Financial Statements; Absence of Certain Changes. (a) Section 3.7(a) of the Disclosure Schedule contains (i) the Statement of Assets and Liabilities of the Snapple Business as of December 31, 1996 (the "Statement of Assets and Liabilities") and (ii) the Financial Summary-Direct Contribution of the Snapple Business for the year ended December 31, 1995 and the year ended December 31, 1996 (collectively, the "Financial Statements"). (b) Except as noted in the Financial Statements or in the Notes thereto, or otherwise set forth in this Section 3.7(b) or in Section 3.7(b) of the Disclosure Schedule, the Financial Statements: (i) have been derived from the consolidated financial statements of Seller; (ii) have been prepared in accordance with GAAP and Seller's internal accounting procedures, applied on a consistent basis for all periods presented and on a basis consistent with Seller's audited consolidated financial statements and unaudited interim financial statements; and (iii) fairly present, in all material respects, the assets and liabilities of the Snapple Business to be transferred and assumed hereunder through the purchase of the Shares as of the date set forth therein and the direct contribution of the Snapple Business for the periods indicated. NYFS09...:\69\68669\0030\165\AGRN266W.00J (c) Except (i) as set forth in the Financial Statements or in the Notes thereto, (ii) as set forth in Section 3.7(c) of the Disclosure Schedule or in any other Section of the Disclosure Schedule, (iii) for liabilities and obligations incurred in the ordinary course of business and (iv) for indebtedness, obligations or liabilities addressed in any other representation or warranty set forth in this Article III (including items which need not be disclosed pursuant to the terms of such representations and warranties), as of the date hereof, to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or liabilities of any kind (whether accrued, absolute, contingent or otherwise) that, individually or in the aggregate, would have a Material Adverse Effect with respect to Snapple. (d) Except as set forth in Section 3.7(d) of the Disclosure Schedule, since December 31, 1996, the Snapple Business has been conducted only in the ordinary course, and, as of the date hereof, there have not been any changes or developments that, individually or in the aggregate, would have a Material Adverse Effect with respect to Snapple.
Appears in 1 contract
Financial Statements; Absence of Certain Changes. (a) Attached as Section 3.7(a2.05(a) of the Disclosure Schedule contains Schedules are copies of the audited statements of net assets and the related profit and loss statements relating to the Business as of May 28, 2006 and May 27, 2007 (the “Audited Statements”), and the unaudited profit and loss statements relating to the Business as of May 25, 2008 (the “Latest P&L Statement” and, together with the Audited Statements, the “P&L Statements”). The Audited Statements (i) the Statement of Assets and Liabilities of the Snapple Business as of December 31, 1996 (the "Statement of Assets and Liabilities") and (ii) the Financial Summary-Direct Contribution of the Snapple Business for the year ended December 31, 1995 and the year ended December 31, 1996 (collectively, the "Financial Statements").
(b) Except as noted in the Financial Statements or in the Notes thereto, or otherwise set forth in this Section 3.7(b) or in Section 3.7(b) of the Disclosure Schedule, the Financial Statements:
(i) have been are derived from the consolidated financial statements books and records of Seller;
, (ii) have been prepared in accordance with GAAP U.S. generally accepted accounting principles (“GAAP”), consistently applied by Seller and Seller's internal accounting procedures, applied on a consistent basis for all periods presented and on a basis consistent with Seller's audited consolidated financial statements and unaudited interim financial statements; and
(iii) fairly present, in all material respects, the assets revenues and liabilities expenses of the Snapple Business to be transferred (excluding income tax expenses and assumed hereunder through the purchase of the Shares as of the date set forth therein and the direct contribution of the Snapple Business interest expense on corporate borrowings) for the periods indicatedindicated in such statements. NYFS09...:\69\68669\0030\165\AGRN266W.00J
(c) Except The Latest P&L Statement (i) is derived from the books and records of Seller and (ii) fairly presents, in all material respects, the revenues and direct expenses of the Business (excluding income tax expenses and interest expense on corporate borrowings) for the periods indicated in such statement. The Latest P&L Statement does not include certain expenses related to the operation of the Business such as set forth indirect or allocated corporate expenses.
(b) Since May 26, 2008, Seller has conducted the Business only in the Financial Statements or in ordinary course consistent with past practice and (i) there has not occurred a Material Adverse Effect on the Notes theretoBusiness, (ii) as set forth in Section 3.7(c) the Business has not made or entered into any contract or letter of the Disclosure Schedule intent with respect to any acquisition, sale or in transfer of any Purchased Asset other Section of the Disclosure Schedule, (iii) for liabilities and obligations incurred than in the ordinary course of business and the Business, (iii) except as required by GAAP, there has not occurred any change in accounting methods or practices (including any change in depreciation or amortization policies or rates or revenue recognition policies) by Seller in connection with the Business, (iv) for indebtednessSeller, obligations in connection with the Business, has not entered into, amended or liabilities addressed terminated any of the Purchased Contracts other than customer purchase orders, vendor purchase orders and Trade Programs and Consumer Programs, each of which may be entered into, amended or terminated in any other representation or warranty the ordinary course of the Business, and the supply agreement set forth in this Article III (including items which need not be disclosed pursuant to the terms of such representations and warranties), as of the date hereof, to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or liabilities of any kind (whether accrued, absolute, contingent or otherwise) that, individually or in the aggregate, would have a Material Adverse Effect with respect to Snapple.
(d) Except as set forth in on Section 3.7(d2.05(b) of the Disclosure ScheduleSchedules, since December 31which may be entered into on substantially the terms set forth on Section 2.05(b) of the Disclosure Schedules and there has not occurred any default under any of the Purchased Contracts, 1996(v) Seller, in connection with the Snapple Business Business, has not made any material change in the manner in which it extends discounts, credits or warranties to customers or otherwise deals with its customers and (vi) there has been conducted only in no material damage, destruction or loss with regard to the ordinary coursePurchased Equipment, and, as of the date hereof, there have whether or not been any changes or developments that, individually or in the aggregate, would have a Material Adverse Effect with respect to Snapplecovered by insurance.
Appears in 1 contract
Financial Statements; Absence of Certain Changes. Seller has delivered to Buyer, or will deliver to the Buyer on or before the Closing Date, the following financial statements, copies of which are attached hereto as Schedule 3.8 (a) Section 3.7(a) of the Disclosure Schedule contains “Financial Statements”):
(i) the Statement Financial statements of Assets and Liabilities of the Snapple Business as of December 31, 1996 (the "Statement of Assets and Liabilities") and (ii) the Financial Summary-Direct Contribution of the Snapple Business Seller for the year twelve months ended December 31, 1995 and the year ended December 312015, 1996 (collectively, the "Financial Statements").
(b) Except as noted in the Financial Statements or in the Notes thereto, or otherwise set forth in this Section 3.7(b) or in Section 3.7(b) of the Disclosure Schedule, the Financial Statements:
(i) have been derived from the consolidated financial statements of Seller;and
(ii) Financial statements for year to date for the period ending the month immediately preceding the Closing Date. Said financial statements have been prepared in accordance with GAAP prepared, are complete and Seller's internal accounting procedures, applied on a consistent basis for all periods presented and on a basis consistent with Seller's audited consolidated financial statements and unaudited interim financial statements; and
(iii) fairly present, correct in all material respects, and present fairly the assets and liabilities financial condition of Seller at the Snapple Business to be transferred and assumed hereunder through the purchase dates of the Shares as of the date set forth therein said statements and the direct contribution results of the Snapple Business its operations and its cash flows for the periods indicatedcovered thereby. NYFS09...:\69\68669\0030\165\AGRN266W.00J
Since December 31, 2015, (ca) Except (i) as set forth there has been no change in the assets, liabilities or financial condition of the assets of the Seller from that reflected in the Financial Statements or in the Notes thereto, (ii) as set forth in Section 3.7(c) of the Disclosure Schedule or in any other Section of the Disclosure Schedule, (iii) except for liabilities and obligations incurred changes in the ordinary course of business consistent with past practice and which have not had a Material Adverse Effect and (ivb) for indebtednessto the Seller’s knowledge, obligations none of the business, prospects, financial condition, operations, property or liabilities addressed affairs of the Seller has been materially adversely affected by any occurrence or development, individually or in any other representation the aggregate, whether or warranty not insured against.
(a) Except as set forth in this Article III (including items which need not be disclosed pursuant to the terms of such representations and warranties)on Schedule 3.8, as of the date hereofClosing, to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or Seller has no known liabilities of any kind (nature, whether accrued, absolute, contingent or otherwise) that, individually asserted or in the aggregateunasserted, would have a Material Adverse Effect (including without limitation liabilities as guarantor or otherwise with respect to Snapple.
(d) Except as set forth obligations of others, or liabilities for taxes due or then accrued or to become due or contingent or potential liabilities relating to activities of Seller or the conduct of its business prior to the Closing regardless of whether claims in Section 3.7(d) of the Disclosure Schedule, since December 31, 1996, the Snapple Business has respect thereof had been conducted only in the ordinary course, and, asserted as of the date hereof, there have not been any changes or developments that, individually or in the aggregate, would have a Material Adverse Effect with respect to Snapplesuch date).
Appears in 1 contract
Samples: Asset Purchase Agreement
Financial Statements; Absence of Certain Changes. Each of (a) Section 3.7(a) the unaudited statement of liabilities of the Disclosure Schedule contains (i) the Statement of Assets and Liabilities of the Snapple Business Company as of December 31September 30, 1996 (the "Statement of Assets and Liabilities") and (ii) the Financial Summary-Direct Contribution of the Snapple Business for the year ended December 312006, 1995 and the year ended December 31, 1996 (collectively, the "Financial Statements").
(b) Except as noted the unaudited statements of income, retained earnings and cash flows of the Company for the period ended on September 30, 2006, and (c) the unaudited statements of income, retained earnings and cash flows of the Company for the period ended on September, 2006, included in the Financial Statements or in Company Disclosure (including any related notes and schedules, if any), (the Notes thereto, or otherwise set forth in this Section 3.7(b) or in Section 3.7(b) of the Disclosure Schedule, the “Financial Statements:
(i) have been derived from the consolidated financial statements of Seller;
(ii) have been prepared in accordance with GAAP and Seller's internal accounting procedures, applied on a consistent basis for all periods presented and on a basis consistent with Seller's audited consolidated financial statements and unaudited interim financial statements; and
(iii”) fairly presentpresents, in all material respects, the assets and liabilities financial position of the Snapple Business to be transferred and assumed hereunder through Company, or the purchase results of operations, retained earnings or cash flows, as the case may be, of the Shares Company as of the referenced date or for the periods set forth therein and (subject to normal year-end audit adjustments which would not be material in amount or effect), in each case (other than the direct contribution statement of the Snapple Business for liabilities) in accordance with generally accepted accounting principles consistently applied during the periods indicatedinvolved, except as may be noted therein and that the unaudited statements may not contain all footnotes required by generally accepted accounting principles. NYFS09...:\69\68669\0030\165\AGRN266W.00J
(c) Except (i) as set forth in Neither the Financial Statements Company nor any Subsidiary has any liabilities or in the Notes thereto, (ii) as set forth in Section 3.7(c) of the Disclosure Schedule or in any other Section of the Disclosure Schedule, (iii) for liabilities and obligations incurred in the ordinary course of business and (iv) for indebtedness, obligations or liabilities addressed in any other representation or warranty set forth in this Article III (including items which need not be disclosed pursuant to the terms of such representations and warranties), as of the date hereof, to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or liabilities of any kind nature (whether accrued, absolute, contingent or otherwise), including for taxes, that would be required to be reflected on, or reserved against in, Financial Statements, except for (i) thatliabilities or obligations that were so reserved on, or reflected in (including the notes to), the Financial Statements; and (ii) liabilities or obligations which would not, individually or in the aggregate, would have a Material Adverse Effect with respect to Snapple.
(d) Except Effect. Other than the indebtedness as set forth in Section 3.7(d) of the Disclosure ScheduleFinancial Statements or the Company Disclosure, since December 31, 1996, neither the Snapple Business Company nor any Subsidiary has been conducted only in the ordinary course, and, indebtedness as of the date hereof. Except as specifically contemplated by this Agreement or as set forth in the Company Disclosure and the Financial Statements, there have has not been any changes or developments that, individually or in the aggregate, would have a Material Adverse Effect with respect to SnappleChange since September 30, 2006.
Appears in 1 contract
Financial Statements; Absence of Certain Changes. (a) Section 3.7(a2.4(a) of the Seller Disclosure Schedule contains includes complete and accurate copies of (i) the Statement of Assets and Liabilities unaudited balance sheet of the Snapple Business as of at December 31, 1996 2014 (the "“Statement Date”), and the related unaudited income statements of Assets and Liabilities") the Business for the fiscal year then ended; and (ii) the Financial Summary-Direct Contribution unaudited balance sheet of the Snapple Business at May 31, 2015, and the unaudited income statements of the Business for the year five-month period then ended December 31, 1995 and the year ended December 31, 1996 (such financial statements collectively, the "“Seller Financial Statements"”). The Seller Financial Statements have been prepared from, and are in accordance with, the books and records of the Business and present accurately and fairly in all material respects the financial condition and results of operations of the Business as of the dates thereof and for the periods then ended in accordance with GAAP, consistently applied throughout the periods covered thereby, except that, the Seller Financial Statements are subject to normal recurring year-end audit adjustments, and do not include footnotes required under GAAP.
(b) Except as noted set forth in Section 2.4(b) of the Seller Disclosure Schedule, since the Statement Date, (a) there have been no material changes in the Financial Statements assets, Liabilities or financial condition of the Business from that reflected in Section 2.4(a) of the Seller Disclosure Schedule, except for changes in the ordinary course of business or changes and Liabilities relating to this Agreement and the transactions contemplated herein, (b) there has occurred no event or development which, individually or in the Notes theretoaggregate, or otherwise set forth in this Section 3.7(bhas had, a Seller Material Adverse Effect, and (c) or in Section 3.7(b) Seller has not taken any of the Disclosure Schedule, following actions with respect to the Financial StatementsBusiness:
(i) have been derived from acquired, sold, leased, licensed or otherwise disposed of any assets or property other than in the consolidated financial statements ordinary course of Sellerbusiness consistent with past practice;
(ii) have been prepared in accordance with GAAP and Seller's internal accounting procedurescreated, applied on a consistent basis for all periods presented and on a basis consistent with Seller's audited consolidated financial statements and unaudited interim financial statementsincurred, assumed or guaranteed any Indebtedness; andor made any loans, advances or capital contributions to, or investments in, any other Person;
(iii) fairly present, in all material respects, the assets and liabilities created or permitted to suffer to exist any Liens (other than Permitted Liens) on any of the Snapple Business to be transferred and assumed hereunder through the purchase Purchased Assets;
(iv) paid, discharged or satisfied any Liabilities of the Shares as of the date set forth therein and the direct contribution of the Snapple Business for the periods indicated. NYFS09...:\69\68669\0030\165\AGRN266W.00J
(c) Except (i) as set forth in the Financial Statements Business, other than any such payment, discharge or in the Notes thereto, (ii) as set forth in Section 3.7(c) of the Disclosure Schedule or in any other Section of the Disclosure Schedule, (iii) for liabilities and obligations incurred satisfaction made in the ordinary course of business and consistent with past practice;
(ivv) for indebtednesschanged the compensation payable to any Seller Employee; entered into, obligations adopted or liabilities addressed amended any employment, severance or other agreement with any Seller Employee; or adopted, amended or increased the benefits under any Employee Plan, except, in each case, (x) as required by law or (y) in accordance with the existing agreements listed in Section 2.4(b)(v) of the Seller Disclosure Schedule;
(vi) amended, terminated, canceled, or taken or omitted to take any action that would constitute a material violation of, material default under or material waiver of any material rights under, any Acquired Agreement;
(vii) entered into any contracts or commitments related to the Business involving potential payments by Seller in any other representation single instance of $25,000 or warranty set forth in this Article III (including items which need not be disclosed pursuant to the terms of such representations and warranties)more, as of the date hereof, to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or liabilities of any kind (whether accrued, absolute, contingent or otherwise) that, individually or in the aggregateaggregate of $50,000 or more, would have a Material Adverse Effect with respect to Snapple.
(d) Except as set forth in Section 3.7(d) except for contracts or commitments for the purchase of the Disclosure Scheduleservices, since December 31, 1996, the Snapple Business has been conducted only supplies or materials in the ordinary coursecourse of business consistent with past practices;
(viii) changed any of Seller’s accounting methods, andprinciples or practices, as or billing or collection policies used by Seller in connection with the Business;
(ix) incurred any material damage, destruction or loss, whether or not covered by insurance, affecting the Purchased Assets or the Business;
(x) adopted a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring or other reorganization; or
(xi) entered into any agreements or understandings, whether in writing or otherwise, to take any of the date hereofactions specified in paragraphs (i) through (x) above, there have not been any changes or developments that, individually or in the aggregate, would have a Material Adverse Effect with respect to Snappleexcept as specifically contemplated hereby.
Appears in 1 contract
Financial Statements; Absence of Certain Changes. (a) Section 3.7(a) Scalable Software has delivered to NEON Systems true and complete copies of the Disclosure Schedule contains (i) the Statement audited balance sheet of Assets and Liabilities of the Snapple Business Scalable Software as of December 31, 1996 1999, December 31, 2000, and December 31, 2001 and the related statements of operations and cash flows for the period from inception (the "Statement of Assets and Liabilities"January 29, 1999) and (ii) the Financial Summary-Direct Contribution of the Snapple Business for through December 31, 1999, the year ended December 31, 1995 2000, and the year ended December 31, 1996 2001 (collectively, the "Scalable Software Financial Statements").
(b) Except as noted in the The Scalable Software Financial Statements or in the Notes thereto, or otherwise set forth in this Section 3.7(b) or in Section 3.7(b) of the Disclosure Schedule, the Financial Statements:
(i) have been derived from the consolidated financial statements of Seller;
(ii) have been prepared in accordance with GAAP and Seller's internal accounting proceduresGAAP, applied on a consistent basis for all periods presented and on a basis consistent with Seller's audited consolidated financial statements and unaudited interim financial statements; and
(iii) fairly present, in all material respects, the assets and liabilities of the Snapple Business to except as may be transferred and assumed hereunder through the purchase of the Shares as of the date set forth indicated therein and the direct contribution of the Snapple Business for the periods indicated. NYFS09...:\69\68669\0030\165\AGRN266W.00J
(c) Except (i) as set forth in the Financial Statements or in the Notes notes thereto), (ii) as set forth in from the books and records of Scalable Software and present fairly the financial position of Scalable Software. Section 3.7(c) 4.7 of the Disclosure Schedule lists all present liabilities or in any other Section of the Disclosure Schedule, (iii) for liabilities and obligations incurred in the ordinary course of business and (iv) for indebtedness, obligations or liabilities addressed in any other representation or warranty set forth in this Article III (including items which need not be disclosed pursuant to the terms of such representations and warranties), as of the date hereof, to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or liabilities of any kind nature (whether accrued, absolute, contingent fixed, contingent, liquidated or otherwiseunliquidated or otherwise and whether due or to become due) thatof Scalable Software which (i) exceed or reasonably could be expected to exceed $10,000 and (ii) either had been incurred prior to September 30, individually or 2001, but are not reflected on the December 31, 2001 balance sheet included in the aggregateScalable Software Financial Statements, would have a Material Adverse Effect with respect to Snappleor were incurred after December 31, 2001 other than in the ordinary course of business.
(dc) Except Other than as set forth in Section 3.7(d) 4.7 of the Disclosure Schedule, since December 31, 1996, the Snapple Business has been conducted only in the ordinary course, and, 2001 and as of the date hereofof this Agreement, there have has not been been:
(i) any changes adverse change in the condition (financial or developments that, individually otherwise) or in the aggregateproperties, would have a Material Adverse Effect assets or liabilities or business or prospects of Scalable Software;
(ii) any change in the accounting methods or practices followed by Scalable Software or change in the depreciation or amortization policies or rates of Scalable Software theretofore adopted;
(iii) any incurrence of any debts, obligations or liabilities, absolute, accrued, contingent or otherwise, whether due or to become due by Scalable Software, other than in the usual and ordinary course of business consistent with past practice;
(iv) any discharge or satisfaction of any liens or payment of any obligation or liability of Scalable Software, other than in the usual and ordinary course of business consistent with past practice;
(v) any mortgage, pledge or lien, on any of the assets, tangible or intangible of Scalable Software;
(vi) any sale, transfer or lease as lessor or sublessor of any assets of Scalable Software, other than in the usual and ordinary course of business;
(vii) any cancellation, compromise or release of any debt or claim of Scalable Software, other than in the usual and ordinary course of business;
(viii) any physical damage, restriction or loss (whether or not covered by insurance) which materially adversely affects the properties, business or prospects of Scalable Software;
(ix) any declaration or payment of any dividends or other distributions with respect to Snappleits outstanding capital stock;
(x) except for (A) the Scalable Software Recapitalization to be effected prior to the Effective Date, (B) any issuance of shares of its capital stock on the exercise or conversion of the Scalable Software Options or the Scalable Software Warrants and (C) the Scalable Software Warrants issued to Xxxxx X. Xxxxxxxx, any issuance by Scalable Software of any shares of its capital stock, or any repurchase or redemption by it of any shares of its capital stock;
(xi) any merger or consolidation of Scalable Software with any other Person or any acquisition by Scalable Software of the stock or business (including by purchase of all or substantially all of the assets) of any other Person;
(xii) the execution of any employment, consulting, severance, indemnification or other compensation agreement between Scalable Software and any of its employees, officers or directors or execution of any collective bargaining agreement or incurrence of any other obligation to any labor organization or employee;
(xiii) any increase in the compensation or benefits of any employee of Scalable Software other than scheduled increases in the ordinary course of business;
(xiv) any payment by Scalable Software to any director, officer, shareholder, partner or employee, or any Affiliate (other than any NEON Entity) of the foregoing except regular compensation and usual benefits payments consistent with established compensation and incentive plans and the repayment of a loan made to it by Xxxxx X. Xxxxxxxx; or
(xv) any actual, pending, or to the knowledge of Scalable Software, threatened change that might reasonably be expected to result in a material deterioration in the relationship of Scalable Software with any material customer, supplier, distributor or sales representative thereof.
Appears in 1 contract
Samples: Merger Agreement (Neon Systems Inc)
Financial Statements; Absence of Certain Changes. (a) Section 3.7(a2.4(a) of the Seller Disclosure Schedule contains sets forth accurate statements of (i) the Statement of Assets and Liabilities certain balance sheet items of the Snapple Business as at June 30, 2014, and the revenue of December 31, 1996 (the "Statement of Assets and Liabilities") Business for the fiscal year then ended; and (ii) the Financial Summary-Direct Contribution certain balance sheet items of the Snapple Business at March 31, 2015, and the revenue of the Business for the year ended December 31nine-month period then ended. [*] Certain confidential information contained in this document, 1995 marked by brackets, has been omitted and filed separately with the year ended December 31Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, 1996 (collectively, the "Financial Statements")as amended. Confidential treatment has been requested with respect to this information.
(b) Except as noted set forth in Section 2.4(b) of the Seller Disclosure Schedule, since February 28, 2015, (i) there have been no material changes in the Financial Statements assets, Liabilities or financial condition of the Business from that reflected in Section 2.4(a) of the Seller Disclosure Schedule, except for changes in the ordinary course of business, (ii) except for the transactions contemplated by this Agreement and disclosure to employees with respect to the same, there has occurred no event or development which, individually or in the Notes theretoaggregate, has had, or otherwise set forth could reasonably be expected to have in this Section 3.7(bthe future, a material adverse effect on the Business or the Purchased Assets, and (iii) or in Section 3.7(b) Seller has not taken any of the Disclosure Schedule, following actions with respect to the Financial StatementsBusiness:
(i) have been derived from acquired, sold, leased, licensed or otherwise disposed of any assets or property other than in the consolidated financial statements ordinary course of Sellerbusiness consistent with past practice;
(ii) have been prepared in accordance with GAAP and Seller's internal accounting procedurescreated, applied on a consistent basis for all periods presented and on a basis consistent with Seller's audited consolidated financial statements and unaudited interim financial statementsincurred, assumed or guaranteed any Indebtedness; andor made any loans, advances or capital contributions to, or investments in, any other Person;
(iii) fairly present, in all material respects, the assets and liabilities created or permitted to suffer to exist any Liens (other than Permitted Liens) on any of the Snapple Business to be transferred and assumed hereunder through the purchase Purchased Assets;
(iv) paid, discharged or satisfied any material Liabilities of the Shares as of the date set forth therein and the direct contribution of the Snapple Business for the periods indicated. NYFS09...:\69\68669\0030\165\AGRN266W.00J
(c) Except (i) as set forth in the Financial Statements Business, other than any such payment, discharge or in the Notes thereto, (ii) as set forth in Section 3.7(c) of the Disclosure Schedule or in any other Section of the Disclosure Schedule, (iii) for liabilities and obligations incurred satisfaction made in the ordinary course of business and consistent with past practice;
(ivv) for indebtednessother than changes in the ordinary course of Seller’s Business consistent with past practice, obligations materially changed the compensation payable to any employee, agent or liabilities addressed consultant relating to the Business; entered into, adopted or amended any employment, severance or other agreement with any employee, agent or consultant relating to the Business; or adopted, amended or increased the benefits under any Business Employee Plan, except, in each case, as required by law or in accordance with the existing agreements listed in Section 2.4(b)(v) of the Seller Disclosure Schedule;
(vi) amended, terminated, canceled, or taken or omitted to take any action that would constitute a violation of, default under or waiver of any rights under, any Acquired Agreement or Permit applicable to the Business;
(vii) entered into any contracts or commitments related to the Business involving potential payments by Seller in any other representation single instance of $25,000 or warranty set forth in this Article III (including items which need not be disclosed pursuant to the terms of such representations and warranties)more, as of the date hereof, to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or liabilities of any kind (whether accrued, absolute, contingent or otherwise) that, individually or in the aggregateaggregate of $75,000 or more, would have a Material Adverse Effect except for contracts or commitments for the purchase of services, supplies or materials in the ordinary course of business consistent with past practices;
(viii) incurred any damage, destruction or loss, whether or not covered by insurance, affecting the Purchased Assets; or [*] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. Confidential treatment has been requested with respect to Snapplethis information.
(dix) Except as set forth entered into any agreements or understandings, whether in Section 3.7(d) writing or otherwise, to take any of the Disclosure Scheduleactions specified in paragraphs (i) through (viii) above, since December 31, 1996, the Snapple Business has been conducted only in the ordinary course, and, except as of the date hereof, there have not been any changes or developments that, individually or in the aggregate, would have a Material Adverse Effect with respect to Snapplespecifically contemplated hereby.
Appears in 1 contract
Financial Statements; Absence of Certain Changes. (a) Section 3.7(a) of the Disclosure Schedule contains The Company has furnished to Parent true, correct and complete copies of: (i) the Statement of Assets and Liabilities of the Snapple Business as of December 31, 1996 (the "Statement of Assets and Liabilities") and (ii) the Financial Summary-Direct Contribution of the Snapple Business its unaudited financial statements for the year fiscal years ended December 31, 1995 2003 and the year ended December 31, 1996 2002 and its unaudited financial statements as of June 30, 2004 (collectively, the "Financial Statements").
(b) Except as noted in the . The Financial Statements or in the Notes thereto, or otherwise set forth in this Section 3.7(b) or in Section 3.7(b) of the Disclosure Schedule, the Financial Statements:
(i) have been derived from the consolidated financial statements of Seller;
(ii) have been prepared in accordance with GAAP and Seller's internal accounting procedures, applied on a consistent basis for all throughout the periods presented indicated (except as may be indicated in the notes thereto) and on a basis consistent with Seller's audited consolidated financial statements and unaudited interim financial statements; and
(iii) each fairly present, in all material respects, the assets consolidated financial position and liabilities results of operations of the Snapple Business Company and its consolidated Subsidiaries as at the respective dates thereof and for the respective periods indicated therein.
(b) Except as and to be transferred and assumed hereunder through the purchase extent set forth on the unaudited balance sheet of the Shares Company and its consolidated Subsidiaries as of June 30, 2004 (the date set forth therein and the direct contribution "Balance Sheet") attached hereto as Schedule 3.07 of the Snapple Business for Company Disclosure Schedules, neither the periods indicated. NYFS09...:\69\68669\0030\165\AGRN266W.00J
(c) Except (i) as set forth in the Financial Statements Company nor any of its Subsidiaries has any liability or in the Notes thereto, (ii) as set forth in Section 3.7(c) of the Disclosure Schedule or in any other Section of the Disclosure Schedule, (iii) for liabilities and obligations incurred in the ordinary course of business and (iv) for indebtedness, obligations or liabilities addressed in any other representation or warranty set forth in this Article III (including items which need not be disclosed pursuant to the terms of such representations and warranties), as of the date hereof, to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or liabilities obligation of any kind nature that would require disclosure in accordance with GAAP (whether accrued, absolute, contingent or otherwise) that), individually except for liabilities and obligations, incurred in the ordinary course of business consistent with past practice since June 30, 2004, which would not have a material adverse effect on the Company and are not in excess of $25,000 individually, or $50,000 in the aggregate, would have a Material Adverse Effect with respect to Snapple.
(dc) Except for liabilities incurred in connection with this Agreement or the transactions contemplated hereby, and except as set forth in Section 3.7(d) Schedule 3.07 of the Company Disclosure ScheduleSchedules, since December 31, 19962003, the Snapple Business (i) there has been conducted only in the ordinary course, and, as of the date hereof, there have not been any changes material adverse change in the Company or developments that, any event which either individually or in the aggregate, when aggregated with other event(s) has or reasonably would be expected to have a Material Adverse Effect with respect material adverse effect on the Company and (ii) there are not, to Snapplethe Company's knowledge, any facts, circumstances or events that make it reasonably likely that the Company will not be able to fulfill its obligations under this Agreement in all material respects.
Appears in 1 contract
Financial Statements; Absence of Certain Changes. Each of (a) Section 3.7(a) the audited balance sheet of the Disclosure Schedule contains (i) the Statement of Assets and Liabilities of the Snapple Business Company as of December 31, 1996 2006, (the "Statement of Assets and Liabilities") and (iib) the Financial Summary-Direct Contribution audited statements of income, and that the unaudited statements may not contain all footnotes required by generally accepted accounting principles, retained earnings and cash flows of the Snapple Business Company for the year period ended on December 31, 1995 2006, and (c) the year audited statements of income, retained earnings and cash flows of the Company for the period ended on December 31, 1996 2006, included in the Company Disclosure (collectivelyincluding any related notes and schedules, if any), (the "“Financial Statements").
(b) Except as noted in the Financial Statements or in the Notes thereto, or otherwise set forth in this Section 3.7(b) or in Section 3.7(b) of the Disclosure Schedule, the Financial Statements:
(i) have been derived from the consolidated financial statements of Seller;
(ii) have been prepared in accordance with GAAP and Seller's internal accounting procedures, applied on a consistent basis for all periods presented and on a basis consistent with Seller's audited consolidated financial statements and unaudited interim financial statements; and
(iii”) fairly presentpresents, in all material respects, the assets and liabilities financial position of the Snapple Business to be transferred and assumed hereunder through Company, or the purchase results of operations, retained earnings or cash flows, as the case may be, of the Shares Company as of the referenced date or for the periods set forth therein and the direct contribution of the Snapple Business for (subject to normal year-end audit adjustments which would not be material in amount or effect), in each case in accordance with generally accepted accounting principles consistently applied during the periods indicatedinvolved, except as may be noted therein. NYFS09...:\69\68669\0030\165\AGRN266W.00J
(c) Except (i) as set forth in Neither the Financial Statements Company nor any Subsidiary has any liabilities or in the Notes thereto, (ii) as set forth in Section 3.7(c) of the Disclosure Schedule or in any other Section of the Disclosure Schedule, (iii) for liabilities and obligations incurred in the ordinary course of business and (iv) for indebtedness, obligations or liabilities addressed in any other representation or warranty set forth in this Article III (including items which need not be disclosed pursuant to the terms of such representations and warranties), as of the date hereof, to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or liabilities of any kind nature (whether accrued, absolute, contingent or otherwise), including for taxes, that would be required to be reflected on, or reserved against in, Financial Statements, except for (i) thatliabilities or obligations that were so reserved on, or reflected in (including the notes to), the Financial Statements; and (ii) liabilities or obligations which would not, individually or in the aggregate, would have a Material Adverse Effect with respect to Snapple.
(d) Except Effect. Other than the indebtedness as set forth in Section 3.7(d) of the Financial Statements or the Company Disclosure, neither the Company nor any Subsidiary has any indebtedness other than reasonable accounts payable. Except as specifically contemplated by this Agreement or as set forth in the Company Disclosure Scheduleand the Financial Statements, there has not been any Material Adverse Change since December 31, 1996, the Snapple Business has been conducted only in the ordinary course, and, as of the date hereof, there have not been any changes or developments that, individually or in the aggregate, would have a Material Adverse Effect with respect to Snapple2006.
Appears in 1 contract
Samples: Note Purchase Agreement (Sbe Inc)
Financial Statements; Absence of Certain Changes. (a) Section 3.7(a) of the Disclosure Schedule contains (i) the Statement of Assets and Liabilities of the Snapple Business as of December 31, 1996 (the "Statement of Assets and Liabilities") and (ii) the Financial Summary-Direct Contribution of the Snapple Business for the year ended December 31, 1995 and the year ended December 31, 1996 (collectively, the "Financial Statements").
(b) Except as noted in the Financial Statements or in the Notes thereto, or otherwise set forth in this Section 3.7(b) or in Section 3.7(b) of the Disclosure Schedule, the Financial Statements:
(i) have been derived from the consolidated financial statements of Seller;
(ii) have been prepared in accordance with GAAP and Seller's internal accounting procedures, applied on a consistent basis for all periods presented and on a basis consistent with Seller's audited consolidated financial statements and unaudited interim financial statements; and
(iii) fairly present, in all material respects, the assets and liabilities of the Snapple Business to be transferred and assumed hereunder through the purchase of the Shares as of the date set forth therein and the direct contribution of the Snapple Business for the periods indicated. NYFS09...:\69\68669\0030\165\AGRN266W.00J.
(c) Except (i) as set forth in the Financial Statements or in the Notes thereto, (ii) as set forth in Section 3.7(c) of the Disclosure Schedule or in any other Section of the Disclosure Schedule, (iii) for liabilities and obligations incurred in the ordinary course of business and (iv) for indebtedness, obligations or liabilities addressed in any other representation or warranty set forth in this Article III (including items which need not be disclosed pursuant to the terms of such representations and warranties), as of the date hereof, to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or liabilities of any kind (whether accrued, absolute, contingent or otherwise) that, individually or in the aggregate, would have a Material Adverse Effect with respect to Snapple.
(d) Except as set forth in Section 3.7(d) of the Disclosure Schedule, since December 31, 1996, the Snapple Business has been conducted only in the ordinary course, and, as of the date hereof, there have not been any changes or developments that, individually or in the aggregate, would have a Material Adverse Effect with respect to Snapple.
Appears in 1 contract
Financial Statements; Absence of Certain Changes. (a) Section 3.7(a) of the Disclosure Schedule contains (i) the Statement of Assets and Liabilities of the Snapple Business as of December 31, 1996 (the "Statement of Assets and Liabilities") and (ii) the Financial Summary-Direct Contribution of the Snapple Business The audited annual financial statements for the year ended December 31April 30, 1995 and the year ended December 312006, 1996 annexed hereto as Schedule D (collectively, the "Financial StatementsFINANCIAL STATEMENTS").
(b) Except as noted in the Financial Statements or in the Notes thereto, or otherwise set forth in this Section 3.7(b) or in Section 3.7(b) of the Disclosure Schedule, the Financial Statements:
(i) have been derived from the consolidated financial statements of Seller;
(ii) have been prepared in accordance with GAAP and Seller's internal Untied States generally accepted accounting procedures, principles applied on a consistent basis for all periods presented and on a basis consistent with Seller's audited consolidated financial statements and unaudited interim financial statements; and
(iii) fairly present, in all material respects, the assets and liabilities that of the Snapple Business to be transferred preceding period and assumed hereunder through the purchase of the Shares as of the date set forth therein and the direct contribution of the Snapple Business for the periods indicated. NYFS09...:\69\68669\0030\165\AGRN266W.00J
(c) Except present fairly: (i) all of the assets, liabilities and financial position of the Corporation on a consolidated basis as set forth at April 30, 2006; and (ii) the sales, earnings, results of operation and changes in financial position of the Corporation on a consolidated basis for the year ended April 30, 2006. Except as otherwise described in the Financial Statements or as disclosed in the Notes thereto, (ii) or contemplated by this Agreement or as set forth in Section 3.7(c) of the Disclosure Schedule or in any other Section 3.9 of the Disclosure Schedule, since April 30, 2006 (iiithe "FINANCIAL STATEMENT DATE") for there has not been:
(a) other than those in the ordinary course of business, any acquisition (by purchase, lease as lessee, license as licensee, or otherwise) or disposition (by sale, lease as lessor, license as licensor, or otherwise) by the Corporation or any of the Subsidiaries of any properties or assets;
(b) to the knowledge of the Corporation, any change in the condition (financial or otherwise), of its properties, assets, liabilities, investments, revenues, expenses, income, operations, Business, or prospects of the Corporation or any of the Subsidiaries, or in any of its relationships with any suppliers, customers, key employees or other third parties with whom it has financial, commercial, or other business relationships, other than changes in the ordinary course of business that have not caused and cannot be reasonably expected to cause, in any case or in the aggregate, a Material Adverse Effect;
(c) any material transaction by the Corporation or any of the Subsidiaries with their respective Affiliates, Insiders or any other Person not at Arm's Length with the Corporation or any Subsidiary, other than the payment of compensation and reimbursement of reasonable employee travel and other business expenses in accordance with existing employment arrangements and usual past practices;
(d) any damage, destruction, or loss, whether or not covered by insurance, that, either in any case or in the aggregate, has caused, or could reasonably be expected to cause, a Material Adverse Effect;
(e) any declaration, setting aside, or payment of any dividend or any other distribution (in cash, stock, and/or property or otherwise) in respect of any shares or other securities of the Corporation or any of the Subsidiaries;
(f) any issuance of any shares or other securities of the Corporation or any of the Subsidiaries, or any direct or indirect redemption, repurchase, or other acquisition by the Corporation or any of the Subsidiaries of any of its shares or other securities (other than the issuance of shares to optionholders upon the exercise of options granted under the Stock Option Plan, the 2006 Equity Compensation Plan or pursuant to any other Employee Plan and the repurchase or redemption of shares from employees terminated involuntarily by the Corporation or any Subsidiary, as described in Section 3.5(d) of the Disclosure Schedule);
(g) any change in the officers, directors or key employees of the Corporation or any of the Material Subsidiaries;
(h) other than in the ordinary course of business, any increase in the compensation or other benefits payable or to become payable by the Corporation or any of the Subsidiaries to any of its Affiliates, or to any of the respective officers, employees, or independent contractors of the Corporation or any of the Subsidiaries, or any bonus, severance or termination payments or arrangements made to or with any of such officers, employees, or independent contractors;
(i) any forgiveness or cancellation of any material debt or claim by the Corporation or any of the Subsidiaries or any waiver by the Corporation or any of the Subsidiaries of any right of material value, other than compromises of accounts receivable in the ordinary course of business;
(j) other than in the ordinary course of business, any incurrence, payment, discharge, or satisfaction by the Corporation or any of the Subsidiaries of any other Indebtedness, material obligations or material liabilities, whether absolute, accrued, contingent or otherwise (including, without limitation, liabilities, as guarantor or otherwise, with respect to obligations of others), other than (A) current liabilities and obligations to Persons other than Affiliates of the Corporation incurred in the ordinary course of business business, and (ivB) for indebtednesscurrent liabilities to Persons other than Affiliates of the Corporation incurred in connection with the transactions contemplated hereby;
(k) other than in the ordinary course of business, obligations any incurrence, discharge or liabilities addressed satisfaction of any Lien: (i) by the Corporation or any of the Subsidiaries; or (ii) on any of the shares, other securities, properties, or assets owned or leased by the Corporation or any of the Subsidiaries;
(l) any settlement of any Legal Proceeding threatened or pending against the Corporation or any Subsidiary or any of their respective assets that, either in any other representation or warranty set forth in this Article III (including items which need not be disclosed pursuant to the terms of such representations and warranties), as of the date hereof, to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or liabilities of any kind (whether accrued, absolute, contingent or otherwise) that, individually case or in the aggregate, would have has caused or could reasonably be expected to cause a Material Adverse Effect Effect;
(m) any change of auditor or material change with respect to Snapple.any method of management operation or accounting in respect of the Business;
(dn) Except as set forth in Section 3.7(d) any conduct of business by the Corporation or any of the Disclosure Schedule, since December 31, 1996, the Snapple Business has been conducted only in Subsidiaries outside the ordinary course, and, as course of business; or
(o) any Contract by or on behalf of the date hereofCorporation, there have not been or by or on behalf of its respective Affiliates, directors, officers, employees, agents, or representatives, whether in writing or otherwise, to do or permit any changes or developments that, individually or of the things referred to in the aggregate, would have a Material Adverse Effect with respect to Snapplethis Section 3.9.
Appears in 1 contract
Financial Statements; Absence of Certain Changes. (a) Section 3.7(a) The Sellers have provided the Buyer with copies of the Disclosure Schedule contains (i) the Statement its consolidated audited balance sheet and statement of Assets income, changes in stockholders' equity and Liabilities of the Snapple Business as of December 31, 1996 (the "Statement of Assets and Liabilities") and (ii) the Financial Summary-Direct Contribution of the Snapple Business cash flows for the year ended December August 31, 1995 2000 and unaudited balance sheets and statements of income and cash flows for the quarters ended November 30, 2000, February 28, 2001 and May 31, 2001, as well as the audited financial statements of the Foreign Entities for the year ended December August 31, 1996 2001 (the "Foreign Entity Audit"). Such financial statements (collectively, the "Financial Statements") have been prepared in accordance with United States generally accepted accounting principles ("U.S. GAAP") applied on a consistent basis throughout the periods covered thereby (except with respect to the Foreign Entity Audit, which has been prepared in compliance with the generally accepted accounting principals of the relevant foreign jurisdictions), fairly present in all material respects, as of the dates and for the periods indicated, the financial condition, the results of operation and cash flows of the Sellers and the Subsidiaries and are consistent with the books and records of the Sellers and the Subsidiaries.
(b) Except as noted in the Financial Statements or in the Notes thereto, or otherwise set forth in this Section 3.7(b) on Schedule 2.4(b), since August 31, 2001, neither the Sellers nor any Subsidiary have incurred, to their knowledge, any liabilities (whether known or in Section 3.7(b) of the Disclosure Scheduleunknown, the Financial Statements:
absolute or contingent, liquidated or unliquidated or due or to become due), other than (i) have been derived from the consolidated financial statements of Seller;
liabilities shown on the August 31, 2001 balance sheet provided to the Buyer and (ii) have been prepared in accordance with GAAP and Seller's internal accounting procedures, applied on a consistent basis for all periods presented and on a basis consistent with Seller's audited consolidated financial statements and unaudited interim financial statements; and
(iii) fairly present, in all material respects, the assets and contractual liabilities of the Snapple Business to be transferred and assumed hereunder through the purchase of the Shares as of the date set forth therein and the direct contribution of the Snapple Business for the periods indicated. NYFS09...:\69\68669\0030\165\AGRN266W.00J
(c) Except (i) as set forth in the Financial Statements or in the Notes thereto, (ii) as set forth in Section 3.7(c) of the Disclosure Schedule or in any other Section of the Disclosure Schedule, (iii) for liabilities and obligations incurred that arise in the ordinary course of business the Sellers' and (iv) for indebtednessthe Subsidiaries' business, obligations or liabilities addressed in any other representation or warranty set forth in this Article III (including items which need not be disclosed pursuant to the terms of such representations and warranties), as of the date hereof, to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or liabilities of any kind (whether accrued, absolute, contingent or otherwise) that, individually or in the aggregate, would have a Material Adverse Effect with respect to Snapplefrequency and amount, and that are not material to the business of the Sellers and the Subsidiaries individually and taken as a whole. There are no amounts outstanding under that certain loan agreement by and between Affin Bank Berhad (formerly known as Perwira Affin Bank Berhad) and MCMS Malaysia (the "Malaysian Loan").
(c) Since August 31, 2000, the Sellers and the Subsidiaries have not changed, or agreed to change, in any material respect, their accounting methods, principles or practices, except insofar as required by a generally applicable change in U.S. GAAP or as disclosed in reports and public filings of MCMS made with the United States Securities and Exchange Commission after August 31, 2000 through the date hereof (the "Public Filings").
(d) Except as set forth The Foreign Entities have duly filed all tax returns that are required to have been filed by them, and have remitted to the appropriate governmental authorities on a timely basis, and in Section 3.7(d) of the Disclosure Scheduleaccordance with all applicable laws, since December 31rules and regulations, 1996all amounts collected by them for taxes, the Snapple Business direct or indirect, including but not limited to sales taxes, value added taxes, employment taxes, withholding taxes, customs duties, taxes and imports. The Foreign Entities have made adequate provision for any amounts not yet remitted, and no governmental agency has been conducted only in the ordinary courseaudited, andor notified any Foreign Entity that it intends to audit, as of the date hereof, there have not been any changes or developments that, individually or in the aggregate, would have a Material Adverse Effect with respect to Snappletax return.
Appears in 1 contract
Financial Statements; Absence of Certain Changes. (a) The unaudited financial statements attached to Section 3.7(a) II.4 of the Disclosure Schedule contains (i) the Statement of Assets and Liabilities Schedules consisting of the Snapple Business consolidated balance sheets of the Companies as of December 31, 1996 (2013 and August 31, 2014 and the "Statement related statements of Assets profit and Liabilities") and (ii) the Financial Summary-Direct Contribution of the Snapple Business loss for the year fiscal periods then ended December 31, 1995 and the year ended December 31, 1996 (collectively, the "“Seller Financial Statements").
(b) Except as noted in the Financial Statements or in the Notes thereto, or otherwise set forth in this Section 3.7(b) or in Section 3.7(b) of the Disclosure Schedule, the Financial Statements:
(i) have been derived from the consolidated financial statements of Seller;
(ii”) have been prepared in accordance with GAAP and Seller's internal U.S. generally accepted accounting procedures, principles applied on a consistent basis for throughout all periods presented presented, subject to normal and on a basis consistent with Seller's audited consolidated recurring year-end adjustments (the effect of which will not be materially adverse) and the absence of notes. The Seller Financial Statements present fairly the financial statements position of the Companies as of the dates and unaudited interim financial statements; and
(iii) fairly present, for the periods indicated in all material respects, the assets . The books of account and liabilities other financial records of the Snapple Business Companies have been maintained in accordance with applicable legal and accounting requirements (including U.S. generally accepted accounting principles, subject to normal and recurring year-end adjustments (the effect of which will not be transferred materially adverse) and assumed hereunder through the purchase absence of notes) in all material respects and the Seller Financial Statements are consistent with such books and records in all material respects.
(b) Since July 31, 2014, (the “Most Recent Date”), there has been no material adverse change in the condition, financial or otherwise, net worth, prospects or results of operations of the Shares Companies, taken as a whole (except that all cash and cash equivalents of the date set forth therein and Companies have been distributed to Seller prior to the direct contribution of Closing). Without limiting the Snapple Business for the periods indicated. NYFS09...:\69\68669\0030\165\AGRN266W.00J
(c) Except (i) as set forth in the Financial Statements or in the Notes theretoforegoing, (ii) except as set forth in Section 3.7(cII.4(b) of the Disclosure Schedule or in any other Section Schedules, since the Most Recent Date:
(i) none of the Disclosure ScheduleCompanies has sold, (iii) for liabilities and obligations incurred leased, transferred or assigned any of its assets, tangible or intangible, other than in the ordinary course of business and business;
(ii) no party (including any of the Companies) has accelerated, terminated, modified or canceled any Contract to which any of the Companies is a party or by which any of the Companies or their assets are bound;
(iii) none of the Companies has made any capital expenditure (or series of related capital expenditures) of whatever nature;
(iv) for indebtednessnone of the Companies has made any capital investments in, any loans to, or any acquisitions of the securities or assets of any other person (or a series of related capital investments, loans and acquisitions);
(v) none of the Companies has redeemed or otherwise acquired any shares of its securities (except upon the exercise of outstanding options) or any option, warrant or right relating thereto;
(vi) none of the Companies has issued any notes, bonds or other debt securities, or created, incurred, assumed or guaranteed any Liens, liabilities, obligations or liabilities addressed in indebtedness for borrowed money or capitalized lease obligation, except under any other representation or warranty set forth in this Article III (including items which need not be disclosed pursuant to the terms of such representations and warranties), as of the date hereof, to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or liabilities of any kind (whether accrued, absolute, contingent or otherwise) that, individually or in the aggregate, would have a Material Adverse Effect with respect to Snapple.
(d) Except as existing credit facilities set forth in Section 3.7(d) II.7 of the Disclosure Schedule, since December 31, 1996, the Snapple Business has been conducted only in the ordinary course, and, as Schedules;
(vii) none of the date hereofCompanies has made canceled, there have not been compromised, waived or released any changes right or developments thatclaim (or series of related rights and claims) or material indebtedness;
(viii) none of the Companies has made any loan to any of its directors, individually officers, or in employees; and
(ix) none of the aggregate, would have a Material Adverse Effect with respect Companies has committed to Snappledo any of the foregoing.
Appears in 1 contract
Samples: Securities Purchase Agreement (Pulse Network, Inc.)
Financial Statements; Absence of Certain Changes. (a) Section 3.7(a) Attached hereto as Exhibit 3 are true and complete copies of the Disclosure Schedule contains (i) the Statement consolidated balance sheets, statements of Assets operations, statements of shareholders' equity and Liabilities statements of cash flows for the Snapple Business Company and its Subsidiaries as of and for the years ended December 31, 1996 (the "Statement of Assets 2003, 2002 and Liabilities") 2001, in each case audited by Deloitte & Touche LLP and (ii) the Financial Summary-Direct Contribution unaudited consolidated balance sheet and related consolidated statement of the Snapple Business operations and comprehensive income, statement of shareholders' equity and statement of cash flows as of and EXECUTION VERSION for the year quarter ended December March 31, 1995 2004 (the "Most Recent Financial Statements" ) (clauses (i) and the year ended December 31(ii), 1996 (collectively, the "Financial Statements"). The consolidated balance sheet as of December 31, 2003 is referred to herein as the "Reference Balance Sheet."
(b) Except as noted in the Financial Statements or in the Notes thereto, or otherwise set forth in this Section 3.7(b) or in Section 3.7(b3.6(b) of the Disclosure Schedule, each of the Financial Statements:
Statements (i) have been derived from the consolidated financial statements of Seller;
(ii) have has been prepared based on the books and records of the Company and its Subsidiaries in accordance with GAAP and Seller's internal accounting procedures, applied on a consistent basis for all throughout the periods presented covered thereby (except as may be indicated in the notes thereto) and on a basis the Company's normal accounting practices, consistent with Seller's audited consolidated financial statements past practice and unaudited interim financial statements; and
with each other, and (iiiii) fairly presentpresents fairly, in all material respects, the assets financial condition, results of operations and liabilities cash flow of the Snapple Business to be transferred Company and assumed hereunder through the purchase of the Shares its Subsidiaries as of the date set forth therein and the direct contribution of the Snapple Business dates indicated or for the periods indicated. NYFS09...:\69\68669\0030\165\AGRN266W.00J, except that the Most Recent Financial Statements are subject to normal year end adjustments which will not be material.
(c) Except (i) Since the date of the Reference Balance Sheet, except as set forth in the Financial Statements or in the Notes thereto, (ii) as set forth disclosed in Section 3.7(c3.6(c) of the Disclosure Schedule or in any other Section of the Disclosure Schedule, (iiii) for liabilities the Company and obligations incurred its Subsidiaries have operated in the ordinary course of business consistent with past practice and (iv) for indebtednessthere has not been any event, obligations occurrence, circumstance or liabilities addressed in any other representation or warranty set forth in this Article III (including items which need not be disclosed pursuant to the terms state of such representations and warranties), as of the date hereof, to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or liabilities of any kind (whether accrued, absolute, contingent or otherwise) facts that, individually or in the aggregate, has resulted in or would have reasonably be expected to result in, a Material Adverse Effect with respect to Snapple.and (ii) without limiting the generality of clause (i), neither the Company nor its Subsidiaries has:
(di) Except incurred, assumed or guaranteed any Indebtedness, except in the ordinary course of business consistent with past practice;
(ii) made any loan, advance or capital contribution to or investment in any Person other than in the ordinary course of business consistent with past practice;
(iii) mortgaged, pledged or subjected to any Encumbrance, any portion of its assets, except for Permitted Encumbrances arising in the ordinary course of business consistent with past practice;
(iv) acquired (including by merger, consolidation or acquisition of stock), sold, assigned or transferred any business of any Person, equity interests in any Person or assets, except in the ordinary course of business consistent with past practice;
(v) sold, assigned, transferred, terminated or allowed to lapse any of its rights under any of its Intellectual Property, except in the ordinary course of business consistent with past practice;
(vi) made any capital expenditures or commitments therefor outside the ordinary course of business consistent with past practice;
(vii) entered into, modified, terminated, amended or granted any waiver in respect of any agreement, contract, lease or license outside the ordinary course of business consistent with past practice; EXECUTION VERSION
(viii) issued, sold or transferred any of its equity securities, securities convertible into its equity securities or warrants, options or other rights to acquire its equity securities, or any notes, bonds or debt securities;
(ix) amended the terms of any of its outstanding securities in any manner, except for the amendments to the rights, preferences and privileges of the Preferred Stock as set forth described in Section 3.7(d3.6(c)(ix) of the Disclosure Schedule;
(x) declared or paid any dividend or made any distribution on its capital stock or equity interests or redeemed or repurchased any shares of its capital stock or equity interest;
(xi) revalued any of its assets, since December 31including without limitation, 1996writing down the value of inventory or writing off notes or accounts receivable, the Snapple Business has been conducted only other than in the ordinary coursecourse of business consistent with past practice;
(xii) changed its independent accountants or changed its accounting policies or procedures other than as required by GAAP;
(xiii) except as required by applicable Law, and(A) granted any increase in the compensation of any employees, as in general, of the date hereofCompany or any of its Subsidiaries, there have other than in the ordinary course of business and consistent with past practice, (B) hired new employees, other than in the ordinary course of business and consistent with past practice, or (C) entered into any employment, severance, consulting or other compensation agreement with any existing or new director, officer or employee, other than in the ordinary course of business and consistent with past practice;
(xiv) settled or compromised any United States federal or state or foreign national Tax liability; settled or compromised any United States or foreign local Tax liability other than in the ordinary course of business consistent with past practice; or waived or extended the statute of limitations in respect of any Taxes;
(xv) made, changed or rescinded any express or deemed election relating to Taxes of the Company or any of its Subsidiaries, unless required to do so by applicable Law;
(xvi) settled or compromised any pending or threatened suit, action or proceeding except for settlements, involving the payment of money and not been any changes or developments thatequitable relief, which did not, individually or in the aggregate, would have a Material Adverse Effect with respect exceed $100,000, and except for settlements in favor of the Company or any of its Subsidiaries; or
(xvii) committed to Snapple.do any of the foregoing. EXECUTION VERSION
Appears in 1 contract
Financial Statements; Absence of Certain Changes. Each of (a) Section 3.7(a) the unaudited balance sheet of the Disclosure Schedule contains Company as of Xxxxx 00, 0000, (ix) the Statement unaudited statements of Assets income, retained earnings and Liabilities cash flows of the Snapple Business as of December Company for the period ended on March 31, 1996 2007, and (c) the unaudited statements of income, retained earnings and cash flows of the Company for the period ended on March 31, 2007, included in the Proxy Statement (including any related notes and schedules, if any), (the "Statement of Assets and Liabilities") and (ii) the Financial Summary-Direct Contribution of the Snapple Business for the year ended December 31, 1995 and the year ended December 31, 1996 (collectively, the "“Financial Statements").
(b) Except as noted in the Financial Statements or in the Notes thereto, or otherwise set forth in this Section 3.7(b) or in Section 3.7(b) of the Disclosure Schedule, the Financial Statements:
(i) have been derived from the consolidated financial statements of Seller;
(ii) have been prepared in accordance with GAAP and Seller's internal accounting procedures, applied on a consistent basis for all periods presented and on a basis consistent with Seller's audited consolidated financial statements and unaudited interim financial statements; and
(iii”) fairly presentpresents, in all material respects, the assets and liabilities financial position of the Snapple Business to be transferred and assumed hereunder through Company, or the purchase results of operations, retained earnings or cash flows, as the case may be, of the Shares Company as of the referenced date or for the periods set forth therein and the direct contribution of the Snapple Business for (subject to normal year-end audit adjustments which would not be material in amount or effect), in each case in accordance with generally accepted accounting principles consistently applied during the periods indicatedinvolved, except as may he noted therein and that the unaudited statements may not contain all footnotes required by generally accepted accounting principles. NYFS09...:\69\68669\0030\165\AGRN266W.00J
(c) Except (i) as set forth in Neither the Financial Statements Company nor any Subsidiary has any liabilities or in the Notes thereto, (ii) as set forth in Section 3.7(c) of the Disclosure Schedule or in any other Section of the Disclosure Schedule, (iii) for liabilities and obligations incurred in the ordinary course of business and (iv) for indebtedness, obligations or liabilities addressed in any other representation or warranty set forth in this Article III (including items which need not be disclosed pursuant to the terms of such representations and warranties), as of the date hereof, to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or liabilities of any kind nature (whether accrued, absolute, contingent or otherwise), including for taxes, that would be required to be reflected on, or reserved against in, Financial Statements, except for (i) thatliabilities or obligations that were so reserved on, or reflected in (including the notes to), the Financial Statements; and (ii) liabilities or obligations which would not, individually or in the aggregate, would have a Material Adverse Effect with respect to Snapple.
(d) Except Effect. Other than the indebtedness as set forth in Section 3.7(d) the Financial Statements or the Proxy Statement, neither the Company nor any Subsidiary has any indebtedness other than reasonable accounts payable. Except as specifically contemplated by this Agreement or as set forth in the Proxy Statement (including without limitation continuing losses of the Disclosure Schedule, since December 31, 1996, Company) and the Snapple Business has been conducted only in the ordinary course, and, as of the date hereofFinancial Statements, there have has not been any changes or developments that, individually or in the aggregate, would have a Material Adverse Effect with respect to SnappleChange since March 31, 2007.
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Financial Statements; Absence of Certain Changes. (a) Section 3.7(a3.04(a) of the Seller Disclosure Schedule contains Letter sets forth an unaudited statement of assets and liabilities with respect to the Business at September 30, 2007 (itogether with the notes thereto, the “Statement of Assets and Liabilities”) and the related unaudited statement of revenues and direct costs with respect to the Business for the 36 months then ended (together with the notes thereto, and collectively with the Statement of Assets and Liabilities of the Snapple Business as of December 31, 1996 (the "Statement of Assets and Liabilities") and (ii) the Financial Summary-Direct Contribution of the Snapple Business for the year ended December 31, 1995 and the year ended December 31, 1996 (collectively, the "“Business Financial Statements"”).
(b) Except as noted in the Financial Statements or in the Notes thereto, or otherwise set forth in this Section 3.7(b) or in Section 3.7(b) of the Disclosure Schedule, the Financial Statements:
(i) have been derived from the consolidated financial statements of Seller;
(ii) have been prepared in accordance with GAAP and Seller's internal accounting procedures, applied on a consistent basis for all periods presented and on a basis consistent with Seller's audited consolidated financial statements and unaudited interim financial statements; and
(iii) which fairly present, in all material respects, Seller’s historical cost, in conformity with generally accepted accounting principles in the United States as in effect from time to time (“GAAP”) (except that the Statement of Assets and Liabilities lacks footnote disclosure and other presentation items required by GAAP) basis of the assets and liabilities of the Snapple Business as of September 30, 2007, and the revenues and direct costs of the Business, based upon or derived from the Transferred Assets and Assumed Liabilities, for the 36 months then ended.
(b) Neither Seller, nor any of the Seller Subsidiaries, have any material liabilities or obligations of any nature, whether known or unknown, accrued, contingent, absolute, determined, determinable or otherwise, related to the Business and required to be transferred reflected in the Business Financial Statements, which were prepared in conformity with GAAP (except that the Statement of Assets and assumed hereunder through the purchase of the Shares as of the date set forth therein Liabilities lacks footnote disclosure and the direct contribution of the Snapple Business for the periods indicated. NYFS09...:\69\68669\0030\165\AGRN266W.00J
(c) Except other presentation items required by GAAP)(“Liabilities”), except (i) as set forth disclosed, reflected or reserved against in the Financial Statements or in the Notes theretoStatement of Assets and Liabilities, (ii) as set forth in Section 3.7(c) of the Disclosure Schedule or in any other Section of the Disclosure Schedule, Retained Liabilities and (iii) for liabilities and obligations Liabilities incurred in the ordinary course of business and (iv) for indebtedness, obligations or liabilities addressed in any other representation or warranty set forth in this Article III (including items which need not be disclosed pursuant to consistent with past practice since the terms of such representations and warranties), as date of the date hereof, Statement of Assets and Liabilities and not in violation of this Agreement (none of which has had or would reasonably be expected to the Knowledge of Seller, the Snapple Companies do not have any indebtedness, obligations or liabilities of any kind (whether accrued, absolute, contingent or otherwise) that, individually or in the aggregate, would have a Business Material Adverse Effect with respect to SnappleEffect).
(d) Except as set forth in Section 3.7(d) of the Disclosure Schedule, since December 31, 1996, the Snapple Business has been conducted only in the ordinary course, and, as of the date hereof, there have not been any changes or developments that, individually or in the aggregate, would have a Material Adverse Effect with respect to Snapple.
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