No Changes. Except as contemplated by this Agreement, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any: (a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices; (b) amendments or changes to the Articles of Incorporation or Bylaws of the Company; (c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate; (d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property; (e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company; (f) revaluation by the Company of any of its assets, including the Property; (g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company; (h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder; (i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property; (j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project; (k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others; (l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company; (m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project; (n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company; (o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets; (p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or (q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement).
Appears in 3 contracts
Samples: Stock Purchase Agreement (Monaco Coach Corp /De/), Stock Purchase Agreement (Monaco Coach Corp /De/), Stock Purchase Agreement (Monaco Coach Corp /De/)
No Changes. Except as for the transactions contemplated by this Agreement and as disclosed in Section 5.9 of the Disclosure Schedule or in the SEC Reports filed prior to the date of this Agreement, since December 30, 2000 there has been no material adverse change in the date business, assets, condition (financial or otherwise), operations or results of operations of the Interim Balance SheetCompany and the Subsidiaries, there has not beentaken as a whole, occurred or arisen any:
and neither the Company nor any Subsidiary has: (a) transaction by the Company incurred any material debts, obligations or liabilities, absolute, accrued or contingent and whether due or to become due, except current liabilities incurred in the ordinary course of business as conducted on and the date of debt evidenced by the Interim Balance Sheet and consistent with past practices;
Demand Note; (b) amendments paid any material obligation or changes to liability other than, or discharged or satisfied any material liens or encumbrances other than those securing, current liabilities, in each case in the Articles ordinary course of Incorporation or Bylaws of the Company;
business; (c) expenditure declared or commitment by the Company in excess made any payment or distribution to its shareholders as such, or purchased or redeemed any of $10,000 individually its shares of capital stock or $50,000 in the aggregate;
other securities, or obligated itself to do so; (d) destruction ofmortgaged, damage pledged or subjected to lien, charge, security interest or loss other encumbrance any of any its material assets, tangible or intangible, except for Permitted Liens (as hereinafter defined) arising in the ordinary course of business and liens securing the Demand Note; (e) sold, transferred or customer leased any of its material assets, except for sales of inventory and obsolete or worn-out equipment in the Company ordinary course of business; (f) cancelled or compromised any material debt or claim, or waived or released any right of material value; (g) suffered any physical damage, destruction or loss (whether or not covered by insurance) materially and adversely affecting, individually or in the aggregate, the business, assets, condition (financial or otherwise), including the Property;
(e) change in accounting methods operations or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by results of operations of the Company of any of its assetsand the Subsidiaries, including the Property;
(g) declaration, setting aside or payment of taken as a dividend or other distribution with respect to the capital stock of the Company;
whole; (h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of entered into any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company transaction other than in the ordinary course of business as conducted business; (i) encountered any material labor difficulties or labor union organizing activities; (j) issued or sold any shares of capital stock or other securities (other than shares of Common Stock issued upon the exercise or conversion of options, warrants or convertible securities outstanding on that date December 30, 2000 or granted thereafter and disclosed on Schedule 5.9 hereto) or granted any options, warrants, convertible securities or other purchase rights with respect thereto; (k) made any acquisition or disposition of any material assets or become involved in any other material transaction, other than for fair value in the ordinary course of business; (l) increased substantially any compensation or benefits payable to any officers, directors or employees of the Company or any Subsidiary other than consistent with past practices, ; or (ivm) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof agreed to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)foregoing.
Appears in 3 contracts
Samples: Convertible Debt Agreement (Printware Inc), Note Purchase Agreement (Select Comfort Corp), Note Purchase Agreement (St Paul Companies Inc /Mn/)
No Changes. Except as set forth in Section 2.9 of the Disclosure Schedule or as contemplated by this AgreementAgreement or the Related Agreements, since from January 31, 1999 through the date of the Interim Balance Sheetthis Agreement, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(cb) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or exceeding $50,000 or in the aggregateaggregate exceeding $100,000;
(dc) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(d) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(e) change in accounting methods or practices (including any change in depreciation depreciation, revenue recognition or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock Company Capital Stock or any direct or indirect redemption, purchase or other acquisition by the Company of the CompanyCompany Capital Stock;
(h) material change increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person;
(i) acquisitionany agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound other than in the ordinary course of the Company's business, consistent with past practice;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, Company or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots properties other than in the Projectordinary course of the Company's business, consistent with past practice;
(k) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practice;
(l) incurrence by the Company of any liability in excess of $50,000 individually or $100,000 in the aggregate;
(m) waiver or release of any right or claim of the Company, Company including any write-off or other compromise of any account receivable of the CompanyCompany (other than compromises of invoices with customers in the ordinary course of business consistent with past practice, which compromises are not in the aggregate material in amount or significance);
(mn) the commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of against the Company or its affairs, including the Project;
(no) notice of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13) or of infringement by the Company of any other person's Intellectual Property (as defined in Section 2.13);
(p) issuance or sale, or contract to issue or sell, by the Company of any shares of Company Capital Stock or securities exchangeable, convertible or exercisable therefor, or any securities, warrants, options or rights to purchase any of the foregoing, except for options to purchase capital stock of the Company granted to employees of and consultants to the Company in the ordinary course of business consistent with past practice;
(i) selling or entering into any material license agreement with respect to the Company Intellectual Property with any third party or (ii) buying or entering into any material license agreement with respect to the Intellectual Property of any third party;
(r) any event or condition of any character that has or could be reasonably expected to have had a material adverse impact Material Adverse Effect on the Company;
(os) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of transaction by the Company other than except in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qt) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Etoys Inc), Merger Agreement (Etoys Inc)
No Changes. Except as contemplated by this Agreementset forth on Schedule 3.10 since the Balance Sheet Date, the Companies have conducted its business only in the Ordinary Course of Business. Without limiting the generality of the foregoing sentence, since the date of Balance Sheet Date, except as disclosed in this Agreement or the Interim Balance Sheetschedules hereto, there has not been, occurred been any: (i) material uninsured damage to any property owned or arisen any:
(a) transaction leased by the Company Companies; (ii) labor strike; (iii) declaration or payment of any dividend or redemption of any shares of capital stock, except the Permitted Dividends; (iv) increases in the salaries or bonuses of any employee of the Companies outside of the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend any bonuses to the Sellers or other distribution with respect to the capital stock officers of the Company;
Companies; (hv) capital expenditures or other asset acquisition or expenditure out of the ordinary course of business; (vi) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
Company plan described in Section 3.22; (ivii) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company asset other than in the ordinary course of business as conducted on that date and consistent with past practicesbusiness; (viii) payment, prepayment or (iv) involves the sale of, lease of or transfer discharge of any interest material liability other than in the ordinary course of business; (ix) write-offs or write-downs of any assets of the Companies out of the ordinary course of business, except there shall be no write offs or write downs of receivables outstanding as of December 31, 1996 under any circumstances without Buyer's prior written consent; (x) change in the Board of Directors or management of the Companies; (xi) change in the Companies' method of accounting; (xii) material change in the operations of the Companies; (xiii) issuance or sale of stock of the Companies or options to purchase stock of the Companies; (xiv) contract entered into by the Companies which is material to its operations; (xv) any material assets;
encumbrance attaching to assets of the Companies; (pxvi) hiring of, any prepayment of Long Term Debt (xvii) any agreement or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof commitment to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)foregoing.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Atlantic Express Transportation Corp), Stock Purchase Agreement (Atlantic Express Transportation Corp)
No Changes. Except as contemplated by this Agreement(i) Since June 30, since 2000 and through the date of the Interim Balance Sheethereof, there has not been, occurred or arisen any:
(a) transaction by the Company Company, WW or any Subsidiary except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesJune 30, 2000;
(b) transfer in, sale, lease, license or allocation of any assets (including intangible assets), Liabilities or employees to the Company, WW or any Subsidiary by the Stockholder or any of its subsidiaries (other than the Company, WW and its Subsidiaries);
(c) amendments or changes to the Articles certificate of Incorporation incorporation or Bylaws bylaws or other applicable charter documents of the Company;
(c) expenditure , WW or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregateany Subsidiary;
(d) destruction of, damage to or loss use by the Business of any material assetsassets owned by or licensed to the Stockholder or any of its subsidiaries (other than the Company, business or customer of the Company (whether or not covered by insuranceWW and its Subsidiaries), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) addition to or modification of the employee benefit plans, arrangements or practices described in Section 2.20 of this Agreement (other than as described in Section 5.19 hereof);
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company, WW or any Subsidiary;
(fh) revaluation by the Company Company, WW or any Subsidiary of any of its assets, including the Property;
(gi) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , WW or any compensation arrangement Subsidiary, or agreement any split, combination or reclassification with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of respect to the assets capital stock of the Company, WW or any creation Subsidiary, or any issuance or authorization of any security interest issuance of any other securities in such assets respect of, in lieu of or propertiesin substitution for shares of capital stock of the Company, including WW or any Subsidiary or any direct or indirect redemption, purchase or other acquisition by the PropertyCompany, WW or any Subsidiary of any of its capital stock (or options, warrants or rights convertible into, exercisable or exchangeable therefor);
(j) amendment increase in the salary or termination other compensation payable or to become payable to any of its officers or directors of the Company, WW or any Subsidiary other than increases made in the ordinary course of business consistent with past practices and in no event in excess of ten percent (10%) of such officer's or director's base salary, or the declaration, payment or commitment or obligation of any material contractkind for the payment of a bonus or other additional salary or compensation to any such person, agreement, permit, approval other than bonuses or license to which the Company is a party additional salary or by which it is bound, including any purchase and sale agreements for lots compensation paid in the Projectordinary course of business consistent with past practices;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, WW or any Subsidiary in excess of $50,000 in the aggregate, including any write-off or other compromise of any account receivable of the Company, WW or any Subsidiary;
(l) except as contemplated by this Agreement, issuance, sale, or contract to issue or sell, by the Company, WW or any Subsidiary of any shares of Company Capital Stock or WW Capital Stock or shares of capital stock of any Subsidiary or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or WW Capital Stock or shares of capital stock of any Subsidiary, or any securities, warrants, options or rights to purchase any of the foregoing;
(m) commencement or written notice or or, to the Stockholder's Knowledge, threat of commencement of any lawsuit or judicial or administrative or, to the Stockholder's Knowledge, proceeding against or investigation of against the Company Company, WW or its affairs, including the Project;
(n) agreement, understanding or commitment, or any event modification to or condition amendment of any character that has such agreement, understanding or could be reasonably expected to have a material adverse impact commitment, between the Stockholder and any of its subsidiaries or affiliates on the Companyone hand, and the Company or WW, on the other hand;
(o) any agreementadoption of a plan of or resolutions providing for the liquidation, contractdissolution, lease merger, consolidation or commitment or any extension or modification other arrangement of the terms of any agreementCompany, contract, lease WW or commitment which the Subsidiaries (i) involves except for the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employeestransactions contemplated hereby); or
(qp) negotiation or agreement by the Company Company, WW or any Subsidiary or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (po) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
(ii) Since September 30, 2000 and through the date hereof, there has not been, occurred or arisen any:
(a) material adverse change in the Company's or WW's condition (financial or otherwise), results of operations, assets, liabilities, working capital or reserves, except for changes contemplated hereby or set forth in the Company Financials;
(b) payment, discharge or satisfaction, in any amount in excess of $100,000 in any one case, or $250,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise) of the Company, WW or any Subsidiary, other than payment, discharge or satisfaction of Liabilities in the ordinary course of business consistent with past practices;
(c) capital expenditure or commitment by or on behalf of the Company, WW or any Subsidiary or the Business, either individually or in the aggregate, exceeding $100,000, other than, in the case of the Company and the Metal Subsidiaries only, in the ordinary course of business consistent with past practices;
(d) event or condition that has had or would be reasonably expected to have a Material Adverse Effect (as defined in Section 10.2 hereof) on the Company, WW or any Subsidiary;
(e) loan by the Company, WW or any Subsidiary to any person or entity, incurring by the Company, WW of any indebtedness, guaranteeing by the Company, WW or any Subsidiary of any indebtedness, issuance or sale of any debt securities of the Company or any Subsidiary or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(f) cancellation of any material indebtedness owed to the Company, WW or its Subsidiaries relating to any of the Company's or WW's business activities or properties (or the business activities or properties of the Subsidiaries), whether or not in the ordinary course of business;
(g) making or changing in any election in respect of Taxes (as defined in Section 2.8 hereof) of the Company, WW or any Subsidiary, adoption or change in any accounting method in respect of Taxes of the Company, WW or any Subsidiary, agreement or settlement of any claim or assessment in respect of Taxes of the Company, WW or any Subsidiary, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes of the Company, WW or any Subsidiary; or
(h) negotiation or agreement by the Company, WW or any Subsidiary or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (g) (other than negotiations with Parent and its representatives regarding the transactions contemplated by this Agreement).
(iii) Since March 31, 2000 and through the date hereof, there has not been, occurred or arisen any transfer out, sale, lease or license of any assets (including intangible assets and URLs), Liabilities or employees of the Company, WW or any Subsidiary to (with respect to material assets only) a third party or to (with respect to all assets) the Stockholder or any of its subsidiaries (other than the Company, WW and the Subsidiaries).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Cendant Corp), Merger Agreement (Cendant Corp)
No Changes. Except Since the Financial Statement Date, except as contemplated by this Agreementset forth on Schedule β3.24β, since the date of Company has carried on business and conducted its operations and affairs only in the Interim Balance Sheet, ordinary and normal course consistent with past practice and there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date any issuance, sale, pledge, hypothecation, lease, disposition or Lien or agreement to do any of the Interim Balance Sheet and consistent foregoing with past practices;
(b) amendments respect to any shares or changes to the Articles of Incorporation other corporate securities or Bylaws any right, option or warrant with respect thereto of the Company;
(b) an amendment or proposal to amend its Articles or by-laws;
(c) expenditure any split, combination or commitment by the Company in excess reclassification of $10,000 individually or $50,000 in the aggregateany of its securities;
(d) destruction of, damage to or loss of any material assetsadverse change in the condition (financial or otherwise), Assets, liabilities, operations, earnings, business or customer prospects of the Company Company;
(e) any damage, destruction or loss (whether or not covered by insurance), including ) affecting the Property;
(e) change Assets or any failure to regularly maintain and repair the Assets in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Companyordinary course of business;
(f) revaluation any issuance or sale by the Company or any contract entered into by the Company for the issuance or sale by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to shares in the capital stock of or securities convertible into or exercisable into shares in the capital of the Company;
(g) any license, sale, assignment, transfer, disposition, pledge, mortgage or granting of a security interest or other Lien on or over any Assets;
(h) material change any write-off as uncollectible of any Accounts Receivable or any portion thereof of the Company in any compensation arrangement or agreement with any employee, officer, director or stockholderamounts exceeding the allowance set out in the Financial Statements;
(i) any cancellation of any other debts or claims or any amendment, termination or waiver of any other rights to the Company;
(j) any material change in the accounting or tax practices followed by the Company
(k) any material change adopted in the depreciation or amortization policies or rates or any material change in the credit terms offered to customers of or by suppliers to the Company;
(l) any acquisition, saletransfer, leaseassignment, license sale or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots shown in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company Financial Statements other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsbusiness;
(pm) hiring ofany institution or settlement of any litigation, action or offer of employment to, proceeding before any employees (court or if an offer was accepted people that would become employees)governmental body by or against the Company; orand/or
(qn) negotiation the creation of any debts and/or liabilities whatsoever (whether accrued, absolute, contingent or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (aotherwise) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)set forth in Schedule βFβ.
Appears in 2 contracts
Samples: Purchase Agreement (Tara Minerals Corp.), Purchase Agreement (Tara Gold Resources Corp.)
No Changes. Except as contemplated by this Agreementset forth on Schedule 2.24, since the date of the Interim Balance SheetDecember 31, 2007 there has not been, occurred or arisen anyany of the following:
(a) transaction any amendment to the Seller Organizational Documents;
(b) any incurrence or assumption by the Company Business of any indebtedness in excess of $5,000 individually or $25,000 in the aggregate;
(c) the imposition of any Lien (other than Permitted Liens) upon any of the Transferred Assets;
(d) any material damage, destruction or loss with respect to the Transferred Assets or any other real or tangible personal property used in the Business, whether or not covered by insurance;
(e) any payment, loan or advance of any amount to, or sale, transfer or lease of any of the Transferred Assets to, or any agreement or arrangement relating to the Business or constituting a Transferred Asset with, any member or equity holder of Seller or any of their respective affiliates;
(f) any change in the Tax or accounting principles, methods, practices or procedures followed by Seller or any change in the depreciation or amortization policies or rates theretofore adopted by Seller, except as required by GAAP or disclosed to Purchaser in writing;
(g) any change or revocation by Seller of any Tax election with respect to the Business or any agreement or settlement with any governmental entity with respect to such Taxes;
(h) any acquisition by Seller by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof comprising all or a portion of the Business or the Transferred Assets;
(i) any sale, lease or other transfer or disposition by Seller of its assets related to the Business, tangible or intangible, other than the sale of Product in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesBusiness;
(bj) amendments any Contract (or changes series of related Contracts) related to the Articles of Incorporation or Bylaws of the Company;
Business and entered into by Seller either involving more than $25,000 individually (c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss outside the ordinary course of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Projectbusiness;
(k) loan by the Company to any Personacceleration, incurring by the Company termination, modification or cancellation of any indebtedness, guaranteeing by Assumed Contract involving more than $25,000 individually (or $50,000 in the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersaggregate);
(l) any capital expenditure (or series of related capital expenditures) related to the Business by Seller either involving more than $25,000 individually (or $50,000 in the aggregate) or outside the ordinary course of business;
(m) any capital investment in, any loan to or any acquisition of the securities or assets of, any other person by Seller with respect to or in connection with the Business;
(n) any delay or postponement of payment of accounts payable or other liabilities of Seller with respect to or in connection with the Business outside the ordinary course of Business consistent with past practice;
(o) any cancellation, compromise, waiver or release of any right or claim of Seller with respect to or in connection with the Company, including any write-off or other compromise Business outside the ordinary course of any account receivable of the CompanyBusiness consistent with past practice;
(mp) the commencement or written notice to Seller or, to Sellerβs Knowledge, oral notice or threat of commencement of any lawsuit or judicial or administrative proceeding against the Transferred Assets or investigation of against Seller with respect to the Company Transferred Assets, the Product or its affairs, including the ProjectBusiness;
(nq) any event license or condition sublicense of any character that has rights of Seller under or could be reasonably expected with respect to have a material adverse impact on the CompanyTransferred Technology;
(or) any agreementwritten notice or claim to Seller or, contractto Sellerβs Knowledge, lease oral notice or commitment claim of ownership by any Person of Business Intellectual Property or any extension or modification of infringement by the terms Business of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsPersonβs intellectual property rights;
(ps) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)material change in pricing charged by Seller for Products; or
(qt) any negotiation or agreement by the Company Seller or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Purchaser and their its representatives regarding the transactions contemplated by this Agreement). Since December 31, 2007, no Business Material Adverse Effect has occurred, and no event, circumstance, condition or effect has occurred that could reasonably be expected to result in a Business Material Adverse Effect.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Nuvasive Inc), Asset Purchase Agreement (Osiris Therapeutics, Inc.)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Company Current Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on as of the date of the Interim Company Current Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws Organizational Documents of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock any units of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its units;
(i) acquisitionincrease in the salary or other compensation payable or to become payable to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jk) any Lien placed on any of the Transferred Assets which remains in existence on the date hereof;
(l) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(km) loan by the Company to any Personperson or entity, incurring the incurrence by the Company of any indebtedness, guaranteeing the guaranty by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company guaranty of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(ln) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mo) any contingent liabilities incurred by the Company with respect to the obligations of any other person that would be assumed hereunder;
(p) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(nq) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property rights;
(r) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(s) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(t) event or condition of any character that has or could be reasonably expected to have a material adverse impact Company Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qu) any postponement or delay in payment of any accounts payable or other liability of the Company that will be included as Assumed Liabilities;
(v) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or Buyer Healtheon and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Healtheon Corp), Asset Purchase Agreement (Healtheon Corp)
No Changes. Except as contemplated by this Agreementset forth in Exhibit C, since the date of the Interim Balance SheetDecember 31, ---------- --------- 1996, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (collectively a "Company Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment Company ----------------- Agreement which (i) involves the payment of greater than $25,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(o) the commencement or notice or threat of commencement of any lawsuit or proceeding against investigation of the Company or its affairs;
(p) hiring of, notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or offer of employment to, infringement by the Company of any employees (or if an offer was accepted people that would become employees); orthird party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(r) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that has or may have a Material Adverse Effect on the Company or;
(t) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Usweb Corp), Agreement and Plan of Reorganization (Usweb Corp)
No Changes. Except as contemplated by this AgreementSince January 1, since the date of the Interim Balance Sheet2016, there has not been, occurred or arisen arisen, any:
(a) transaction by modifications, amendments or changes to the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesCharter Documents;
(b) amendments expenditure, transaction or changes commitment exceeding $100,000 individually or $500,000 in the aggregate (excluding, in both cases, any expenditures, transactions or commitments related to the Articles salary or other compensation (including equity-based compensation) payable or to become payable by Seller to any of Incorporation its respective officers, directors, employees or Bylaws of consultants), in each case as related to the CompanyPurchased Assets;
(c) expenditure payment, discharge, waiver or commitment by satisfaction of any Liability of Seller Parties or of the Company in excess of $10,000 individually Business related to the Purchased Assets, other than payments, discharges or $50,000 satisfactions in the aggregateOrdinary Course of Business of Liabilities;
(d) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company Seller Parties (whether or not covered by insurance), including in each case relating to the PropertyPurchased Assets;
(e) employment dispute filed or threatened in writing by any individual, Governmental or Regulatory Body, or workersβ representative organization, bargaining unit or union, regarding, claiming or alleging wrongful discharge or any other unlawful employment or labor practice or action with respect to Seller, in each case as related to the Purchased Assets;
(f) adoption of or change in material accounting methods or practices (including any change in depreciation or amortization policies or rates) by Seller other than as required by GAAP and which is primarily related to the Company;
(f) revaluation by the Company of any of its assets, including the PropertyPurchased Assets;
(g) declarationadoption of or change in any election in respect of Taxes, setting aside adoption or payment change in any accounting method in respect of a dividend Taxes, agreement or other distribution with settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes, in each case as related to the capital stock of the CompanyPurchased Assets;
(h) material other than in the Ordinary Course of Business, (i) increase in or other change to the salary or other compensation (including equity based compensation) payable or to become payable by Seller to any of the Continuing Employees, or (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by Seller of a severance payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any compensation arrangement or agreement with any employee, officer, director or stockholderof the Continuing Employees;
(i) acquisitionContract, covenant, instrument, lease, license or commitment to which Seller Parties are a party that relates to the Purchased Assets or by which any of the Purchased Assets are bound or any termination, extension, amendment or modification of the terms of any such Contract, other than in the Ordinary Course of Business;
(j) sale, lease, license or other disposition of any of the assets Purchased Assets, including the sale of the Companyany accounts receivable of Seller Parties related thereto, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the ProjectPurchased Assets;
(k) loan by the Company Seller Parties to any PersonPerson (except for advances to employees for travel and business expenses in the Ordinary Course of Business consistent with past practices), or purchase by Seller Parties of any debt securities of any Person or amendment to the terms of any outstanding loan agreement, in each case as related to the Purchased Assets;
(l) incurring by the Company Seller Parties of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company Seller Parties of any indebtedness, issuance or sale of any debt securities of the Company Seller Parties or guaranteeing by the Company of any debt securities of others, except for obligations to reimburse employees for travel and business expenses incurred in the Ordinary Course of Business consistent with past practices, in each case as related to the Purchased Assets;
(lm) waiver or release of any material right or claim of Seller Parties relating to the CompanyPurchased Assets, including any write-off waiver, release or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the ProjectSeller Parties that would reasonably be expected to exceed $100,000;
(n) commencement or settlement of any lawsuit by Seller Parties related to the Purchased Assets, or the commencement, settlement, notice or, to the Knowledge of Seller Parties, threat of any lawsuit or proceeding or other investigation related to the Purchased Assets against Seller Parties or their businesses, properties or assets, or any reasonable basis for any of the foregoing;
(o) notice of any claim or potential claim of ownership, interest or right by any Third Party of any of the Transferred IP, or of infringement or misappropriation by Seller Parties in the operation of the Business of any other Personβs Intellectual Property Rights;
(p) (i) sale, lease, license or transfer of any Purchased Assets or execution, modification or amendment of any agreement with respect to the Purchased Assets with any Person or with respect to the Intellectual Property of any Person, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any Person, for use by the Business, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a Third Party, for use by the Business or (iv) change in pricing or royalties set or charged by Seller Parties in the Business to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to Seller Parties for use in the Business;
(q) event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact on the CompanyMaterial Adverse Effect;
(or) agreement by Seller Parties to acquire by merging or consolidating with, or by purchasing any agreementassets or equity securities of, contractor by any other manner, lease any business or commitment corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any extension equity securities that are material, individually or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practicesaggregate, or (iv) involves to the sale of, lease of or transfer of any interest in any material assetsBusiness;
(ps) hiring ofexecution of any strategic alliance, affiliate or offer joint marketing arrangement or agreement by Seller Parties related to the Purchased Assets;
(t) cancellation, amendment or renewal of employment toany insurance policy of Seller Parties related to the Purchased Assets;
(u) issuance or agreement to issue any refunds, any employees (credits, allowances or if an offer was accepted people that would become employees)other concessions with customers related to the Purchased Assets in excess of $100,000; or
(qv) negotiation or agreement by the Company Seller Parties, or any officer or employees thereof on behalf of Seller Parties, to do any of the things described in the preceding clauses (a) through (py) of this Section 2.12 (other than negotiations with Monaco or the Buyer Parties and their representatives regarding the transactions contemplated by this AgreementAgreement and any Related Agreements).
Appears in 2 contracts
Samples: Asset Purchase Agreement (INPHI Corp), Asset Purchase Agreement (Rambus Inc)
No Changes. Except as contemplated by this Agreement, since In the date of the Interim Balance Sheet, past 30 calendar days at Centra Bella there has have not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;Bylaws
(b) capital expenditure or commitment
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(d) labor trouble or claim of wrongful discharge or other unlawful labor practice
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;)
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock or any direct or indirect redemption, purchase or other acquisition of the Company;its capital stock
(h) material change increase in the salary or other compensation whether cash or equity-based, payable or to become payable to any of the officers, directors, employees or advisors or the declaration, payment or commitment or obligation of any kind for the payment, of a bonus or other salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person;
(i) acquisitionincrease, saleor announcement of any increase, leasein the wages, license salaries, compensation, bonuses, incentives, pension, or other disposition of benefits payable to any of the assets of the Companyemployees, consultants, or any creation of any security interest in such assets or properties, including the Propertydirectors;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company Loans to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(lk) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable ;
(l) the commencement or notice or threat or reasonable basis therefor of the Companyany lawsuit;
(m) commencement issuance or notice sale, or threat of commencement contract to issue or sell of any lawsuit or judicial or administrative proceeding against or investigation shares of the Company capital stock or its affairsany or securities exchangeable, including convertible or exercisable therefor, or any securities, warrants, options or rights to purchase any of the Projectforegoing;
(n) any event or condition of any character that has had or could be is reasonably expected likely to have a material an adverse impact on the Companyeffect upon this transaction;
(o) any agreement, contract, lease or commitment or any extension or modification transaction outside of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;business.
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreemento).
Appears in 2 contracts
Samples: Stock Purchase Agreement (Textechnologies, Inc.), Stock Purchase Agreement (Textechnologies, Inc.)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance SheetYear-End Financials, there has not been, occurred or arisen any:
(a) transaction by the Company or its Subsidiaries except in the ordinary course Ordinary Course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesBusiness;
(b) modifications, amendments or changes to the Articles of Incorporation Association or Bylaws the charter of the Companyany of its Subsidiaries;
(c) expenditure expenditure, transaction or commitment by the Company in excess of exceeding $10,000 individually or $50,000 in the aggregate100,000 individually;
(d) payment, discharge, waiver or satisfaction, in any amount in excess of $100,000 in any one case of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiaries), other than payments, discharges or satisfactions in the Ordinary Course of Business of liabilities reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company or its Subsidiaries (whether or not covered by insurance), including the Property;
(ef) employment dispute, including (i) any claims made by Employees which individually or in the aggregate are reasonably expected to be material to the Company or any of its Subsidiaries; (ii) claims or matters raised by any individual, Governmental Entity, or workersβ representative organization, bargaining unit or union, regarding, claiming or alleging labor trouble, wrongful discharge, unfair or wrongful dismissal, unlawful discrimination, breach of contract or any other unlawful employment or labor practice or action with respect to the Company or its Subsidiaries (whether or not such allegedly unlawful practice or action is actually unlawful under the laws of Sweden or any other jurisdiction); or (iii) any facts or matters, to the Knowledge of the Sellers, likely to give rise to a claim within the meaning of this Section 3.9(f);
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or its Subsidiaries other than as required by GAAP or applicable law;
(fh) adoption of or change in any election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) through the date of this Agreement, revaluation by the Company or its Subsidiaries of any of its assetsassets (whether tangible or intangible), including writing down the Propertyvalue of inventory or writing off notes or accounts receivable;
(gj) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property, and whether openly or concealed) in respect to of any Company Capital Stock or capital stock of any of the Companyβs Subsidiaries, or any split, combination or reclassification in respect of any shares of Company Capital Stock or capital stock of the Companyβs Subsidiaries, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or shares of the Companyβs Subsidiaries, or any direct or indirect repurchase, redemption, or other acquisition by the Company or any of the Companyβs Subsidiaries of any shares of Company Capital Stock or capital stock of the Companyβs Subsidiaries (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(hk) material except as required by Contracts in effect as of the date hereof that have been disclosed to Purchaser, (i) increase in or other change to the salary or other compensation (including equity based compensation) payable or to become payable by the Company or its Subsidiaries to any of its respective Senior Managers, directors, employees or consultants, or (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiaries of a severance payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any compensation arrangement of its respective Senior Managers, directors, Employees or agreement consultants; provided in all cases that the actions contemplated by clauses (i) and (ii) are consistent with any employee, officer, director or stockholderthe terms required by such Contracts;
(il) acquisition, termination of any Contract that would have been a Material Contract if such Contract had been in effect as of the date of this Agreement;
(m) sale, lease, license lease or other disposition of any of the material assets (whether tangible or intangible) or properties of the CompanyCompany or any of its Subsidiaries, including the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kn) loan by the Company or any of its Subsidiaries to any PersonPerson (except for advances to employees for travel and business expenses in the Ordinary Course of Business), or purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or any of its Subsidiaries of any indebtednessindebtedness (including Company Indebtedness), amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing by the Company of any debt securities of others, except for obligations to reimburse employees for travel and business expenses and trade payables incurred in the Ordinary Course of Business;
(lp) waiver or release of any right or claim of the CompanyCompany or any of its Subsidiaries, including any write-off waiver, release or other compromise of any account receivable of the CompanyCompany or any of its Subsidiaries;
(mq) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the commencement, settlement, notice or or, to the Knowledge of the Sellers, threat of commencement of any lawsuit or judicial proceeding or administrative proceeding other investigation against the Company or investigation any of its Subsidiaries or relating to any of their businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) written or (to the Knowledge of the Sellers) oral notice of any claim or potential claim of ownership, interest or right by any person other than the Company or any of its Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or any of its affairs, including Subsidiaries or of infringement by the ProjectCompany or any of its Subsidiaries of any other Personβs Intellectual Property;
(ns) issuance, grant, delivery, sale or purchase of, or proposal, Contract or agreement to issue, grant, deliver, sell or purchase, by the Company, of (i) any event shares of Company Capital Stock or condition capital stock of any character of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or capital stock of any of its Subsidiaries, or (ii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Capital Stock or shares of capital stock of any of its Subsidiaries upon the exercise of Company Warrants or any of the foregoing that has or could be reasonably expected to have a material adverse impact on is described in Section 3.2 of the CompanySellersβ Disclosure Schedule;
(ot) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves sale, lease, license (other than licenses to customers in the payment Ordinary Course of greater than $25,000 per annumBusiness and as otherwise permitted under this Agreement) or transfer of any Company Intellectual Property or execution, or, in any material respect, any modification or amendment, of any agreement with any Person with respect to Company Intellectual Property, or (ii) extends for more purchase or license of any material Intellectual Property of a third party other than one (1) yearShrink-Wrap Code or execution, or, in any material respect, any modification or amendment, of any agreement with respect to the material Intellectual Property of a third party other than Shrink-Wrap Code, (iii) involves agreement or modification or amendment of an existing agreement with respect to the development of any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent Intellectual Property with past practicesa third party, or (iv) involves material change outside the Ordinary Course of Business in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any of its Subsidiaries;
(u) entering into any material agreement or modification to any Contract pursuant to which any other party thereto is or was granted marketing, distribution, development, delivery, manufacturing or similar rights with respect to any Company Products or Company Intellectual Property;
(v) Company Material Adverse Effect;
(w) purchase or sale of, lease of or transfer of any interest in real property, granting of any material assetssecurity interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Properties or other real property by the Company or any of its Subsidiaries;
(px) hiring acquisition by the Company or any of its Subsidiaries of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer of its Subsidiaries to acquire by merging or employees thereof consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or any of its Subsidiaries;
(y) grant by the Company or any of its Subsidiaries of any severance or termination pay (in cash or otherwise) to any Employee, including any officer, except payments made pursuant to written agreements disclosed in the Sellersβ Disclosure Schedule;
(z) adoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement with Senior Managers or in excess of $100,000 per annum in salary, excluding annual salary increases in the Ordinary Course of Business in the case of non-Senior Managers;
(aa) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(bb) any action to accelerate the vesting schedule of any Company Options;
(cc) hiring, promotion, demotion or termination or other change to the employment status or title of any Senior Managers, except as may be permitted under this Agreement; (dd) alteration of any interest of the Company in any of its Subsidiaries or any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(ee) cancellation, amendment or renewal of any insurance policy of the Company or any of its Subsidiaries, except in the Ordinary Course of Business;
(ff) issuance or agreement to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company or any of its Subsidiaries in excess of $25,000 individually or $100,000 in the aggregate; or
(gg) agreement by the Company, any of its Subsidiaries, or any Senior Manager, consultant, or employee on behalf of the Company or any of its Subsidiaries, to do any of the things described in the preceding clauses (a) through (pff) of this Section 3.9 (other than negotiations with Monaco or Buyer Purchaser and their its representatives regarding the transactions contemplated by this AgreementAgreement and any Related Agreements).
Appears in 2 contracts
Samples: Share Transfer Agreement, Share Transfer Agreement (Dolby Laboratories, Inc.)
No Changes. Except as contemplated by this Agreementset forth in Exhibit C, since the date of the Interim Balance SheetJuly 31, 1997, ---------- --------- there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (each a "Company ------- Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment Company Agreement --------- which (i) involves the payment of greater than $25,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(o) the commencement or notice or threat of commencement of any lawsuit or proceeding against, or investigation of, the Company or its affairs;
(p) hiring ofnotice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or notice of infringement by the Company of any third party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment to, any employees other of its securities;
(r) change in pricing or if an offer was accepted people royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that would become employees)has or may have a Material Adverse Effect on the Company; or
(qt) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Usweb Corp), Agreement and Plan of Reorganization (Usweb Corp)
No Changes. Except as contemplated by this AgreementAgreement or as set forth in Section 2.9 of the Company Disclosure Schedule, since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company with payments to be made by or to the Company in excess of $25,000 individually or $50,000 in the aggregate except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles certificate of Incorporation incorporation or Bylaws bylaws of the CompanyCompany or the Organizational Documents of any of its Subsidiaries;
(c) capital expenditure or commitment by the Company in excess of exceeding $10,000 25,000 individually or $50,000 100,000 in the aggregate;
(d) destruction of, material damage to to, or material loss of any material assetsassets (whether tangible or intangible), or material business or customer of the Company (whether or not covered by insurance), including and the PropertyCompany has not received written notice (and the Company Officer Group has not received oral notice) from any material customer that it will stop or materially decrease its business with the Company;
(e) employment dispute, including but not limited to, claims or matters raised by any individuals or any workers' representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany other than as required by GAAP;
(fg) change in any material election in respect of Taxes (as defined below), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(h) revaluation by the Company of any of its assetsassets (whether tangible or intangible), including without limitation, writing down the Propertyvalue of inventory or writing off notes receivable;
(gi) increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person, other than in the ordinary course of business;
(j) adoption or amendment to any Company Employee Plan, except as required by applicable law;
(k) loan by the Company to any person or entity, or purchase by the Company of any debt securities of any person or entity;
(l) payment, discharge, waiver or satisfaction by the Company, in an amount in excess of $25,000 in any one case, or $50,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business;
(m) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with respect to the capital stock of the Companyagreements evidencing Company Options;
(hn) material change waiver or release by the Company of any right or claim of the Company or Subsidiary, including any write-off or other compromise of any account receivable of the Company or Subsidiary in excess of any compensation arrangement or agreement with any employee, officer, director or stockholderestablished reserves for accounts receivable in the Current Balance Sheet;
(io) acquisition, sale, lease, license or expenditure of cash other disposition than in the ordinary course of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Propertybusiness;
(jp) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring incurrence by the Company of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(li) waiver sale or release license of any right Company Intellectual Property or claim execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity other than the granting of object code licenses in conjunction with the sale of the Company's products in the ordinary course of the Company's business and consistent with past practice, including any write-off or other compromise (ii) purchase or license of any account receivable Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, except in the ordinary course of business, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) material change in royalties set or charged by the Company to its customers or licensees or in royalties set or charged by persons who have licensed Intellectual Property to the Company;
(r) receipt by the Company of written notice (or receipt of oral notice by the Company Officer Group) of any claim or potential claim of ownership, interest or right by any person other than the Company or any of its Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other person's Intellectual Property;
(s) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company;
(mt) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact on the CompanyCompany Material Adverse Effect;
(ou) any agreementlease, contractlicense, lease sublease or commitment or any extension or modification of the terms other occupancy of any agreement, contract, lease or commitment which (i) involves Leased Real Property by the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Company; or
(qv) negotiation or agreement by the Company Company, or any officer or employees thereof on behalf of the Company , to do any of the things described in the preceding clauses (a) through (pu) of this Section 2.9 (other than negotiations with Monaco or the Buyer and their its representatives regarding the transactions contemplated by this AgreementContemplated Transactions).
Appears in 1 contract
No Changes. Except as contemplated by this AgreementSince September 30, since 1999 and until the date of the Interim Balance Sheethereof, ---------- there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $50,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) event or condition that has or would be reasonably expected to have a Material Adverse Effect (as defined in Section 9.2 hereof) on the Company;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fh) revaluation by the Company of any of its assets, including the Property;
(gi) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(hj) material change increase in the salary or other compensation payable or to become payable to any of its officers or directors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person except as otherwise contemplated by this Agreement;
(ik) acquisition, material sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jl) amendment or termination (other than pursuant to its terms) of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(km) material loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(ln) material waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mo) commencement issuance or notice or threat of commencement sale by the Company of any lawsuit of its shares of capital stock, or judicial securities exchangeable, convertible or administrative proceeding against exercisable therefor, or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification other of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company its securities other than the grant or exercise of stock options in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsbusiness;
(p) hiring of, change in pricing or offer of employment to, any employees royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (or if an offer was accepted people that would become employees)as defined in Section 2.11) to the Company; or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Goto Com Inc)
No Changes. Except as contemplated by this Agreementset forth on Schedule 3.6, since the date Balance Sheet Date there has been no material adverse change in the business, operations, properties, assets, contractual relationships or condition of the Interim Balance SheetCompany, the Company has conducted the Business only in the ordinary course and there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assetsfinancial condition, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate liabilities of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsbusiness;
(pb) hiring ofany material damage or destruction to or loss of any asset of the Company, whether or not covered by insurance;
(c) any commitment by the Company to provide benefits payable to or for the benefit of any employee of the Company upon the occurrence of a change in control or to pay a deal bonus to any employee of the Company;
(d) any material increase in the salary, wage or bonus payable by the Company to any employee of the Company;
(e) any change in any method of accounting;
(f) any sale or other disposition of assets or operations identifiable with a product line of the Company, or offer any acquisition of employment toanother business, whether through the purchase of assets, stock or otherwise, except in the ordinary course of business;
(g) any sale, lease or other disposition of any material assets of the Company (other than inventory in the ordinary course of business), or any condemnation or expropriation or other taking of any assets of the Company, or known threat thereof, by any Governmental Authority;
(h) any issuance, sale or disposition of capital stock or any other securities or grant of any option, warrant or other right to subscribe for or purchase any capital stock or any other securities of the Company;
(i) any declaration or payment of any dividend or distribution with respect to the capital stock of the Company or any redemption, purchase or acquisition of the capital stock of the Company;
(j) any write-offs, write-downs or write-ups of the value of any of the inventory or other assets of the Company;
(k) any mortgage or pledge of any material assets of the Company, except for Permitted Encumbrances or arising in the ordinary course of business;
(l) any creation or assumption of any Indebtedness, except for Indebtedness incurred in the ordinary course of business or pursuant to Contracts disclosed on Schedule 3.6, entered into in the ordinary course of business;
(m) any guarantee of any liability (whether directly, contingently or otherwise) for the obligations of any other Person except in the ordinary course of business and except for the endorsement of negotiable instruments by the Company in the ordinary course of business;
(n) any Tax election made, any employees (Tax liability settled or if an offer was accepted people that would become employees)compromised, or any waiver or extension of the statute of limitations with respect to any Taxes; or
(qo) negotiation any agreement or agreement by the Company or any officer or employees thereof commitment to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (United States Lime & Minerals Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation Charter Documents or Bylaws of other organizational documents other than the CompanyCharter Amendment contemplated by this Agreement;
(c) capital expenditure or commitment by the Company in excess of exceeding $10,000 100,000 individually or $50,000 200,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, of any Liabilities of the Company, other than payments, discharges or satisfactions in the ordinary course of business or Liabilities of the Company reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance), including the Property;
(ef) employment dispute, including, claims or matters raised by any individuals or any workersβ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany other than as required by GAAP;
(fh) adoption of or change in any material Tax (as defined in Section 2.10(a) hereof) election, adoption of or change in any Tax accounting method, entry into any closing agreement, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(i) revaluation by the Company of any of its assetsassets (whether tangible or intangible), including without limitation, writing down the Propertyvalue of inventory or writing off notes or accounts receivable;
(gj) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the capital stock Company of the Companyany shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(hk) material change increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation arrangement or agreement to any such person other than in the ordinary course of business consistent with any employee, officer, director or stockholderpast practices;
(il) acquisitionContract to which the Company is a party or by which it or any of its assets (whether tangible or intangible) are bound, except for Contracts entered into in the ordinary course of business consistent with past practice, or any termination, extension, amendment or modification of the terms of any Contract to which the Company is a party or by which it or any of its assets are bound, except in the ordinary course of business consistent with past practices;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kn) loan by the Company to any Personperson or entity, or purchase by the Company of any debt securities of any person or entity except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(o) incurring by the Company of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practice;
(lp) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mq) commencement or settlement of any Action by the Company, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of commencement of any lawsuit Action or judicial proceeding or administrative proceeding other investigation against or investigation of the Company or its affairs, including or any reasonable basis for any of the Projectforegoing;
(nr) notice of any claim or potential claim of ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13 hereof) or of infringement by the Company of any other personβs Intellectual Property (as defined in Section 2.13 hereof);
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise of Company Options issued under the Plan;
(i) except standard end user licenses entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity, or (ii) except in the ordinary course of business, purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any Company Intellectual Property;
(v) event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact on the CompanyCompany Material Adverse Effect;
(ow) lease, license, sublease or other occupancy of any agreement, contract, lease or commitment or any extension or modification Leased Real Property by the Company except as otherwise disclosed in Section 2.12(a) of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Disclosure Schedule; or
(qx) negotiation or agreement by the Company Company, or any officer or employees thereof on behalf of the Company, to do any of the things described in the preceding clauses (a) through (pw) of this Section 2.9 (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Company Balance Sheet, Sheet there has not been, occurred or arisen any:
(a) transaction by the Company except material adverse change in the ordinary course of business as conducted on the date financial condition, liabilities, assets, business, or prospects of the Interim Balance Sheet and consistent with past practicesCompany;
(b) amendments or changes to in the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $50,000;
(d) destruction ofdestruction, damage to to, or loss of any material assets, business or customer assets of the Company (whether or not covered by insurance), including ) that constitutes a Material Adverse Effect on the PropertyCompany;
(e) labor trouble or claim of wrongful discharge of which the Company has received written notice or of which the Company is aware, or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside aside, or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets shares of the Company, or any creation direct or indirect redemption, purchase or other acquisition by the Company of any security interest of its shares;
(i) increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors or employees, or the declaration, payment, or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such assets or properties, including the Propertyperson;
(j) acquisition, sale or transfer of any material asset of the Company other than in the ordinary course of business;
(k) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Projectparty;
(kl) loan by the Company to any Personperson or entity, incurring or guaranty by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersloan;
(lm) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mn) the commencement or notice or threat of commencement of any lawsuit or judicial or administrative governmental proceeding against or investigation of the Company or its affairs, including the Project;
(no) any other event or condition of any character that has or could might reasonably be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(op) issuance or sale by the Company of any agreement, contract, lease of its shares or commitment of any other of its securities except for issuances or any extension sales as a result of exercises of stock options granted under the Company Stock Option Plan or modification rights previously granted to purchase shares of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsCompany's capital stock;
(pq) hiring of, change in pricing or offer of employment to, any employees (royalties set or if an offer was accepted people that would become employees)charged by the Company; or
(qr) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (q), other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim ---------- Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock;
(i) acquisitionincrease in the salary or other compensation payable or to become payable to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jk) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lm) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mn) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property rights;
(p) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(q) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(r) event or condition of any character that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qs) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Cirrus Logic Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of exceeding $10,000 25,000 individually or $50,000 100,000 in the aggregate;
(d) payment, discharge or satisfaction, in an amount in excess of $25,000 in any one case, or $100,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Balance Sheet;
(e) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including ) exceeding $25,000 individually or $100,000 in the Propertyaggregate;
(ef) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(g) event or condition that has or would be reasonably expected to have a Material Adverse Effect on the Company;
(h) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fi) revaluation by the Company of any of its assets, including the Property;
(gj) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(hk) material change increase in the salary or other compensation payable or to become payable to any of the Company's officers or directors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person except as described in Section 2.7(k) of the Company Schedule;
(il) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except for fair market value to the Company in the ordinary course of any security interest in such assets or properties, including the Propertybusiness and consistent with past practices;
(jm) amendment or termination (other than pursuant to its terms) of any material contract described in Section 2.12(a) of the Company Schedule or any contract, agreement, permit, approval license or license to which agreement described in Section 2.11(n) of the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the ProjectSchedule;
(kn) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lo) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and business, consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring ofissuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment toany other of its securities, except for (i) the issuance of Company Common Stock or Company Preferred Stock upon the exercise of the Company Options or Company Warrants described in Schedules 2.2(b) and 2.2(c); and (ii) the grant of options to acquire Company Common Stock pursuant to and in accordance with the Option Plan in accordance with past practices and in amounts and under circumstances which will not prevent the accounting for the transactions contemplated by this Agreement as a pooling of interests;
(q) change in any employees material respect in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (or if an offer was accepted people that would become employees)as defined in Section 2.11) to the Company; or
(qr) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Cypress Semiconductor Corp /De/)
No Changes. Except as contemplated by this Agreementset forth in Section 2.9 of the Company Disclosure Letter, since the date of the Interim Current Balance SheetSheet Date, there has not been, occurred or arisen any:
(aA) transaction by the Company or any of its subsidiaries except in the ordinary course of business as conducted on the date Ordinary Course of the Interim Balance Sheet and consistent with past practicesCompany's Business;
(bB) amendments or changes to the Articles certificate of Incorporation incorporation or Bylaws bylaws of the CompanyCompany or any of its subsidiaries;
(cC) capital expenditure or commitment by the Company or any of its subsidiaries exceeding, prior to the date hereof, $50,000 individually or $100,000 in the aggregate, and after the date hereof, which does not constitute a breach of Section 4.1.
(D) payment, discharge or satisfaction, in any amount in excess of $10,000 individually 50,000 in any one case, or $50,000 100,000 in the aggregate, of any Liability (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the Ordinary Course of the Company's Business, Liabilities reflected or reserved against in the Current Balance Sheet and Liabilities incurred after the date hereof which does not constitute a breach of Section 4.1;
(dE) destruction of, damage to or loss of any material assets, material business or material customer of the Company or any of its subsidiaries (whether or not covered by insurance), including the Property;
(eF) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(G) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any of its subsidiaries other than as required by GAAP;
(fH) change in any material election in respect of Taxes (as defined below), adoption or change in any accounting method in respect of Taxes, agreement
(I) revaluation by the Company or any of its subsidiaries of any of its their respective assets, including the Property;
(gJ) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock or any capital stock of any subsidiary of the Company, or any split, combination or reclassification in respect of any shares of Company Capital Stock or any shares of the capital stock of any subsidiary of the Company, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or shares of the capital stock of any subsidiary of the Company, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock or by any subsidiary of the Company of the capital stock of such subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options and Company Warrants and except for Additional Employee Options issued after the date hereof which do not constitute a breach of Section 4.1 of this Agreement;
(hK) material change except for adjustments in the Ordinary Course of the Company's Business for employees (other than the officers or directors of the Company) which do not constitute a breach of Section 4.1 of this Agreement after the date hereof, increase in the salary or other compensation payable or to become payable by the Company or any of its subsidiaries to any of its officers or directors, or in the wage schedule for any other employees or advisors of the Company or any of its subsidiaries, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company or any of its subsidiaries, of a severance payment, termination payment, bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person;
(iL) acquisitionother than the Contracts identified in Section 2.9(L) of the Company Disclosure Letter and Contracts entered into in the Ordinary Course of the Company's Business after the date hereof which do not constitute a breach of Section 4.1 of this Agreement, enter into any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its subsidiaries is a party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification the terms of any agreement, contract, covenant, instrument, lease, license or
(M) sale, lease, license or other disposition of any of the material assets or material properties of the Company, Company or any of its subsidiaries or any creation of any security interest in such material assets or material properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kN) loan by the Company or any of its subsidiaries to any Personperson or entity (other than test account loans given in reasonable amount in the Ordinary Course of the Company's Business and loans entered into after the date hereof in accordance with Section 4.1.N of this Agreement), incurring by the Company or any of its subsidiaries of any indebtedness, guaranteeing by the Company or any of its subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its subsidiaries or guaranteeing by the Company of any debt securities of othersothers except for advances to employees for travel and business expenses in the Ordinary Course of the Company's Business;
(lO) waiver or release of any right or claim of the CompanyCompany or any of its subsidiaries, including any write-off or other compromise of any account receivable of the CompanyCompany or any of its subsidiaries;
(mP) commencement the commencement, settlement, notice or, to the Knowledge of the Company, or notice or any of its subsidiaries, threat of commencement of any lawsuit or judicial proceeding or administrative proceeding other investigation against the Company or investigation any of its subsidiaries or its affairs, or any reasonable basis for any of the foregoing;
(Q) notice of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property or of infringement by the Company or any of its subsidiaries of any other person's Intellectual Property;
(R) issuance or sale, or contract to issue or sell, by the Company or any of its subsidiaries of any shares of Company Capital Stock or any of its subsidiaries' capital stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or any of its subsidiaries' capital stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Capital Stock upon exercise of the Company Options and Company Warrants described in Section 2.3.B of the Company Disclosure Schedule and issuances of Additional Employee Options in the Ordinary Course of the Company's Business which are not in breach of Section 4.1 hereof.
(S) Except for a transaction entered into after the date hereof in the Ordinary Course of the Company's Business which does not violate Section 4.1 hereof, the sale or license of any Company Intellectual Property or entering into of
(T) agreement or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company or any of its affairs, including subsidiaries except in the ProjectOrdinary Course of the Company's Business;
(nU) any event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment Company or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)its subsidiaries; or
(qV) negotiation or agreement by the Company or any of its subsidiaries (or any officer or employees thereof on behalf of, and binding upon, the Company or any of its subsidiaries) to do any of the things described in the preceding clauses (a) through (pu) of this Section (other than negotiations with Monaco or Buyer Sybase and their its representatives regarding the transactions Transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Section 3.10 of the Company ---------- Disclosure Schedule, since between August 31, 1998 and the date of the Interim Balance Sheethereof, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(cb) expenditure other than payments under leases disclosed in the Company Current Balance Sheet, capital expenditures or commitment capital commitments by the Company in excess of Company, exceeding $10,000 individually or $50,000 in the aggregate;
(dc) destruction of, damage to or loss of any material assets, assets or business or customer of the Company (whether or not covered by insurance), including the Property;
(d) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including assets except in connection with the Propertyconversion of debt to equity;
(gf) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) with respect to the capital stock of the Company, or any split, combination or reclassification with respect to the stock of the Company, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of stock of the Company or any direct or indirect redemption, repurchase or other acquisition by the Company of its stock (or options, warrants or other rights exercisable therefor) except in connection with conversion of debt to equity;
(g) increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company of a bonus or other additional salary or compensation to any such person;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderchanges to the list and terms of the Employee Plans and Employment Agreements detailed at Schedule 3.23(b) of the Company Disclosure Schedule;
(i) acquisitionother than non-exclusive licenses pursuant to the Company's standard end-user agreements in substantially the form included in Section 3.14(g) of the Company Disclosure Schedule, any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company is a party or by which it or any of its assets are bound;
(j) other than non-exclusive licenses pursuant to the Company's standard end-user agreements in substantially the form included in Section 3.14(g) of the Company Disclosure Schedule, sale, lease, license or other disposition of any of the assets or properties of the Company, Company or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practice;
(l) waiver or release of any right or claim of the Company, Company including any write-off or other compromise of any account receivable of the Company;
(m) the commencement or notice or or, to Company's knowledge, the threat of commencement of any lawsuit or judicial or administrative or, to the Company's knowledge, proceeding against or investigation of against the Company or its affairs, including the Project;
(n) knowledge of any claim or potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 3.14(a)(iii)) or of infringement by the Company of any other person's Intellectual Property (as defined in Section 3.14(a)(i));
(o) other than non-exclusive licenses pursuant to the Company's standard end-user agreements in substantially the form included in Section 3.14(g) of the Company Disclosure Schedule, (i) sale or license of any Company Intellectual Property or entering into of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity or (ii) purchase or license of any Intellectual Property or entering into of any agreement with respect to the Intellectual Property of any person or entity or (iii) entering into any agreement with respect to development of any Intellectual Property with a third party or (iv) change in pricing or royalties charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(p) event or condition of any character that has had or could be reasonably expected to would have a material adverse impact on Company Material Adverse Effect as of the Companydate hereof;
(oq) any agreement, contract, lease or commitment or any extension or modification other than a transaction of the terms of any agreementtypes described in Sections 3.10(a) through (q) above, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of transaction by the Company other than except in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qr) negotiation or agreement by the Company or any officer or employees thereof employee thereof, in his or her capacity as such, to do any of the things described in the preceding clauses 3.10
(a) through (pq) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Looksmart LTD)
No Changes. Except as expressly contemplated by this AgreementAgreement and other than as set forth in Section 2.10 of the Disclosure Schedule, since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company or any of its Subsidiaries except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles amendment of Incorporation or Bylaws any term of any outstanding security of the CompanyCompany or any of its Subsidiaries;
(c) expenditure capital expenditure, transaction or commitment by the Company in excess or any of its Subsidiaries exceeding $10,000 25,000 individually or $50,000 100,000 in the aggregate;
(d) payment, discharge, waiver or satisfaction, in any amount in excess of $25,000 in any one case, or $100,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges, waivers or satisfactions in the ordinary course of business or liabilities reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance), including the Property;
(ef) material employment dispute, including but not limited to, claims or matters raised in writing by any individuals or any workersβ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any of its Subsidiaries other than as required by GAAP;
(fh) revaluation by the Company of or any of its assetsSubsidiaries of any assets (whether tangible or intangible), including without limitation, writing down the Property;
(g) declaration, setting aside value of inventory or payment of a dividend writing off notes or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderaccounts receivable;
(i) acquisitionagreement, salecontract, covenant, instrument, lease, license or commitment, other disposition of any of than in the assets of the Companyordinary course, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company or any of its Subsidiaries is a party or by which it is boundor any of its assets (whether tangible or intangible) are bound or any termination, including extension, amendment or modification of the terms of any purchase and sale agreements for lots agreement, contract, covenant, instrument, lease, license or commitment, other than in the Projectordinary course, to which the Company or any of its Subsidiaries is a party or by which it or any of its assets are bound;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(lj) waiver or release of any right or claim of the CompanyCompany or any of its Subsidiaries, including any write-write off or other compromise of any account receivable of the Company, other than in the ordinary course of business;
(k) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company in or to the Company Intellectual Property or of infringement by the Company of any other Personβs Intellectual Property;
(l) agreement or modification to any Contract pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its Subsidiaries;
(m) commencement or notice or threat event, occurrence, development, state of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairscircumstances, including the Project;
(n) any event facts, or condition of any character that has had or could would reasonably be reasonably expected to have have, individually or in the aggregate, a material adverse impact on Company Material Adverse Effect;
(n) acquisition or agreement to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the Company;aggregate, to the business of the Company and its Subsidiaries; and
(o) any agreementother transaction, contractevent or occurrence that, lease or commitment or any extension or modification were the same to occur between the date of this Agreement and the terms Closing Date, would be a violation of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)Section 4.1.
Appears in 1 contract
Samples: Merger Agreement (Pegasystems Inc)
No Changes. Except as contemplated by this AgreementAs outlined in Schedule 2.6, since May 31, 2012 (the βFOUNDERS Balance Sheet Dateβ), FOUNDERS has conducted its business only in the ordinary course. Without limiting the generality of the foregoing sentence, to the best of FOUNDERSβS knowledge and belief, since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
: (a) transaction by any material adverse change in the Company financial condition, assets, liabilities, prospects, net worth, earning power or business of FOUNDERS except changes in the ordinary course of business as conducted on business, none of which, individually or in the date of the Interim Balance Sheet and consistent with past practices;
aggregate, has been or will be materially adverse to FOUNDERS ; (b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assetsdamage, business destruction or customer of the Company (loss, whether or not covered by insurance), including adversely affecting the Property;
properties, business or prospects of FOUNDERS or any material deterioration in the operating condition of the assets of FOUNDERS ; (c) any mortgage or pledge on, or subject to any Lien of, any of FOUNDERSβs assets, tangible or intangible; (d) any strike, walkout or labor trouble; (e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with in respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets shares of the CompanyFOUNDERSβs or any direct or indirect redemption, purchase or other acquisition of any shares of FOUNDERS or any rights to purchase such shares or compensation payable or to become payable to, or any creation advance (excluding advances for ordinary business expenses) or loan to, any officer, director, employee or shareholder of any security interest in such assets or properties, including the Property;
FOUNDERS (j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than except increases made in the ordinary course of business as conducted on that date and consistent with past practicespractice), or any increase in or any addition to other benefits (ivincluding without limitation any bonus, profit-sharing, pension or other plan) involves to which any of its officers, directors, employees or shareholders may be entitled, or any payments to any pension, retirement, profit-sharing, bonus or similar plan except payments in the sale ordinary course of business and consistent with past practice; (g) any making of or commitment to make any capital expenditures in excess of $10,000; (h) any cancellation or waiver of any right material to the operation of the business of FOUNDERS , or any cancellation or waiver of any debts or claims of substantial value or any cancellation or waiver of any debts or claims against any Related Party (as defined in Section 2.25 below); (i) any payment, discharge or satisfaction of any liability or obligation (whether accrued, absolute, contingent or otherwise) by FOUNDERS , other than the payment, discharge or satisfaction, in the ordinary course of business, of liabilities or obligations shown or reflected on the Balance Sheet or incurred in the ordinary course of business since the Balance Sheet Date; (j) any sale, transfer or other disposition of any assets of FOUNDERS , except sales of inventory in the ordinary course of business; (k) any material adverse change or any threat of any adverse change in the relations of FOUNDERS , with, or any loss or threat of loss of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described important suppliers, clients or customers of FOUNDERS ; (l) any creation, incurrence, assumption or guarantee by FOUNDERS of any obligations or liabilities (whether absolute, accrued, contingent or otherwise and whether due or to become due), except in the preceding clauses (a) through (p) (ordinary course of business, or any creation, incurrence, assumption or guarantee by FOUNDERS of any indebtedness for money borrowed, other than negotiations with Monaco trade payables; or Buyer (m) any creation, incurrence, assumption or guarantee by FOUNDERS of any obligations or liabilities (whether absolute, accrued, contingent or otherwise and their representatives regarding whether due or to become due), except in the transactions contemplated ordinary course of business, or any creation, incurrence, assumption or guarantee by this Agreement)FOUNDERS of any indebtedness for money borrowed, other than trade payables.
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance SheetFinancial Statements, there has or have not been, occurred or arisen any:
(a) transaction by the Company or any Subsidiary, which is material to the Company or such Subsidiary, except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation Company Constitution or Bylaws of the CompanySubsidiary Charter Documents;
(c) capital expenditure or commitment by the Company in excess of or any Subsidiary exceeding $10,000 5,000 individually or $50,000 15,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $15,000 in the aggregate, of any claim, Liability or obligation (absolute, accrued, asserted, unasserted, contingent or otherwise), other than payment, discharge or satisfaction of claims, liabilities and obligations in the ordinary course of business or of Liabilities reflected or reserved against in the Financial Statements;
(e) destruction of, damage to to, or loss of any material assets, business assets with a book value in excess of $5,000 (whether tangible or customer intangible) of the Company (or any Subsidiary, whether or not covered by insurance), including the Property;
(ef) actual, pending or threatened claims by or on behalf of Company Personnel, including any claims relating to termination of employment, workers compensation, illness, negligence, discrimination, bullying, sexual harassment, wage, salary or superannuation claims;
(g) change in accounting methods methods, principles or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any Subsidiary, or change in the manner the Company or any Subsidiary keeps its books and records, or its practices with regard to the booking of sales, receivables, payables or accrued expenses or change in its payment or collection practices;
(fh) change in any material election in respect of Taxes, adoption or change in any material accounting method in respect of Taxes, material agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company or any Subsidiary of any of its assets, including the Propertytheir respective assets (whether tangible or intangible);
(gj) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption or other acquisition by the capital stock Company of the Companyany shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor except as contemplated by this Agreement);
(hk) material change destruction of, damage to, or loss of any assets (whether tangible or intangible) of the Company or any Subsidiary with a book value in excess of $5,000 in any compensation arrangement one case or agreement with any employee$15,000 in the aggregate, officer, director whether or stockholdernot covered by insurance;
(il) acquisitionan increase in the base salary or other compensation payable or to become payable by the Company or any Subsidiary to any Company Personnel, or the promise, payment, commitment or obligation of any kind for the payment by the Company or any Subsidiary of a severance payment, termination payment, bonus or other additional salary or compensation to any such Person;
(m) entering into of any material Contract to which the Company or any Subsidiary is a party or by which they or any of their respective assets (whether tangible or intangible) are bound or any termination, extension, material amendment or modification of the terms of any material Contract to which the Company or any Subsidiary is a party or by which it or any of its assets are bound;
(n) sale, lease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the CompanyCompany or any Subsidiary, including the sale of any accounts receivable, or any creation of any security interest in any such material assets or material properties, including the Property;
(jo) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) outstanding loan by the Company or any Subsidiary to any Person, incurring by the Company or any Subsidiary of any indebtednessIndebtedness, guaranteeing by the Company or any Subsidiary of any indebtednessIndebtedness, issuance or sale of any debt securities of the Company or any Subsidiary or guaranteeing by the Company of any debt securities of others, except for advances to Company Personnel for travel and business expenses in the ordinary course of business;
(lp) the granting of any waiver or release by the Company or any Subsidiary of any right or claim of material to the CompanyCompany or any Subsidiary, including any write-off or other compromise of any account receivable of the CompanyCompany or any Subsidiary;
(mq) commencement the commencement, settlement, notice or, to the Knowledge of the Company, any Subsidiary or notice or threat of commencement the Stockholders, threat, of any lawsuit or judicial proceeding or administrative proceeding other investigation against the Company or investigation any Subsidiary;
(r) notice of any claim or potential claim of ownership by any Person other than the Company or any Subsidiary of the Company Intellectual Property owned, developed or created by the Company or any Subsidiary, or of any claim or potential claim of infringement by the Company or any Subsidiary of any other Personβs Intellectual Property;
(s) issuance or sale, or contract to issue or sell, by the Company or any Subsidiary of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or any stock, or any securities, warrants, options or rights to purchase any of the foregoing;
(t) (i) sale or license by the Company or any Subsidiary of any Company Intellectual Property or execution of any agreement with respect to any Company Intellectual Property, (ii) purchase or license by the Company or any Subsidiary of any Intellectual Property or execution of any agreement with respect to the Intellectual Property of any Person, (iii) agreement by the Company or any Subsidiary with respect to the development of any Intellectual Property with a third party, or (iv) material change in pricing or royalties set or charged by the Company or any Subsidiary to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any Subsidiary, except in the case of clause (i) or (ii), with respect to non-exclusive end user licenses of object code in the ordinary course of business and on the Companyβs or the applicable Subsidiaryβs standard terms and conditions;
(u) agreement or material modification to any Contract pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company or its affairs, including the Projectany Subsidiary;
(nv) any event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Material Adverse Effect; or
(qw) negotiation or agreement by the Company or any officer Subsidiary, or employees thereof any officer, employee on behalf of the Company or any Subsidiary, to do any of the things described in the preceding clauses (a) through (pv) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by of this Agreement)Section 2.9.
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in SCHEDULE 2.9 of the Company Schedules, since the Balance Sheet Date through and including the date of the Interim Balance Sheet, hereof there has not been, occurred or arisen any:
(a) transaction or action or failure to act by the Company or any Subsidiary except in the ordinary course of business as conducted on the date of the Interim Balance Sheet Date and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws (or other comparable document) of the CompanyCompany or any Subsidiary;
(c) capital expenditure or capital commitment by the Company in excess or any Subsidiary of $10,000 individually or $50,000 in any individual case or $100,000 in the aggregateaggregate (other than commitments to pay expenses incurred in connection with this transaction);
(d) destruction of, significant damage to or loss of any material assets, business or customer of the Company or any Subsidiary (whether or not covered by insurance), including the Property;
(e) work stoppage, labor strike or other labor trouble, or any action, suit, claim, labor dispute or grievance relating to any labor, safety or discrimination matter involving the Company or any Subsidiary, including, without limitation, charges of wrongful discharge or other unlawful labor practices or actions;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any Subsidiary;
(fg) revaluation by the Company or any Subsidiary of any of its respective assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to any Company Capital Stock or Subsidiary Securities, or any direct or indirect redemption, purchase or other acquisition by the capital stock Company or any Subsidiary of any Company Capital Stock or Subsidiary Securities, other than dividends by any wholly-owned Subsidiary to the Company;
(hi) material change increase in the salary or other compensation payable or to become payable by the Company or any Subsidiary to any of its respective officers, directors, employees or advisors, including, but not limited to, the modification of any existing compensation arrangement or agreement equity arrangements with such individuals (which modification may include the amendment of any employeevesting terms related to Company Options or Subsidiary Securities held by such individuals) other than salary increases in connection with annual salary reviews consistent with past practices and in no event in excess of fifteen percent per employee (except three exceptions previously disclosed to Parent), officeror the declaration, director payment or stockholdercommitment or obligation of any kind for the payment, by the Company or any Subsidiary, of a bonus or other additional salary or compensation to any such Person other than the payment of bonuses to existing employees in accordance with the Company's bonus plan as in effect on the date hereof and previously disclosed to Parent;
(ij) acquisitionagreement, contract, covenant, instrument, lease, license or commitment to which the Company or any Subsidiary is a party or by which it or any of its assets is bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any Subsidiary is a party or by which it or any of its assets is bound except in the ordinary course of business and consistent with past practices;
(k) sale, lease, license or other disposition of any of the assets or properties of the CompanyCompany or any Subsidiary, or any creation of any lien or security interest in such assets or properties, including except in the Propertyordinary course of business and consistent with past practices;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kl) loan by the Company or any Subsidiary to any Person, incurring by the Company or any Subsidiary of any indebtedness, guaranteeing by the Company or any Subsidiary of any indebtedness, issuance or sale of any debt securities of the Company or any Subsidiary or guaranteeing by the Company of any debt securities of othersothers except for advances to employees for travel and business expenses or extensions of trade credit to customers in the ordinary course of business on customary terms and consistent with past practices;
(lm) waiver or release of any right or claim of the CompanyCompany or any Subsidiary, including any write-off or other compromise of any account receivable of the CompanyCompany or any Subsidiary except in the ordinary course of business and consistent with past practices;
(mn) commencement or notice or or, to the Company's knowledge, threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or any Subsidiary or its respective affairs, including the Project;
(no) (i) sale by the Company or any event Subsidiary of any "COMPANY INTELLECTUAL PROPERTY" (as defined in Section 2.14 below) or the entering into of any license agreement (other than customer agreements or end-user license agreements entered into by the Company or any Subsidiary in the ordinary course of business consistent with past practices), distribution agreement, reseller agreement, security agreement, assignment or other conveyance or option for the foregoing, with respect to the Company Intellectual Property with any Person or with respect to the "INTELLECTUAL PROPERTY" (as defined in Section 2.14 below) of any Person, (ii) the purchase or other acquisition of any Intellectual Property (other than Commercial Software Rights) or the entering into of any license agreement, distribution agreement, reseller agreement, security agreement, assignment or other conveyance or option for the foregoing, with respect to the Intellectual Property (other than Commercial Software Rights) of any Person or (iii) the change in pricing or royalties set or charged by the Company or any Subsidiary to its respective customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any Subsidiary;
(p) except as set forth on SCHEDULE 2.3(b) of the Company Schedules, issuance or sale by the Company or any Subsidiary of any Company Capital Stock, Subsidiary Securities or Purchase Rights or any amendment of any existing equity arrangement;
(q) event, occurrence, change, effect or condition of any character that has had or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qr) negotiation or agreement by the Company or any Subsidiary or any officer or employees or, to the Company's knowledge, employee thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, With respect to each of the Companies and since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company except material adverse change in the ordinary course of its financial condition, liabilities, assets, business as conducted on the date of the Interim Balance Sheet and consistent with past practicesor prospects;
(b) amendments or changes to the Articles of Incorporation in its charter or Bylaws of the Companybylaws;
(c) capital expenditure or commitment by the Company in excess of $10,000 such Company, either individually or $50,000 in the aggregate, exceeding $10,000;
(d) destruction ofdestruction, damage to to, or loss of any material assets, business or customer of the Company assets (whether or not covered by insurance), including ) that constitutes a Material Adverse Effect on the PropertyCompany;
(e) labor trouble or claim of wrongful discharge of which such Company has received written notice or of which it is aware, or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the such Company;
(fg) revaluation by the such Company of any of its assets, including the Property;
(gh) declaration, setting aside aside, or payment of a dividend or other distribution with respect to the capital stock Shares of the such Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by such Company of any employee, officer, director or stockholderof its Shares;
(i) acquisition, sale, lease, license increase in the salary or other disposition compensation payable or to become payable by such Company to any of its officers, directors or employees, or the declaration, payment, or commitment or obligation of any of kind for the assets of the payment, by such Company, of a bonus or other additional salary or compensation to any creation of any security interest in such assets or properties, including the Propertyperson;
(j) acquisition, sale or transfer of any material asset of such Company other than in the ordinary course of business;
(k) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the such Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersparty;
(l) loan by such Company to any person or entity, or guaranty by such Company of any loan;
(m) waiver or release of any material right or claim of the such Company, including any write-off or other compromise of any account receivable of the such Company;
(mn) commencement or notice or threat of commencement of any lawsuit or judicial or administrative governmental proceeding against or investigation of the such Company or its affairs, including to the Projectbest of the knowledge of the Sellers;
(no) any other event or condition of any character that has or could might reasonably be reasonably expected to have a material adverse impact Material Adverse Effect on the such Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, issuance or offer sale by such Company of employment to, any employees shares of its capital stock or of any other securities;
(q) change in pricing or if an offer was accepted people that would become employees)premiums or royalties set or charged by such Company; or
(qr) negotiation or agreement by the such Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer the Purchaser and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Stock Purchase Agreement (American Bankers Insurance Group Inc)
No Changes. Except as set forth in Schedule 2.7, or as contemplated by this Agreementhereunder, since February 29, 2000 through the date of the Interim Balance Sheethereof, there has not been, occurred or arisen any:
(a) material transaction by the Company Company, except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 individually 20,000 in any individual case or $50,000 in the aggregate;.
(d) destruction of, damage to or loss of any material assets, business or customer of the Company assets (whether or not covered by insurance), including ) or loss of any relationship material to the PropertyCompany's business or any material customer of the Company;
(e) material change in accounting methods or practices (including any material change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(h) material change increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement to any such person except as otherwise contemplated by this Agreement other than any such increase, declaration, payment or agreement commitment in the ordinary course of business as conducted on that date and consistent with any employee, officer, director or stockholderpast practice;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company that are material, individually or in the aggregate, to the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(j) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(l) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account provisions for uncollectable accounts receivable of the Company;
(m) commencement or notice or threat in writing of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property rights;
(o) issuance or sale by the Company of any shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities, except in connection with the Company Option Plan;
(p) material change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(q) event or condition of any character that has or could reasonably be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qr) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (New Era of Networks Inc)
No Changes. Except as contemplated by this Agreementset forth in Exhibit C, since the date of the Interim Balance SheetDecember 31, ---------- --------- 1996, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisitionincrease in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such person;
(j) any agreement, contract, lease or commitment (collectively a "Company Agreement") or any extension or modification of the terms of any ----------------- Company Agreement which (i) involves the payment by the Company of greater than $25,000 per annum or which extends for more than one year, (ii) involves any Company payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iii) involves the sale of any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties, including properties except in the Propertyordinary course of business as conducted on that date and consistent with past practices;
(jl) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(km) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(ln) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mo) the commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against against, or investigation of of, the Company or its affairs, including the Project;
(np) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or of infringement by the Company of any third party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(r) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that has or could be reasonably expected to may have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qt) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Usweb Corp)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, Sheets there has not been, occurred or arisen any:
(a) transaction by the Company except any material adverse change in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesCompanies taken as a whole;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) any material damage, destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including ) adversely affecting the Propertybusiness of the Companies taken as a whole;
(ec) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend any dividend, or other distribution distribution, in respect of any capital stock of any of the Companies or any direct or indirect redemption, purchase or other acquisition of such stock;
(d) any option to purchase any capital stock of any of the Companies granted to any person, or any employment or deferred compensation agreement entered into between any Company and any of its stockholders, officers, directors, employees or consultants;
(e) any issuance or sale by any of the Companies of any stock, bonds or other corporate securities, or any partial or complete formation, acquisition, disposition or liquidation of any of the Companies;
(f) any labor union activity (including without limitation any negotiation, or request for negotiation, with respect to the capital stock any union representation or any labor contract) respecting any of the CompanyCompanies;
(g) any statute, rule or regulation, or, to the best knowledge of the Companies and the Sellers, any government policy, adopted which may materially and adversely affect the business of any of the Companies;
(h) material change in any compensation arrangement mortgage, lien, attachment, pledge, encumbrance or agreement security interest created on any asset, tangible or intangible, of any of the Companies, or assumed, either by any Company or by others, with respect to any employeesuch assets, officer, director or stockholderexcept for liens permitted under Section 2.8;
(i) acquisitionany indebtedness or other liability or obligation (whether absolute, accrued, contingent or otherwise) incurred, or other transaction (except that reflected in this Agreement) engaged in, by any of the Companies, except those in the ordinary course of business that are individually, or in the aggregate to one group of related parties, less than fifty thousand dollars ($50,000);
(j) any obligation or liability discharged or satisfied by any of the Companies, except items included in current liabilities shown on the Balance Sheets and current liabilities incurred since the date of the Balance Sheets in the ordinary course of business which are individually, or in the aggregate to one group of related parties, less than twenty five thousand dollars ($25,000) in amount;
(k) any sale, assignment, lease, license transfer or other disposition of any tangible asset of any of the Companies, except in the ordinary course of business, or any sale, assignment, lease, transfer or other disposition of any of the assets of the Companyits patents, trademarks, trade names, brand names, copyrights, licenses or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersother intangible assets;
(l) any amendment, termination or waiver or release of any material right or claim belonging to any of the Company, including any write-off or other compromise of any account receivable of the CompanyCompanies;
(m) commencement any increase in the compensation or notice benefits payable or threat of commencement of to become payable by any lawsuit or judicial or administrative proceeding against or investigation of the Company Companies to any of its officers or its affairs, including the Projectemployees;
(n) any event other action or condition omission by any of the Companies, or the passage of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreementresolution, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)business.
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since From the date of the Interim Current Balance SheetSheet through the date hereof, (i) the Company has operated its business in the Ordinary Course of Business, (ii) no Company Material Adverse Effect has occurred and (iii) there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesagreement or arrangement to enter into any Contract involving a strategic alliance, joint development or joint marketing arrangement;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the CompanyCharter Documents;
(c) capital expenditure or commitment by the Company to make capital expenditures in excess of each case exceeding $10,000 75,000 individually or $50,000 750,000 in the aggregate;
(d) payment, discharge or satisfaction, of any material Liability (whether fixed or accrued, absolute or contingent, matured or unmatured, determined or determinable, known or unknown, or otherwise), other than in the Ordinary Course of Business;
(e) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or customer Significant Customer of the Company (whether or not covered by insurance), including the Property;
(ef) change in accounting methods policies or practices procedures (including any change in revenue recognition, reserves for excess or obsolete inventory, doubtful accounts or other reserves, or depreciation or amortization policies or rates) by the CompanyCompany other than any audit-related adjustments that Company has implemented or as required by GAAP;
(fg) change in any material Tax election, adoption or change of any Tax accounting method, entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement in respect of Taxes, settlement or compromise of any material Tax claim or assessment, or consent to any extension or waiver of the limitation period applicable to any material Tax claim or assessment;
(h) revaluation by the Company of any of its assetsassets (whether tangible or intangible), including other than any audit-related adjustments that the PropertyCompany has implemented or as required by GAAP;
(gi) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options, Company RSUs and Company Warrants, and except for awards of Company Options and Company RSUs set forth on Section 3.2(b)(ii) of the Company Disclosure Letter;
(j) increase in the salary or other compensation payable or to become payable by the Company to any of its current Employees (other than increases made in the Ordinary Course of Business with respect to employees with a base salary, following such increase, of less than $150,000), or the capital stock declaration, payment or commitment or obligation of any kind for the payment by the Company of a severance payment, change in control payment, termination payment, bonus or other additional salary or compensation to any such Person;
(k) hiring or termination of any Employee earning more than $150,000 per year, promotion, demotion or other change to the employment status or title of any officer of the Company or resignation or removal of any director of the Company;
(hl) material change any termination or, other than in the Ordinary Course of Business, extension, amendment, waiver or modification of the terms, of any compensation arrangement or agreement with any employee, officer, director or stockholderMaterial Contract;
(im) acquisitionaction to accelerate the vesting schedule of any Company Options, Company Warrants or Unvested Company Common Stock;
(n) except in the Ordinary Course of Business, any sale, lease, license sublease or other disposition of any of the assets Assets and Properties of the Company, including the sale of any accounts receivable of the Company, or any creation of any security interest Lien (other than Permitted Liens) in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(ko) loan by the Company to any PersonPerson (except for reasonable advances to current employees for travel and business expenses in the Ordinary Course of Business), incurring by the Company of any indebtednessIndebtedness for money borrowed, guaranteeing guarantee by the Company of any indebtednessIndebtedness for money borrowed, issuance or sale of any debt securities of the Company or guaranteeing by the Company guarantee of any debt securities of others;
(lp) waiver or release of any right or claim of the Companyclaim, including any write-off write off, discount or other compromise of any material account receivable of the Companyreceivable;
(mq) commencement or commencement, settlement, notice or or, to the Companyβs Knowledge, threat of commencement of of, any lawsuit or judicial proceeding or administrative proceeding other investigation (to the Companyβs Knowledge) against or investigation of the Company or its affairs, including the Project;
(nr) any event or condition written notice of any character that has claim or could be reasonably expected to have a material adverse impact on potential claim of ownership by any Person other than the CompanyCompany of the Company Intellectual Property or of infringement by the Company of any other Personβs Intellectual Property Rights;
(os) issuance or sale, or contract to issue or sell, by the Company of any agreementshares of Company Capital Stock or securities convertible into, contractor exercisable or exchangeable for, lease or commitment shares of Company Capital Stock, or any extension securities, warrants, options or modification rights to purchase any of the terms foregoing, except for issuances of any agreementCompany Options and or Company Capital Stock upon the exercise of Company Options, contract, lease Company RSUs or commitment which Company Warrants or the conversion of the Company Preferred Stock;
(t) (i) involves the payment sale of greater than $25,000 per annumany material Company Intellectual Property Rights, or (ii) extends purchase of any Intellectual Property Rights (other than the assignment of Intellectual Property Rights in connection with development for more than one (1) yearthe Company performed by a third Person), (iii) involves agreement with respect to the development of any payment or obligation to any affiliate Intellectual Property Rights with a third party outside the Ordinary Course of the Company other than in the ordinary course of business as conducted on that date and consistent with past practicesBusiness, or (iv) involves change in pricing or royalties set or charged by the sale of, lease Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property Rights to the Company outside the Ordinary Course of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Business; or
(qu) negotiation binding written or oral agreement by the Company Company, or any officer or employees thereof employee on behalf of the Company, to do any of the things described in the preceding clauses (a) through (p) t), inclusive, of this Section 3.10 (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Lsi Corp)
No Changes. Except as contemplated by Between December 31, 1999 and the date of this Agreement, since the date of the Interim Balance Sheet, ---------- there has not been, occurred or arisen any:
(a) transaction amendments or changes to the articles of organization or bylaws of the Company (except as required hereby);
(b) capital expenditure or commitment by the Company except exceeding $100,000 individually or $500,000 in the aggregate;
(c) payment, discharge or satisfaction, in any amount in excess of $100,000 in any one case, or $300,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments liabilities reflected or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 reserved against in the aggregateCurrent Balance Sheet;
(d) destruction of, damage to of or loss of any material assets, business or customer assets of the Company (whether or not covered by insurance), including the Property;
(e) claim of wrongful discharge or other unlawful labor practice or action or any attempt to unionize employees;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany other than as required by GAAP;
(fg) change in any material election in respect of Taxes (as defined below), adoption or change in any material accounting method in respect of Taxes, agreement or settlement of any material claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(h) material revaluation by the Company of any of its assets, including the Property;
(gi) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Common Stock or Preferred, or any split, combination or reclassification in respect of any shares of Company Common Stock or Preferred, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Common Stock or Preferred, or any direct or indirect repurchase, redemption, or other acquisition by the capital stock Company of any shares of Company Common Stock or Preferred (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except for the issuance of Company Options or other securities of the CompanyCompany set forth in Section 2.2 of the Company Disclosure Schedule or issuance of shares of Company ----------- Common Stock in accordance with the agreements evidencing Company Options;
(hj) material change increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees, contract workers or advisors, or the declaration, payment or commitment or obligation of any kind for the payment by the Company of a severance payment, termination payment, bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person;
(ik) acquisition, sale, lease, license (outside of the ordinary course of business) or other disposition of any of the material assets or material properties of the Company, Company or any creation of any security interest in such material assets or material properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kl) loan by the Company to any Personperson or entity (other than pursuant to the terms of the Plan in connection with the exercise of any Company Options), incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees or contract workers for travel and business expenses in the ordinary course of business consistent with past practices;
(lm) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyCompany in excess of $50,000;
(mn) commencement commencement, settlement, receipt of written notice of, or notice or to the knowledge of the Company overt threat of commencement of of, any lawsuit or judicial proceeding or administrative proceeding other investigation against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension agreement or modification of the terms to any agreement pursuant to which any other party was granted marketing, distribution or similar rights of any agreement, contract, lease type or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation scope with respect to any affiliate products or technology of the Company other than in outside of the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsbusiness;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Company Material Adverse Effect; or
(q) negotiation or agreement by the Company or any officer or employees thereof employee on behalf of the Company to do any of the things described in the preceding clauses (a) through (po) of this Section 2.8 (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated as required by this Agreement).. -----------
Appears in 1 contract
Samples: Recapitalization and Exchange Offer Agreement (Internet Capital Group Inc)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of ---------- the Interim Balance SheetNovember Schedule, there has not been, occurred or arisen any:
(a) transaction by the Company Seller relating to the Business except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Seller relating to the Business, either individually or $50,000 in the aggregate, exceeding $25,000;
(dc) destruction of, damage to or loss of any material assets, business or customer of the Company Assets (whether or not covered by insurance), including ;
(d) labor trouble or claim of wrongful discharge or other unlawful labor practice or action relating to the PropertyBusiness;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanySeller and relating to the Business;
(f) revaluation write-up by the Company Seller of any of its assets, including the PropertyAssets;
(g) increase in the salary or other compensation payable or to become payable by the Seller to any of its officers, directors, employees or advisors employed in the Business, or the declaration, setting aside payment or payment commitment or obligation of any kind for the payment, by the Seller, of a dividend bonus or other distribution additional salary or compensation to any such person except as otherwise contemplated by this Agreement or the transactions contemplated hereby, other than normal course of business salary increases in connection with respect to the capital stock ongoing yearly reviews or promotions (none of which exceeds 10% of the Companyprevious year's salary);
(h) material change acquisition, sale or transfer of any Asset of the Seller, except in any compensation arrangement or agreement with any employee, officer, director or stockholderthe ordinary course of business as conducted on that date;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company Seller is a party or by which it or its properties or assets is bound, including any purchase bound and sale agreements for lots which is utilized in the ProjectBusiness;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(lj) waiver or release of any right or claim of the CompanySeller related to the Business, including any write-off or other compromise of any account receivable of the CompanySeller related to the Business;
(mk) the commencement or notice or or, to the knowledge of Seller, threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company Seller or its affairs, including affairs relating to the ProjectBusiness;
(l) notice of any claim of ownership by a third party of Seller Intellectual Property Rights (as defined in Section 2.11 below) or of infringement by the Seller of any third party's intellectual property rights relating to the Business;
(m) change in pricing or royalties set or charged by the Seller relating to the Business;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on impair the Company;
(o) any agreement, contract, lease Seller's Business or commitment or any extension or modification the value of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Business; or
(qo) negotiation or agreement by the Company Seller or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pn) (other than negotiations with Monaco or Buyer and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Purchase Agreement (Convergent Communications Inc /Co)
No Changes. Except as contemplated by this Agreementprovided in Section 2.10 of the Disclosure Schedule, since the Balance Sheet Date through the date of the Interim Balance Sheetthis Agreement, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business business, consistent with past practices, as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws Charter Documents of the Company;
(c) capital expenditure or commitment by the Company in excess of exceeding $10,000 50,000 individually or $50,000 250,000 in the aggregate;
(d) payment, discharge or satisfaction of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business, consistent with past practices, of liabilities reflected or reserved against in the Current Balance Sheet or arising in the ordinary course of business, consistent with past practices, since the Balance Sheet Date;
(e) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance), including the Property;
(ef) employment dispute, including but not limited to, claims or matters raised by any individuals or any workersβ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany other than as required by GAAP;
(fh) adoption of or change in any material Tax (as defined in Section 2.11) election or any Tax accounting method, entering into any closing agreement with respect to Taxes, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(i) revaluation by the Company of any of its assetsassets (whether tangible or intangible), including without limitation, writing down the Propertyvalue of inventory or writing off notes or accounts receivable;
(gj) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the capital stock Company of the Companyany shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(hk) material change increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person;
(il) acquisitionentry into a Material Contract or any termination, extension, amendment or modification of the terms of any Material Contract;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company outside of the ordinary course of business, consistent with past practices, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kn) loan by the Company to any Personperson or entity, incurring or purchase by the Company of any indebtednessdebt securities of any person or entity, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices, in an amount not to exceed $10,000 in any one case or $25,000 in the aggregate;
(o) incurrence by the Company of any indebtedness for borrowed money, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lp) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mq) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of commencement of any lawsuit or judicial proceeding or administrative proceeding other investigation against or investigation of the Company or its affairs, including or, to the ProjectKnowledge of the Company, any reasonable basis for any of the foregoing;
(nr) notice of any claim or potential claim of ownership, interest or right by any person other than the Company or a Company Subsidiary of the Company Intellectual Property (as defined in Section 2.14 hereof) or of infringement by the Company of any other personβs Intellectual Property Rights (as defined in Section 2.14 hereof);
(s) issuance or sale, or contract or agreement to issue or sell, by the Company of any shares of Company Common Stock, Company Preferred Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, Company Preferred Stock or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of options under a Plan and issuances of Company Common Stock upon the exercise of options issued under the Plans;
(i) sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property Rights of any person or entity, (ii) except in the ordinary course of business, consistent with past practices, purchase or license of any Intellectual Property Rights or execution, modification or amendment of any agreement with respect to the Intellectual Property Rights of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Technology or Intellectual Property Rights with a third party, or (iv) material change in pricing or royalties set or charged by the Company to its distributors or resellers or licensees or in pricing or royalties set or charged by persons who have licensed Technology or Intellectual Property Rights to the Company;
(u) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any product, service or technology of the Company;
(v) event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact on the CompanyCompany Material Adverse Effect;
(ow) any agreementlease, contractlicense, lease sublease or commitment or any extension or modification of the terms other occupancy of any agreement, contract, lease or commitment which Leased Real Property (ias defined in Section 2.13 hereof) involves by the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Company; or
(qx) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pw) of this Section 2.10 (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company or any Subsidiary except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the CompanyCompany or any Subsidiary;
(c) capital expenditure or unsatisfied commitment by the Company in excess of or any Subsidiary, either individually exceeding $10,000 individually or $50,000 in the aggregateaggregate exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company or any Subsidiary (whether or not by covered by insurance), including the Property;
(e) change in accounting methods labor trouble or practices (including any change in depreciation claim of wrongful discharge or amortization policies other unlawful labor practice or rates) by the Companyaction;
(f) resignation or termination of any key officers or employees of the Company or any Subsidiary and the Company, to the best of its knowledge, does not know of the impending resignation or termination of employment of any such officer or employee;
(g) revaluation by the Company or any Subsidiary of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in Company or any compensation arrangement Subsidiary, or agreement with any employeedirect or indirect redemption, officer, director purchase or stockholderother acquisition by the Company or any Subsidiary of any Company Capital Stock or the capital stock of any Subsidiary;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, Company or any creation Subsidiary, except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(j) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company or any Subsidiary is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company or any Subsidiary to any Personperson or entity, incurring by the Company or any Subsidiary of any indebtedness, guaranteeing by the Company or any Subsidiary of any indebtedness, issuance or sale of any debt securities of the Company or any Subsidiary or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(l) waiver or release of any right or claim of the CompanyCompany or any Subsidiary, including any write-off or other compromise of any account receivable of the CompanyCompany or any Subsidiary;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs or any Subsidiary or its affairs, including the Project;
(n) notice of any claim of ownership by a third party of Company Intellectual Property Rights (as defined in Section 2.11 below) or of infringement by the Company or any Subsidiary of any third party's intellectual property rights;
(o) issuance or sale by the Company or any Subsidiary of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(p) change in pricing or royalties set or charged by the Company or any Subsidiary to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Company Intellectual Property Rights to the Company or any Subsidiary;
(q) event or condition of any character that has had or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment Company or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Subsidiary; or
(qr) negotiation or agreement by the Company or any Subsidiary or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as expressly contemplated by this Agreement, or other than as set forth in Section 2.11 of the Disclosure Schedule, since the date Balance Sheet Date, each of the Interim Balance Sheet, Company and its Subsidiaries has operated the Business only in the ordinary course and there has not been, occurred or arisen any:
(a) transaction by the Company or its Subsidiaries except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments amendment or changes change to the Articles of Incorporation Charter Documents or Bylaws of the Company;Subsidiary Charter Documents; EXECUTION VERSION
(c) expenditure amendment of any term of any outstanding security of the Company or its Subsidiaries;
(d) expenditure, transaction or commitment by the Company in excess of or its Subsidiaries exceeding $10,000 75,000 individually or $50,000 75,000 in the aggregateaggregate with respect to any single Person;
(de) payment, discharge, waiver or satisfaction of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or its Subsidiaries), other than payments, discharges, waivers or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(f) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company or its Subsidiaries (whether or not covered by insurance), including the Property;
(eg) material employment dispute, including but not limited to, claims or matters raised by any individuals or any workers' representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or its Subsidiaries;
(h) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or its Subsidiaries other than as required by GAAP;
(fi) change in any material election in respect of Taxes (as defined in Section 2.13(a) hereof), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(j) revaluation by the Company or its Subsidiaries of any of its assetstheir material assets (whether tangible or intangible), including without limitation, writing down the Propertyvalue of inventory or writing off notes or accounts receivable;
(gk) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the capital stock Company or its Subsidiaries of the Companyany shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(hl) material increase in or other change to the salary or other compensation payable or to become payable by the Company or its Subsidiaries to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or its Subsidiaries of a severance payment, termination payment, bonus or other additional salary or compensation to any compensation arrangement such person; EXECUTION VERSION
(m) agreement, contract, covenant, instrument, lease, license or agreement with commitment to which the Company or its Subsidiaries is a party or by which they or any employeeof their assets (whether tangible or intangible) are bound or any termination, officerextension, director amendment or stockholdermodification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or its Subsidiaries is a party or by which they or any of their assets are bound, other than in the ordinary course of business;
(in) acquisition, sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the CompanyCompany or its Subsidiaries, including, but not limited to, the sale of any accounts receivable of the Company or its Subsidiaries, or any creation of any security interest in such assets or properties, including other than non-exclusive licenses of the PropertyCompany Products by the Company or its Subsidiaries in the ordinary course of business;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(ko) loan by the Company or its Subsidiaries to any Person, purchase by the Company or its Subsidiaries of any debt securities of any Person, or capital contributions to investment in any Person;
(p) creation or other incurrence by the Company or its Subsidiaries of any Lien on any of its asset, except for Liens for Taxes not yet due and payable;
(q) incurring by the Company or its Subsidiaries of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or its Subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or its Subsidiaries or guaranteeing by the Company of any debt securities of others;
(lr) waiver or release of any right or claim of the CompanyCompany or its Subsidiaries, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairsSubsidiaries, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsbusiness;
(ps) hiring ofcommencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or offer written threat of employment to, any employees (lawsuit or if an offer was accepted people that would become employees); orproceeding or other investigation against the Company or its Subsidiaries or their affairs;
(qt) negotiation notice of any claim or agreement potential claim of ownership, interest or right by any person other than the Company in or to the Intellectual Property (as defined below) owned by the Company or of infringement by the Company of any officer other Person's Intellectual Property (as defined below);
(u) issuance, grant, delivery or employees thereof sale by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to do purchase any of the things described in foregoing;
(i) sale or license of any Intellectual Property owned by the preceding clauses Company or execution of any agreement with respect to Intellectual Property owned or exclusively licensed by the Company with any Person, (aii) through purchase or license of any Intellectual Property or execution of any agreement with respect to the Intellectual Property of any Person, (piii) (other than negotiations agreement with Monaco respect to the development of any Intellectual Property with a third party, or Buyer and their representatives regarding the transactions contemplated by this Agreement).EXECUTION VERSION
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Exhibit C, since the date of the Interim Balance SheetApril 30, 1996, ---------- --------- there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (collectively a "Company Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment Company ------------------ Agreement which (i) involves the payment of greater than $25,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(o) the commencement or notice or threat of commencement of any lawsuit or proceeding against, or investigation of, the Company or its affairs;
(p) hiring ofnotice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or notice of infringement by the Company of any third party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment to, any employees other of its securities;
(r) change in pricing or if an offer was accepted people royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that would become employees)has or may have a Material Adverse Effect on the Company; or
(qt) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this AgreementSince the Balance Sheet Date, since through the date of the Interim Balance Sheethereof, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) modifications, amendments or changes to the Articles of Incorporation or Bylaws of the CompanyCharter Documents;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(gb) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with respect to the capital stock of the Companyagreements evidencing Company Options or Company Unvested Common Stock;
(hc) material change in any compensation arrangement issuance, grant, delivery, sale or purchase of, or proposal, contract or agreement with to issue, grant, deliver, sell or purchase, by the Company, of (i) any employeeshares of Company Capital Stock or securities convertible into, officeror exercisable or exchangeable for, director shares of Company Capital Stock or stockholderequity-related awards (whether payable in cash, stock or otherwise), or (ii) any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Capital Stock upon the exercise of options issued under the Plan;
(id) acquisitionagreement, salecontract or commitment relating to capital expenditures and involving future payments in excess of $10,000 in the aggregate;
(e) agreement, lease, license contract or other commitment relating to the acquisition or disposition of any material assets or equity securities of the assets of the Company, Company or any creation of any security interest in such assets business enterprise or properties, including the Propertydivision thereof;
(jf) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for obligations to reimburse employees for travel and business expenses incurred in the ordinary course of business consistent with past practices;
(g) extension of credit or any loan by the Company to any Person (except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices), or purchase by the Company of any debt securities of othersany Person or amendment to the terms of any outstanding loan agreement;
(lh) waiver or release of any material right or claim of the Company, including any write-off waiver, release or other compromise of any account receivable of the Company;
(mi) commencement destruction of, damage to, or notice or threat of commencement loss of any lawsuit material assets (whether tangible or judicial intangible), material business or administrative proceeding against or investigation material customer of the Company (whether or not covered by insurance);
(j) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAP;
(k) adoption of or change in any election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(l) revaluation by the Company of any of its affairsassets (whether tangible or intangible), including writing down the Projectvalue of inventory or writing off notes or accounts receivable;
(m) Company Material Adverse Effect;
(n) any event hiring or condition termination of any character that has employee or could be reasonably expected to have a material adverse impact on consultant of the Company;
(o) any agreement, contractpromotion, lease demotion or commitment other change to the employment status or any extension or modification of the terms title of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate officer of the Company other than or resignation or removal of any director of the Company, except those in the ordinary course of business as conducted on that date and consistent with past practicespractice;
(o) increase in or other change to the salary, wage rate, employment status, title or other compensation (ivincluding equity based compensation) involves payable or to become payable by the sale ofCompany to any of its officers, lease directors, employees or consultants, except for such changes made in the ordinary course of or transfer of any interest in any material assetsbusiness consistent with past practice;
(p) hiring ofadoption or amendment of any Company Employee Plan, or execution or amendment of any Employee Agreement (other than execution of the Companyβs standard at-will offer letter or the Companyβs standard independent contractor agreement or any amendment required to comply with applicable Legal Requirements);
(q) agreement, contract or commitment for the grant by the Company of employment toany severance, termination pay or bonus (in cash or otherwise) to any employees Employee, including any officer;
(r) action to accelerate the vesting schedule of any Company Options or if an offer was accepted people that would become employees)Company Unvested Common Stock;
(s) issuance or agreement to issue any refunds, credits, allowances or other concessions with customers with respect to amounts collected by or owed to the Company in excess of $10,000 in the aggregate; or
(qt) negotiation or agreement by the Company Company, or any officer or employees thereof on behalf of the Company, to do any of the things described in the preceding clauses (a) through (ps) of this Section 2.9 (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this AgreementAgreement and any Related Agreements).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $100,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not by covered by insurance), including the Property;
(e) change in accounting methods claim of wrongful discharge or practices (including any change in depreciation other claim of unlawful labor practice or amortization policies or rates) by the Companyaction;
(f) material revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or of payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any Company Capital Stock;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(ji) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kj) loan by the Company to any Personperson or entity, incurring by the Company of any indebtednessindebtedness for borrowed money, guaranteeing by the Company of or any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any 22 debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lk) material waiver or release of any right or claim of the Company, including any material write-off or other compromise of any account receivable of the Company;
(ml) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including ;
(m) notice of any claim of ownership by a third party of Company Intellectual Property Rights (as defined in Section 2.11 below) or of infringement by the ProjectCompany of any third party's intellectual property rights;
(n) issuance or sale by the Company of any of its shares of Company Capital Stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(o) material change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Company Intellectual Property Rights to the Company;
(p) to the Company's knowledge, any event or condition of any character that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Corsair Communications Inc)
No Changes. Except as contemplated by this Agreementdisclosed on Schedule 3.6, since the date of the Interim Balance SheetDecember 31, ---------- 1999, there has not been, occurred or arisen any:
(a) transaction any change in the assets, liabilities, financial condition, or operating results of Acquiror from that reflected in the Acquiror Financials, except changes in the ordinary course of business that have not been, in the aggregate, materially adverse;
(b) any damage, destruction or loss, whether or not covered by insurance, materially and adversely affecting the Company business, properties, prospects, or financial condition of Acquiror (as such business is presently conducted and as it is presently proposed to be conducted);
(c) any waiver or compromise by Acquiror of a valuable right or of a material debt owed to it;
(d) any satisfaction or discharge of any lien, claim, or encumbrance or payment of any obligation by Acquiror, except in the ordinary course of business and that is not material to the business, properties, prospects, or financial condition of Acquiror (as such business is presently conducted on the date of the Interim Balance Sheet and consistent with past practicesas it is presently proposed to be conducted);
(be) amendments the entering into or changes change in the terms of any material contract or arrangement by which Acquiror or any of its assets or properties is bound or to the Articles which Acquiror or any of Incorporation such assets or Bylaws of the Companyproperties is subject;
(cf) expenditure any change to a material contract or commitment arrangement by the Company in excess which Acquiror or any of $10,000 individually its assets is bound or $50,000 in the aggregatesubject;
(dg) destruction ofany material change in any compensation arrangement or agreement with any employee, damage to officer, director or loss shareholder;
(h) any sale, assignment, or transfer of any material assets, business or customer of the Company (whether or not covered by insurance), including the Acquiror's Intellectual Property;
(ei) any resignation or termination of employment of any key officer of Acquiror; and Acquiror, to the best of its knowledge, does not know of the impending resignation or termination of employment of any such officer;
(j) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(k) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyAcquiror;
(fl) revaluation by the Company Acquiror of any of its material assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(lm) waiver or release of any right or claim of the CompanyAcquiror, including any write-off or other compromise of any account receivable of Acquiror except in the Companyordinary course of business;
(mn) to Acquiror's knowledge, commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company Acquiror or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of Acquiror's Intellectual Property or of infringement by Acquiror of any third party's Intellectual Property rights;
(p) issuance or sale by Acquiror of any of its shares of capital stock since December 31, 1999;
(q) issuance or sale by Acquiror of any securities exchangeable, convertible or exercisable for Acquiror Common Stock, or of any other of its securities;
(r) change in pricing or royalties set or charged by Acquiror to its customers or licensees except in the ordinary course of business or in pricing or royalties set or charged by persons who have licensed Intellectual Property to Acquiror;
(s) receipt of notice that there has been a loss of, or material order cancellation by, any customer of Acquiror;
(t) any mortgage, pledge, transfer of a security interest in, or lien, created by Acquiror, with respect to any of its material properties or assets, except liens for taxes not yet due or payable;
(u) any loans or guarantees made by Acquiror to or for the benefit of its employees, shareholders, officers, or directors, or any members of their the ordinary course of its business;
(v) any declaration, setting aside, or payment of any dividend or other distribution of Acquiror's assets in respect of any of Acquiror's capital stock, or any direct or indirect redemption, purchase, or other acquisition of any of such stock by Acquiror;
(w) amendments or changes to the Certificate of Incorporation or Bylaws of Acquiror;
(x) any capital expenditure in excess of $100,000
(y) to the best of Acquiror's knowledge, any other event or condition of any character that has or could be reasonably expected to have a material adverse impact on might materially and adversely affect the Company;
(o) any agreementbusiness, contractproperties, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practicesprospects, or financial condition of Acquiror (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employeesas such business is presently conducted and as it is presently proposed to be conducted); or
(qz) negotiation any agreement or agreement commitment by the Company Acquiror or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)Section 3.6.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Context Integration Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by (including acquisition, sale, lease, license or other disposal of any assets or properties of Company) by, or, to the Company's Knowledge, Liability of, Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments capital expenditure or changes to commitment by Company for a capital expenditure, either individually or in the Articles of Incorporation or Bylaws of the Companyaggregate, exceeding $75,000;
(c) expenditure labor trouble, other than routine individual grievances, or commitment by claim of wrongful discharge of which the Company in excess has received written notice or of $10,000 individually which the Company is aware or $50,000 in the aggregateother unlawful labor practice or action;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fe) revaluation by the Company of any of its assetsassets other than depreciation as required by GAAP and reflected on the unaudited balance sheet of February 28, including the Property1998;
(gf) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by Company of any of its capital stock (or options, warrants or other rights exercisable therefor);
(g) destruction of or damage to any material assets, or loss of any business or customer of Company (whether or not covered by insurance) which has had or could reasonably be expected to have a Material Adverse Effect on Company;
(h) material change increase in the salary or other compensation payable or to become payable by Company to any of its directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by Company, of a bonus or other additional salary or compensation arrangement to any such person (except as otherwise contemplated by this Agreement), other than normal course of business salary increases in connection with ongoing annual reviews or agreement promotions and consistent with any employee, officer, director or stockholderpast practices (none of which exceeds 10% of the previous year's salary);
(i) acquisitionsigning, salematerial amendment, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment failure to renew or termination of any material contractContract (including without limitation licenses and insurance policies), agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than except in the ordinary course of business as conducted on that date and consistent with past practices or as contemplated by this Agreement.
(j) loan by Company to any Person (other than expense advances to employees, all of which are immaterial in amount and are issued in the normal course of business and consistent with past practices), incurring or guaranteeing by Company of any indebtedness other than trade debt in the ordinary course of business consistent with past practices, issuance or sale of any debt securities of Company or guaranteeing of any debt securities of others;
(ivk) involves waiver, release, discharge, settlement or satisfaction of any material right of Company, including any write down of value of inventory, write-off of notes or accounts receivables or other compromise of any account receivable of Company, other than in the ordinary course of business and consistent with past practices and those contemplated by this Agreement;
(l) commencement, notice or, to the Company's Knowledge, threat of commencement of any lawsuit or proceeding against or investigation of Company or its affairs;
(m) notice of any claim of ownership by a third party of Company's Intellectual Property or of infringement by Company of any third party's Intellectual Property;
(n) issuance, authorization for issuance or sale by Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other securities in respect of, lease in lieu of or transfer in substitution for shares of capital stock of Company, except for issuances or sales as a result of exercises of outstanding stock options granted under Company's 1996 Stock Plan or other rights previously granted to purchase shares of Company Capital Stock, provided that such options and other rights and the related exercisability rights are included among the options and rights specified in paragraph 3.2 above or Section 3.2 of the Company Disclosure Letter, or split, combination or reclassification of any interest of its capital stock;
(o) material change in any material assetspricing or royalties set or charged by Company or by persons who have licensed Intellectual Property to Company, other than increases or decreases based upon cost and volume changes in the ordinary course of business and consistent with past practice;
(p) hiring ofcreation, voluntarily or involuntarily, of any Encumbrance upon any of Company's assets or properties, except for Permitted Encumbrances;
(q) accelerated collection of Company's accounts receivable, deferment or payment of Company's accounts payable, or offer prepayment of employment toany obligation, other than in the ordinary course of business consistent with past practice;
(r) to the Company's Knowledge, any employees event or condition of any character that has had or could be reasonably expected to have a Material Adverse Effect on Company;
(s) amendments or if an offer was accepted people that would become employees)changes to the Articles of Incorporation or Bylaws of Company, except as contemplated under this Agreement; or
(qt) action which would allow Major Stockholder to be released from the guarantees or other assurances it gave banks in connection with Company's credit lines and debts, or which would use Company's cash to repay such debts, other than in the ordinary course of business consistent with past practice.
(u) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pt) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth on Schedule 2.7, since the date of the Interim Reference Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Reference Balance Sheet and consistent with past practicespractice;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of exceeding $10,000 5,000 individually or $50,000 20,000 in the aggregate;
(d) destruction of, material damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) event or condition that has had or would be reasonably expected to have a Material Adverse Effect on the Company;
(g) change in accounting methods or practices (including any change in depreciation depreciation, amortization or amortization revenue recognition policies or rates) by the Company;
(fh) revaluation by the Company of any of its assets, including the Property;
(gi) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(hj) material change increase in the salary or other compensation (including any equity-based compensation, bonus or payment) payable or to become payable to any of its officers or directors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement to any such person except in the ordinary course of business consistent with past practice or agreement with any employee, officer, director or stockholderas otherwise contemplated by this Agreement;
(ik) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness consistent with past practice;
(jl) amendment or termination (other than pursuant to its terms) of any material contract, agreement, permit, approval Contract described in Schedule 2.12(a) or license Schedule 2.11(n) to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(km) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practice;
(ln) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mo) commencement issuance or notice or threat of commencement sale by the Company of any lawsuit of its shares of capital stock, or judicial securities exchangeable, convertible or administrative proceeding against exercisable therefor, or investigation of any other of its securities except for the grant of Company or its affairs, including Options as set forth on Schedule 2.2(b) and the Projectissuance of Company Common Stock upon the exercise of Company Options;
(np) any event change in the pricing or condition of any character that has royalties set or could be reasonably expected charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have a material adverse impact on the Company;
licensed Intellectual Property (oas defined in Section 2.11) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetspractice;
(pq) hiring oftermination, voluntary or offer involuntary, of employment to, any employees key employees;
(r) reduction in projected purchase requirements by any material Company customer or if an offer was accepted people that would become employees)any notice of intent to reduce such purchases by any such customer; or
(qs) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Cypress Semiconductor Corp /De/)
No Changes. Except Since the Balance Sheet Date, except as contemplated by this Agreement, since the date of the Interim Balance Sheetexpressly permitted hereunderunder, there has not been, occurred or arisen any:
(a) transaction by the Company or any of its Subsidiaries except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) modifications, amendments or changes to the Articles Charter Documents or the organizational documents of Incorporation or Bylaws of the Companyany Subsidiary;
(c) expenditure or commitment by the Company in excess of new Contract exceeding $10,000 individually or $50,000 in the aggregateaggregate determinable on the face of the Contract or any commitment or transaction of the type described in Section 2.12 hereof in any case by the Company or any of its Subsidiaries;
(d) payment, discharge, waiver or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance), including the Property;
(ef) employment dispute, including claims or matters raised by any individual, Governmental Entity, or any workersβ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(g) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any of its Subsidiaries other than as required by GAAP;
(fh) adoption of or change in any material election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company or any of its Subsidiaries of any of its assetsassets (whether tangible or intangible), including writing down the Propertyvalue of inventory or writing off notes or accounts receivable;
(gj) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock or the capital stock of any Subsidiary, or any split, combination or reclassification in respect of any shares of Company Capital Stock or the Companycapital stock of any Subsidiary, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or the capital stock of any Subsidiary, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock or the capital stock of any Subsidiary (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the agreements evidencing Company Options;
(hk) material increase in or other change to the salary or other compensation payable or to become payable by the Company or any of its Subsidiaries to any of their respective officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or any of its Subsidiaries of a severance payment, termination payment, bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch Person;
(il) acquisitionagreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their assets are bound;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company or any of its Subsidiaries, including the sale of any accounts receivable of the Company or any of its Subsidiaries but excluding the sale of any Company products in accordance with the Companyβs standard terms in the ordinary course of business consistent with past practices, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kn) loan by the Company or any of its Subsidiaries to any Person, or purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement;
(o) incurring by the Company or any of its Subsidiaries of any indebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing by the Company of any debt securities of others, except for trade payables incurred in the ordinary course of business consistent with past practices and advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(lp) waiver or release of any right or claim of the CompanyCompany or any of its Subsidiaries, including any write-off or other compromise of any account receivable of the CompanyCompany or any of its Subsidiaries;
(mq) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the commencement, settlement, notice or, to the Knowledge of the Company or the Shareholders, threat of commencement of any lawsuit or judicial proceeding or administrative proceeding other investigation against the Company or investigation any of its Subsidiaries or relating to any of their businesses, properties or assets, or any reasonable basis for any of the foregoing;
(r) notice of any claim or potential claim of ownership, interest or right by any Person other than the Company or any of its Subsidiaries of the Company Intellectual Property owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other Personβs Intellectual Property;
(s) issuance, grant, delivery, sale or purchase, or proposal, contract or agreement to issue, grant, deliver, sell or purchase, by the Company or any of its Subsidiaries, of any shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of capital stock of any of its Subsidiaries, or any subscriptions, warrants, options, rights or securities to acquire any of the foregoing, except for issuances of Company Capital Stock upon the exercise of options issued under the Plan;
(t) (i) sale, lease, license or transfer of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to Company Intellectual Property with any Person or with respect to the Intellectual Property of any Person other than the sale of any Company products in accordance with the Companyβs standard terms in the ordinary course of business consistent with past practices, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any Person, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company or any of its Subsidiaries;
(u) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its affairs, including the ProjectSubsidiaries;
(nv) any event or condition of any character that has or could be reasonably expected to have had a material adverse impact on the CompanyCompany Material Adverse Effect;
(ow) any agreement, contract, lease purchase or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in real property, granting of any material assetssecurity interest in any real property or lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or any of its Subsidiaries;
(px) hiring of, acquisition by the Company or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation Subsidiary or agreement by the Company or any Subsidiary to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the business of the Company or its Subsidiaries;
(y) grant by the Company or any Subsidiary of any severance or termination pay (in cash or otherwise) to any Employee, including any officer, except payments made pursuant to written agreements disclosed in the Disclosure Schedule;
(z) adoption or amendment of any Company Employee Plan, execution or amendment of any Employee Agreement, or payment or agreement by the Company or any Subsidiary to pay any bonus or special remuneration to any director or Employee, or increase or modify the salaries, wage rates or other compensation (including any equity-based compensation) of any Employee;
(aa) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any Subsidiary;
(bb) any action to accelerate the vesting schedule of any Company Options, Company Unvested Common Stock or Company Warrants;
(cc) hiring, promotion, demotion or termination or other change to the employment status or title of any Employees;
(dd) alteration of any interest of the Company or any Subsidiary in a Subsidiary or any corporation, association, joint venture, partnership or business entity in which the Company or any Subsidiary directly or indirectly holds any interest;
(ee) cancellation, amendment or renewal of any insurance policy of the Company or any Subsidiary; or
(ff) agreement by the Company or any of its Subsidiaries, or any officer or employees thereof on behalf of the Company or any of its Subsidiaries, to do any of the things described in the preceding clauses (a) through (pee) of this Section 2.10 (other than negotiations with Monaco or Buyer Purchaser and the Shareholders and their representatives regarding the transactions contemplated by this AgreementAgreement and any Related Agreements).
Appears in 1 contract
No Changes. Except as contemplated by this AgreementBetween September 30, since 2003 and the date of the Interim Balance Sheetthis Agreement, there has not been, occurred or arisen any:
(a) material transaction by the Company or any of its subsidiaries except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles certificate of Incorporation incorporation, bylaws or Bylaws other organizational documents of the CompanyCompany or any of its subsidiaries;
(c) (i) capital expenditure or commitment by the Company in excess or any of its subsidiaries exceeding $10,000 25,000 individually or $50,000 in the aggregate, or (ii) any other expenditure, commitment or transaction by the Company or any of its subsidiaries exceeding $25,000 individually or $50,000 in the aggregate other than, in the case of clause (ii), in the ordinary course of business consistent with past practices;
(d) destruction ofpayment, damage to discharge or loss satisfaction, in any amount in excess of $25,000 in any one case, or $50,000 in the aggregate, of any material assetsclaim, business liability or customer of the Company obligation (whether absolute, accrued, asserted or not covered by insuranceunasserted, contingent or otherwise), including other than payment, discharge or satisfaction in the Propertyordinary course of business of liabilities reflected or reserved against in the Current Balance Sheet;
(e) change in accounting methods policies or practices procedures (including any change in reserves for excess or obsolete inventory, doubtful accounts or other reserves, or depreciation or amortization policies or ratesrates or payment or collection policies or practices) by the Company;
(f) change in any material election in respect of Taxes (as defined in Section 2.10(a)), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(g) revaluation by the Company of any of its assetsor any of its subsidiariesβ assets (whether tangible or intangible), including without limitation writing down or up the Propertyvalue of inventory or writing off notes or accounts receivable, settling, discounting or compromising any accounts receivable, or reversing any reserves other than in the ordinary course of business and consistent with past practice;
(gh) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderagreements evidencing Company Options;
(i) acquisitionincrease in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors (except pursuant to the terms of pre-existing obligations which are disclosed on Section 2.9(i) of the Disclosure Schedule), or the declaration, payment or commitment or obligation of any kind for the payment by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person (except pursuant to the terms of pre-existing obligations which are disclosed on Section 2.9(i) of the Disclosure Schedule);
(j) termination or extension, or material amendment, waiver or modification of the terms, of any Contract;
(k) commencement by or settlement of any lawsuit or proceeding or other investigation by the Company or any of its subsidiaries other than the routine collection of bills;
(l) sale, lease, sublease, license or other disposition of any of the material assets (whether tangible or intangible) or material properties of the Company or any of its subsidiaries, including, but not limited to, the sale of any accounts receivable of the Company, or any creation of any security interest in such material assets or material properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(km) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for trade payables and advances to employees for travel and business expenses, in each case in the ordinary course of business consistent with past practices;
(ln) waiver or release of any material right or claim of the CompanyCompany or any of its subsidiaries, including any write-off off, discount or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or any of its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Companysubsidiaries;
(o) agreement or modification to any marketing, distribution, joint venture, strategic alliance, development or similar arrangement or agreement;
(p) request that any vendor or service provider hold or delay any invoices or billing statements, contract, lease or commitment or any extension failure to purchase or modification replenish inventory in the ordinary course of the terms of any agreement, contract, lease or commitment which business;
(i) involves the payment sale, license or transfer of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment Company Intellectual Property or obligation execution of any agreement with respect to any affiliate of the Company Intellectual Property with any person or entity with respect to the Intellectual Property Rights of any person or entity other than in the ordinary course of business as conducted on that date and consistent business, or (ii) purchase or in-license of any Intellectual Property Rights or execution of any agreement with past practicesrespect to the Intellectual Property Rights of any person or entity other than ordinary course shrink wrap software agreements for internal operations, (iii) agreement with respect to the development of any Intellectual Property Rights with a third party, or (iv) involves change in pricing or royalties set or charged by the sale of, lease Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property Rights to the Company or any of or transfer of any interest in any material assetsits subsidiaries;
(pr) hiring ofdestruction, damage, or offer loss adversely affecting any material assets (whether tangible or intangible) or material business of employment tothe Company or any of its subsidiaries (whether or not covered by insurance);
(s) labor trouble or claim of wrongful discharge or other unlawful labor practice or action with respect to the Company or any of its subsidiaries;
(t) notice from any material customer that such customer intends to cancel or substantially reduce its purchases of goods and services from the Company and its subsidiaries, or any employees such cancellation or substantial reduction;
(u) notice of any claim or if an offer was accepted people potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.13(a)) owned by or developed or created by the Company or of infringement by the Company of any other personβs Intellectual Property Rights (as defined in Section 2.13(a));
(v) circumstance, change, event or effect of any character that would become employees)has had or is reasonably likely to have a Material Adverse Effect; or
(qw) negotiation written or oral agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pv) of this Section 2.9 (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Polycom Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Company Balance Sheet, Sheet there has not been, occurred or arisen any:
(a) transaction by the Company except material adverse change in the ordinary course of business as conducted on the date financial condition, liabilities, assets, business, or prospects of the Interim Balance Sheet and consistent with past practicesCompany;
(b) amendments or changes to in the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate;, exceeding $50,000.
(d) destruction ofdestruction, damage to to, or loss of any material assets, business or customer assets of the Company (whether or not covered by insurance), including ) that constitutes a Material Adverse Effect on the PropertyCompany;
(e) labor trouble or claim of wrongful discharge of which the Company has received written notice or of which the Company is aware, or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside aside, or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets shares of the Company, or any creation direct or indirect redemption, purchase or other acquisition by the Company of any security interest of its shares;
(i) increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors or employees, or the declaration, payment, or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such assets or properties, including the Propertyperson;
(j) acquisition, sale or transfer of any material asset of the Company other than in the ordinary course of business;
(k) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Projectparty;
(kl) loan by the Company to any Personperson or entity, incurring or guaranty by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersloan;
(lm) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mn) the commencement or notice or threat of commencement of any lawsuit or judicial or administrative governmental proceeding against or investigation of the Company or its affairs, including to the Projectbest of the Company's knowledge;
(no) any other event or condition of any character that has or could might reasonably be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(op) issuance or sale by the Company of any agreement, contract, lease of its shares or commitment of any other of its securities except for issuances or any extension sales as a result of exercises of stock options granted under the Company Stock Option Plan or modification rights previously granted to purchase shares of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsCompany's capital stock;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation change in pricing or agreement royalties set or charged by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement).Company; or
Appears in 1 contract
Samples: Merger Agreement (Cybermedia Inc)
No Changes. Except as contemplated by this Agreementset forth in Schedule 3.7, since the date of the Interim ClickOver Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company ClickOver except in the ordinary course of business as conducted on the date of the Interim ClickOver Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the CompanyClickOver;
(c) capital expenditure or commitment by the Company in excess of $10,000 ClickOver, either individually or $50,000 in the aggregate, exceeding $10,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company ClickOver (whether or not by covered by insurance), including the Property;
(e) change in accounting methods labor trouble or practices (including any change in depreciation claim of wrongful discharge or amortization policies other unlawful labor practice or rates) by the Companyaction;
(f) resignation or termination of any key officers or employees of ClickOver, and to the Knowledge of ClickOver, no impending resignation or termination of employment of any such officer or employee;
(g) revaluation by the Company ClickOver of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock ClickOver Capital Stock, or any direct or indirect redemption, purchase or other acquisition by ClickOver of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderClickOver Capital Stock;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of ClickOver, except in the Company, or any creation ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(j) except as contemplated herein, amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company ClickOver is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan loans by the Company ClickOver to any Personperson or entity, incurring by the Company ClickOver of any indebtedness, guaranteeing by the Company ClickOver of any indebtedness, issuance or sale of any debt securities of the Company ClickOver or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(l) waiver or release of any right or claim of the CompanyClickOver, including any write-off or other compromise of any account receivable of the CompanyClickOver;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company ClickOver or its affairs, including the Project;
(n) notice of any claim of ownership by a third party of any ClickOver Intellectual Property Rights (as defined in Section 3.11 below) or of infringement by ClickOver of any third party's intellectual property rights;
(o) issuance or sale by ClickOver of any of its shares of ClickOver Capital Stock, or securities exchangeable, convertible or exercisable therefore, or of any other of its securities;
(p) change in pricing or royalties set or charged by ClickOver to its customers or licensees or in pricing or royalties set or charged by persons who have licensed ClickOver Intellectual Property Rights to ClickOver;
(q) event or condition of any character that has had or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)ClickOver; or
(qr) negotiation or agreement by the Company ClickOver or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Focalink and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Adknowledge Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, WRI Financial Statements there has not been, occurred or arisen any:
(aA) transaction Transaction by the Company WRI except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(bB) amendments Capital expenditure by WRI, either individually or changes to in the Articles of Incorporation or Bylaws of the Companyaggregate, exceeding $5,000;
(cC) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction ofDestruction, damage to to, or loss of any material assets (including without limitation intangible assets, business or customer ) of the Company WRI (whether or not covered by insurance), including either individually or in the Propertyaggregate, exceeding $5,000;
(eD) change Labor trouble or claim of wrongful discharge, sexual harassment or other unlawful labor practice or action;
(E) Change in accounting methods or practices (including any change in depreciation or amortization policies or rates, any change in policies in making or reversing accruals, or any change in capitalization of software development costs) by the CompanyWRI;
(fF) revaluation by the Company of any of its assets, including the Property;
(g) declarationDeclaration, setting aside aside, or payment of a dividend or other distribution with in respect to the capital stock shares of the CompanyWRI, or any direct or indirect redemption, purchase or other acquisition by WRI of any of its shares;
(hG) material change Increase in the salary or other compensation payable or to become payable by WRI to any of its officers, directors or employees, or the declaration, payment, or commitment or obligation of any kind for the payment, by WRI, of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person;
(iH) acquisitionAcquisition, sale, lease, license sale or other disposition transfer of any asset of WRI except in the assets ordinary course of the Company, or any creation of any security interest in such assets or properties, including the Propertybusiness;
(jI) Formation, amendment or termination of any distribution agreement or any material contract, agreement, permit, approval agreement or license to which the Company WRI is a party or party, other than termination by which it is bound, including any purchase and sale agreements for lots in WRI pursuant to the Projectterms thereof;
(kJ) loan Loan by the Company WRI to any Personperson or entity, incurring or guaranty by the Company WRI of any indebtedness, guaranteeing by loan except for expense advances in the Company ordinary course of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersbusiness consistent with past practice;
(lK) waiver Waiver or release of any material right or claim of the CompanyWRI, including any write-off or other compromise of any material account receivable of the CompanyWRI;
(mL) The notice or, to WRI's knowledge, commencement or notice or threat of commencement of any lawsuit or judicial or administrative governmental proceeding against or investigation of the Company WRI or its affairs, including the Project;
(nM) any Other event or condition of any character that has or could would, in WRI's reasonable judgment, be reasonably expected to have a material adverse impact effect on the CompanyWRI;
(oN) any agreementIssuance, contract, lease sale or commitment or any extension or modification of the terms redemption by WRI of any agreement, contract, lease of its shares or commitment which of any other of its securities;
(iO) involves the payment of greater than $25,000 per annum, (ii) extends Change in pricing or royalties set or charged by WRI except for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than discounts extended in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)practice; or
(qP) negotiation Negotiation or agreement by the Company or any officer or employees thereof WRI to do any of the things described in the preceding clauses (aA) through (pO) (other than negotiations with Monaco or Buyer AmeriNet and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.2(b), Schedule 2.7 and Schedule 2.12(a), since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) material transaction (other than the transactions contemplated by this Agreement) by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company of Ten Thousand Dollars ($10,000) in excess of any individual case or Twenty-Five Thousand Dollars ($10,000 individually or $50,000 25,000) in the aggregate;
(d) destruction of, damage to or loss of any material assetsasset, business or customer of the Company (whether or not covered by insurance) that resulted or could reasonably be expected to result in losses to the Company of more than Ten Thousand Dollars ($10,000), including the Property;
(e) claim of wrongful discharge or other unlawful labor practice or action or other labor dispute (i) for which the amount involved would reasonably be expected to exceed $25,000 in the aggregate, or (ii) for which the non monetary damages are reasonably expected to be materially adverse to the Company;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany other than as required by GAAP;
(fg) revaluation by the Company of any of its assets, including assets in the Propertyamount of Ten Thousand Dollars ($10,000) in any individual case or Twenty-Five Thousand Dollars ($25,000) in the aggregate;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock other than pursuant to the exercise of repurchase rights under stock option exercise agreements;
(i) acquisitionincrease in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such person;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jk) amendment or termination (other than expiration by its terms) of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots Scheduled Contract (as defined in the ProjectSection 2.12);
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersothers except for (1) advances to employees for travel and business expenses, (2) loans from Acquiror to the Company, and (3) advances under the Company's existing line of credit, any of which occur in the ordinary course of business, consistent with past practices;
(lm) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company, where such waiver, release, write-off or compromise involves an amount in excess of Ten Thousand Dollars ($10,000);
(mn) commencement or notice or or, to the Company's knowledge, threat of commencement of any lawsuit or judicial or administrative proceeding Proceeding against or investigation of the Company or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of the Company's Intellectual Property Rights (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property Rights;
(p) issuance or sale by the Company of, or the commitment (whether conditional or unconditional) by the Company to issue or sell, any of shares of its capital stock, or securities exchangeable, convertible or exercisable therefor, or any other securities;
(q) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(r) event or condition of any character character, or group of the foregoing, that has or could be is reasonably expected likely to have a material adverse impact Material Adverse Change on the Company;
(os) any agreementmaterial mortgage, contractpledge, lease or commitment Lien, charge, security interest or any extension other encumbrance or modification restriction relating to any of the terms of any agreementCompany's property, contractbusiness or assets, lease tangible or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsintangible;
(pt) hiring ofagreement to enter into a strategic alliance, including marketing or distribution arrangements or other similar arrangements, or offer grant of employment tothird party royalty rights or development agreements, or sub-licensing of any employees rights;
(u) adoption of or if an offer was accepted people that amendment to any employee benefit plan or arrangement, whether written or oral, which would become employees)accelerate or increase benefits due thereunder; or
(qv) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pu) (other than negotiations with Monaco or Buyer Acquiror and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Peoplesoft Inc)
No Changes. Except as contemplated by this Agreement, since Since the Balance Sheet Date through to and including the date hereof, except in connection with the authorization, preparation, negotiation, execution or performance of this Agreement or the consummation of the Interim Balance SheetTransactions, there has not been, occurred or arisen any:
(a) transaction by the business of the Company except and each Company Subsidiary has been conducted in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
practice; (b) amendments there has not been any Effect that has had or changes would reasonably be expected to have, individually or in the Articles of Incorporation or Bylaws of the Company;
aggregate, a Company Material Adverse Effect; and (c) the Company and the Company Subsidiaries have not taken any of the following actions, except as contemplated hereby or set forth on Section 2.9:
(a) make or agree to make any capital expenditure or commitment by the Company in excess of exceeding $10,000 75,000 individually or $50,000 200,000 in the aggregate;
(db) destruction of, damage acquire or agree to acquire or loss dispose or agree to dispose of any material assets, business or customer assets (including intangible) of the Company any Company Subsidiary or any business enterprise or division thereof outside the ordinary course of the business of the Company or such Company Subsidiary and consistent with past practice, or merge or consolidate with or into any other Person;
(whether c) propose or not covered by insuranceadopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Company Subsidiary;
(d) made any material change in the Manufacturing, selling, distribution, advertising, terms of sale or collection practices with respect to the Company Products that is outside the ordinary course of business, (ii) enter into any material business practices, programs or long-term allowances outside the ordinary course of business, including varying any inventory practices with respect to inventory of the Company Products in any respect materially inconsistent with past practice, or (iii) engage in the practice of βchannel stuffingβ or any similar program, activity or other action (including any rebate, promotion, credit, discount, chargeback or refund policy or practice) with respect to the Company Products that, in each case ((i) through (iii)), including is intended or would reasonably be expected to result in a trade buyin that is in excess of normal customer purchasing patterns of the PropertyCompanyβs and the Company Subsidiariesβ business during the twelve months prior to the date hereof;
(e) change in accounting methods commence or practices (including settle any change in depreciation Action or amortization policies threat of any Action by or rates) by against the CompanyCompany or any Company Subsidiary or relating to any of their businesses, properties or assets, or otherwise enter into any release, settlement or similar agreements;
(f) revaluation by pay, discharge, release, waive or satisfy any claims, rights or liabilities, other than the Company payment, discharge or satisfaction in the ordinary course of any business of its assets, including liabilities reflected on the PropertyCurrent Balance Sheet or incurred in the ordinary course of business after the Balance Sheet Date;
(g) declaration, setting aside adopt or payment of a dividend change accounting methods or practices used by the Company other distribution with respect to the capital stock of the Companythan as required by GAAP;
(h) material make or change in any compensation arrangement Tax election or agreement with adopt or change any employee, officer, director Tax accounting method or stockholderreceive or request any Tax ruling or amend any Tax Return;
(i) acquisitionadopt, salemodify, lease, license amend or other disposition of any of the assets of the Companyterminate, or start a termination process of, any creation of Company Employee Plan or any security interest in such assets or propertiesEmployee Agreement, including the Propertyany indemnification agreement, enter into or amend any Employee Agreement or otherwise hire or terminate or cause to resign any Person as or from being an Employee;
(j) amendment increase or termination of make any material contract, agreement, permit, approval or license other change that would result in increased cost to which the Company is a party or any Company Subsidiary to the salary, wage rate, incentive compensation opportunity, employment status, title or other compensation (including equity-based compensation) payable or to become payable by which it is bound, including the Company or such Company Subsidiary to any purchase and sale agreements for lots in Employee outside the Projectordinary course of business;
(k) loan by make any declaration, payment, commitment or obligation of any kind for the Company payment (whether in cash, equity or otherwise) of a severance payment or other change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation) to any PersonEmployee, incurring by except payments made pursuant to written agreements existing on the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities date hereof and disclosed in Section 2.9(k) of the Company or guaranteeing by the Company of any debt securities of othersDisclosure Schedule;
(l) waiver cancel, amend (other than in connection with the addition of customers and suppliers to such insurance policies from time to time in the ordinary course of business consistent with past practices) or release of fail to renew (on substantially similar terms) any right or claim insurance policy of the Company, including any write-off Company or other compromise of any account receivable of the Companysuch Company Subsidiary;
(m) commencement send any written communications (including electronic communications) to Employees regarding this Agreement or notice the Transactions or threat of commencement of make any lawsuit representations or judicial issue any communications to Employees that, in each case, are inconsistent with this Agreement or administrative proceeding against or investigation of the Company or its affairsTransactions, including the Projectany representations regarding offers of employment from Parent;
(n) discount any event accounts receivable of the Company or condition such Company Subsidiary, or accelerate the collection of any character that has accounts receivable or could be reasonably expected to have a material adverse impact on delay the Companypayment of any accounts payable, other than in the ordinary course of business;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practicespractice, (i) introduce any material new products or services or any material marketing campaigns or (ivii) involves the sale of, lease of or transfer of any interest in introduce any material assetsnew sales compensation or incentive programs or arrangements;
(p) hiring ofapply for, negotiate or offer of employment to, accept any employees (or if an offer was accepted people that would become employees)Government Grant; or
(q) negotiation agree in writing or agreement by the Company or any officer or employees thereof otherwise to do take, any of the things actions described in the preceding foregoing clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by of this Agreement)Section 2.9.
Appears in 1 contract
Samples: Merger Agreement (Bioventus Inc.)
No Changes. Except as contemplated by this Agreementset forth in Part 2.8 of the Skipping Stone Disclosure Schedule, since the date of the Interim Balance SheetDecember 31, 2003, there has not been, occurred or arisen any:
(a) transaction by the Company Skipping Stone or any of its subsidiaries except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles certificate of Incorporation incorporation or Bylaws bylaws of Skipping Stone or the Companycomparable governing documents of any of its subsidiaries;
(c) capital expenditure or commitment by the Company Skipping Stone or any of its subsidiaries in excess of $10,000 individually 50,000 in any individual case or $50,000 100,000 in the aggregate;
(d) destruction ofpayment, damage to discharge or loss satisfaction, in any amount in excess of $25,000 in any one case, or $50,000 in the aggregate, of any material assetsclaim, business liability or customer of the Company obligation (whether absolute, accrued, asserted or not covered by insuranceunasserted, contingent or otherwise), including other than (i) the Propertypayment, discharge or satisfaction of liabilities made in the ordinary course of business consistent with Skipping Stone's or its subsidiary's, as the case may be, past practices, (ii) reflected or reserved against in the Unaudited Balance Sheet or (iii) pursuant to Section 5.5 or 5.11;
(e) material loss, damage or destruction to, or any material interruption in the use of, any of Skipping Stone's or any of its subsidiaries' respective material assets;
(f) claim of wrongful discharge or other unlawful labor practice or action with respect to Skipping Stone or any of its subsidiaries;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) utilized by the CompanySkipping Stone or any of its subsidiaries;
(fh) revaluation by the Company Skipping Stone of any of its assets, including the Propertyor any of its subsidiaries' respective assets (whether tangible or intangible);
(gi) declaration, setting aside or payment of a dividend or other distribution with respect to the Skipping Stone Common Stock, or any direct or indirect redemption, purchase or other acquisition by Skipping Stone of any of its capital stock or any split, combination or reclassification in respect of the Companyany shares of Skipping Stone Common Stock, or any issuance or authorization of any issuance of any other securities in lieu of or in substitution for shares of Skipping Stone Common Stock, other than pursuant to Section 5.11 or Section 5.19;
(hj) material change other than periodic increases in compensation in the ordinary course and consistent with Skipping Stone's or its subsidiary's, as the case may be, past practices, increase above historic levels in the salary or other compensation or benefits (including, but not limited to, options or other equity-based compensation awards) payable or to become payable by Skipping Stone or any of its subsidiaries to any of their respective officers, directors, employees or consultants, or, except as contemplated in Section 5.11, the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement or agreement with benefits (including, but not limited to, options or other equity-based compensation awards) to any employee, officer, director or stockholder;such person.
(ik) acquisition, sale, lease, license or other disposition of any of the material assets or properties of the CompanySkipping Stone or any of its subsidiaries, or any the creation of any security interest in such assets or properties, including other than agreements with customers and suppliers entered into in the Propertyordinary course of business and consistent with Skipping Stone's or its subsidiary's, as the case may be, past practices;
(jl) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company Skipping Stone or any of its subsidiaries is a party or by which it is bound, including any purchase and sale agreements for lots bound other than in accordance with the Projectterms thereof;
(km) loan by the Company Skipping Stone or any of its subsidiaries to any Personperson or entity, incurring by the Company Skipping Stone or any of its subsidiaries of any indebtedness, guaranteeing by the Company Skipping Stone or any of its subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company Skipping Stone or any of its subsidiaries or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with Skipping Stone's or its subsidiary's, as the case may be, past practices;
(ln) waiver or release of any right or claim of the CompanySkipping Stone or any of its subsidiaries, including any write-off or other compromise of any account receivable of Skipping Stone or any of its subsidiaries, other than in the Companyordinary course of business consistent with Skipping Stone's or its subsidiary's, as the case may be, past practice;
(mo) commencement commencement, settlement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against against, or investigation of, Skipping Stone or any of its subsidiaries or their respective affairs or any reasonable basis for any of the Company or its affairs, including the Projectforegoing;
(np) notice of any claim of ownership by a third party of Skipping Stone Intellectual Property (as defined in Section 2.11) or of infringement by Skipping Stone or any of its subsidiaries of any Skipping Stone Third-Party Intellectual Property (as defined in Section 2.11);
(q) issuance or sale, or contract to issue or sell, by Skipping Stone of any shares of Skipping Stone Common Stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities, other than pursuant to the exercise of any options to purchase Skipping Stone Common Stock outstanding on the date hereof and granted under Skipping Stone Option Plan;
(r) material change in pricing or royalties set or charged by Skipping Stone or any of its subsidiaries to its customers or licensees or material change in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.11) to Skipping Stone or any of its subsidiaries;
(s) commitment to any person to (i) develop software without charge or (ii) incorporate any software into any of Skipping Stone's products;
(t) exclusive license, distribution, marketing or sales agreement entered into or any agreement to enter into any exclusive license, distribution, marketing or sales agreement, other than in the ordinary course of business consistent with past practice;
(u) event or condition of any character that has or could reasonably be reasonably expected to have a material adverse impact on the CompanyMaterial Adverse Effect;
(ov) any new or changed material tax election or tax accounting method, closing agreement, contractsettlement of any claim or assessment in respect of Taxes, lease or commitment or any extension or modification waiver of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation limitation period applicable to any affiliate claim or assessment in respect of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Taxes; or
(qw) negotiation or agreement by the Company Skipping Stone or any officer of its subsidiaries or any of their respective officers or employees thereof to do any of the things described in the preceding clauses (a) through (pv) (other than negotiations with Monaco or Buyer Parent and their its affiliates and representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, there has not been, ---------- occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer assets of the Company Company, or the loss of any material customers or material amounts of business (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (each a "Company ------- Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment Company Agreement --------- which (i) involves the payment of greater than $25,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company, except to the extent properly reserved on the Balance Sheet;
(o) the commencement or notice or threat of commencement of any lawsuit or proceeding against, or investigation of, the Company or its affairs;
(p) hiring ofnotice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or notice of infringement by the Company of any third party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment to, any employees other of its securities;
(r) change in pricing or if an offer was accepted people royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that would become employees)has or may have a Material Adverse Effect on the Company; or
(qt) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementdisclosed on Schedule 3.7 of the Company Disclosure Schedule, since the date of the Interim Balance SheetJune 15, 2003, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) individual capital expenditure or commitment by the Company in excess of exceeding $10,000 individually or $50,000 in the aggregate25,000;
(dc) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including ) which individually exceeds $25,000;
(d) labor trouble or claim of wrongful discharge of which the PropertyCompany has received written notice or of which the Companyβs senior management is aware or other unlawful labor practice or action;
(e) change in accounting methods or practices (including any material change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including assets other than depreciation as required by GAAP and reflected on the PropertyUnaudited Balance Sheet;
(g) declaration, setting aside or payment of a dividend any dividends on or any other distribution with (whether in cash, stock or property) in respect to of any of the Companyβs capital stock, or any split, combination or reclassification of any of the Companyβs capital stock or the issuance or authorization of the issuance of any of the securities in respect of, in lieu of or in substitution for Shares of the capital stock of the Company, or the repurchase, redemption or other acquisition, directly or indirectly, of any Shares of the Companyβs capital stock (or options, warrants, or other rights exercisable therefor);
(h) material change increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person except as otherwise contemplated by this Agreement;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date;
(j) amendment material amendment, termination or, to the knowledge of the Indemnifying Shareholders, violation, or termination any threat thereof, of any distribution agreement, sales agency agreement or any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots bound other than amendment or termination by the Company pursuant to the terms thereof in the Projectordinary course of business;
(k) loan by the Company to any Personperson or entity, other than advances to employees for travel and business expenses in the ordinary course of business and consistent with past practices, or incurring by the Company of any indebtednessindebtedness other than trade debt in the ordinary course of business consistent with past practices, guaranteeing by guaranty of the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement issuance, exemption or notice or threat of commencement sale by the Company of any lawsuit its Shares, or judicial securities exchangeable, convertible or administrative proceeding against exercisable therefor, or investigation of the Company any other securities except for issuances or its affairs, including the Project;sales as a result of rights previously granted; or
(n) transactions by the Company with any event of its officers, directors or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
employees (o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the other than payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than compensation paid in the ordinary course of business as conducted on that date and consistent course) or with past practices, any persons or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do entities affiliated with any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco its officers, directors or Buyer and their representatives regarding the transactions contemplated by this Agreement)employees.
Appears in 1 contract
No Changes. Except To the knowledge of ERT and the Principal Shareholders, and except as contemplated by this Agreementset forth in Schedule 3.5(g), since the date of the Interim Balance SheetSeptember 30, 1998, there has not been, occurred or arisen arisen, as of the date hereof, any:
(ai) transaction by the Company MNET except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(bii) amendments amendment or changes change to the Articles of Incorporation Operating Agreement or Bylaws (or comparable organizational document) of the CompanyMNET;
(ciii) capital expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregateMNET;
(div) destruction of, damage to or loss of any material assets, business or customer of the Company MNET (whether or not covered by insurance), including the Property;
(ev) change increase in accounting methods the salary or practices other compensation payable or to become payable by MNET to any of the 10 most highly paid employees of MNET, or the declaration, payment or commitment or obligation of any kind for the payment by MNET, of a bonus or other additional salary or compensation to any such person (including other than annual increases consistent with past practice not exceeding in any change in depreciation or amortization policies or rates) by the Companyone case more than 10% of annual base salary);
(fvi) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of MNET, except in the Company, or any creation ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kvii) loan by the Company MNET to any Personperson or entity, incurring by the Company MNET of any indebtedness, guaranteeing by the Company MNET of any indebtedness, issuance or sale of any debt securities of the Company MNET or guaranteeing by the Company of any debt securities of othersothers by MNET, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lviii) waiver or release of any material right or claim of the CompanyMNET, including any material write-off or other compromise compromise, outside the ordinary course of business, of any account receivable of the Companyreceivable;
(mix) the commencement of any lawsuit or notice or threat of commencement of any material lawsuit or judicial or administrative proceeding against or investigation of the Company MNET or its affairs, including the Project;
(nx) notice of any claim of ownership by a third party of MNET Intellectual Property Rights or of infringement by MNET of any third party's copyright, patent, trade mark, xxrvice mark, xxade secret or other proprietary right ("INTELLECTUAL PROPERTY");
(xi) material change in pricing set or charged by MNET to its customers or in pricing or royalties set or charged by persons who have licensed Intellectual Property to MNET;
(xii) any event or condition of any character that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreementMNET, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qxiii) negotiation or agreement by the Company MNET or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pm) (other than negotiations with Monaco or DMT, and Buyer and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Mypoints Com Inc)
No Changes. Except as contemplated by this AgreementSince April 30, since 2005, the date of Company (including its subsidiaries) has conducted its business in the Interim Balance Sheet, ordinary course and consistent with past practices and there has not been, occurred or arisen anyarisen:
(a) transaction any change, event or condition (whether or not covered by the insurance) that has resulted in, or could reasonably be expected to result in, a Company except in the ordinary course of business Material Adverse Effect (as conducted on the date of the Interim Balance Sheet and consistent with past practicesdefined below);
(b) amendments any acquisition, sale, lease, license or changes to the Articles transfer of Incorporation any material asset, property or Bylaws right of the Company;
(c) any capital expenditure or commitment by the Company Company, in excess of $10,000 5,000 individually or $50,000 in the aggregate;
(d) any destruction of, damage to or loss of any material assets, business assets or customer of the Company properties (whether or not covered by insurance), including ) or business or customer of the PropertyCompany;
(e) any change in the Companyβs accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) or any restatement of financial statements or revaluation by the Company of any of its assets, including the Propertyproperties or rights;
(gf) Other than the repurchases of shares set forth in Section 2.7(f) of the Company Schedule, any declaration, setting aside aside, or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets securities of the Company, or any creation direct or indirect redemption, purchase or other acquisition by the Company of any security interest in such assets of its capital stock or properties, including the Propertyother securities;
(jg) amendment any termination of, or termination of violation or default under, any material contract, agreement, permit, approval arrangement or license to which the Company is a party or by which it is the Company or its assets or properties are or may be bound;
(h) Except as set forth in Section 2.7(h) of the Company Schedule, any amendment or change to the Articles of Incorporation, Bylaws or other organizational or governing documents of the Company;
(i) Other than the employee bonus payments and compensation increases set forth in Section 2.7(f) of the Company Schedule (the βBonus Paymentsβ), any increase in or modification of the compensation or benefits payable or to become payable by the Company to any of its respective directors, employees, consultants or advisors, or any declaration, payment or commitment or obligation to pay any bonus or other additional salary or compensation (including equity) to any purchase such person;
(j) any labor trouble or claim of wrongful discharge or other unlawful labor practice or action (Section 2.7(j) of the Company Schedule includes a list of all employees who have been terminated by the Company, and sale agreements the general reason for lots in the Projecttermination, since inception);
(k) any change in an election or accounting method with respect to Taxes (as defined in Section 2.8 below) or settlement or compromise of any material Tax liability, except the change in assessed value of the real property upon change of control of the Company;
(l) any loan by the Company to any Personperson or entity (other than the advancement or reimbursement of business expenses to employees in immaterial amounts in the ordinary course of business), incurring or the incurrence by the Company of any indebtedness, guaranteeing the guarantee by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any agreement to guarantee or act as a surety with respect to any payment obligations or debt securities of othersany other party;
(lm) any waiver or release of any material right or claim of or in favor of the Company, including any write-off or other compromise of any account receivable of of, or debt owed to, the Company;
(mn) any commencement or notice or or, to the best knowledge of Company, any threat of the commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its business or affairs, including other than as set forth in Section 2.15 of the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the CompanyCompany Schedule;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms notice of any agreement, contract, lease or commitment which (i) involves the payment claim of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate ownership by a third-party of the Company other than Intellectual Property (as defined in Section 2.11 below) or any allegations that the ordinary course of business as conducted on that date and consistent with past practices, Company is infringing or (iv) involves the sale of, lease of or transfer of has infringed upon any interest in any material assetsthird-partyβs Intellectual Property Rights;
(p) hiring ofany issuance or sale by the Company of any shares of capital stock or any other securities;
(q) any entry into an agreement that grants exclusivity, noncompete or offer of employment to, any employees (most favored-nation rights or if an offer was accepted people that would become employees)which cannot be terminated without penalty on thirty days advance written notice; or
(qr) any negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) foregoing (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement), other than as described in Section 2.7(r) of the Company Schedule.
Appears in 1 contract
Samples: Merger Agreement (Valueclick Inc/Ca)
No Changes. Except as contemplated by this Agreementdisclosed on Schedule 3.7 of the Company Disclosure Schedule, since the date of the Interim Balance SheetSeptember 30, 2002, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) individual capital expenditure or commitment by the Company in excess of exceeding $10,000 individually or $50,000 in the aggregate25,000;
(dc) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including ) which individually exceeds $25,000;
(d) labor trouble or claim of wrongful discharge of which the PropertyCompany has received written notice or of which the Company's senior management is aware or other unlawful labor practice or action;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including assets other than depreciation as required by GAAP and reflected on the PropertyUnaudited Balance Sheet;
(g) declaration, setting aside or payment of a dividend any dividends on or any other distribution with (whether in cash, stock or property) in respect to of any of the Company's capital stock, or any split, combination or reclassification of any of the Company's capital stock or the issuance or authorization of the issuance of any of the securities in respect of, in lieu of or in substitution for Interests of the capital stock of the Company, or the repurchase, redemption or other acquisition, directly or indirectly, of any Interests of the Company's capital stock (or options, warrants, or other rights exercisable therefor);
(h) material change increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person except as otherwise contemplated by this Agreement;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date;
(j) amendment material amendment, termination or termination violation, or any threat thereof, of any distribution agreement, sales agency agreement or any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots bound other than amendment or termination by the Company pursuant to the terms thereof in the Projectordinary course of business;
(k) loan by the Company to any Personperson or entity, other than advances to employees for travel and business expenses in the ordinary course of business and consistent with past practices, or incurring by the Company of any indebtednessindebtedness other than trade debt in the ordinary course of business consistent with past practices, guaranteeing by guaranty of the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement issuance, exemption or notice or threat of commencement sale by the Company of any lawsuit its Interests, or judicial securities exchangeable, convertible or administrative proceeding against exercisable therefor, or investigation of any other securities except for issuances or sales as a result of rights previously granted to purchase Interests in the Company or its affairs, including the ProjectCompany;
(n) transactions by the Company with any event of its officers, directors or condition employees (other than payment of compensation paid in the ordinary course) or with any character that has persons or could be reasonably expected to have a material adverse impact on entities affiliated with any of its officers, directors or employees paid in the Companyordinary course;
(o) any agreement, contract, lease or commitment or any extension or modification notice of the terms occurrence of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than things described in the ordinary course of business as conducted on that date and consistent with past practices, or preceding clauses (iva) involves the sale of, lease of or transfer of any interest in any material assetsthrough (n);
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pn) (other than by negotiations with Monaco or Buyer Purchaser and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or unsatisfied commitment by the Company in excess of Company, either individually exceeding $10,000 individually or $50,000 in the aggregateaggregate exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not by covered by insurance), including the Property;
(e) change in accounting methods labor trouble or practices (including any change in depreciation claim of wrongful discharge or amortization policies other unlawful labor practice or rates) by the Companyaction;
(f) resignation or termination of any key officers or employees of the Company and the Company, to the best of its knowledge, does not know of the impending resignation or termination of employment of any such officer or employee;
(g) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderCompany Capital Stock;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(j) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) notice of any claim of ownership by a third party of Company Intellectual Property Rights (as defined in Section 2.11 below) or of infringement by the Company of any third party's intellectual property rights;
(o) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(p) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Company Intellectual Property Rights to the Company;
(q) event or condition of any character character, of which the Company is aware (after having made due inquiry), that has had or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Material Adverse Effect; or
(qr) negotiation or agreement by the Company or by any officer of its officers or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Storage Computer Corp)
No Changes. Except as contemplated by this Agreementset forth on Schedule 4.6 or as necessary to effect the Trails Reorganization, since the date of the Interim Balance SheetSeptember 30, 2003, there has not been, occurred or arisen any:
(a) transaction by amendment or change to the Company except in the ordinary course Certificate of business as conducted on the date Incorporation or By-Laws of any of the Interim Balance Sheet and consistent with past practicesAcquired Companies;
(b) amendments capital expenditure or changes to the Articles of Incorporation or Bylaws commitment by any of the CompanyAcquired Companies, either individually or in the aggregate, exceeding $750,000;
(c) expenditure destruction or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer assets of any of the Company Acquired Companies (whether or not covered by insurance), including the Property;
(ed) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by any of the CompanyAcquired Companies, other than as required by GAAP;
(e) material revaluation by any of the Acquired Companies of any of its material assets in excess of amounts reserved therefor on the Current Balance Sheet;
(f) revaluation by increase (other than increases resulting from the Company calculation of reserves in the ordinary course of business consistent with past practice) or change in any assumptions underlying, or methods of its assetscalculating, including the Propertyany reserves for bad debt, any accruals, any contingency or other reserves;
(g) payment, discharge or satisfaction of any claims, encumbrances, liabilities or obligations (whether absolute, accrued, contingent or otherwise and whether due or to become due), other than the payment, discharge or satisfaction of claims, encumbrances, liabilities or obligations in the ordinary course of business consistent with past practices;
(h) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of any of the Company;
(h) material change Acquired Companies or any direct or indirect redemption, purchase or other acquisition by the Company of any capital stock of any of the Acquired Companies or any split, combination or reclassification in respect of any compensation arrangement or agreement with shares of capital stock of any employee, officer, director or stockholderof the Acquired Companies;
(i) acquisition, sale, lease, license or other disposition of any material assets or properties of any of the assets of the CompanyAcquired Companies, or any the creation of any security interest in such assets or properties, including except in each case, in the Propertyordinary course of business consistent with past practices;
(j) amendment or termination of any material contractContract, agreementexcept in each case, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Projectordinary course of business consistent with past practices;
(k) loan by any of the Company Acquired Companies to any Person, incurring guarantee by any of the Company Acquired Companies of any indebtedness, guaranteeing by the Company indebtedness of any indebtednessDistributed Company or other Person in each case in excess of $750,000, issuance or sale of any debt securities of any of the Company Acquired Companies, or guaranteeing by the Company creation of any debt securities security interest in any of othersthe Acquired Companies' material assets or material properties, except for (i) security interests arising in the ordinary course of business, including security interests in favor of landlords, carriers, warehousemen, processors, mechanics, materialmen or suppliers, (ii) advances to employees, directors or consultants for travel and business expenses and (iii) intercompany loans as between Acquired Companies and Distributed Companies, in each case in the ordinary course of business, consistent with past practices;
(l) waiver or release of any right or claim of any of the CompanyAcquired Companies, including any write-off or other compromise of any account receivable of any of the CompanyAcquired Companies exceeding $100,000 individually or $1,500,000 in the aggregate;
(m) commencement or receipt of written notice or or, to the Knowledge of the Company, threat of commencement of any lawsuit lawsuit, arbitration or judicial or administrative proceeding against or investigation of any of the Company Acquired Companies or its any of their affairs, including the Project;
(n) any event event, condition, occurrence, change or condition of any character effect that has had or could would reasonably be reasonably expected to have a material adverse impact on the Company;Material Adverse Effect; or
(o) agreement by any agreement, contract, lease or commitment or any extension or modification of the terms of any agreementAcquired Companies or, contract, lease or commitment which (i) involves to the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate Knowledge of the Company other than in the ordinary course of business as conducted on that date and consistent with past practicesCompany, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreementn).
Appears in 1 contract
Samples: Merger Agreement (Manufactured Home Communities Inc)
No Changes. Except as contemplated by this Agreementset forth in SECTION 2.9 of the Disclosure Schedule, since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company or any of its Subsidiaries except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles certificate of Incorporation incorporation or Bylaws bylaws of the CompanyCompany or the organizational documents of any of its Subsidiaries;
(c) capital expenditure or commitment by the Company in excess or any of its Subsidiaries exceeding $10,000 50,000 individually or $50,000 100,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company or any of its Subsidiaries), other than payments, discharges or satisfactions in the ordinary course of business or liabilities reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company or any of its Subsidiaries (whether or not covered by insurance), including the Property;
(ef) employment dispute, including but not limited to, claims or matters raised by any individuals or any workers' representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any of its Subsidiaries other than as required by GAAP;
(fh) change in any material election in respect of Taxes (as defined in SECTION 2.10(a) hereof), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension (other than a properly filed extension attributable to an extension of time for the filing of any tax returns) or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company or any of its Subsidiaries of any of its assets, including the Propertyassets (whether tangible or intangible);
(gj) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Common Stock or any Company Preferred Stock, or any split, combination or reclassification in respect of any shares of Company Common Stock or Company Preferred Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Common Stock or Company Preferred Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Stock or Company Preferred Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with respect to the capital stock of the Companyagreements evidencing Company Options or Company Unvested Shares;
(hk) material change increase in the salary or other compensation payable or to become payable by the Company or any of its Subsidiaries to any of their respective officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company or any of its Subsidiaries of a severance payment, termination payment, bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person;
(il) acquisitionagreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of its assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any agreement, contract, covenant, instrument, lease, license or commitment to which the Company or any of its Subsidiaries is a party or by which it or any of their assets are bound;
(m) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the CompanyCompany or any of its Subsidiaries, including, but not limited to, the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kn) loan by the Company or any of its Subsidiaries to any Personperson or entity, incurring by the Company or any of its Subsidiaries of any indebtedness, guaranteeing by the Company or any of its Subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(lo) waiver or release of any right or claim of the CompanyCompany or any of its Subsidiaries, including any write-off or other compromise of any account receivable of the CompanyCompany or any of its Subsidiaries;
(mp) commencement or settlement of any lawsuit by the Company or any of its Subsidiaries, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of commencement of any lawsuit or judicial proceeding or administrative proceeding other investigation against the Company or investigation any of its Subsidiaries or their affairs, or any reasonable basis for any of the foregoing;
(q) notice of any claim or potential claim of ownership by any person other than the Company or any of its Subsidiaries of the Company Intellectual Property (as defined in SECTION 2.13 hereof) owned by or developed or created by the Company or any of its Subsidiaries or of infringement by the Company or any of its Subsidiaries of any other person's Intellectual Property (as defined in SECTION 2.13 hereof);
(r) issuance or sale, or contract or agreement to issue or sell, by the Company or any of its Subsidiaries of any shares of Company Capital Stock or shares of Capital Stock of any of its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or shares of Capital Stock of any of its Subsidiaries, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Capital Stock upon the exercise of options issued under the Plans;
(i) sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity, or (ii) purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company or any of its Subsidiaries;
(t) agreement or modification to any agreement pursuant to which any other party was granted marketing, distribution, development, manufacturing or similar rights of any type or scope with respect to any products or technology of the Company or any of its affairs, including the ProjectSubsidiaries;
(nu) any event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact on the CompanyCompany Material Adverse Effect;
(ov) lease, license, sublease or other occupancy of any agreement, contract, lease or commitment Leased Real Property (as defined in SECTION 2.12(a) hereof) by the Company or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)its Subsidiaries; or
(qw) negotiation or agreement by the Company or any of its Subsidiaries, or any officer or employees thereof on behalf of the Company or any of its Subsidiaries, to do any of the things described in the preceding clauses (a) through (pv) of this SECTION 2.9 (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this AgreementAgreement and the Related Agreements).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Documentum Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, Sheet there has not been, occurred or arisen any:
(a) transaction by the Company except any material adverse change in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesCompanies taken as a whole;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) any material damage, destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including ) adversely affecting the Propertybusiness of the Companies taken as a whole;
(ec) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend any dividend, or other distribution distribution, in respect of any capital stock of any of the Companies or any direct or indirect redemption, purchase or other acquisition of such stock;
(d) any option to purchase any capital stock of any of the Companies granted to any person, or any employment or deferred compensation agreement entered into between any Company and any of its stockholders, officers, directors, employees or consultants; 12PAGE
(e) any issuance or sale by any of the Companies of any stock, bonds or other corporate securities, or any partial or complete formation, acquisition, disposition or liquidation of any of the Companies;
(f) any labor union activity (including without limitation any negotiation, or request for negotiation, with respect to the capital stock any union representation or any labor contract) respecting any of the CompanyCompanies;
(g) any statute, rule or regulation, or, to the best knowledge of the Companies and the Sellers, any government policy, adopted which may materially and adversely affect the business of any of the Companies;
(h) material change in any compensation arrangement mortgage, lien, attachment, pledge, encumbrance or agreement security interest created on any asset, tangible or intangible, of any of the Companies, or assumed, either by any Company or by others, with respect to any employeesuch assets, officer, director or stockholderexcept for liens permitted under Section 2.8;
(i) acquisitionany indebtedness or other liability or obligation (whether absolute, accrued, contingent or otherwise) incurred, or other transaction (except that reflected in this Agreement) engaged in, by any of the Companies, except those in the ordinary course of business that are individually, or in the aggregate to one group of related parties, less than fifty thousand dollars ($50,000);
(j) any obligation or liability discharged or satisfied by any of the Companies, except items included in current liabilities shown on the Balance Sheet and current liabilities incurred since the date of the Balance Sheet in the ordinary course of business which are individually, or in the aggregate to one group of related parties, less than twenty five thousand dollars ($25,000) in amount;
(k) any sale, assignment, lease, license transfer or other disposition of any tangible asset of any of the Companies, except in the ordinary course of business, or any sale, assignment, lease, transfer or other disposition of any of the assets of the Companyits patents, trademarks, trade names, brand names, copyrights, licenses or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersother intangible assets;
(l) any amendment, termination or waiver or release of any material right or claim belonging to any of the Company, including any write-off or other compromise of any account receivable of the CompanyCompanies;
(m) commencement any increase in the compensation or notice benefits payable or threat of commencement of to become payable by any lawsuit or judicial or administrative proceeding against or investigation of the Company Companies to any of its officers or its affairs, including the Projectemployees;
(n) any event other action or condition omission by any of the Companies, or the passage of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreementresolution, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement).business. 13PAGE
Appears in 1 contract
Samples: Share Purchase Agreement (Thermo Bioanalysis Corp /De)
No Changes. Except as contemplated by this Agreementset forth on Schedule 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by Holdings or the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles charter documents of Incorporation Holdings or Bylaws of the Company;
(c) capital expenditure or commitment by Holdings or the Company in excess of exceeding $10,000 5,000 individually or $50,000 20,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of Holdings or the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) event or condition that has had or would be reasonably expected to have a Material Adverse Effect on Holdings or the Company;
(g) change in accounting methods or practices (including any change in depreciation depreciation, amortization or amortization revenue recognition policies or rates) by Holdings or the Company;
(fh) revaluation by Holdings or the Company of any of its assets, including the Property;
(gi) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of Holdings or the Company, or any direct or indirect redemption, purchase or other acquisition by Holdings or the Company of any of its capital stock;
(hj) material change increase in the salary or other compensation (including any equity-based compensation, bonus or payment) payable or to become payable to any of its officers or directors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement to any such person except in the ordinary course of business or agreement with any employee, officer, director or stockholderas otherwise contemplated by this Agreement;
(ik) acquisition, sale, lease, license or other disposition of any of the assets or properties of Holdings or the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness consistent with past practices;
(jl) amendment or termination (other than pursuant to its terms) of any material contract, agreement, permit, approval agreement or license described in Schedule 2.12(a) or Schedule 2.11(p) to which Holdings or the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(km) loan by Holdings or the Company to any Personperson or entity, incurring incurrence by Holdings or the Company of any indebtedness, guaranteeing guarantee by Holdings or the Company of any indebtedness, issuance or sale of any debt securities of Holdings or the Company or guaranteeing by the Company guarantee of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business consistent with past practices;
(ln) waiver or release of any right or claim of Holdings or the Company, including any write-off or other compromise of any account receivable of the Company;
(mo) commencement issuance or notice sale by Holdings or threat of commencement the Company of any lawsuit of its shares of capital stock, or judicial securities exchangeable, convertible or administrative proceeding against exercisable therefor, or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification other of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsits securities;
(p) hiring of, change in pricing or offer of employment to, any employees royalties set or charged by Holdings or the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.11) to Holdings or if an offer was accepted people that would become employees)the Company; or
(q) negotiation or agreement by Holdings or the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Stock Purchase Agreement (Cypress Semiconductor Corp /De/)
No Changes. Except as contemplated by this Agreementset forth in Exhibit C, since the date of the Interim Balance SheetDecember 31, ---------- --------- 1996, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (collectively a "Company Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment Company ------------------ Agreement which (i) involves the payment of greater than $25,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(o) the commencement or notice or threat of commencement of any lawsuit or proceeding against investigation of the Company or its affairs;
(p) hiring ofnotice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or of infringement by the Company of any third party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment to, any employees other of its securities;
(r) change in pricing or if an offer was accepted people royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that would become employees)has or may have a Material Adverse Effect on the Company; or
(qt) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Exhibit C, since the date of the Interim Balance SheetJune 30, 1997, ---------- --------- there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) to the knowledge of the Company, labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) material change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its material assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (collectively a "Company Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment Company ------------------ Agreement which (i) involves the payment of greater than $25,000 per annum, annum or which extends (iiand cannot be terminated without penalty) extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the material assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(o) the commencement or notice or, to the knowledge of the Company, threat of commencement of any lawsuit or proceeding against, or investigation of, the Company or its affairs;
(p) hiring ofnotice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or notice of infringement by the Company of any third party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment to, any employees other of its securities;
(r) change in pricing or if an offer was accepted people royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event of which the Company is aware and which is not generally applicable to similar companies in the Company's industry that has or would become employees)have a Company Material Adverse Effect or could reasonably be expected to have a Surviving Corporation Material Adverse Effect; or
(qt) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since From the date of the Interim Current Balance Sheet, there has ---------- not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course Ordinary Course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesBusiness;
(b) amendments or changes to the articles of incorporation or bylaws of the Company, except to the extent that the Restated Articles of Incorporation or Bylaws of the Companyhave been filed;
(c) capital expenditure or capital expenditure commitment by the Company in excess of exceeding $10,000 25,000 individually or $50,000 100,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $25,000 in any one case, or $100,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the Ordinary Course of Business;
(e) destruction of, damage to or loss of any material assets, assets or material business or loss of any material customer of the Company (whether or not covered by insurance), including the Property;
(ef) labor trouble or claim of wrongful discharge or other unlawful labor practice or ac tion;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany other than as required by GAAP;
(fh) change in any election in respect of Taxes (as defined below), adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(i) revaluation by the Company of any of its assets, including the Property;
(gj) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Common Stock or Company Preferred Stock, or any split, combination or reclassification in respect of any shares of Company Common Stock or Company Preferred Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Common Stock or Company Preferred Stock, or any direct or indirect repurchase, redemption, or other acquisition by the Company of any shares of Company Common Stock or Company Preferred Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with respect the agreements evidencing Company Options;
(k) increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any such person;
(l) other than (x) non-exclusive licenses of object code relating to the capital stock sale of the Company;
's currently shipping products entered into in the ordinary course of business and (hy) material change any other contract not involving the license, purchase or sale of Intellectual Property or Intellectual Property Rights (each as defined in Section 2.12 hereof) entered into in the ordinary ------------ course of business involving an amount not in excess of $25,000 individually or $100,000 in the aggregate, any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license Contract to which the Company is a party or by which it or any of its assets (including intangible assets) are bound or any termination, extension, amendment or modification of the terms of any Contract to which the Company is a party or by which it or any of its assets are bound, including any purchase and sale agreements for lots in the Project;
(km) sale, lease or other disposition of any of the material assets or material properties of the Company or any creation of any security interest in such material assets or material properties;
(n) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business;
(lo) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mp) commencement or notice or threat of commencement of any lawsuit claim or judicial or administrative proceeding against or investigation potential claim of ownership by any person other than the Company of the Company Intellectual Property (as defined in Section 2.12 hereof) owned by or its affairsdeveloped or created by the Company or of ------------ infringement by the Company of any other person's Intellectual Property (as defined in Section 2.12 hereof); ------------
(q) except for the Series A Preferred Stock Purchase Agreement and the grant of stock options under the Plan, including issuance or sale, or contract to issue or sell, by the ProjectCompany of any shares of Company Common Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Common Stock, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Common Stock upon the exercise thereof;
(nr) except for the granting of non-exclusive licenses of object code relating to the sale of the Company's currently shipping products entered into in the ordinary course of business consistent with past practice (i) sale or license of any Company Intellectual Property or entering into of any agreement with respect to the Company Intellectual Property with any person or entity or with respect to the Intellectual Property of any person or entity, (ii) purchase or license of any Intellectual Property or entering into of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement with respect to the development of any Intellectual Property with a third party, or (iv) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(s) agreement or modification to agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company;
(t) any hiring or termination of employees of the Company, except in the ordinary course of business consistent with past practices or pursuant to existing employment agreements;
(u) any event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qv) negotiation or agreement by the Company or any officer or employees thereof on behalf of the Company to do any of the things described in the preceding clauses (a) through (pu) of this Section 2.8 (other than negotiations with Monaco or Buyer Parent and their its ----------- representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Lantronix Inc)
No Changes. Since the Balance Sheet Date, the Company has conducted its business only in the ordinary course. Except as contemplated by this Agreementdisclosed on Schedule 3.18, without limiting the generality of the foregoing sentence, since the date of the Interim Balance SheetSheet Date, there has not beenbeen any: (i) material adverse change in the financial condition, occurred assets, liabilities, net worth, earning power, business or arisen any:
prospects of the Company; (aii) transaction damage or destruction to any asset of the Company, whether or not covered by insurance; (iii) strike or other labor trouble at the Company; (iv) creation of any Encumbrance on any asset of the Company; (v) declaration or payment of any dividend or other distribution on or with respect to or redemption or purchase by the Company of any shares of capital stock of the Company, including any of the Shares; (vi) increase in the salary, wage or bonus of any employee of the Company, except for payments that do not reduce the Company's Stockholder's Equity below zero; (vii) asset acquisition or expenditure, including capital expenditure, in excess of $10,000 in the aggregate, other than the purchase of inventory in the ordinary course of business or as conducted on the date of the Interim Balance Sheet and consistent with past practices;
permitted under Section 5.03 hereof; (b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(eviii) change in accounting methods or practices any Company Plan; (including any change in depreciation or amortization policies or ratesix) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement method of accounting; (x) payment to or agreement transaction with any employeeRelated Party, officerwhich payment or transaction is not specifically disclosed on Schedule 3.18, director or stockholder;
except for payments that do not reduce the Company's Stockholder's Equity below zero; (ixi) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
asset (j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots other than inventory in the Project;
(kordinary course of business) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one $10,000 in the aggregate or for less than fair market value, except as permitted under Section 5.03 hereof; (1xii) yearpayment, (iii) involves prepayment or discharge of any payment or obligation to any affiliate of the Company liability other than in the ordinary course of business as conducted on that date and consistent with past practices, or any failure to pay any liability when due; (ivxiii) involves the sale of, lease of write-offs or transfer write-downs of any interest assets of the Company in any material assets;
excess of $10,000 in the aggregate; (pxiv) hiring creation, termination or amendment of, or offer waiver of employment toany right under, any employees agreement of the Company; or (xv) agreement or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof commitment to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)foregoing.
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, there the Company has not been, occurred or arisen anynot:
(a) transaction by undergone any change in the financial condition or operations of the Company except other than changes that were in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesBusiness;
(b) amendments (i) declared or changes to paid any dividends on or made other distributions in respect of any equity interest of the Articles Company or set aside funds therefor; (ii) split, combined or reclassified any equity interest of Incorporation the Company or Bylaws issued, authorized or proposed the issuance of any other securities in respect of, in lieu of or in substitution for, any equity interest of the Company; or (iii) repurchased or otherwise acquired any equity interest of the Company;
(c) expenditure or commitment by issued any equity interest of the Company in excess of $10,000 individually or $50,000 any other security, instruments, rights or interests in the aggregateCompany or any subscription, option, warrant, commitment or right of any kind whatsoever with respect to any equity interest of the Company or any other security, instrument, rights or interest in the Company other than with respect to the exercise of options outstanding on the date hereof;
(d) destruction of, damage amended or proposed to or loss amend the Companyβs Certificate of any material assets, business or customer of the Company (whether or not covered by insurance), including the PropertyIncorporation;
(e) change merged or consolidated with or acquired any equity interest in accounting methods any Person, or practices (including entered into an agreement with respect thereto; acquired or agreed to acquire any change material assets, except for the purchase of consumable items in depreciation the ordinary course of the Business; or amortization policies made any loan or rates) by advance to, or otherwise made any investment in, any Person other than trade debt incurred in the Companyordinary course of the Business consistent with past practice;
(f) revaluation by the Company of sold, encumbered or otherwise disposed of, or agreed to sell, lease (whether such lease is an operating or capital lease), encumber, assign or otherwise dispose of, any of its assetsassets (including any equity interest of the Company, including other securities of the PropertyCompany or Intellectual Property Rights of the Company);
(g) declarationauthorized, setting aside recommended, proposed or payment announced an intention to adopt a plan of a dividend complete or other distribution with respect to the capital stock of the Companypartial liquidation or dissolution;
(h) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisitionexcept as required by law or any Company Employment Agreement (as defined below) (i) paid or agreed to pay any pension, sale, lease, license retirement allowance or other disposition employee benefit to any director, officer, management employee or key employee of the Company, whether past or present; (ii) entered into any new, or materially amended any existing, employment or severance or termination agreement with any Person; (iii) became obligated under any new benefit plan or employee agreement that was not in existence on the date of the Balance Sheet or amended any such plan or agreement in existence on such date if such amendment would have the effect of materially enhancing any benefits thereunder; (iv) granted any general increase in compensation (including salary, bonus or other benefits) to employees of the Company; or (v) extended any loans or advances to any of its directors, officers, management employees or key employees of the Company, except advances to employees for expenses consistent with past practices;
(i) assumed or incurred any indebtedness for borrowed money; (ii) guaranteed any indebtedness; (iii) issued or sold any debt securities or warrants or rights to acquire any debt securities; (iv) guaranteed any debt obligations of any other Person; or (v) created any lien, pledge, hypothecation, charge, mortgage, deed of trust, security interest, encumbrance, claim, option, right of first refusal, preemptive right, community property interest, or similar restriction on any asset (an βEncumbranceβ) on the property or assets of the Company, or ; other than any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase Encumbrance for current Taxes not yet due and sale agreements for lots in the Projectpayable;
(k) loan by except in the Company to ordinary course of the Business consistent with past practice, (i) entered into any PersonContract; or (ii) modified, incurring by rescinded, terminated, waived, released or otherwise amended in any material respect any of the Company terms or provisions of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersContract;
(l) waiver except as required to be consistent with the manner in which the Company has historically prepared its financial statements or release by applicable law, (i) permitted any change in (1) any practice or policy regarding pricing, marketing, purchasing, investment, accounting, financial reporting, inventory, credit, allowance or Taxes for accounting, financial or Tax purposes, or (2) any method of calculating any right or claim of the Companybad debt, including any write-off contingency or other compromise reserve for accounting, financial reporting or Tax purposes; or (ii) made any material Tax election or settled or compromised any material Tax liability with any Governmental Authority responsible for the imposition or administration of any account receivable Taxes (a βTaxing Authorityβ);
(m) delayed payment on or failed to pay when due the trade accounts payable or other recurring expenses of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) incurred any event capital expenditures in excess of $25,000 individually or condition of any character that has or could be reasonably expected to have a material adverse impact on in the Companyaggregate;
(o) paid, discharged or settled any agreement, contract, lease claims or commitment liabilities or obligations relating to any extension or modification dispute in excess of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment individually or obligation to any affiliate of the Company other than in the ordinary course of business aggregate;
(p) settled, released or forgiven any material claim or litigation or waived any right thereto;
(q) except as conducted on that date and consistent with past practices, filed any Tax Return (as defined below) or (iv) involves the sale of, lease of entered into any agreement with any Taxing Authority directly relating to Taxes or transfer of any interest in any material assetsTax Returns;
(pr) hiring of, waived or offer agreed to any extension of employment to, any employees limitations period in respect of Taxes;
(s) made any change in the lines of business in which the Company participates or if an offer was accepted people that would become employees)is engaged; or
(qt) negotiation or agreement by the Company or entered into any officer or employees thereof commitment to do take any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated actions prohibited by this Agreement)Section 2.6.
Appears in 1 contract
No Changes. Except as contemplated by this AgreementFrom December 31, since 1999 to the date of the Interim Balance Sheetthis Agreement, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 individually 100,000 in any individual case or $50,000 250,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock;
(i) acquisitionincrease in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees, independent contractors or consultants, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness and consistent with past practices;
(jk) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersothers except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices and except for advances under the Company's existing revolving credit agreement (which agreement has not been amended since December 31, 1999);
(lm) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mn) commencement or notice or to the Company's knowledge threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property rights;
(p) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities, except for options granted in the ordinary course of business and Company Common Stock issued upon the exercise of options;
(q) change in pricing or royalties charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(r) event or condition of any character that has or could would be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qs) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Critical Path Inc)
No Changes. Except as contemplated by this Agreementset forth in Exhibit C, since the date of the Interim Balance SheetMay 31, 1997, ---------- --------- there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, material business or material customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or consultants, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (collectively a "Company Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment ------------------ Company Agreement which (i) involves the payment of greater than $25,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(o) the commencement or notice or, to the knowledge of the Company and the Principal Shareholders, threat of commencement of any lawsuit or proceeding against, or investigation of, the Company;
(p) hiring ofnotice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or notice of infringement by the Company of any third party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment toany other of its securities;
(r) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that has or, any employees (or if an offer was accepted people that would become employees)to the knowledge of the Company and the Principal Shareholders, may have a Material Adverse Effect on the Company; or
(qt) negotiation or agreement by the Company Company, or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Section 2.7 of the Company Schedule, since the date of the Interim Company Balance Sheet, the Company (including its subsidiaries) has conducted its business in the ordinary course and consistent with past practices and there has not been, occurred or arisen anyarisen:
(a) transaction any change, event or condition (whether or not covered by the insurance) that has resulted in, or could reasonably be expected to result in, a Company except in the ordinary course of business Material Adverse Effect (as conducted on the date of the Interim Balance Sheet and consistent with past practicesdefined below);
(b) amendments any acquisition, sale, lease, license or changes to the Articles transfer of Incorporation any material asset, property or Bylaws right of the Company, including any Company Intellectual Property;
(c) any capital expenditure or commitment by the Company Company, in excess of $10,000 20,000 individually or $50,000 100,000 in the aggregate, except as set forth in the 2005 Budget provided to Parent prior to the date hereof;
(d) any material destruction of, damage to or loss of any material assets, business assets or customer of the Company properties (whether or not covered by insurance), including ) of the PropertyCompany;
(e) any change in the Companyβs accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) or any restatement of financial statements or revaluation by the Company of any of its assets, including the Propertyproperties or rights;
(gf) any declaration, setting aside aside, or payment of a dividend or other distribution with respect to the securities of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock or other securities;
(g) any amendment or change to the Certificate of Incorporation, Bylaws or other organizational or governing documents of the Company;
(h) material change any increase in or modification of the compensation or benefits payable or to become payable by the Company to any of its respective directors, employees, consultants or advisors, or any declaration, payment or commitment or obligation to pay any bonus or other additional salary or compensation arrangement or agreement (including equity) to any such person, other than bonuses paid to persons who are not Key Employees in the ordinary course of business consistent with any employee, officer, director or stockholderpast practice;
(i) acquisition, sale, lease, license any change in an election or other disposition accounting method with respect Taxes (as defined in Section 2.8 below) or settlement or compromise of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Propertymaterial Tax liability;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Personperson or entity (other than the advancement or reimbursement of business expenses to employees in the ordinary course of business consistent with past practice), incurring or the incurrence by the Company of any indebtedness, guaranteeing other than borrowings pursuant to the CapitalSource Debt, the guarantee by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any agreement to guarantee or act as a surety with respect to any payment obligations or debt securities of othersany other party;
(lk) any waiver or release of any material right or claim of or in favor of the Company, including any write-off of or other compromise of credit with respect to any account receivable with a value in excess of $20,000 of, or debt owed to, the Company;
(ml) commencement any issuance or notice or threat of commencement sale by the Company of any lawsuit or judicial or administrative proceeding against or investigation shares of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment capital stock or any extension or modification of the terms of any agreement, contract, lease or commitment which other securities (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course issuance of business as conducted on that date and consistent with past practices, or (iv) involves Company Common Stock upon the sale of, lease exercise of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employeesCompany Options); or
(qm) any negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) foregoing (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement), other than as described in Section 2.7(q) of the Company Schedule.
Appears in 1 contract
Samples: Merger Agreement (Valueclick Inc/Ca)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, Sheets there has not been, occurred or arisen any:
(a) transaction by the Company except any material adverse change in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesCompanies taken as a whole;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) any material damage, destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including ) adversely affecting the Propertybusiness of the Companies taken as a whole;
(ec) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend any dividend, or other distribution distribution, in respect of any capital stock of any of the Companies or any direct or indirect redemption, purchase or other acquisition of such stock;
(d) any option to purchase any capital stock of any of the Companies granted to any person, or any employment or deferred compensation agreement entered into between any Company and any of its stockholders, officers, directors, employees or consultants; 12PAGE
(e) any issuance or sale by any of the Companies of any stock, bonds or other corporate securities, or any partial or complete formation, acquisition, disposition or liquidation of any of the Companies;
(f) any labor union activity (including without limitation any negotiation, or request for negotiation, with respect to the capital stock any union representation or any labor contract) respecting any of the CompanyCompanies;
(g) any statute, rule or regulation, or, to the best knowledge of the Companies and the Sellers, any government policy, adopted which may materially and adversely affect the business of any of the Companies;
(h) material change in any compensation arrangement mortgage, lien, attachment, pledge, encumbrance or agreement security interest created on any asset, tangible or intangible, of any of the Companies, or assumed, either by any Company or by others, with respect to any employeesuch assets, officer, director or stockholderexcept for liens permitted under Section 2.8;
(i) acquisitionany indebtedness or other liability or obligation (whether absolute, accrued, contingent or otherwise) incurred, or other transaction (except that reflected in this Agreement) engaged in, by any of the Companies, except those in the ordinary course of business that are individually, or in the aggregate to one group of related parties, less than fifty thousand dollars ($50,000);
(j) any obligation or liability discharged or satisfied by any of the Companies, except items included in current liabilities shown on the Balance Sheets and current liabilities incurred since the date of the Balance Sheets in the ordinary course of business which are individually, or in the aggregate to one group of related parties, less than twenty five thousand dollars ($25,000) in amount;
(k) any sale, assignment, lease, license transfer or other disposition of any tangible asset of any of the Companies, except in the ordinary course of business, or any sale, assignment, lease, transfer or other disposition of any of the assets of the Companyits patents, trademarks, trade names, brand names, copyrights, licenses or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersother intangible assets;
(l) any amendment, termination or waiver or release of any material right or claim belonging to any of the Company, including any write-off or other compromise of any account receivable of the CompanyCompanies;
(m) commencement any increase in the compensation or notice benefits payable or threat of commencement of to become payable by any lawsuit or judicial or administrative proceeding against or investigation of the Company Companies to any of its officers or its affairs, including the Projectemployees;
(n) any event other action or condition omission by any of the Companies, or the passage of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreementresolution, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)business.
Appears in 1 contract
Samples: Share Purchase Agreement (Thermo Bioanalysis Corp /De)
No Changes. Except as contemplated by this Agreementset forth on Schedule 2.19 of the Disclosure Schedule, since the date of the Interim Balance Sheet, Sheet Date there has not been, occurred or arisen any:
(a) transaction by the Company except any adverse change in the ordinary course of business as conducted on the date business, financial condition or assets of the Interim Balance Sheet and consistent with past practicesCompany;
(b) amendments any damage, destruction or changes to loss (whether or not covered by insurance) adversely affecting the Articles of Incorporation or Bylaws business of the Company;
(c) expenditure any declaration, setting aside or commitment by payment of any dividend, or other distribution, in respect of any capital stock of the Company in excess or any direct or indirect redemption, purchase or other acquisition of $10,000 individually or $50,000 in the aggregatesuch stock;
(d) destruction of, damage to any employment or loss of any material assets, business or customer of deferred compensation agreement entered into between the Company (whether and any of its officers, directors, employees or not covered by insurance), including the Propertyconsultants;
(e) change in accounting methods or practices any labor union activity (including without limitation any change in depreciation negotiation, or amortization policies request for negotiation, with respect to any union representation or ratesany labor contract) by respecting the Company;
(f) revaluation any mortgage, lien, attachment, pledge, encumbrance or security interest created on any asset of the Company, or assumed by the Company of with respect to any of its such assets, including the Propertyexcept for liens permitted under Section 2.8;
(g) declaration, setting aside or payment of a dividend any indebtedness or other distribution with respect to liability or obligation incurred, or other transaction engaged in, by the capital stock Company, except those in the ordinary course of business and except for the sale of the CompanyShares as contemplated by this Agreement;
(h) material change any obligation or liability discharged or satisfied by the Company, except items included in any compensation arrangement or agreement with any employee, officer, director or stockholdercurrent liabilities shown on the Balance Sheet and current liabilities incurred since the Balance Sheet Date in the ordinary course of business;
(i) acquisitionany sale, saleassignment, lease, license transfer or other disposition of any of the assets asset of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness;
(j) amendment any adverse amendment, termination or termination waiver of any material contract, agreement, permit, approval or license right belonging to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;Company; or
(k) loan any increase in the compensation or benefits payable or to become payable by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance its officers or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersemployees;
(l) waiver any change with respect to the manner of conducting it business or release with respect to its method of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;accounting; or
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreementcommitment, contract, lease or commitment or any extension or modification of the terms of any agreement, contractlicense, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company transaction entered into other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)business.
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance SheetSeptember 30, 1999, there has not been, occurred or arisen any:
(a) material transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company Company, in excess of $10,000 15,000 individually or $50,000 25,000 in the aggregate;
(dc) destruction of, of damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(d) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by Company of any of its capital stock;
(h) material change increase in the salary or other compensation payable or to become payable by Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by Company, of a bonus or other additional salary or compensation arrangement to any such person except as otherwise contemplated by this Agreement other than normal course of business salary increases in connection with ongoing yearly reviews or agreement with any employee, officer, director or stockholderpromotions (none of which exceeds 10% of the previous year's salary);
(i) acquisition, sale, lease, license sale or other disposition transfer of any material asset of the assets of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date;
(j) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Personperson or entity (other than (i) loans to all employees aggregating to no more than $5,000 and (ii) expense advances to employees, all of which are immaterial in any amount and are issued in the normal course of business), incurring by the Company of any material indebtedness, guaranteeing by the Company of any material indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyCompany in excess of $10,000;
(m) the commencement or notice or or, to the knowledge of Company, threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) notice of any claim of ownership by a third party of Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by Company of any third party's Intellectual Property rights;
(o) issuance or sale by Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(p) change in pricing or royalties set or charged by Company;
(q) any event or condition of any character that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qr) negotiation agreement, oral or agreement written, by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations agreements with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Netrix Corp)
No Changes. Except as contemplated by this Agreement, since From the Balance Sheet Date through the date of the Interim Balance Sheetthis Agreement, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company exceeding $100,000 individually or $250,000 in the aggregate;
(c) payment, discharge or satisfaction, in any amount in excess of $10,000 individually 50,000 in any one case, or $50,000 100,000 in the aggregate, of any Liabilities, other than payments, discharges or satisfactions in the ordinary course of business, consistent with past practices, of Liabilities reflected or reserved against in the Current Balance Sheet;
(d) destruction of, damage to to, or loss of any material assetsassets (whether tangible or intangible), material business or material customer of the Company (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany other than as required by GAAP;
(f) adoption of or change in any material Tax (as defined below) election, adoption of or change in any Tax accounting method, entry into any closing agreement, settlement or compromise of any Tax claim or assessment, or extension or waiver of the limitation period applicable to any Tax claim or assessment;
(g) material revaluation by the Company of any of its assetsassets (whether tangible or intangible), including without limitation, writing down the Property;
(g) declaration, setting aside value of inventory or payment of a dividend writing off notes or other distribution with respect to the capital stock of the Companyaccounts receivable;
(h) increase in the salary or other compensation payable or to become payable by the Company to any of its respective officers, directors, Employees or advisors, which increase (individually or in the aggregate) is material change to the Company, or the declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment, bonus or other additional salary or compensation to any compensation arrangement or agreement with any employee, officer, director or stockholdersuch person;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtednessindebtedness for borrowed money, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any material indebtedness, issuance or sale of any debt securities, purchase of a material amount of debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lj) waiver or release of any right rights or claim claims of the Company, including any write-off offs or other compromise of any account receivable of the Company, with a value in excess of $25,000 individually or $50,000 in the aggregate;
(mk) commencement or settlement of any lawsuit by the Company, the commencement, settlement, notice or or, to the Knowledge of the Company, threat of commencement of any lawsuit or judicial proceeding or administrative proceeding other investigation against the Company (other than on the part of Parent or investigation any of its affiliates, as to which this representation is not made);
(l) receipt by the Company of written notice of any claim or potential claim of ownership, interest or right by any person other than the Company of the Company Intellectual Property (as defined in SECTION 2.14 hereof) or of infringement by the Company of any other person's Intellectual Property (as defined in SECTION 2.14 hereof);
(i) except standard end user licenses/hosting agreements entered into in the ordinary course of business, consistent with past practice, sale or license of any Company Intellectual Property or execution, modification or amendment of any agreement with respect to the Company Intellectual Property with any person or with respect to the Intellectual Property of any person, or (ii) except in the ordinary course of business, consistent with past practice, purchase or license of any Intellectual Property or execution, modification or amendment of any agreement with respect to the Intellectual Property of any person, (iii) agreement or modification or amendment of an existing agreement with respect to the development of any Intellectual Property with a third party, or (iv) material change in pricing or royalties set or charged by the Company to its affairs, including customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the ProjectCompany;
(n) any event or condition of any character that has had or could be is reasonably expected likely to have a material adverse impact on the Company;Company Material Adverse Effect; or
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company Company, or any officer or employees thereof on behalf of the Company, to do any of the things described in the preceding clauses (a) through (pm) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement).of this
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of exceeding $10,000 20,000 individually or $50,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $5,000 in any one case, or $10,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in the Balance Sheet
(e) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(ef) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(g) event or condition that has or would be reasonably expected to have a Material Adverse Effect on the Company;
(h) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fi) revaluation by the Company of any of its assets, including the Property;
(gj) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(hk) material change increase in the salary or other compensation payable or to become payable to any of its officers or directors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholder;such person except as described in Section 2.7(k) of the Company Schedule.
(il) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except for fair market value to the Company in the ordinary course of any security interest in such assets or properties, including the Propertybusiness and consistent with past practices;
(jm) amendment or termination (other than pursuant to its terms) of any contract described in Section 2.12(a) of the Company Schedule, material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;,
(kn) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lo) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and business, consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring ofissuance or sale by the Company of any of its shares of capital stock, or offer securities exchangeable, convertible or exercisable therefor, or of employment toany other of its securities, except for the issuance of Company Common Stock upon the issuance of stock options;
(q) change in any employees material respect in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (or if an offer was accepted people that would become employees)as defined in Section 2.11) to the Company; or
(qr) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Cypress Semiconductor Corp /De/)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, and limited to ---------- the Actual Knowledge of the Company for purposes of Article VIII, since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment for capital expenditure by the Company in excess of $10,000 individually 5,000 in any individual case or $50,000 15,000 in the aggregateaggregate not otherwise disclosed in writing to Parent;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property) that would have a Material Adverse Effect;
(e) change in accounting methods strike, work stoppage, or practices (including any change in depreciation claim of wrongful discharge or amortization policies other unlawful labor practice or rates) by the Companyaction;
(fg) revaluation by the Company of any of its assets, including without limitation, writing down the Propertyvalue of inventory or writing off notes or accounts receivable other than in the ordinary course of business;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock except repurchases of unvested capital stock under the Company Option Plan;
(i) acquisitionincrease in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such person, except, in each case, to employees who are not officers or directors of the Company in the ordinary course of business and except as otherwise contemplated by this Agreement and to severance payments made in connection with this Agreement in with the consent of Parent;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jk) transfer to any person or entity any rights to the Company Intellectual Property Rights (as defined in Section 2.11(a) below) other than licensing of Company Intellectual Property Rights in the ordinary course of business;
(l) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Projectwhich amendments or terminations have not been specifically disclosed to Parent;
(km) the loan by the Company to any Person, person or entity or the incurring by the Company of any indebtedness, the guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(ln) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company other than such waiver or lease made in the ordinary course of business and without a Material Adverse Effect on the Company;
(mo) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(np) notice of any claim of ownership by a third party of the Company Intellectual Property Rights or of infringement by the Company of any third party's intellectual property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities, except to employees in connection with the issuance, amendment or exercise of any stock options under the Company's Option Plan or Company Warrants or the issuance of the Company Series E;
(r) any agreements pursuant to which any other party is granted marketing, distribution or similar rights of any type or scope with respect to any products of the Company;
(s) event or condition of any character that has or could reasonably would be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than revenue fluctuations in the ordinary course of business business, the incurrence of Merger related expenses (including related severance payments to Company employees as conducted on that date and consistent agreed to with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employeesParent); or
(qt) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (ps) (other than as contemplated in the negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions transactions, including but not limited to payments of severance to employees of the Company, contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Level 8 Systems)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.8, since the date of the Interim Balance Sheet---------- ------------ Sheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company or any of its subsidiaries except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practicespractices or otherwise not in excess of $5,000, in any individual case;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the CompanyCompany or any of its subsidiaries;
(c) capital expenditure or commitment by the Company or any of its subsidiaries in excess of $10,000 individually 15,000 in any individual case or in excess of $50,000 in the aggregate;.
(d) destruction of, damage to or loss of any material assets, business or customer of the Company or any of its subsidiaries (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action with respect to the Company or any of its subsidiaries;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Propertyor any of its subsidiaries' assets (whether tangible or intangible);
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company Capital Stock, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock or any split, combination or reclassification in respect of the Company;
(h) material change any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in any compensation arrangement lieu of or agreement with any employee, officer, director or stockholderin substitution for shares of Company Capital Stock;
(i) acquisitionincrease in the salary or other compensation or benefits (including, but not limited to, options or other equity-based compensation awards) payable or to become payable by the Company or any of its subsidiaries to any of their officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation or benefits (including, but not limited to, options or other equity-based compensation awards) to any such person except as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the CompanyCompany or any of its subsidiaries, or any the creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than except in the ordinary course of business as conducted on that date and consistent with past practices, ;
(k) amendment or (iv) involves the sale of, lease of or transfer termination of any interest material contract, agreement or license to which the Company or any of its subsidiaries is a party or by which it is bound;
(l) loan by the Company or any of its subsidiaries to any person or entity, incurring by the Company or any of its subsidiaries of any indebtedness, guaranteeing by the Company or any of its subsidiaries of any indebtedness, issuance or sale of any debt securities of the Company or any of its subsidiaries or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(m) waiver or release of any material assetsright or claim of the Company or any of its subsidiaries, including any write-off or other compromise of any account receivable of the Company or any of its subsidiaries;
(n) commencement, settlement or notice or threat of commencement of any lawsuit or proceeding against or investigation of the Company or any subsidiary or their affairs or any reasonable basis for any of the foregoing;
(o) notice of any claim or potential claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.12 hereof) or of infringement by the Company or any of its subsidiaries of any third party's intellectual property rights;
(p) hiring ofissuance or sale, or offer contract to issue or sell, by the Company of employment toany shares of Company Capital Stock, or securities exchangeable, convertible or exercisable therefor, or of any employees other of its securities, other than pursuant to the exercise of options outstanding on the date hereof and granted under the Company Option Plan;
(q) change in pricing or if an offer was accepted people royalties set or charged by the Company or any of its subsidiaries to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company or any of its subsidiaries;
(r) event or condition of any character that would become employeeshas or could reasonably be expected to have a Company Material Adverse Effect (as defined in Section 9.2 hereof);
(s) changed material tax election, new material tax election inconsistent with past practices, new tax accounting method inconsistent with past practices or changed tax accounting method; closing agreement, settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes; or
(qt) negotiation or agreement by the Company or any of its subsidiaries or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Merger Agreement (Autodesk Inc)
No Changes. Except as contemplated by this Agreementset forth in SCHEDULE 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company or any Subsidiary except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property) that has had or could reasonably be expected to have a Material Adverse Effect;
(e) significant labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including assets which individually or in the Propertyaggregate would be material;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholdercapital stock of the Company;
(i) acquisitionincrease in the salary or other compensation payable or to become payable to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment by the Company of a bonus or other additional salary or compensation to any such person except in the ordinary course of business consistent with past practices or as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness consistent with past practices;
(jk) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtednessindebtedness for borrowed money, guaranteeing by the Company of any indebtednessindebtedness of any other party, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for loans made and indebtedness incurred by the Company which do not exceed $10,000 individually or $25,000 in the aggregate in the ordinary course of business, consistent with past practices;
(lm) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyCompany except in the ordinary course of business, consistent with past practices;
(mn) commencement or notice or or, to the Company's knowledge, threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(no) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(p) material change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Company Intellectual Property Rights to the Company;
(q) event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Material Adverse Effect; or
(qr) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Netscape Communications Corp)
No Changes. (a) Except as contemplated by this Agreementset forth in Schedule 2.7(a), since the date of the Interim Balance SheetJanuary 1, 1999, there has not been, occurred or arisen any:
(ai) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(bii) amendments or changes to the Articles of Incorporation or Bylaws LLCA of the Company;
(ciii) capital expenditure or commitment by the Company in excess of $10,000 individually 15,000 in any individual case or $50,000 25,000 in the aggregate;.
(div) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(ev) labor trouble or claim of wrongful discharge of which the Company is aware or other unlawful labor practice or action;
(vi) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fvii) revaluation by the Company of any of its assets, including the Property;
(gviii) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock Company Interests, or any direct or indirect redemption, purchase or other acquisition by the Company of the Companyany of its Company Interests;
(hix) material change increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person except as made in the ordinary course of business;
(ix) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(lxi) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mxii) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(nxiii) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property rights;
(xiv) issuance or sale by the Company of any Company Interests, or securities exchangeable, convertible or exercisable therefor, or of any other securities; or
(xv) other event or condition of any character that has or could be reasonably expected to have a Material Adverse Effect.
(b) Except as set forth in Schedule 2.7(b), since March 31, 2000, there has not been, occurred or arisen any:
(i) amendment or termination of any material adverse impact on contract, agreement or license to which the CompanyCompany is a party or by which it is bound;
(oii) loan by the Company to any agreementperson or entity, contract, lease or commitment or any extension or modification of incurring by the terms Company of any agreementindebtedness, contractguaranteeing by the Company of any indebtedness, lease issuance or commitment which (i) involves the payment sale of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate debt securities of the Company other than or guaranteeing of any debt securities of others except for advances to employees for travel and business expenses in the ordinary course of business as conducted on that date and business, consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(piii) hiring of, change in pricing or offer of employment to, any employees (royalties set or if an offer was accepted people that would become employees)charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company; or
(qiv) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (ab)(i) through (piii) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Smartforce Public LTD Co)
No Changes. Except as contemplated by this Agreementset forth in Exhibit C, since the date of the Interim Balance SheetDecember 31, ---------- --------- 1996, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation Organization or Bylaws operating Agreement of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $25,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the Company's capital stock stock, or any direct or indirect redemption, purchase or other acquisition by the Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its capital stock;
(i) acquisition, sale, lease, license increase in the salary or other disposition of any of the assets of the Company, compensation payable or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan become payable by the Company to any Personof its officers, incurring directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company Company, of a bonus or other additional salary or compensation to any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of otherssuch person;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(oj) any agreement, contract, lease or commitment (collectively a "Company Agreement") or any extension or modification of the terms of any agreement, contract, lease or commitment Company ----------------- Agreement which (i) involves the payment of greater than $25,000 per annum, (ii) annum or which extends for more than one (1) year, (iiiii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iviii) involves the sale of, lease of or transfer of any interest in any material assets;
(k) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties except in the ordinary course of business as conducted on that date and consistent with past practices;
(l) amendment or termination of any material contract, agreement or license to which the Company is a party or by which it is bound;
(m) loan by the Company to any person or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(n) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(o) the commencement or notice or threat of commencement of any lawsuit or proceeding against investigation of the Company or its affairs;
(p) hiring of, notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.13 below) or offer of employment to, infringement by the Company of any employees (or if an offer was accepted people that would become employees); orthird party's Intellectual Property rights;
(q) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(r) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (as defined in Section 2.13 below) to the Company;
(s) any event or condition of any character that has or may have a Material Adverse Effect on the Company or;
(t) negotiation or agreement by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Current Balance Sheet, and except as expressly permitted by Section 5.1 hereof, there has or have not been, occurred or arisen any:
(a) transaction by the Company or any of its Subsidiaries, which is material to the Company and its Subsidiaries taken as a whole, except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation Company Charter Documents or Bylaws of the CompanySubsidiary Charter Documents;
(c) capital expenditure or commitment by the Company in excess or any of its Subsidiaries exceeding $10,000 individually or $50,000 in the aggregate;
(d) payment, discharge or satisfaction, in any amount in excess of $10,000 in any one case, or $50,000 in the aggregate, of any claim or Liability, other than payment, discharge or satisfaction of claims, Liabilities and obligations in the ordinary course of business or of Liabilities reflected or reserved against in the Current Balance Sheet;
(e) destruction of, damage to to, or loss of any material assets, business assets (whether tangible or customer intangible) of the Company (or any of its Subsidiaries with a book value in excess of $10,000 in any one case or $50,000 in the aggregate, whether or not covered by insurance), including the Property;
(ef) labor disputes or claim of wrongful discharge or other unlawful labor practice or action with respect to the Company or any of its Subsidiaries;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any of its Subsidiaries other than as required by GAAP;
(fh) change by the Company or any of its Subsidiaries in any written election in respect of Taxes, adoption or change by the Company or any of its Subsidiaries in any accounting method which would alter the historic treatment of an item on a Return, amendment to any Return, agreement or settlement by the Company or any of its Subsidiaries of any claim or assessment in respect of any Taxes, or extension or waiver by the Company or any of its Subsidiaries of the limitation period applicable to any claim or assessment in respect of any Taxes;
(i) revaluation by the Company of any of its assets, including the Propertyor its Subsidiariesβ assets (whether tangible or intangible);
(gj) declaration, setting aside or payment of a dividend or other distribution (whether in cash, stock or property) in respect of any Company Capital Stock or any stock or securities of its Subsidiaries, or any split, combination or reclassification in respect of any shares of Company Capital Stock or any stock or securities in its Subsidiaries, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock or any stock or securities in its Subsidiaries, or any direct or indirect repurchase, redemption or other acquisition by the Company of any shares of Company Capital Stock or any stock or securities in its Subsidiaries (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with respect to the capital stock of the Companyagreements evidencing Company Options and Company Restricted Stock;
(hk) a material change increase in the base salary or other compensation payable or to become payable by the Company or any of its Subsidiaries to any Company Personnel, or the declaration, payment, commitment or obligation of any kind for the payment by the Company or any of its Subsidiaries of a severance payment, termination payment, bonus or other additional salary or material compensation arrangement to any such person, except payroll and fees to employees and consultants in the ordinary course of business and in accordance with existing compensation or agreement with any employee, officer, director or stockholdersimilar plans;
(il) acquisitionentering into of any Contract to which the Company or any of its Subsidiaries is a party or by which they or any of their assets (whether tangible or intangible) are bound or any termination, extension, amendment or modification of the terms of any Contract to which the Company or any of its Subsidiaries is a party or by which they or any of their assets are bound, except in the ordinary course of business and consistent with past practices;
(m) sale, lease, license (except for non-exclusive licenses of the Company Products in the ordinary course of business) or other disposition of any of the material assets (whether tangible or intangible) or material properties of the CompanyCompany or any of its Subsidiaries taken as a whole, including the sale of any accounts receivable of the Company or any of its Subsidiaries, or any creation of any security interest in any such assets or properties, including the Property;
(jn) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) outstanding loan by the Company or any of its Subsidiaries to any Personperson or entity, incurring by the Company or any of its Subsidiaries of any indebtednessIndebtedness, guaranteeing by the Company or any of its Subsidiaries of any indebtednessIndebtedness, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing by the Company of any debt securities of others, except for advances to Company Personnel for travel and business expenses in the ordinary course of business;
(lo) the granting of any waiver or release by the Company or any of its Subsidiaries of any right or claim of the Companyclaim, including any write-off or other compromise of any account receivable of the CompanyCompany or any of its Subsidiaries;
(mp) commencement or the commencement, settlement, notice or threat or, to the Knowledge of commencement the Company, threat, of any lawsuit or judicial proceeding or administrative proceeding other investigation against the Company or investigation any of its Subsidiaries;
(q) notice of any claim or potential claim of ownership by any person other than the Company or any of its Subsidiaries of the intellectual property owned, developed or created by the Company or any of its Subsidiaries, or of any claim or potential claim of infringement by the Company or any of its Subsidiaries of any other personβs intellectual property;
(r) issuance or sale, or contract to issue or sell, by the Company or any of its Subsidiaries of any shares of Company Capital Stock or any stock or securities in its Subsidiaries or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock or any stock or securities in its Subsidiaries, or any securities, warrants, options or rights to purchase any of the foregoing, except for issuances of Company Capital Stock or any stock or securities in its Subsidiaries upon the exercise thereof;
(s) (i) sale or license by the Company or any of its Subsidiaries of any Company Intellectual Property or execution of any agreement with respect to any Company Intellectual Property, (ii) purchase or license by the Company or any of its Subsidiaries of any Intellectual Property or execution of any agreement with respect to the Intellectual Property of any person or entity, (iii) agreement by the Company or any of its Subsidiaries with respect to the development of any Intellectual Property with a third party, or (iv) material change in pricing or royalties set or charged by the Company or any of its Subsidiaries to their customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company or any of its Subsidiaries, except, in each case, in the ordinary course of business and consistent with past practices;
(t) agreement or material modification to any agreement pursuant to which any other party was granted marketing, distribution, development or similar rights of any type or scope with respect to any products or technology of the Company or any of its affairs, including the ProjectSubsidiaries;
(nu) any event or condition of any character that has had or could would reasonably be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)Material Adverse Effect; or
(qv) negotiation or agreement by the Company or any of its Subsidiaries, or any officer or employees thereof employee on behalf of the Company or any of its Subsidiaries, to do any of the things described in the preceding clauses (a) through (pu) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by of this Agreement)Section 2.9.
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth on Section 2.24 to the Seller Disclosure Schedule, since the date of the Interim Balance SheetSheet Date, there has not been, occurred or arisen any:
(a) transaction by the Company or the Company Subsidiary except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) individual capital expenditure or commitment by the Company in excess of or the Company Subsidiary exceeding $10,000 individually or $50,000 in the aggregate10,000;
(dc) destruction of, damage to or loss of any material assets, business or customer of the Company or the Company Subsidiary (whether or not covered by insurance), including ;
(d) labor dispute or claim of wrongful discharge of which the PropertyCompany or the Company Subsidiary has received written notice or of which the Company or the Company Subsidiary is aware or other unlawful labor practice or action;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or the Company Subsidiary;
(f) revaluation by the Company or the Company Subsidiary of any of its assets, including assets other than depreciation as reflected in the Propertybalance sheet in Section 2.10 of the Seller Disclosure Schedule;
(g) declaration, setting aside or payment of a dividend any dividends on or any other distribution with (whether in cash, stock or property) in respect to of the Company or the Company Subsidiaryβs capital stock of the Companyor equity interest, or any split, combination or reclassification;
(h) material change increase in the salary or other compensation payable or to become payable by the Company or the Company Subsidiary to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment by the Company or the Company Subsidiary, of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person except as otherwise contemplated by this Agreement;
(i) acquisition, sale, lease, license or other disposition of any of the material assets or properties of the CompanyCompany or the Company Subsidiary, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date;
(j) material amendment or, to the knowledge of the Company or the Company Subsidiary, any termination or violation of any Contract other than amendment or termination of any material contract, agreement, permit, approval or license to which by the Company is a party or by which it is bound, including any purchase and sale agreements for lots the Company Subsidiary pursuant to the terms thereof in the Projectordinary course of business;
(k) loan by the Company or the Company Subsidiary to any Personperson or entity, other than advances to employees for travel and business expenses in the ordinary course of business and consistent with past practices, or incurring by the Company or the Company Subsidiary of any indebtednessindebtedness other than trade debt in the ordinary course of business consistent with past practices, guaranteeing by guaranty of the Company or the Company Subsidiary of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company Subsidiary or guaranteeing of any debt securities of others;
(l) waiver or release of any material right or claim of the CompanyCompany or the Company Subsidiary, including any write-off or other compromise of any account receivable of the CompanyCompany or the Company Subsidiary;
(m) commencement delay or notice or threat postponement of commencement the payment of any lawsuit accounts payable or judicial commissions or administrative proceeding against any other liability or investigation agreement or negotiation with any party to extend the payment of any accounts payable or commissions or any other liability or acceleration of the Company collection of (or its affairs, including the Projectdiscounted) any accounts or notes receivable;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;Company or the Company Subsidiary; and
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or the Company Subsidiary or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pn) (other than by negotiations with Monaco or Buyer and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Current Balance Sheet, there has not been, occurred or arisen any:
(a) commitment or transaction by the Company or any of its Subsidiaries except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments amendment or changes change to the Articles of Incorporation Incorporation, Bylaws or Bylaws other organizational documents, as the case may be, of the CompanyCompany or any of its Subsidiaries;
(c) expenditure change in the Companyβs or commitment any of its Subsidiaries authorized capital structure;
(d) capital expenditures, lease commitments or capital commitments by the Company or any of its Subsidiaries, either individually exceeding $100,000 or in the aggregate exceeding $200,000;
(e) payment, discharge or satisfaction by the Company or any of its Subsidiaries, in any amount in excess of $10,000 individually 100,000 in any one case or $50,000 200,000 in the aggregate, of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise), other than payment, discharge or satisfaction (i) of any Borrowed Money Indebtedness, or (ii) in the ordinary course of business of other liabilities reflected or reserved against in the Current Balance Sheet, or arising thereafter in the ordinary course of business;
(df) destruction of, damage to or loss of any material assets, business or customer of the Company Assets (whether or not covered by insurance), including in excess of $200,000 in the Propertyaggregate;
(eg) revaluation by the Company or any of its Subsidiaries of any of their respective Assets;
(h) change, event or effect that has had a Material Adverse Effect on the Company or any of its Subsidiaries;
(i) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any of its Subsidiaries, including, but not limited to, any change made in accordance with GAAP;
(fj) revaluation by the Company change in any election material with respect to Taxes, adoption or change in any material accounting method in respect of Taxes, agreement or settlement of any material claim or assessment in respect of its assetsTaxes, including extension or waiver of the Propertylimitation period applicable to any material claim or assessment in respect of Taxes, or material amendment or change of any Return;
(gk) declaration, setting aside or payment of a dividend or other distribution with respect to the shares in the capital stock of the Company, or any split, combination or reclassification in respect of any shares in the capital of the Company, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares in the capital of the Company, or any direct or indirect redemption, repurchase or other acquisition by the Company of any shares in the capital of the Company (or options, warrants or other rights convertible into, exercisable or exchangeable therefor), except in accordance with the Company Share Option Plan;
(hl) material increase in the salary or other compensation payable or to become payable by the Company or any of its Subsidiaries to any of its officers, directors or employees (other than increases in the ordinary course of business for employees who are not executive officers) or the declaration, payment or commitment or obligation of any kind for the payment, by the Company or any of its Subsidiaries, of a severance payment, termination payment, change in control payment, bonus or other additional salary or compensation to any compensation arrangement or agreement with any employee, officer, director or stockholdersuch Person except as otherwise contemplated by this Agreement;
(im) acquisitiontermination by the Company (other than expiration in accordance with its terms), extension by the Company (other than renewal in accordance with its terms), material amendment or material modification of the terms of any Contract set forth on the Disclosure Schedules other than in the ordinary course of business consistent with past practices;
(n) sale, lease, assignment, license or other disposition of any of the assets Assets of the Company, Company or any creation of any security interest its Subsidiaries other than in such assets or properties, including the Propertyordinary course of business consistent with past practices;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(ko) loan by the Company or any of its Subsidiaries to or capital investment in any Person, incurring by the Company or any of its Subsidiaries of any indebtednessindebtedness for borrowed money, guaranteeing by the Company or any of its Subsidiaries of any indebtednessindebtedness for borrowed money of others, issuance or sale of any debt securities of the Company or any of its Subsidiaries or guaranteeing by the Company of any debt securities of others;
(lp) waiver or release of any material right or claim of the CompanyCompany or any of its Subsidiaries, including any write-off or other compromise of any account receivable of the CompanyCompany or any of its Subsidiaries;
(mq) commencement or notice or threat of commencement settlement of any lawsuit by the Company or judicial any of its Subsidiaries;
(r) issuance or administrative proceeding against sale, or investigation contract or agreement to issue or sell, by the Company or any of its Subsidiaries of any of shares in the capital of the Company or securities exchangeable, convertible or exercisable therefor, or of any other of its affairssecurities, including except for, in the Projectcase of the Company, issuances or sales of shares in the capital of Company upon the exercise of Company Share Options or Company Warrants outstanding as of the date of this Agreement;
(ns) transfer or license to or from any event Person any Intellectual Property Rights (including any Company Intellectual Property) or condition entry into or amendment of any character that has or could be reasonably expected to have a material adverse impact on the Company;
agreement with any Person regarding any Intellectual Property Rights (o) including any agreementCompany Intellectual Property), contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than except in the ordinary course of business as conducted on that date and consistent with past practicespractice or (ii) agreement with respect to the development of any Intellectual Property with a third party or amendment of any such agreement except in the ordinary course of business consistent with past practice, or (iviii) involves change in pricing or royalties set or charged by the sale of, lease Company or any of its Subsidiaries to its customers or transfer licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property or Intellectual Property Rights to the Company or any of any interest in any material assetsits Subsidiaries;
(pt) hiring ofagreement or modification to any material agreement pursuant to which any other party was granted marketing, distribution, development or offer similar rights of employment toany type or scope with respect to any products or services of the Company or any of its Subsidiaries or Company Intellectual Property;
(u) failure to pay or otherwise satisfy its monetary obligations as they become due, any employees (or if an offer was accepted people that would become employees)except such as are being contested in good faith; or
(qv) negotiation or agreement by the Company or any of its Subsidiaries or any officer or employees thereof employee on behalf of the Company or any of its Subsidiaries to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreementu).
Appears in 1 contract
Samples: Transaction Agreement (Avocent Corp)
No Changes. Except as contemplated by this Agreementset forth on Schedule 3.9, since the date of the Interim Balance SheetSeptember 30, 2002, there has not been, occurred or arisen been any:
(a) transaction transactions by the Company Acquired Entity except in the ordinary course of business conducted as conducted on of that date;
(b) material adverse change in the date financial condition, liabilities, assets or results of operation of the Interim Balance Sheet and business of the Acquired Entity;
(c) indebtedness or liability, whether accrued, absolute, contingent or otherwise incurred by the Acquired Entity except in the ordinary course of business;
(d) default under any indebtedness of the Acquired Entity, or any event which with the lapse of time or the giving of notice, or both, would constitute such a default, other than defaults that will be cured or waived by the Closing Date, which defaults will be disclosed to Schwarzkopf on an amended Schedule 3.9 to be provided at the Closing;
(e) amendment or termination of any Material Contract, lease or license to which the Acquired Entity is a party, other than notices of termination that will be rescinded by the Closing Date;
(f) material increase in compensation paid, payable or to become payable by the Acquired Entity to any of its employees;
(g) extraordinary losses (whether or not covered by insurance) or waiver by the Acquired Entity of any rights of extraordinary value;
(h) commitment to or liability to any labor organization;
(i) lowering of the prices charged by the Acquired Entity for goods or services in a manner not consistent with past practices;
(bj) amendments or changes notice from any customer as to the Articles customer's intention not to conduct business with the Acquired Entity, the result of Incorporation which loss or Bylaws losses of business, individually or in the Companyaggregate, has had, or could reasonably be expected to have, a material adverse effect on the business;
(ck) expenditure change in the Acquired Entity's authorized or commitment issued capital stock; grant of any stock option or right to purchase shares of capital stock of the Acquired Entity; issuance of any security convertible into such capital stock; grant of any registration rights; purchase, redemption, retirement, or other acquisition by the Company Acquired Entity of any shares of any such capital stock; or declaration or payment of any dividend or other distribution or payment in excess respect of $10,000 individually or $50,000 in the aggregateshares of capital stock;
(dl) destruction amendment to the Organizational Documents of the Acquired Entity;
(m) payment or increase by the Acquired Entity of any bonuses, salaries, or other compensation to any stockholder, director, officer, or (except in the ordinary course of business) employee or entry into any employment, severance, or similar Contract with any director, officer, or employee;
(n) adoption of, damage or increase in the payments to or loss of benefits under, any material assetsprofit sharing, business bonus, deferred compensation, savings, insurance, pension, retirement, or customer other employee benefit plan for or with any employees of the Company Acquired Entity;
(o) damage to, or destruction or loss of, any asset or property of the Acquired Entity, whether or not covered by insurance, materially and adversely affecting the properties, assets, business, or financial condition of the Acquired Entity, taken as a whole;
(p) sale (other than sales of inventory in the ordinary course of business), lease, or other disposition of any asset or property of the Acquired Entity or mortgage, pledge, or imposition of any lien or other encumbrance on any material asset or property of the Acquired Entity, including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of any of the assets of the Company, or any creation of any security interest in such assets or properties, including the PropertyIntellectual Property Assets;
(jq) amendment cancellation or termination waiver of any material contractclaims or rights with a value to the Acquired Entity in excess of $10,000.00 per individual claim or right, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in excess of $100,000.00 in the Projectaggregate;
(kr) loan change in the accounting methods used by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersAcquired Entity;
(ls) waiver agreement, whether oral or release of written, by the Acquired Entity to do any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;foregoing; or
(mt) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any other event or condition of any character character, other than those matters generally known to the public, that has or could be might reasonably expected to have a material adverse impact effect on the Company;
(o) any agreementAcquired Entity's or the business' Assets, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practicesfinancial condition, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)business.
Appears in 1 contract
Samples: Stock Purchase Agreement (Semx Corp)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.8, since the date of the Interim Balance SheetDecember 31, ---------- 1999 there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 individually in any individual case or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer assets of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its material assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock other than the redemption of Company Common Stock from terminated employees of the Company at the original sales price pursuant to the terms of the agreements pursuant to which such Company Common Stock was issued and sold;
(i) acquisitionincrease in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement since December 31, 1999;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date;
(jk) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots bound except in the Projectordinary course of business;
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersothers except for advances to employees for travel and business expenses in the ordinary course of business;
(lm) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the CompanyCompany except in the ordinary course of business;
(mn) to the Company's knowledge, commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.12 below) or of infringement by the Company of any third party's Intellectual Property rights;
(p) issuance or sale by the Company of any of its shares of capital stock since December 31, 1999;
(q) issuance or sale by the Company of any securities exchangeable, convertible or exercisable for Company Common Stock, or of any other of its securities;
(r) change in pricing or royalties set or charged by the Company to its customers or licensees except in the ordinary course of business or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(s) any sale, assignment, or transfer or any patents, trademarks, copyrights, trade secretes, or other intangible assets;
(t) any resignation or termination of employment of any key employee of the Company; and the Company does not know of the impending resignation or termination of employment or any such key employee; or
(u) receipt of notice that there has been a loss of, or order cancellation by, any major customer of the Company;
(v) event or condition of any character that has had or could reasonably be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qw) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (ps) (other than negotiations with Monaco or Buyer Acquiror and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Context Integration Inc)
No Changes. Except as contemplated by this Agreementdisclosed in Section 3.9 of the Disclosure Schedule, since December 29, 1996 (the "Interim Date") the Company has conducted its business only in the ordinary course. Without limiting the generality of the foregoing sentence, except as disclosed in Section 3.9 of the Disclosure Schedule, since the date of the Interim Balance Sheet, Date there has not been, occurred or arisen any:
(a) transaction by any change in the Company financial condition, assets, liabilities, net worth, business or prospects of the Company, except changes in the ordinary course of business as conducted on business, none of which, individually or in the date aggregate, is in excess of the Interim Balance Sheet and consistent with past practices$20,000;
(b) amendments any material damage, destruction or changes to loss, whether or not covered by insurance, adversely affecting the Articles of Incorporation properties in the aggregate or Bylaws business of the Company, or any material deterioration in the operating condition of the Company's assets;
(c) expenditure any mortgage, pledge or commitment by subjection to lien, charge or encumbrance of any kind of any of the Company Company's assets, tangible or intangible in excess of $10,000 individually or $50,000 20,000 in the aggregate;
(d) destruction ofany strike, damage to walkout, labor trouble or loss any other new or continued event, development or condition of any material assets, business character which has or customer of could have a Material Adverse Effect on the Company (whether or not covered by insurance), including the PropertyCompany;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with in respect to of any of the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition of any capital stock of the Company or any rights to purchase such capital stock or securities convertible into or exchangeable for such capital stock;
(f) issuance by the Company of, or commitment of the Company to issue, any shares of stock or other equity securities or obligations or securities convertible into or exchangeable for shares of stock or other equity securities;
(g) (i) any increase in the salaries or other compensation payable or to become payable to, or any advance (excluding advances for ordinary business expenses) or loan to, any officer, director, employee or stockholder of the Company, (ii) or any increase in, or any addition to, other benefits (including without limitation any bonus, profit sharing, pension or other plan) to which any of the Company's officers, directors, employees or stockholders may be entitled, or any payments to any pension, retirement, profit sharing, bonus or similar plan, (iii) any other payment of any kind to or on behalf of any such officer, director, employee or stockholder other than payment of base compensation and reimbursement for reasonable business expenses in the ordinary course of business, (iv) the adoption, creation or amendment of any Plan by the Company, (v) an employment agreement (written or verbal) made by the Company to which the Company is a party or (vi) any other change in employment terms for any of the officers of the Company or, except in the ordinary course of business, of any of the employees or agents of the Company;
(h) material change any making or authorization of any capital expenditures in any compensation arrangement or agreement with any employee, officer, director or stockholderexcess of $20,000;
(i) acquisition, any cancellation or waiver of any right material to the operation of the Company's business or any cancellation or waiver of any debts or claims of substantial value or any cancellation or waiver of any debts or claims against any Related Party;
(j) any sale, lease, license transfer or other disposition of any of the assets of the Company, or any creation except sales of any security interest assets in such assets or properties, including the Propertyordinary course of business;
(jk) amendment acceleration, amendment, cancellation or termination or threatened cancellation or termination of any material contractContract, agreement, permit, approval license or license other instrument to which the Company is a party or by which it the Company is boundbound (i) involving an affiliate of the Company, including any purchase and sale agreements for lots (ii) involving payments in excess of $20,000 in the Project;
aggregate or (kiii) loan by that are otherwise material to the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersCompany;
(l) waiver any payment, discharge or release satisfaction of any right or claim of Liability by the Company, including any write-off other than the payment, discharge or other compromise satisfaction, in the ordinary course of any account receivable business, of Liabilities shown or reflected on the CompanyFinancial Statements, or incurred in the ordinary course of business since the Interim Date;
(m) commencement any delay or notice or threat of commencement of failure to repay when due any lawsuit or judicial or administrative proceeding against or investigation obligation of the Company or its affairs, including the Projectin excess of $10,000;
(n) any adverse change or any overt threat of any adverse change in the Company's relations with, or any loss or threat of loss of, any of the Company's customers, clients or suppliers;
(o) any write-offs as uncollectible of any notes or accounts receivable of the Company or write-downs of the value of any assets by the Company other than in immaterial amounts;
(p) any change by the Company in any method of accounting or keeping its books of account or accounting practices;
(q) any creation, incurrence, assumption or guarantee by the Company of any Liabilities in excess of $20,000, or any creation, incurrence, assumption or guarantee by the Company of any indebtedness for money borrowed;
(r) any payment, loan or advance of any amount to or in respect of, or any sale, transfer or lease of any properties or assets (whether real, personal or mixed, tangible or intangible) to, or entering into of any agreement, arrangement or transaction with, any stockholder of the Company, any of the officers or directors of the Company, any affiliate or relative of any stockholder of the Company, the Company or any of their respective officers or directors, or any business or entity in which any stockholder of the Company, the Company, any of the officers or directors of the Company or any affiliate or relative of any such person has any direct or material indirect interest (a "Related Party");
(s) any disposition or license of or failure to keep in effect any rights in, to or for the use of any patent, trademark, service xxxx, trade name or copyright, or any disclosure to any person not an employee or Related Party or other disposal of any trade secret, process or know-how used by the Company in its business;
(t) any amendment to the organizational documents of the Company or the Company Subsidiary;
(u) a failure to maintain in full force and effect substantially the same level and types of insurance coverage as in effect on the Interim Date;
(v) any agreement (either oral or written) by the Company or any of its officers or directors to do any of the foregoing; or
(w) any other event or condition of any character that individually or in the aggregate has a Material Adverse Effect, or could be reasonably expected any other event or condition not otherwise disclosed herein or in the Disclosure Schedule (other than events or conditions affecting the economy generally) known to the Company that it is reasonable to expect will, individually or in the aggregate, have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than Material Adverse Effect in the ordinary course of business as conducted on that date and consistent with past practices, future. The Company has not entered into any written or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that oral agreement which would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do result into any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)above.
Appears in 1 contract
Samples: Merger Agreement (Tuboscope Vetco International Corp)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.2(b), Schedule 2.7 and Schedule 2.12(a), since the date of the Interim Balance SheetApril 30, 1998, there has not been, occurred or arisen any:
(a) material transaction (other than the transactions contemplated by this Agreement) by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company of Fifteen Thousand Dollars ($15,000) in excess of any individual case or Fifty Thousand Dollars ($10,000 individually or $50,000 50,000) in the aggregate;
(d) destruction of, damage to or loss of any material assetsasset, business or customer of the Company (whether or not covered by insurance) that resulted or could reasonably be expected to result in losses to the Company of more than Ten Thousand Dollars ($10,000), including the Property;
(e) claim of wrongful discharge or other unlawful labor practice or action or significant labor trouble;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including assets in the Propertyamount of Ten Thousand Dollars ($10,000) in any individual case or Fifty Thousand Dollars ($50,000) in the aggregate;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock other than pursuant to the exercise of repurchase rights under stock option agreements;
(i) acquisitionincrease in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such person;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jk) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots Scheduled Contract (as defined in the ProjectSection 2.12);
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersothers except for (1) advances to employees for travel and business expenses, (2) loans from Acquiror to the Company, and (3) advances under the Company's existing line of credit, any of which occur in the ordinary course of business, consistent with past practices;
(lm) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company, where such waiver, release, write-off or compromise involves an amount in excess of Five Thousand Dollars ($5,000);
(mn) commencement or notice or or, to the Company's knowledge, threat of commencement of any lawsuit or judicial or administrative proceeding Proceeding against or investigation of the Company or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of the Company's Intellectual Property Rights (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property Rights;
(p) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(q) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(r) event or condition of any character character, or group of the foregoing, that has or could be is reasonably expected likely to have a material adverse impact Material Adverse Change on the Company;
(os) any agreementmaterial mortgage, contractpledge, lease or commitment Lien, charge, security interest or any extension other encumbrance or modification restriction relating to any of the terms of any agreementCompany's property, contractbusiness or assets, lease tangible or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsintangible;
(pt) hiring ofagreement to enter into a strategic alliance, including marketing or distribution arrangements or other similar arrangements, or offer grant of employment tothird party royalty rights or development agreements, or sub-licensing of any employees (or if an offer was accepted people that would become employees)rights; or
(qu) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pt) (other than negotiations with Monaco or Buyer Acquiror and their its representatives regarding the transactions contemplated by this Agreement). The Company shall not be deemed to be in breach of the representations and warranties of this Section 2.7 for any matters arising after the date hereof so long as such matters are permitted by Section 4.1, and the Company provides Acquiror with written notice of all such matters at least three (3) Business Days prior to the Closing.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Peoplesoft Inc)
No Changes. Except Since the Balance Sheet Date, except as contemplated expressly permitted under, required or specifically consented to by this AgreementParent pursuant to Article V, since the date Company and each of its Subsidiaries has conducted its business in the Interim Balance Sheet, ordinary course consistent with past practices and there has not been, occurred or arisen any:
(a) transaction by modifications, amendments or changes to the Company except Charter Documents;
(b) payment, discharge, waiver or satisfaction, in any amount in excess of $50,000 in any one case, or $100,000 in the aggregate, of any claim, liability, right or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company), other than payments, discharges or satisfactions in the ordinary course of business as conducted on or with respect to liabilities reflected or reserved against in the date of the Interim Current Balance Sheet and consistent or with past practices;
(b) amendments or changes respect to liabilities incurred in the Articles ordinary course of Incorporation or Bylaws of business since the CompanyBalance Sheet Date;
(c) expenditure expenditure, transaction or commitment by the Company in excess of exceeding $10,000 50,000 individually or $50,000 100,000 in the aggregate, excluding the fulfillment of Permitted Purchase Orders;
(d) destruction of, damage to to, or loss of any material assets, business assets (whether tangible or customer intangible) of the Company or any of its Subsidiaries (whether or not covered by insurance), including ) or the Propertyloss of any material customer;
(e) material employment dispute, including claims or matters raised by any individual, Governmental Entity, works council, employee or workersβ representatives, group of employees, bargaining unit, union or other labor organization, regarding, claiming or alleging labor trouble, wrongful discharge or any other unlawful employment or labor practice or action with respect to the Company or any of its Subsidiaries;
(f) adoption or change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the CompanyCompany or any of its Subsidiaries other than as required by GAAP;
(fg) adoption of or change in any election or accounting method in respect of Taxes, any entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement, or any agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes;
(h) revaluation by the Company or any of its Subsidiaries of any of its assetsassets (whether tangible or intangible), including writing down the Propertyvalue of inventory or writing off notes or accounts receivable, for accounting purposes;
(gi) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the capital stock Company of the Company;
any shares of Company Capital Stock (h) material change in any compensation arrangement or agreement with any employeeoptions, officerwarrants or other rights convertible into, director exercisable or stockholderexchangeable therefor);
(i) acquisitionexcept as reflected in the Compensation Schedule, increase in or decrease in or other change to the salary, wage rates, bonuses or fringe benefits or other compensation (including equity based compensation) payable or to become payable by the Company or any of its Subsidiaries to any Employees, (ii) declaration, payment or commitment or obligation of any kind for the payment (whether in cash or equity or otherwise) by the Company or any of its Subsidiaries (with the exception of payments contemplated by this Agreement) of a severance payment, change of control payment, termination payment, bonus, special remuneration or other additional salary or compensation (including equity based compensation), in each case to any of its Employees, other than the Specified Bonuses and Option Bonus Agreement Amounts to be paid by the Company prior to the Effective Time or (iii) promise to pay any special bonus or special remuneration (whether payable in cash, equity or otherwise) to any Employee other than the Specified Bonuses or Option Bonus Agreement Amounts to be paid by the Company prior to the Effective Time;
(k) any termination, extension, amendment or modification of the terms of any material Contract to which the Company or any of its Subsidiaries is a party or by which it or any of its assets are bound;
(l) sale, lease, license or other disposition of any material assets (whether tangible or intangible) or properties of the assets Company or any of its Subsidiaries (other than in the ordinary course of business), including the sale of any accounts receivable of the CompanyCompany or any of its Subsidiaries, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(km) loan by the Company or any of its Subsidiaries to any Person (except for reasonable advances to current employees for travel and business expenses in the ordinary course of business consistent with past practices), or forgiveness by the Company or any of its Subsidiaries of any loan to any Person, or purchase by the Company or any of its Subsidiaries of any debt securities of any Person or amendment to the terms of any outstanding loan agreement relating to any loan from the Company or any of its Subsidiaries to any Person;
(n) incurring by the Company or any of its Subsidiaries of any indebtednessIndebtedness, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company or any of its Subsidiaries of any indebtednessIndebtedness, or the issuance or sale of any debt securities of the Company or guaranteeing by the Company any of any debt securities of othersits Subsidiaries;
(lo) waiver or release of any material right or claim of the CompanyCompany or any of its Subsidiaries, including any write-off waiver, release or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or any of its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsSubsidiaries;
(p) hiring issuance, grant, delivery, sale or purchase of, or offer proposal or Contract to issue, grant, deliver, sell or purchase by the Company, of employment to(i) any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or (ii) any employees (subscriptions, warrants, options, rights or if an offer was accepted people that would become employees); orsecurities to acquire any of the foregoing, except for issuances of Company Options or Company Capital Stock upon the exercise of Company Options issued under the Plan and set forth in Section 3.2(d) of the Disclosure Schedule;
(q) negotiation change in pricing or royalties set or charged by the Company or any of its Subsidiaries to its customers or licensees or in pricing or royalties set or charged by Persons who have licensed any Third Party IP Assets to the Company or any of its Subsidiaries;
(r) agreement or modification to any Contract pursuant to which any other party is or was granted marketing, distribution, development, delivery, manufacturing or similar rights of any type or scope with respect to any Company Products or Company Intellectual Property Assets, other than any Contract that is disclosed in Section 3.13(a) of the Disclosure Schedule;
(s) a Company Material Adverse Effect;
(t) purchase or sale of any interest in real property, granting of any security interest in any real property, entry into or renewal, amendment or modification of any lease, license, sublease or other occupancy of any Leased Real Property or other real property by the Company or any of its Subsidiaries;
(u) acquisition by the Company or any of its Subsidiaries of, or agreement by the Company or any officer of its Subsidiaries to acquire by merging or consolidating with, or by purchasing any assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition or agreement to acquire any assets or any equity securities that are material, individually or in the aggregate, to the Companyβs business;
(v) adoption, termination or amendment of any Company Employee Plan or collective bargaining agreement or other agreement with any works council, union, employee or workersβ representatives, group of employees thereof or other labor organization, except as required by applicable Law;
(w) increase in the rights to indemnification of any Employees;
(x) waiver of any stock repurchase rights or rights of first refusal, acceleration, amendment or change to the period of exercisability of options, restricted stock or any other equity or similar incentive awards (including any long term incentive awards), or repricing options granted under any employee, consultant, director or other stock plans or authorizing any cash or equity exchange for any options granted under any of such plans other than the Unvested Option Cashout;
(y) execution, termination or amendment of any Employee Agreement (other than as contemplated by this Agreement or the execution of the Company standard at will offer letter (or any standard employment agreement of any Subsidiary as required by Law), the form of which has been made available to Parent) with any Employee providing for annual base compensation in excess of $125,000;
(z) execution of any strategic alliance, affiliate or joint marketing arrangement or agreement by the Company or any of its Subsidiaries;
(aa) any action to accelerate the vesting schedule or extend the post-termination exercise period of any Company Options or any Company Common Stock or any similar equity awards;
(bb) hiring (including any change of status from an independent contractor to an employee), promotion, demotion or termination or any other change to the employment status or title of any employee;
(cc) alteration of any interest of the Company in any of its Subsidiaries or any corporation, association, joint venture, partnership or business entity in which the Company directly or indirectly holds any interest;
(dd) cancellation, amendment or renewal of any insurance policy of the Company or any of its Subsidiaries;
(ee) issuance, or agreement to issue, any refunds, credits, allowances or other concessions to customers with respect to amounts collected by or owed to the Company or any of its Subsidiaries in excess of $25,000 individually or $100,000 in the aggregate; or
(ff) agreement by the Company or any of its Subsidiaries to do any of the things described in the preceding clauses (a) through (pee) of this Section 3.8 (other than negotiations and agreements with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this AgreementAgreement and any Related Agreements).
Appears in 1 contract
Samples: Merger Agreement (Solarcity Corp)
No Changes. Except as contemplated by this AgreementAgreement or as set forth in Section 2.11 of the Disclosure Schedule, since from the Balance Sheet Date through the date of hereof, the Interim Balance Sheet, Company has operated its business only in the Ordinary Course and there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesOrdinary Course;
(b) amendments amendment or changes change to the Articles of Incorporation Charter Documents or Bylaws of the CompanySubsidiary Charter Documents;
(c) expenditure or commitment by amendment of any term of any outstanding security of the Company, other than amendments of vesting periods of the Accelerated Company Vested Options in excess contemplation of $10,000 individually or $50,000 in this Agreement and the aggregatetransactions contemplated hereby;
(d) expenditure or transaction with a monetary commitment by the Company exceeding $20,000 individually or $60,000 in the aggregate with respect to any single Person;
(e) settlement, discharge, waiver, release or satisfaction of any claim, liability or obligation (absolute, accrued, asserted or unasserted, contingent or otherwise of the Company) exceeding $50,000 individually or $200,000 in the aggregate with respect to any single Person, other than any such settlement, discharge, waiver, release or satisfaction entered into in the Ordinary Course on terms that were consistent in all material respects with previously existing Contract provisions;
(f) destruction of, damage to to, or loss of any material assets, business assets (whether tangible or customer intangible) of the Company Company, resulting in a loss of more than $50,000 (whether or not covered by insurance), including the Property;
(eg) material employment dispute, including claims or matters raised by any individuals or any workersβ representative organization, bargaining unit or union regarding labor trouble or claim of wrongful discharge or other unlawful employment or labor practice or action with respect to the Company;
(h) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company other than as required by GAAP;
(i) change in any material election in respect of Taxes, adoption or change in any accounting method in respect of Taxes, agreement or settlement of any claim or assessment in respect of Taxes, or extension or waiver of the limitation period applicable to any claim or assessment in respect of Taxes by the Company;
(fj) revaluation by the Company of any of its assetsasset (whether tangible or intangible), including writing down the Propertyvalue of inventory or writing off a note or an accounts receivable, in an amount exceeding $50,000;
(gk) declaration, setting aside or payment of a dividend or other distribution with (whether in cash, stock or property) in respect to of any Company Capital Stock, or any split, combination or reclassification in respect of any shares of Company Capital Stock, or any issuance or authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of Company Capital Stock, or any direct or indirect repurchase, redemption, or other acquisition by the capital stock Company of the Companyany shares of Company Capital Stock (or options, warrants or other rights convertible into, exercisable or exchangeable therefor);
(hl) material change increase in the salary or other compensation payable or to become payable by the Company to any compensation arrangement or agreement with any employee, officer, director or stockholderemployee, or the declaration, payment, commitment or obligation of any kind for the payment (whether in cash or equity) by the Company of a severance payment, termination payment or bonus to any such officer, director or employee;
(im) acquisitionentry into (or termination, extension, material amendment or material modification of the terms of) any Contract to which the Company is a party or by which they or any of its assets (whether tangible or intangible) are bound, other than Contracts entered into in the Ordinary Course;
(n) sale, lease, license or other disposition of any of the assets (whether tangible or intangible) or properties of the Company, including the sale of any accounts receivable of the Company, or any creation of any security interest in such assets or properties, including other than any such disposition made in the PropertyOrdinary Course or involving receipt of less than $50,000;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(ko) loan by the Company to any Person, purchase by the Company of any debt securities of any Person, or capital contributions to investment in any Person;
(p) creation or other incurrence by the Company of any Lien (other than a Permitted Lien) on any of their assets;
(q) incurring by the Company of any indebtednessindebtedness for borrowed money, amendment of the terms of any outstanding loan agreement, guaranteeing by the Company of any such indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(lr) waiver commencement or release settlement of any right lawsuit by the Company, or claim commencement, settlement, written notice or, to the Knowledge of the Company, including threat of any write-off lawsuit or proceeding or other compromise investigation against the Company or its affairs;
(s) notice of any account receivable claim or potential claim of ownership, interest or right by any Person other than the Company in or to the Intellectual Property owned by the Company or of infringement by the Company of any other Personβs Intellectual Property;
(t) issuance, grant, delivery or sale by the Company of any shares of Company Capital Stock or securities convertible into, or exercisable or exchangeable for, shares of Company Capital Stock, or any securities, warrants, options or rights to purchase any of the foregoing, other than shares of Company Common Stock issued upon exercise of options outstanding as of the Balance Sheet Date;
(i) sale or license of any Intellectual Property owned by the Company or execution of any Contract with respect to Intellectual Property owned or exclusively licensed by the Company with any Person, other than any such sale or license entered into in the Ordinary Course, (ii) purchase or license of any Intellectual Property or execution of any Contract with respect to the Intellectual Property of any Person, other than in connection with a purchase or license of βoff-the-shelfβ software, (iii) Contract with respect to the development of any Intellectual Property with a third party, (iv) material change in pricing or royalties set or charged by the Company to its customers or licensees, or (v) material change in pricing or royalties set or charged by Persons who have licensed Intellectual Property to the Company;
(mv) commencement Contract or notice modification to any Contract pursuant to which any other party was granted marketing, distribution, development, manufacturing or threat of commencement similar rights of any lawsuit type or judicial scope with respect to any Company Products or administrative proceeding against or investigation any Intellectual Property of the Company or its affairsCompany, including in each case other than in the ProjectOrdinary Course;
(nw) any event event, occurrence, development, state of circumstances, facts, or condition of any character that has had or could would reasonably be reasonably expected to have have, individually or in the aggregate, a material adverse impact on Material Adverse Effect with respect to the Company;
(ox) any agreementContract to purchase or sell any interest in real property, contractgrant any Lien on any real property, lease enter into any lease, sublease, license or commitment other occupancy agreement with respect to any real property or alter, amend, modify or terminate any extension or modification of the terms of any agreementLease Agreement;
(y) acquisition of or Contract to acquire by merging or consolidating with, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment by purchasing all or obligation to any affiliate substantially all of the Company assets or equity securities of, or by any other manner, any business or corporation, partnership, association or other business organization or division thereof, or other acquisition of or Contract to acquire, other than in the ordinary course Ordinary Course, assets or equity securities that are or would be material, individually or in the aggregate, to the business of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsCompany;
(pz) hiring ofcancellation, amendment or offer renewal of employment to, any employees (or if an offer was accepted people that would become employees)insurance policy; orand
(qaa) negotiation or agreement by the Company Company, or any officer or employees thereof employee on behalf of the Company, to do any of the things described in the preceding clauses (a) through (pz) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by of this Agreement)Section 2.11.
Appears in 1 contract
Samples: Merger Agreement (Compuware Corp)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) Material transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $50,000;
(d) destruction of, material damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) event or condition that has or would be reasonably expected to have a Material Adverse Effect on the Company;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fh) revaluation by the Company of any of its assets, including the Property;
(gi) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(hj) material change increase in the salary or other compensation payable or to become payable to any of its officers or directors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement to any such person except in the ordinary course of business or agreement with any employee, officer, director or stockholderas otherwise contemplated by this Agreement;
(ik) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness consistent with past practices;
(jl) amendment or termination (other than pursuant to its terms) of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots bound other than in the Projectordinary course of business;
(km) loan by the Company to any Personperson or entity, incurring by the Company of any material indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(ln) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat , except in the ordinary course of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Companybusiness;
(o) any agreement, contract, lease issuance or commitment or any extension or modification of sale by the terms Company of any agreementof its shares of capital stock, contractor securities exchangeable, lease convertible or commitment which exercisable therefor, or of any other of its securities except for the issuance of Company Common Stock upon the exercise of stock options;
(ip) involves change in pricing or royalties set or charged by the payment of greater than $25,000 per annum, Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (iias defined in Section 2.11) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)business; or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, there has not beenexcept as disclosed in Section 2.6 of the Disclosure Schedule or as consented to by Parent in accordance with Section 4.2, occurred or arisen anyneither the Company nor any of the Subsidiaries has:
(a) transaction by undergone any material change in its financial condition or operations other than changes that were in the ordinary course of the Business;
(b) (i) declared or paid any dividends on or made other distributions in respect of any equity interest of the Company or any of the Subsidiaries or set aside funds therefor; (ii) split, combined or reclassified any equity interest of the Company or any of the Subsidiaries or issued, authorized or proposed the issuance of any other securities in respect of, in lieu of or in substitution for, any equity interest of the Company or any of the Subsidiaries; or (iii) repurchased or otherwise acquired any equity interest of the Company or any of the Subsidiaries;
(c) issued any equity interest of the Company or any of the Subsidiaries or any other security, instruments, rights or interests in the Company or any of the Subsidiaries or any subscription, option, warrant, commitment or right of any kind whatsoever with respect to any equity interest of the Company or any of the Subsidiaries or any other security, instrument, rights or interest in the Company or any of the Subsidiaries;
(d) amended or proposed to amend the Companyβs Certificate of Incorporation, the UK Subsidiaryβs Memorandum and Articles of Association or the Australian Subsidiaryβs Constitution;
(e) merged or consolidated with or acquired any equity interest in any Person, or entered into an agreement with respect thereto; acquired or agreed to acquire any assets, except in the ordinary course of business as conducted on the date Business; or made any loan or advance to, or otherwise made any investment in, any Person other than trade debt incurred in the ordinary course of the Interim Balance Sheet and Business consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Companypractice;
(f) revaluation by the Company of sold, encumbered or otherwise disposed of, or agreed to sell, lease (whether such lease is an operating or capital lease), encumber, assign or otherwise dispose of, any of its assetsassets (including any equity interest of the Company or any of the Subsidiaries, including other securities of the PropertyCompany or any of the Subsidiaries or Intellectual Property Rights of the Company or any of the Subsidiaries), except in the ordinary course of business;
(g) declarationauthorized, setting aside recommended, proposed or payment announced an intention to adopt a plan of a dividend complete or other distribution with respect to the capital stock of the Companypartial liquidation or dissolution;
(h) made any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder;other than as reflected in compensation data made available to Parent prior to the date hereof; AGREEMENT AND PLAN OF MERGER
(i) acquisitionexcept as required by law or any Company Employment Agreement (as defined herein) (i) paid or agreed to pay any pension, sale, lease, license retirement allowance or other disposition employee benefit to any director, officer, management employee or key employee of the Company or any of the assets Subsidiaries, whether past or present; (ii) entered into any new, or materially amended any existing, employment or severance or termination agreement with any Person; (iii) became obligated under any new benefit plan or employee agreement that was not in existence on the date of the CompanyBalance Sheet or amended any such plan or agreement in existence on such date if such amendment would have the effect of materially enhancing any benefits thereunder; (iv) granted any general increase in compensation (including salary, bonus or other benefits) to employees of the Company or any creation of the Subsidiaries; or (v) extended any security interest in such assets loans or propertiesadvances to any of its directors, including officers, management employees or key employees of the PropertyCompany or any of the Subsidiaries, except advances to employees for expenses consistent with past practices;
(j) amendment (i) assumed or termination incurred any indebtedness for borrowed money; (ii) guaranteed any such indebtedness; (iii) issued or sold any debt securities or warrants or rights to acquire any debt securities; (iv) guaranteed any debt obligations of any material contractother Person; or (v) created any lien, agreementpledge, permithypothecation, approval charge, mortgage, deed of trust, security interest, encumbrance, claim, option, right of first refusal, preemptive right, community property interest, or license to which the Company is a party or by which it is bound, including similar restriction on any purchase and sale agreements for lots in the Projectasset (an βEncumbranceβ);
(k) loan by except in the Company to ordinary course of the Business consistent with past practice, (i) entered into any PersonContract; or (ii) modified, incurring by rescinded, terminated, waived, released or otherwise amended in any material respect any of the Company terms or provisions of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersContract;
(l) waiver except as required to be consistent with the manner in which the Company has historically prepared its financial statements or release by applicable law, (i) permitted any material change in (1) any practice or policy regarding pricing, marketing, purchasing, investment, accounting, financial reporting, inventory, credit, allowance or Taxes for accounting, financial or tax purposes, or (2) any method of calculating any right or claim of the Companybad debt, including any write-off contingency or other compromise of reserve for accounting, financial reporting or tax purposes; or (ii) made any account receivable of the Companymaterial Tax election or settled or compromised any material Tax liability with any Governmental Authority;
(m) commencement delayed payment on or notice failed to pay when due the trade accounts payable or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation other recurring expenses of the Company or its affairsany of the Subsidiaries, including except as a result of a good faith disagreement with respect thereto, and, any such payable or expense in excess of $25,000 is set forth on Section 2.6(m) of the ProjectDisclosure Schedule;
(n) incurred any event or condition capital expenditures in excess of any character that has or could be reasonably expected to have a material adverse impact on the Company$5,000 individually;
(o) paid, discharged or settled any agreementclaims, contract, lease liabilities or commitment or any extension or modification obligations in excess of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annumindividually, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than except in the ordinary course of business business;
(p) settled, released or forgiven any material claim or litigation or waived any right thereto;
(q) except as conducted on that date and consistent with past practices, filed any Tax Return (as defined below) or entered into any agreement with any Governmental Authority directly relating to Taxes or Tax Returns; AGREEMENT AND PLAN OF MERGER (ivr) involves the sale of, lease of waived or transfer agreed to any extension of any interest limitations period in any material assetsrespect of Taxes;
(ps) hiring of, made any change in the lines of business in which the Company or offer any of employment to, any employees (the Subsidiaries participates or if an offer was accepted people that would become employees)is engaged; or
(qt) negotiation or agreement by the Company or entered into any officer or employees thereof commitment to do take any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated actions prohibited by this Agreement)Section 2.6.
Appears in 1 contract
Samples: Merger Agreement (Netsuite Inc)
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim December 31 Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $20,000;
(dc) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(d) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(h) material change increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation arrangement to any such person except as otherwise contemplated by this Agreement or agreement the transactions contemplated hereby, other than normal course of business salary increases in connection with any employee, officer, director ongoing yearly reviews or stockholderpromotions (none of which exceeds 10% of the previous year's salary);
(i) acquisition, sale, lease, license sale or other disposition transfer of any of the assets asset of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date;
(j) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Personperson or entity (other than expense advances to employees, all of which are immaterial in any amount and are issued in the normal course of business), incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) the commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) notice of any claim of ownership by a third party of Company Intellectual Property Rights (as defined in Section 2.11 below) or of infringement by the Company of any third party's intellectual property rights;
(o) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(p) change in pricing or royalties set or charged by the Company;
(q) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on materially impair the Company;
(o) any agreement, contract, lease 's business or commitment or any extension or modification the value of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees)such business; or
(qr) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Stock Acquisition Agreement (Scientific Technologies Inc)
No Changes. Except as contemplated by this AgreementSince September 30, since 1997, the date of Companies have ---------- conducted the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except Business only in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicespractice and, except as set forth on Schedule 2.7, there has not been: ------------
(a) any Material Adverse Effect;
(b) amendments any change in the salaries or changes other compensation payable or to the Articles of Incorporation become payable to, or Bylaws any advance (excluding advances for ordinary business expenses) or loan to, any employee of the Company;
(c) expenditure Business, or commitment by the Company in excess of $10,000 individually material change or $50,000 in the aggregate;
(d) destruction material addition to, or material modification of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) change in accounting methods or practices other benefits (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assetsbonus, including the Property;
(g) declarationprofit-sharing, setting aside or payment of a dividend pension or other distribution with respect to the capital stock of the Company;
(h) material change plan in any compensation arrangement or agreement with any employee, officer, director or stockholder;
(i) acquisition, sale, lease, license or other disposition of which any of the assets employees of the Company, or any creation of any security interest in such assets or properties, including the Property;
(jBusiness participate) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim employees of the CompanyBusiness may be entitled, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and the Business consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetspractice;
(pc) hiring ofany material change or modification in any manner of the Companies' existing Inventory management and collection and payment policies, procedures and practices with respect to Inventory and accounts receivable and accounts payable, respectively, of the Business, acceleration of payment of payables or failure to pay or delay in payment of payables and any change in the Companies' existing policies, procedures and practices, with respect to the provision of discounts, rebates or allowances insofar as they relate to the Business;
(d) any cancellation or waiver by any Company of any right material to the Business or any cancellation or waiver of any material Debts of or claims of the Business against Parent or any other Affiliate of any Company or any disposition of or failure to keep in effect any rights in, to or for the use of any Permit material to the Business;
(e) any damage, destruction or loss, or offer eminent domain or other condemnation proceeding affecting the distribution center located in Salt Lake City, Utah, or the Business which individually or in the aggregate has had a Material Adverse Effect, whether or not covered by insurance;
(f) any change by any Company in its method of employment toaccounting or keeping its books of account or accounting practices with respect to the Business except as required by GAAP;
(g) any acquisition, sale, transfer or other disposition of any employees material Assets of the Business other than the disposition of (i) Inventory in the ordinary course of the Business consistent with past practice or if an offer was accepted people (ii) Assets not used or useful in the Business;
(h) any commencement or termination of any line of business;
(i) any action that would become employeesbe prohibited to be taken after the date of this Agreement under Section 4.1(c); or
(qj) negotiation any agreement in writing or agreement by the Company or any officer or employees thereof otherwise to do take any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)foregoing actions.
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $10,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock;
(i) acquisitionincrease in the salary or other compensation payable or to become payable to any of its officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jk) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lm) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mn) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property rights;
(p) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(q) change in pricing, royalties or reimbursement rates set or charged by the Company to its customers or licensees or in pricing, royalties or reimbursement rates set or charged by persons who have licensed Intellectual Property to the Company;
(r) event or condition of any character that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qs) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Neurocrine Biosciences Inc)
No Changes. Except as contemplated by this Agreementdisclosed in Section 3.9 of the Disclosure Schedule, since December 29, 1996 (the "Interim Date") the Company has conducted its business only in the ordinary course. Without limiting the generality of the foregoing sentence, except as disclosed in Section 3.9 of the Disclosure Schedule, since the date of the Interim Balance Sheet, Date there has not been, occurred or arisen any:
(a) transaction by any change in the Company financial condition, assets, liabilities, net worth, business or prospects of the Company, except changes in the ordinary course of business as conducted on business, none of which, individually or in the date aggregate, is in excess of the Interim Balance Sheet and consistent with past practices$20,000;
(b) amendments any material damage, destruction or changes to loss, whether or not covered by insurance, adversely affecting the Articles of Incorporation properties in the aggregate or Bylaws business of the Company, or any material deterioration in the operating condition of the Company's assets;
(c) expenditure any mortgage, pledge or commitment by subjection to lien, charge or encumbrance of any kind of any of the Company Company's assets, tangible or intangible in excess of $10,000 individually or $50,000 20,000 in the aggregate;
(d) destruction ofany strike, damage to walkout, labor trouble or loss any other new or continued event, development or condition of any material assets, business character which has or customer of could have a Material Adverse Effect on the Company (whether or not covered by insurance), including the PropertyCompany;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend or other distribution with in respect to of any of the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition of any capital stock of the Company or any rights to purchase such capital stock or securities convertible into or exchangeable for such capital stock;
(f) issuance by the Company of, or commitment of the Company to issue, any shares of stock or other equity securities or obligations or securities convertible into or exchangeable for shares of stock or other equity securities;
(i) any increase in the salaries or other compensation payable or to become payable to, or any advance (excluding advances for ordinary business expenses) or loan to, any officer, director, employee or stockholder of the Company, (ii) or any increase in, or any addition to, other benefits (including without limitation any bonus, profit sharing, pension or other plan) to which any of the Company's officers, directors, employees or stockholders may be entitled, or any payments to any pension, retirement, profit sharing, bonus or similar plan, (iii) any other payment of any kind to or on behalf of any such officer, director, employee or stockholder other than payment of base compensation and reimbursement for reasonable business expenses in the ordinary course of business, (iv) the adoption, creation or amendment of any Plan by the Company, (v) an employment agreement (written or verbal) made by the Company to which the Company is a party or (vi) any other change in employment terms for any of the officers of the Company or, except in the ordinary course of business, of any of the employees or agents of the Company;
(h) material change any making or authorization of any capital expenditures in any compensation arrangement or agreement with any employee, officer, director or stockholderexcess of $20,000;
(i) acquisition, any cancellation or waiver of any right material to the operation of the Company's business or any cancellation or waiver of any debts or claims of substantial value or any cancellation or waiver of any debts or claims against any Related Party;
(j) any sale, lease, license transfer or other disposition of any of the assets of the Company, or any creation except sales of any security interest assets in such assets or properties, including the Propertyordinary course of business;
(jk) amendment acceleration, amendment, cancellation or termination or threatened cancellation or termination of any material contractContract, agreement, permit, approval license or license other instrument to which the Company is a party or by which it the Company is boundbound (i) involving an affiliate of the Company, including any purchase and sale agreements for lots (ii) involving payments in excess of $20,000 in the Project;
aggregate or (kiii) loan by that are otherwise material to the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersCompany;
(l) waiver any payment, discharge or release satisfaction of any right or claim of Liability by the Company, including any write-off other than the payment, discharge or other compromise satisfaction, in the ordinary course of any account receivable business, of Liabilities shown or reflected on the CompanyFinancial Statements, or incurred in the ordinary course of business since the Interim Date;
(m) commencement any delay or notice or threat of commencement of failure to repay when due any lawsuit or judicial or administrative proceeding against or investigation obligation of the Company or its affairs, including the Projectin excess of $10,000;
(n) any adverse change or any overt threat of any adverse change in the Company's relations with, or any loss or threat of loss of, any of the Company's customers, clients or suppliers;
(o) any write-offs as uncollectible of any notes or accounts receivable of the Company or write-downs of the value of any assets by the Company other than in immaterial amounts;
(p) any change by the Company in any method of accounting or keeping its books of account or accounting practices;
(q) any creation, incurrence, assumption or guarantee by the Company of any Liabilities in excess of $20,000, or any creation, incurrence, assumption or guarantee by the Company of any indebtedness for money borrowed;
(r) any payment, loan or advance of any amount to or in respect of, or any sale, transfer or lease of any properties or assets (whether real, personal or mixed, tangible or intangible) to, or entering into of any agreement, arrangement or transaction with, any stockholder of the Company, any of the officers or directors of the Company, any affiliate or relative of any stockholder of the Company, the Company or any of their respective officers or directors, or any business or entity in which any stockholder of the Company, the Company, any of the officers or directors of the Company or any affiliate or relative of any such person has any direct or material indirect interest (a "Related Party");
(s) any disposition or license of or failure to keep in effect any rights in, to or for the use of any patent, trademark, service mark, xxade name or copyright, or any disclosure to any person not an employee or Related Party or other disposal of any trade secret, process or know-how used by the Company in its business;
(t) any amendment to the organizational documents of the Company or the Company Subsidiary;
(u) a failure to maintain in full force and effect substantially the same level and types of insurance coverage as in effect on the Interim Date;
(v) any agreement (either oral or written) by the Company or any of its officers or directors to do any of the foregoing; or
(w) any other event or condition of any character that individually or in the aggregate has a Material Adverse Effect, or could be reasonably expected any other event or condition not otherwise disclosed herein or in the Disclosure Schedule (other than events or conditions affecting the economy generally) known to the Company that it is reasonable to expect will, individually or in the aggregate, have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than Material Adverse Effect in the ordinary course of business as conducted on that date and consistent with past practices, future. The Company has not entered into any written or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that oral agreement which would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do result into any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)above.
Appears in 1 contract
Samples: Merger Agreement (SCF Iii Lp)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Company Balance Sheet, Sheet there has not ---------- been, occurred or arisen any:
(a) transaction by the Company or the Subsidiary except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments capital expenditures by the Company or changes to the Articles of Incorporation or Bylaws of the CompanySubsidiary aggregating more than $50,000;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction ofdestruction, damage to to, or loss of any material assets (including, without limitation, intangible assets, business or customer but excluding all computers distributed to, and in the possession of the Company's users in the ordinary course of the Company's business) of the Company or the Subsidiary (whether or not covered by insurance), including either individually or in the Propertyaggregate, exceeding $50,000;
(d) pending or, to the Company's or the Subsidiary's knowledge, threatened charge or complaint of wrongful discharge or other unlawful labor practice or action;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates, any change in policies in making or reversing accruals, or any change in capitalization of software development costs) by the CompanyCompany or the Subsidiary;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside aside, or payment of a dividend or other distribution with in respect to the capital stock shares of the CompanyCompany or the Subsidiary, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its shares, other than repurchases of stock from former employees, director and consultants in accordance with agreements in effect on the date of this Agreement providing for the repurchase of shares at cost in connection with any termination of service to the Company or the Subsidiary;
(g) except as set forth in Section 2.7(g) of the Company Disclosure Letter, increase in the salary or other compensation payable or to become payable by the Company or the Subsidiary to any of its officers, directors or employees, or the declaration, payment, or commitment or obligation of any kind for the payment by the Company or the Subsidiary of a bonus or other additional salary or compensation to any such person except in connection with and pursuant to existing bonus plans;
(h) material change except as set forth in Section 2.7(h) of the Company Disclosure Letter, acquisition (other than capital expenditures referenced in Section 2.7(b)), sale or transfer of any compensation arrangement asset of the Company or agreement with any employee, officer, director or stockholderthe Subsidiary except in the ordinary course of business and not in excess of $50,000;
(i) acquisitionexcept for contracts, saleagreements or licenses pursuant to which the aggregate of payments to become due from or to the Company or the Subsidiary is less than $50,000 and which are terminable on no more than 60 days' notice, leaseor as set forth in Section 2.7(i) of the Company Disclosure Letter, license formation, amendment or other disposition termination of any of contract, agreement or license (including any distribution agreement) to which the assets of Company or the Company, Subsidiary is a party other than termination by the Company or any creation of any security interest in such assets or properties, including the PropertySubsidiary pursuant to the terms thereof;
(j) amendment except as set forth in Section 2.7(j) of the Company Disclosure Letter, loan by the Company or termination the Subsidiary to any person or entity, or guaranty by the Company or the Subsidiary of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Projectloan;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities except as set forth in Section 2.7(j) of the Company or guaranteeing by the Company of any debt securities of others;
(l) Disclosure Letter, waiver or release of any right rights or claim claims of the CompanyCompany or the Subsidiary, including any write-off or other compromise of any account receivable of the CompanyCompany or the Subsidiary, in excess of $50,000 in the aggregate;
(ml) except as set forth in Section 2.7(l) of the Company Disclosure Letter, the commencement or notice or, to the knowledge of the Company or the Subsidiary, the threat of commencement of any lawsuit or judicial or administrative governmental proceeding against or investigation of the Company or its affairs, including the ProjectSubsidiary or the affairs of either;
(nm) any other event or condition of any character that has or could might reasonably be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(on) any agreementissuance, contract, lease sale or commitment redemption by the Company or any extension or modification of the terms Subsidiary of any agreementof its shares or of any other of its securities, contract, lease or commitment which except (i) involves options disclosed in Section 2.2 of the payment of greater than $25,000 per annumCompany Disclosure Letter, (ii) extends repurchases of stock from former employees, directors and consultants in accordance with agreements in effect on the date of this Agreement providing for more than one (1) year, the repurchase of shares at cost in connection with any termination of service to the Company and (iii) involves any payment or obligation to any affiliate as otherwise disclosed in Section 2.7(n) of the Company other than Disclosure Letter; or
(o) material change in pricing or royalties set or charged by the ordinary course of business as conducted on that date and consistent with past practices, Company or (iv) involves the sale of, lease of or transfer of any interest in any material assets;Subsidiary; or
(p) hiring ofany agreement (written, oral or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qotherwise) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (po) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Emachines Inc /De/)
No Changes. Except as contemplated by set forth in Part 2.7 of the Company Disclosure Letter or with respect to actions or agreements between the Company and Parent as set forth in this Agreement, since the date of the Interim Current Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course Ordinary Course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesBusiness;
(b) amendments or changes to the Articles Certificate of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $50,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) event or condition that has or would be reasonably expected to have a Material Adverse Effect on the Company;
(g) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fh) revaluation by the Company of any of its assets, including the Property;
(gi) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition by the Company of any of its capital stock;
(hj) material change increase in the salary or other compensation payable or to become payable to any of its officers or directors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation arrangement or agreement with to any employee, officer, director or stockholdersuch person except as otherwise contemplated by this Agreement;
(ik) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the Ordinary Course of any security interest in such assets or properties, including the PropertyBusiness as conducted on that date;
(jl) amendment or termination (other than pursuant to its terms) of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(km) loan by the Company to or capital investment in any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtednessindebtedness (other than endorsements of instruments for collection in the Ordinary Course of Business), issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the Ordinary Course of Business;
(ln) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mo) commencement issuance or notice or threat of commencement sale by the Company of any lawsuit of its shares of capital stock, or judicial securities exchangeable, convertible or administrative proceeding against exercisable therefor, or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification other of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assetsits securities;
(p) hiring of, change in pricing or offer of employment to, any employees royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property (or if an offer was accepted people that would become employees)as defined in Section 2.11) to the Company; or
(q) negotiation agreement or agreement authorization or, to the Company's or the Principal Stockholder's Knowledge, negotiations by the Company or any officer or employees employee thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Tibco Software Inc)
No Changes. Except Since the Balance Sheet Date, except as contemplated by this Agreement, since the date set forth in ---------- Section 2.9 of the Interim Balance SheetCompany Disclosure Schedule, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesthat date;
(b) amendments capital expenditure or changes to the Articles of Incorporation or Bylaws of commitment for capital expenditure by the Company, either individually or in the aggregate, exceeding $10,000;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer assets of the Company (whether or not covered by insurance), including ) or loss of any business or customers of the PropertyCompany that (i) accounted for $50,000 or more of the Company's revenues for fiscal year 1998 or (ii) is projected to account for $100,000 or more of the Company's projected revenue for fiscal year 1999;
(d) labor trouble or claim of wrongful discharge of which the Company has received written notice or of which Shareholder is aware or other unlawful labor practice or action;
(e) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including other than depreciation as required by GAAP and reflected on the PropertyClosing Balance Sheet;
(g) declaration, setting aside or payment of a dividend any dividends on or any other distribution with (whether in cash, stock or property) in respect to of any Company Shares or profits, or any split, combination or reclassification of Company Shares or the issuance or authorization of the issuance of any of the securities in respect of, in lieu of or in substitution for any share in the stated capital stock of the Company, or the repurchase, redemption or other acquisition, directly or indirectly, of any Company Shares (or options, warrants or other rights exercisable therefor);
(h) material change increase in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company of a bonus or other additional salary or compensation arrangement or agreement with to any employeesuch person, officer, director or stockholderexcept as made in the ordinary course of business;
(i) acquisition, sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except sales of any security interest inventory in such assets or properties, including the Propertyordinary course of business;
(j) amendment or termination or violation of any distribution agreement or any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots other than termination by the Company pursuant to the terms thereof in the Projectordinary course of business;
(k) loan by the Company to any Personperson or entity, incurring other than advances to its employees for travel and business expenses in the ordinary course of business and consistent with past practices, or incurrence by the Company of any indebtednessindebtedness other than trade debt in the ordinary course of business consistent with past practices, guaranteeing by guaranty of the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any material right or claim of the Company, including any write-off or other compromise of any account receivable of the Company, exceeding $1,000 in the aggregate;
(m) commencement or notice notice, or to the knowledge of Shareholder or the Company, threat of commencement commencement, of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) claim of ownership by a third party of any Intellectual Property Right (as defined in Section 2.13 below) or, to the knowledge of Shareholder or the Company, infringement by the Company of any third party's intellectual property rights;
(o) issuance or sale by the Company of any Company Shares or Company Rights or of any other securities of the Company;
(p) change in pricing or royalties set or charged by the Company other than in the ordinary course of business;
(q) any event or condition of any character character, that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qr) negotiation or agreement by the Company or any officer or employees thereof of the Company to do any of the things described in the preceding clauses (a) through (pq) (other than negotiations with Monaco or Buyer Xxxxxxxx.xxx and their its representatives regarding the transactions contemplated by this AgreementAgreement and acts otherwise permitted by such clauses (a) through (q)).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance SheetJune 30, 1999, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 individually 25,000 in any individual case or $50,000 25,000 in the aggregate;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in , or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock;
(i) acquisitionincrease in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment, by the Company, of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jk) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersothers except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lm) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(mn) commencement or notice or or, to the Company's knowledge, threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property rights;
(p) issuance or sale by the Company of any of its shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(q) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company; or
(r) event or condition of any character that has or could be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Critical Path Inc)
No Changes. Except as contemplated by this Agreementset forth in SCHEDULE 2.7, since the date of the Interim Balance SheetSeptember 30, 1999, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the that date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 individually 25,000 in any individual case or $50,000 35,000 in the aggregate;.
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock of the Company;
(h) material change in Company other than the Tax Distribution or Appraisal Rights, or any compensation arrangement direct or agreement with indirect redemption, purchase or other acquisition by the Company of any employee, officer, director or stockholderof its capital stock;
(i) acquisitionincrease in the salary or other compensation payable or to become payable by the Company to any of its officers, directors, employees or advisors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation except in the ordinary course of any security interest in such assets or properties, including the Propertybusiness as conducted on that date and consistent with past practices;
(jk) amendment or termination of any material contract, agreement, permit, approval agreement or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(kl) loan by the Company to any Personperson or entity, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(lm) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account provisions for uncollectible accounts receivable of the Company;
(mn) commencement or notice or overt threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(no) notice of any claim of ownership by a third party of the Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by the Company of any third party's Intellectual Property rights;
(p) issuance or sale by the Company of any shares of capital stock, or securities exchangeable, convertible or exercisable therefor, or of any other of its securities;
(q) change in pricing or royalties set or charged by the Company to its customers or licensees or in pricing or royalties set or charged by persons who have licensed Intellectual Property to the Company;
(r) event or condition of any character that has or could reasonably be reasonably expected to have a material adverse impact Material Adverse Effect on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(qs) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
No Changes. Except as contemplated by this Agreementset forth in Schedule 2.7, since the date of the Interim Balance Sheet, there has not been, occurred or arisen any:
(a) transaction by the Company except in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practices;
(b) amendments or changes to the Articles of Incorporation Organization or Bylaws Operating Agreement of the Company;
(c) capital expenditure or commitment by the Company in excess of $10,000 Company, either individually or $50,000 in the aggregate, exceeding $10,000;
(d) destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including the Property;
(e) labor trouble or claim of wrongful discharge or other unlawful labor practice or action of which Company has knowledge;
(f) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(fg) revaluation by the Company of any of its assets, including the Property;
(gh) declaration, setting aside or payment of a dividend or other distribution with respect to the capital stock Membership Interests, or any direct or indirect redemption, purchase or other acquisition by Company of the Company;
(h) material change in any compensation arrangement or agreement with any employee, officer, director or stockholderof its Membership Interests;
(i) acquisitionincrease in the salary or other compensation payable or to become payable to any of its officers, directors, employees, consultants or advisors, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation to any such person except as otherwise contemplated by this Agreement;
(j) sale, lease, license or other disposition of any of the assets or properties of the Company, or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of others;
(l) waiver or release of any right or claim of the Company, including any write-off or other compromise of any account receivable of the Company;
(m) commencement or notice or threat of commencement of any lawsuit or judicial or administrative proceeding against or investigation of the Company or its affairs, including the Project;
(n) any event or condition of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreement, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than except in the ordinary course of business as conducted on that date and consistent with past practices, ;
(k) amendment or (iv) involves the sale of, lease of or transfer termination of any interest material contract, agreement or license to which Company is a party or by which it is bound;
(l) loan by Company to any person or entity, incurring by Company of any indebtedness, guaranteeing by Company of any indebtedness, issuance or sale of any debt securities of Company or guaranteeing of any debt securities of others, except for advances to employees for travel and business expenses in the ordinary course of business, consistent with past practices;
(m) waiver or release of any material assetsright or claim of Company, including any write-off or other compromise of any account receivable of Company in excess of $10,000 individually or in excess of $20,000 in the aggregate;
(n) commencement or notice or threat of commencement of any lawsuit or proceeding against or, to the knowledge of Company, any investigation of Company or its affairs;
(o) notice of any claim of ownership by a third party of Company's Intellectual Property (as defined in Section 2.11 below) or of infringement by Company of any third party's Intellectual Property rights;
(p) hiring ofissuance or sale by Company of any of its Membership Interests, or offer securities exchangeable, convertible or exercisable therefor, or of employment toany other of its Membership Interests;
(q) change in pricing, royalties or reimbursement rates set or charged by Company to its customers or licensees or in pricing, royalties or reimbursement rates set or charged by persons who have licensed Intellectual Property to Company;
(r) event or condition of any employees (character that has or if an offer was accepted people that would become employees)is reasonably likely in Company's opinion to have a Material Adverse Effect on Company; or
(qs) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (pr) (other than negotiations with Monaco or Buyer Parent and their its representatives regarding the transactions contemplated by this Agreement).
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Argonaut Technologies Inc)
No Changes. Except as contemplated by this Agreement, since Since the date of the Interim Balance Sheet, Sheet there has not been, occurred or arisen any:
(a) transaction by the Company except any material adverse change in the ordinary course of business as conducted on the date of the Interim Balance Sheet and consistent with past practicesCompanies taken as a whole;
(b) amendments or changes to the Articles of Incorporation or Bylaws of the Company;
(c) expenditure or commitment by the Company in excess of $10,000 individually or $50,000 in the aggregate;
(d) any material damage, destruction of, damage to or loss of any material assets, business or customer of the Company (whether or not covered by insurance), including ) adversely affecting the Propertybusiness of the Companies taken as a whole;
(ec) change in accounting methods or practices (including any change in depreciation or amortization policies or rates) by the Company;
(f) revaluation by the Company of any of its assets, including the Property;
(g) declaration, setting aside or payment of a dividend any dividend, or other distribution distribution, in respect of any capital stock of any of the Companies or any direct or indirect redemption, purchase or other acquisition of such stock;
(d) any option to purchase any capital stock of any of the Companies granted to any person, or any employment or deferred compensation agreement entered into between any Company and any of its stockholders, officers, directors, employees or consultants;
(e) any issuance or sale by any of the Companies of any stock, bonds or other corporate securities, or any partial or complete formation, acquisition, disposition or liquidation of any of the Companies;
(f) any labor union activity (including without limitation any negotiation, or request for negotiation, with respect to the capital stock any union representation or any labor contract) respecting any of the CompanyCompanies;
(g) any statute, rule or regulation, or, to the best knowledge of the Companies and the Sellers, any government policy, adopted which may materially and adversely affect the business of any of the Companies;
(h) material change in any compensation arrangement mortgage, lien, attachment, pledge, encumbrance or agreement security interest created on any asset, tangible or intangible, of any of the Companies, or assumed, either by any 13PAGE Company or by others, with respect to any employeesuch assets, officer, director or stockholderexcept for liens permitted under Section 2.8;
(i) acquisitionany indebtedness or other liability or obligation (whether absolute, accrued, contingent or otherwise) incurred, or other transaction (except that reflected in this Agreement) engaged in, by any of the Companies, except those in the ordinary course of business that are individually, or in the aggregate to one group of related parties, less than fifty thousand dollars ($50,000);
(j) any obligation or liability discharged or satisfied by any of the Companies, except items included in current liabilities shown on the Balance Sheet and current liabilities incurred since the date of the Balance Sheet in the ordinary course of business which are individually, or in the aggregate to one group of related parties, less than twenty five thousand dollars ($25,000) in amount;
(k) any sale, assignment, lease, license transfer or other disposition of any tangible asset of any of the Companies, except in the ordinary course of business, or any sale, assignment, lease, transfer or other disposition of any of the assets of the Companyits patents, trademarks, trade names, brand names, copyrights, licenses or any creation of any security interest in such assets or properties, including the Property;
(j) amendment or termination of any material contract, agreement, permit, approval or license to which the Company is a party or by which it is bound, including any purchase and sale agreements for lots in the Project;
(k) loan by the Company to any Person, incurring by the Company of any indebtedness, guaranteeing by the Company of any indebtedness, issuance or sale of any debt securities of the Company or guaranteeing by the Company of any debt securities of othersother intangible assets;
(l) any amendment, termination or waiver or release of any material right or claim belonging to any of the Company, including any write-off or other compromise of any account receivable of the CompanyCompanies;
(m) commencement any increase in the compensation or notice benefits payable or threat of commencement of to become payable by any lawsuit or judicial or administrative proceeding against or investigation of the Company Companies to any of its officers or its affairs, including the Projectemployees;
(n) any event other action or condition omission by any of the Companies, or the passage of any character that has or could be reasonably expected to have a material adverse impact on the Company;
(o) any agreementresolution, contract, lease or commitment or any extension or modification of the terms of any agreement, contract, lease or commitment which (i) involves the payment of greater than $25,000 per annum, (ii) extends for more than one (1) year, (iii) involves any payment or obligation to any affiliate of the Company other than in the ordinary course of business as conducted on that date and consistent with past practices, or (iv) involves the sale of, lease of or transfer of any interest in any material assets;
(p) hiring of, or offer of employment to, any employees (or if an offer was accepted people that would become employees); or
(q) negotiation or agreement by the Company or any officer or employees thereof to do any of the things described in the preceding clauses (a) through (p) (other than negotiations with Monaco or Buyer and their representatives regarding the transactions contemplated by this Agreement)business.
Appears in 1 contract
Samples: Asset and Share Purchase Agreement (Thermoquest Corp \De\)
