth in (section)3(h)(ii) of the Disclosure Schedule, since the Most Recent Fiscal Year End:
(A) to the Knowledge of the Seller, no party (including the Seller) has accelerated, terminated, modified, or cancelled any agreement, contract, lease or license (or series of related agreements, contracts, leases and licenses) involving more other than $25,000 to which the Seller is a party or by which it or the Acquired Assets is boundordinary depreciation consistent with past practices;
(Biii) Lien imposed or created on any of the Seller has not created, incurred, assumed or guaranteed any capitalized lease obligation in effect on the date hereof involving more than $25,000 in the aggregatePurchased Assets;
(Civ) change in any of the accounting principles adopted by any Seller, or any change in any Seller’s accounting policies, procedures, practices or methods with respect to applying such principles;
(v) transaction or commitment made, or Contract entered into, by Parent or any Seller, or assignment, termination, modification or amendment by Parent or any Seller has not delayed of any Contract, in either case, primarily relating to the Business or postponed the payment of accounts payable Purchased Assets, other than transactions, commitments, Contracts, assignments, terminations, modifications or other Liabilities outside amendments made in the Ordinary Course of Business;
(Dvi) written notice or other written expression to Parent or any Seller of the Seller has not granted any increase in the base compensation non-renewal of any Material Contract or any party’s intention not to renew any Material Contract, or to the Knowledge of its directorsParent or any Seller, officers notice or employees outside other written expression to Parent or any Seller of the ordinary course non-renewal of business any Assumed Contract (other than a Material Contract) or made any party’s intention not to renew any Assumed Contract (other change than a Material Contract);
(vii) notice to Parent or any Seller that any Contract to which such Parent or any Seller was or is a party, and which relates primarily to the Business, has been breached, repudiated or terminated or will be breached, repudiated or terminated;
(viii) sale or other disposition of assets used primarily with respect to the Business and that are owned, held or used by Parent or any Seller other than in employment terms for any of its directors, officers or employees outside the Ordinary Course of Business;
(Eix) cancellation, compromise, settlement, waiver or release primarily related to the Knowledge of the Seller, no material supplier, representative, distributor, lessee Business by Parent or lessor who is a party to a Contract included any Seller (x) other than in the Assumed Liabilities Ordinary Course of Business of any Proceeding (or Acquired Assets has a series of related Proceedings) or (y) involving an amount in excess of Fifty Thousand Dollars ($50,000) in the aggregate;
(x) (A) terminated increase in the compensation or given written notice fringe benefits of its intent to terminate its relationship with the Sellerany present or former director, officer, employee or (B) threatened in writing to terminate its relationship with the Seller;
(F) to the Knowledge consultant of the Seller, no customer has (1) terminated Parent or modified its relationship with the any Seller in any material respect, (2) given notice (whether written or oral)or threatened to terminate or modify its relationship with the Seller in any material respect (including any material adjustments to such customer's off-invoice warranty allowances, if any), (3) made any return or series of returns of products of who works primarily for the Business which are materially in excess of typical returns from such customer or (4) given notice (whether written or oral) or threatened to make any such return materially in excess of typical returns from such customer; provided, however, that in the case of (1) and (2), fluctuations in purchase quantity in the ordinary course of business or due to seasonality of the Business, weather or other conditions affecting the industry generally, shall not be deemed to have modified a customer's relationship with the Seller; and
(G) the Seller has not committed to any of the foregoing.
(iii) Without limiting the generality of the foregoing clause (i), except as set forth in (section)3(h)(iii) of the Disclosure Schedule, since the Most Recent Month End:
(A) except for inventory sold increases in salary or wages in the Ordinary Course of Business), the Seller has not sold, leased, transferred, or assigned any of its assets, tangible or intangible, with a value in excess of $15,000 individually or $25,000 in the aggregate other than for a fair consideration;
(B) grant of any severance or termination pay to any present or former director, officer or employee of Parent or any Seller who works primarily for the Seller has not entered into any agreementBusiness, contract, lease, pricing arrangement or license (or series of related agreements, contracts, leases, pricing arrangements and licenses) involving more than $25,000;
(C) the Seller has not imposed establishment, adoption, entrance into, amendment or permitted to be imposed termination of any Security Interest upon any of the Acquired Assets which will remain in effect after the Closing;
Employee Benefit Plan or collective bargaining agreement (D) the Seller has not made any capital expenditure (or series of related capital expenditures) involving more than $25,000;
(E) the Seller has not made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans and acquisitions) involving more than $25,000, other than purchases as may be required by the terms of inventory from vendors in the ordinary course of business;
(F) the Seller has not cancelled, compromised, waived, or released any right or claim (or series of related rights and claims) either involving more than $25,000 or outside the Ordinary Course of Business;
(G) the Seller has not experienced any damage, destruction, or loss to the Acquired Assets (whether or not covered by insurance) in connection with which the Seller has repair or replacement costs in excess of $25,000 in the aggregate;
(H) the Seller has not made any loan to, or entered into any other transaction with, any of its directors, officers, employees or stockholder outside the Ordinary Course of Business;
(I) the Seller has not entered into any employment contract an existing Employee Benefit Plan or collective bargaining agreement, written or oralas may be required by Applicable Law or in order to maintain its qualification under Sections 401 and 501 of the Code or to provide for the effects of Section 409A of the Code), or modified the terms (D) grant of any existing such contract equity or agreement;
equity-based awards, in the case of each of clauses (JA), (B), (C) the Seller has not adoptedor (D) above, 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 and employees (or taken any such action with respect to any other Employee Benefit Plan);
(K) the Seller has not made or pledged to make any charitable or other capital contribution outside than in the Ordinary Course of Business;Business or as may be required under Applicable Law; or
(Lxi) the Seller has not changed any accounting method used by the Seller with respect agreement, whether in writing or otherwise, to the Business; and
(M) the Seller has not committed to do any of the foregoing.
Appears in 1 contract
Events Subsequent. Except as indicated on Schedule 3.09 of the Seller Disclosure Schedules:
(a) Since October 1, 2012 through the Effective Date, (i) Since there has not been any Material Adverse Effect on the Most Recent Fiscal Month EndAM Business, taken as a whole, (ii) no event has occurred, whether individually or in the aggregate, that would reasonably be expected to result in a Material Adverse Effect on the AM Business, taken as a whole, and (iii) except for the Transactions, the AM Business of the Seller has been operated only in the Ordinary Course of Business and Business.
(b) Since October 1, 2012 through the Effective Date, there has not been any:
(i) damage, destruction or other casualty, whether or not covered by insurance, materially affecting the AM Business or any material adverse change in failure to take commercially reasonable actions necessary to maintain the business, financial condition, operations or results of operations of the Seller and, to the Knowledge of the Seller, except as may arise as a result of the awareness, announcement or consummation of the transactions contemplated by this Agreement, no event has occurred or circumstance exists that is reasonably likely to result in such a material adverse change.AM Business;
(ii) Without limiting the generality transaction or commitment made, or Assumed Contract entered into, or termination, amendment or modification of the foregoing clause (i)any Assumed Contract, except as set forth in (section)3(h)(ii) of the Disclosure Scheduleeither case, since the Most Recent Fiscal Year End:
(A) that is material to the Knowledge of the SellerAM Business, no party (including the Seller) has acceleratedother than transactions, terminatedcommitments, modifiedContracts, terminations, amendments or cancelled any agreement, contract, lease or license (or series of related agreements, contracts, leases and licenses) involving more than $25,000 to which the Seller is a party or by which it or the Acquired Assets is bound;
(B) the Seller has not created, incurred, assumed or guaranteed any capitalized lease obligation modifications made in effect on the date hereof involving more than $25,000 in the aggregate;
(C) the Seller has not delayed or postponed the payment of accounts payable or other Liabilities outside the Ordinary Course of Business;
(Diii) the Seller has not granted any increase sale or other disposition of material assets (other than Intellectual Property Rights, which are addressed in subsection (iv) below) that are primarily used in the base compensation operation of any of its directors, officers or employees outside the ordinary course of business or made any AM Business other change than in employment terms for any of its directors, officers or employees outside the Ordinary Course of Business;
(Eiv) sale or grant of exclusive licenses under Assigned IPR or to the Knowledge of the Seller, no material supplier, representative, distributor, lessee or lessor who is a party to a Contract included in the Assumed Liabilities or Acquired Assets has (A) terminated or given written notice of its intent to terminate its relationship with the SellerAssigned Technology, or (B) threatened in writing sale or grant of exclusive licenses under Seller Licensed IPR or to terminate Seller Licensed Technology without retaining the right to grant licenses to Spansion LLC and its relationship with the Seller;
(F) to the Knowledge of the Seller, no customer has (1) terminated or modified its relationship with the Seller in any material respect, (2) given notice (whether written or oral)or threatened to terminate or modify its relationship with the Seller in any material respect (including any material adjustments to such customer's off-invoice warranty allowances, if any), (3) made any return or series of returns of products of the Business which are materially in excess of typical returns from such customer or (4) given notice (whether written or oral) or threatened to make any such return materially in excess of typical returns from such customer; provided, however, that in the case of (1) and (2), fluctuations in purchase quantity in the ordinary course of business or due to seasonality of the Business, weather or other conditions affecting the industry generally, shall not be deemed to have modified a customer's relationship with the Seller; and
(G) the Seller has not committed to any of the foregoing.
(iii) Without limiting the generality of the foregoing clause (i), except Affiliates as set forth in the IP License Agreement;
(section)3(h)(iiiv) cancellation, compromise, settlement, waive or release of any obligations of any Seller Party material to the AM Business that would be included in the Transferred Assets or the Assumed Liabilities involving an amount in excess of Twenty Million Yen (¥20,000,000);
(vi) (x) establishment, adoption, entrance into, amendment or termination of any Employee Benefit Plan or collective bargaining agreement, (other than (i) an amendment of the collective bargaining agreement between Fujitsu and the labor union representing certain Targeted Employees employed by Fujitsu, (ii) an amendment of the collective bargaining agreement between FVLSI and the labor union representing certain Targeted Employees employed by FVLSI and (iii) an amendment of the collective bargaining agreement between FMSL and the labor union representing certain Targeted Employees employed by FMSL, which amendments are listed in Schedule 3.16(b) of the Seller Disclosure ScheduleSchedules), since the Most Recent Month End:
(Ay) grant of any equity or equity-based awards or (z) general increase in salary, compensation or other benefits (except for inventory sold in the Ordinary Course of Business), the Seller has not sold, leased, transferred, in each case benefiting or assigned affecting any of its assets, tangible or intangible, with a value in excess of $15,000 individually or $25,000 in the aggregate other than for a fair considerationAM Business Employee;
(Bvii) Encumbrance on any of the Seller has not entered into any agreementTransferred Assets, contract, lease, pricing arrangement or license (or series of related agreements, contracts, leases, pricing arrangements and licenses) involving more than $25,000except for Permitted Encumbrances;
(Cviii) breach, default or violation with respect to any material obligation of any Seller Party relating to the Seller has not imposed or permitted to be imposed any Security Interest upon any operation of the Acquired Assets which will remain in effect after the ClosingAM Business;
(Dix) the Seller has not made any capital expenditure (return or series repurchase of related capital expenditures) involving more than $25,000;
(E) the Seller has not made any capital investment in, any loan to, products or any acquisition services of the securities AM Business from customers or assets of, any other Person (or series of related capital investments, loans and acquisitions) involving more than $25,000, distributors other than purchases of inventory from vendors in the ordinary course of business;
(F) the Seller has not cancelled, compromised, waived, or released any right or claim (or series of related rights and claims) either involving more than $25,000 or outside the Ordinary Course of Business;
(Gx) failure to maintain (other than as a result of rejection by the Seller has not experienced any damage, destructionapplicable Governmental Body), or loss allowance to the Acquired Assets (whether or not covered by insurance) in connection with which the Seller has repair or replacement costs in excess of $25,000 in the aggregate;
(H) the Seller has not made any loan tolapse, or entered into abandonment, including by failure to pay the required fees in any jurisdiction, of any Assigned IPR, other transaction with, any of its directors, officers, employees or stockholder outside than in the Ordinary Course of Business;; or
(Ixi) the Seller has not entered into any employment contract agreement or collective bargaining agreementcommitment, written whether in writing or oralotherwise, or modified the terms of any existing such contract or agreement;
(J) the Seller 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 and employees (or taken any such action with respect to any other Employee Benefit Plan);
(K) the Seller has not made or pledged to make any charitable or other capital contribution outside the Ordinary Course of Business;
(L) the Seller has not changed any accounting method used by the Seller with respect to the Business; and
(M) the Seller has not committed to do any of the foregoing.
Appears in 1 contract
