Absence of Changes or Events. Since December 31, 2003, the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been any event, violation or other matter that could, individually or in the aggregate, have a Material Adverse Effect. Except as set forth on Schedule 3.23 and except as contemplated by the Restructuring Documents, the Stonehouse Restructuring Agreement, the Stonehouse Royalty Agreement and the Transaction Documents, since December 31, 2003, the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been: (a) any obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by the Company or any of its Subsidiaries, in excess of $100,000 individually, other than obligations under customer contracts, current obligations and liabilities, in each case incurred in the ordinary course of business and consistent with past practice; (b) any payment, discharge, satisfaction or settlement of any suit, action, claim, arbitration, proceeding or obligation of the Company or any of its Subsidiaries, except in the ordinary course of business and consistent with past practice; (c) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of the Company or any of its Subsidiaries or any direct or indirect redemption, purchase or other acquisition of any such shares; (d) any issuance or sale, or any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company or any of its Subsidiaries; (e) any sale, assignment, pledge, encumbrance, transfer or other disposition of any tangible asset of the Company or any of its Subsidiaries (other than sales or the licensing of its products to customers in the ordinary course of business consistent with past practice), or any sale, assignment, transfer or other disposition of any Intellectual Property (other than licensing of products of the Company or its Subsidiaries in the ordinary course of business and on a non-exclusive basis); (f) any creation of any Lien on any property of the Company or any of its Subsidiaries except for Liens in existence on the date of this Agreement that are described on Schedules 3.15, 3.16, 3.17 or 3.18; (g) any write-downs of the value of any asset of the Company or its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof except in the ordinary course of business and in a magnitude consistent with historical practice; (h) any cancellation of any debts or claims or any material amendment, termination or waiver of any rights of the Company or its Subsidiaries; (i) any capital expenditure or commitment or addition to property, plant or equipment of the Company or its Subsidiaries in excess of $100,000 individually or $200,000 in the aggregate; (j) any material increase in the compensation of employees of the Company or its Subsidiaries (including any increase pursuant to any written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or (ii) any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $100,000; (k) any damage, destruction or loss (whether or not covered by insurance) affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or Loss in excess of $100,000; (l) any change in the independent public accountants of the Company or its Subsidiaries or any material change in the accounting methods or accounting practices followed by the Company or its Subsidiaries, as applicable, or any material change in depreciation or amortization policies or rates; (m) any resignation or termination of any officer, key employee or group of employees of the Company or any of its Subsidiaries; (n) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder; or (o) any agreement, whether in writing or otherwise, to take any of the actions specified in the foregoing items (a) through (n).
Appears in 2 contracts
Sources: Securities Purchase Agreement (WorldSpace, Inc), Securities Purchase Agreement (WorldSpace, Inc)
Absence of Changes or Events. Since Except as disclosed in the Company SEC Documents filed and publicly available prior to the date hereof, and except for the Company Distribution and the other transactions contemplated by the Company Distribution Agreement, (a) since December 31, 20031997, there has not been any change or occurrence which resulted in or is reasonably likely to have a Material Adverse Effect with respect to the business Company Retained Business and (b) from December 31, 1997 to the date of the this Agreement, Company and its Subsidiaries has been have conducted the Company Retained Business only in the ordinary course consistent with past practice and there has not been any event, violation or other matter that could, individually or in the aggregate, have a Material Adverse Effect. Except as set forth on Schedule 3.23 and except as contemplated by the Restructuring Documents, the Stonehouse Restructuring Agreement, the Stonehouse Royalty Agreement and the Transaction Documents, since December 31, 2003, the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been:
(a) any obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by the Company or any of its Subsidiaries, in excess of $100,000 individually, other than obligations under customer contracts, current obligations and liabilities, in each case incurred in the ordinary course of business and consistent with past practice;
(b) any payment, discharge, satisfaction or settlement of any suit, action, claim, arbitration, proceeding or obligation of the Company or any of its Subsidiaries, except in the ordinary course of business and consistent with past practice;
(ci) any declaration, setting aside or payment of any dividend or other distribution with respect to the capital stock of Company, (ii) any issuance of any shares of Company Common Stock or other capital stock of Company or any securities convertible into or exchangeable or exercisable for capital stock of Company that is not reflected in Section 4.3, (iii) any split, combination or reclassification of any of the capital stock of Company or any issuance or the authorization of any issuance of any other securities in respect of, in lieu of or in substitution for shares of capital stock of the Company, (iv) (x) any granting by Company or any of its Subsidiaries to any director or any direct or indirect redemption, purchase or other acquisition officer of any such shares;
(d) any issuance or sale, or any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company or any of its Subsidiaries;
(e) any sale, assignment, pledge, encumbrance, transfer or other disposition of any tangible asset of the Company or any of its Subsidiaries of any increase in compensation, (other than sales y) any granting by Company or the licensing any of its products Subsidiaries to customers any such Person of any increase in severance or termination pay, or (z) except for employment, severance or termination arrangements in the ordinary course of business consistent with past practice), practice with employees other than any officer of Company or any saleof its Subsidiaries, assignment, transfer or other disposition of any Intellectual Property (other than licensing of products of the Company or its Subsidiaries in the ordinary course of business and on a non-exclusive basis);
(f) any creation of any Lien on any property of the entry by Company or any of its Subsidiaries except for Liens in existence on the date of this Agreement that are described on Schedules 3.15into any employment, 3.16severance or termination agreement with any such Person, 3.17 or 3.18;
(gv) any write-downs acquisition of the value of any asset of the Company or its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof except in the ordinary course of business and in a magnitude consistent with historical practice;
(h) any cancellation of any debts or claims or any material amendment, termination or waiver of any rights of the Company or its Subsidiaries;
(i) any capital expenditure or commitment to purchase or addition to property, plant build any property or equipment of the Company or its Subsidiaries project involving an expenditure in excess of $100,000 individually or $200,000 2 million in the aggregate;
(j) any material increase , except to the extent reflected in the compensation of employees of Company's Capital Expenditure Plan attached hereto as Exhibit F or as set forth on the Company or its Subsidiaries Disclosure Schedule, (including any increase pursuant to any written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or (ii) any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $100,000;
(kvi) any damage, destruction or loss (whether that has or not covered by insurance) affecting any asset reasonably could be expected to have a Material Adverse Effect with respect to Company or property of the Company Retained Business or any of its Subsidiaries resulting in liability or Loss in excess of $100,000;
(lvii) any change in the independent public accountants of the accounting methods, principles or practices by Company materially affecting its assets, liabilities or its Subsidiaries or any material business, except insofar as may have been required by a change in the accounting methods or accounting practices followed by the Company or its Subsidiaries, as applicable, or any material change in depreciation or amortization policies or rates;
(m) any resignation or termination of any officer, key employee or group of employees of the Company or any of its Subsidiaries;
(n) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder; or
(o) any agreement, whether in writing or otherwise, to take any of the actions specified in the foregoing items (a) through (n)GAAP.
Appears in 2 contracts
Sources: Merger Agreement (Grand Casinos Inc), Merger Agreement (Hilton Hotels Corp)
Absence of Changes or Events. Since December 31the Financial Date, 2003, the business of the Company and its Subsidiaries has been have conducted in the ordinary course consistent with past practice and there has not been any event, violation or other matter that could, individually or in the aggregate, have a Material Adverse Effect. Except as set forth on Schedule 3.23 and except as contemplated by the Restructuring Documents, the Stonehouse Restructuring Agreement, the Stonehouse Royalty Agreement and the Transaction Documents, since December 31, 2003, the their business of the Company and its Subsidiaries has been conducted only in the ordinary course consistent with past practice and there has not been:
(a) Any Company Material Adverse Effect (as such term is defined below) or, to the Company’s knowledge, any obligation occurrence, change, event, circumstance, or liability combination thereof which could reasonably be expected to result in a Company Material Adverse Effect;
(whether absoluteb) Any transaction relating to or involving the Company, accruedits business or its assets which was entered into or carried out by the Company other than in the ordinary course of business consistent with past practice and other than the transactions contemplated by this Agreement;
(c) Any material change made by Seller or the Company or any of its Subsidiaries in the method of operating the business of the Company or its Subsidiaries or in any of the accounting principles, contingent practices or otherwise, methods of the Company and whether due its Subsidiaries;
(d) Any Encumbrance imposed or agreed to become due) incurred by be imposed on or with respect to the Shares or any of the assets of the Company or any of its Subsidiaries; *** Portions of this page have been omitted pursuant to a request for Confidential Treatment filed separately with the Commission.
(e) Any sale, in excess lease, license, transfer or disposition of, or any agreement to sell, lease, license, transfer or dispose of $100,000 individuallyany of the assets of the Company or any of its Subsidiaries (including any Proprietary Rights of the Company or any of its Subsidiaries), other than obligations under customer contractsin the ordinary course of business and consistent with prior practice;
(f) Any modification, current obligations waiver, change, amendment, release, rescission, accord and liabilitiessatisfaction, or termination of, or with respect to any term, condition, or provision of any Contract (as such term is defined below), other than any satisfaction by performance in each case incurred accordance with the terms thereof in the ordinary course of business and consistent with past practice:
(g) Any increase in or modification of the compensation or benefits payable or to become payable to any director, officer, employee or consultant of or to the Company or any of its Subsidiaries, or any adoption, modification or termination of any Company Benefit Plan (except as required by law or this Agreement);
(bh) any paymentAny loss or, dischargeto the Company’s knowledge, satisfaction or settlement threat of loss of any suit, action, claim, arbitration, proceeding of the suppliers (including suppliers of services) or obligation customers or key employees of the Company or any of its Subsidiaries, except or any material adverse change (or to the knowledge of the Company, any threat of a material adverse change) in the ordinary course relations of business the Company and consistent its Subsidiaries with past practiceany of their suppliers (including suppliers of services), customers or key employees;
(ci) Any waiver by Seller or the Company of any declaration, setting aside or right of substantial value relating to the Shares; or
(j) Any delay in payment of any dividend or other distribution with respect to any shares of capital stock of accounts payable by the Company or any of its Subsidiaries or any direct or indirect redemption, purchase or other acquisition of any such shares;
(d) any issuance or sale, or any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company or any of its Subsidiaries;
(e) any sale, assignment, pledge, encumbrance, transfer or other disposition of any tangible asset of the Company or any of its Subsidiaries (other than sales or the licensing of its products to customers in outside the ordinary course of business consistent with past practice), or any sale, assignment, transfer or other disposition of any Intellectual Property (other than licensing of products of the Company or its Subsidiaries in the ordinary course of business and on a non-exclusive basis);
(f) any creation of any Lien on any property of the Company or any of its Subsidiaries except for Liens in existence on the date of this Agreement that are described on Schedules 3.15, 3.16, 3.17 or 3.18;
(g) any write-downs of the value of any asset of the Company or its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof except in the ordinary course of business and in a magnitude consistent with historical practice;
(h) any cancellation of any debts or claims or any material amendment, termination or waiver of any rights of the Company or its Subsidiaries;
(i) any capital expenditure or commitment or addition to property, plant or equipment of the Company or its Subsidiaries in excess of $100,000 individually or $200,000 in the aggregate;
(j) any material increase in the compensation of employees of the Company or its Subsidiaries (including any increase pursuant to any written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or (ii) any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $100,000;
(k) any damage, destruction or loss (whether or not covered by insurance) affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or Loss in excess of $100,000;
(l) any change in the independent public accountants of the Company or its Subsidiaries or any material change in the accounting methods or accounting practices followed by the Company or its Subsidiaries, as applicable, or any material change in depreciation or amortization policies or rates;
(m) any resignation or termination of any officer, key employee or group of employees of the Company or any of its Subsidiaries;
(n) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder; or
(o) any agreement, whether in writing or otherwise, to take any of the actions specified in the foregoing items (a) through (n).
Appears in 2 contracts
Sources: Stock Acquisition Agreement (Active Network Inc), Stock Acquisition Agreement (Active Network Inc)
Absence of Changes or Events. Since Except as set forth in Section 4.7 of the Disclosure Schedule and in the Company's Form 10-K for the fiscal year ended December 31, 20031999, as filed with the business of SEC, or the Company's Form 10-Q for the fiscal quarter ended March 31, 2000, as filed with the SEC, since December 31, 1999, the Company and its Subsidiaries has been subsidiaries have conducted their respective businesses in the ordinary course consistent with their past practice practices and have not incurred any material liability, except in the ordinary course of their businesses consistent with their past practices, and there has not been (i) any eventchange in the business, violation financial condition or other matter that couldresults of operations of the Company or any of its subsidiaries which has had, or could have, individually or in the aggregate, have a Material Adverse Effect. Except as set forth on Schedule 3.23 and except as contemplated ; (ii) any damage, destruction or loss, whether covered by insurance or not, which has had, or could have, individually or in the Restructuring Documentsaggregate, the Stonehouse Restructuring Agreementa Material Adverse Effect; (iii) any entry into or termination of any material commitment, the Stonehouse Royalty Agreement and the Transaction Documentscontract, since December 31agreement or transaction (including, 2003without limitation, the business any material borrowing or capital expenditure or sale or other disposition of any material asset or assets) of or involving the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been:
(a) any obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by the Company or any of its Subsidiaries, in excess of $100,000 individuallysubsidiaries, other than obligations under customer contracts, current obligations and liabilities, in each case incurred in the ordinary course of business and consistent with past practice;
this Agreement; (biv) any paymentredemption, dischargerepurchase or other acquisition for value of its capital stock by the Company, satisfaction or settlement of any suit, action, claim, arbitration, proceeding or obligation of the Company or any of its Subsidiaries, except in the ordinary course of business and consistent with past practice;
(c) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares issuance of capital stock of the Company or any of its Subsidiaries subsidiaries or any direct or indirect redemption, purchase or other acquisition of any such shares;
(d) any issuance or sale, or any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable or exchangeable for shares of rights to acquire any such capital stock or any dividend or distribution declared, set aside, or paid on capital stock of the Company; (v) any transfer of or right granted under any material lease, license, agreement or Intellectual Property (as defined in Section 4.14 below) of the Company or any of its Subsidiaries;
subsidiaries or any liens or other security interests in any Intellectual Property of the Company or any of its subsidiaries; (evi) any sale, assignment, pledge, encumbrance, transfer sale or other disposition of any tangible asset of the Company or any of its Subsidiaries (other than sales or the licensing of its products to customers in the ordinary course of business consistent with past practice), subsidiaries or any salecharge, assignmentmortgage, transfer pledge or imposition of any lien or other disposition of encumbrance (or any Intellectual Property (other than licensing of products of the Company or its Subsidiaries in the ordinary course of business satisfaction and on a non-exclusive basis);
(fdischarge thereof) any creation of any Lien on any property asset of the Company or any of its Subsidiaries except for Liens in existence on the date of this Agreement that are described on Schedules 3.15subsidiaries, 3.16, 3.17 or 3.18;
(g) any write-downs of the value of any asset of the Company or its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof except other than in the ordinary course of business and in a magnitude consistent with historical practice;
business, or any agreement relating to any of the foregoing; (hvii) any cancellation of any debts default or claims or any material amendment, termination or waiver of any rights of the Company or its Subsidiaries;
(i) any capital expenditure or commitment or addition to property, plant or equipment of the Company or its Subsidiaries in excess of $100,000 individually or $200,000 in the aggregate;
(j) any material increase in the compensation of employees of the Company or its Subsidiaries (including any increase pursuant to any written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or (ii) any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of breach by the Company or any of its Subsidiaries having an annual salary subsidiaries in any material respect under any contract, license or remuneration in excess of $100,000;
permit; (kviii) any damage, destruction general wage or loss (whether or not covered by insurance) affecting any asset or property of the Company salary increase or any of its Subsidiaries resulting increase in liability compensation or Loss in excess of $100,000;
(l) other benefits payable or to become payable to any change in the independent public accountants of the Company executive officers or its Subsidiaries or any material change in the accounting methods or accounting practices followed by the Company or its Subsidiaries, as applicable, or any material change in depreciation or amortization policies or rates;
(m) any resignation or termination of any officer, key employee or group of management employees of the Company or any of its Subsidiaries;
subsidiaries or any entry into any employment contract with any executive officer or key salaried employee of the Company or any of its subsidiaries; and (nix) any material change in any compensation arrangement the accounting methods of the Company or agreement with any employee, officer, director or stockholder; or
(o) any agreement, whether in writing or otherwise, to take any of the actions specified in the foregoing items (a) through (n)its subsidiaries.
Appears in 2 contracts
Sources: Tender Offer Agreement (Gilat Satellite Networks LTD), Tender Offer Agreement (Gilat Satellite Networks LTD)
Absence of Changes or Events. Since December 31, 20032012, there has not been any change, event or occurrence that has had or is reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect. From December 31, 2012 to the date of this Agreement, the business of the Company and its Subsidiaries Post Business has been conducted in the ordinary course consistent with past practice and there has not been any event, violation or other matter that could, individually or in the aggregate, have a Material Adverse Effectpractice. Except as set forth on Schedule 3.23 and except as contemplated by the Restructuring Documents, the Stonehouse Restructuring Agreement, the Stonehouse Royalty Agreement and the Transaction Documents, since From December 31, 20032012 to the date of this Agreement, the business none of the Company and its Subsidiaries Companies has been conducted taken any of the following actions or omitted to take any of the following actions, in each case, with respect to the Post Business, other than actions in the ordinary course consistent with past practice and there has not beenpractice:
(a) any obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due materially increased the compensation payable or to become duepayable or the benefits provided to any Post Business Employee, except (A) incurred for increases for which Seller shall be solely liable or (B) as required by the Company Applicable Law or any of its SubsidiariesBenefit Plan, in excess of $100,000 individuallyBenefit Agreement, Collective Bargaining Agreement or other than obligations under customer contracts, current obligations and liabilities, in each case incurred in the ordinary course of business and consistent with past practiceContract;
(b) adopted, established or entered into any paymentnew material Assumed Benefit Plan or material Assumed Benefit Agreement, discharge, satisfaction or settlement of materially amended any suit, action, claim, arbitration, proceeding existing Assumed Benefit Plan or obligation of the Company or any of its Subsidiaries, except in the ordinary course of business and consistent with past practiceAssumed Benefit Agreement;
(c) materially amended or terminated any declaration, setting aside Contract listed or payment of any dividend or other distribution with respect required to any shares of capital stock of the Company be listed on Schedule 3.09 or any of its Subsidiaries or any direct or indirect redemption, purchase or other acquisition of any such sharesCollective Bargaining Agreement;
(d) any issuance sold, leased or sale, or any contract entered into for the issuance or sale, disposed of any shares assets material to the Post Business (other than any Excluded Assets), in any single transaction or series of capital stock or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company or any of its Subsidiariesrelated transactions;
(e) made any sale, assignment, pledge, encumbrance, transfer or other disposition amendment to the organizational documents of any tangible asset of the Company or any of its Subsidiaries (other than sales or the licensing of its products to customers in the ordinary course of business consistent with past practice), or any sale, assignment, transfer or other disposition of any Intellectual Property (other than licensing of products of the Company or its Subsidiaries in the ordinary course of business and on a non-exclusive basis)Company;
(f) cancelled any creation of any Lien on any property of the indebtedness owed to a Company or waived any claims or rights of its Subsidiaries except for Liens in existence on the date of this Agreement that are described on Schedules 3.15, 3.16, 3.17 or 3.18a Company;
(g) adopted any write-downs plan of merger, consolidation, reorganization, liquidation or dissolution with respect to, or filed a petition in bankruptcy under any provisions of Federal or state bankruptcy law or consented to the value filing of any asset of the bankruptcy petition against, any Company or its Subsidiaries or under any write-off as uncollectible of any accounts or notes receivable or any portion thereof except in the ordinary course of business and in a magnitude consistent with historical practicesimilar law;
(h) (i) made or changed any cancellation material Tax election relating solely to a Company or (ii) settled or compromised any material Tax liability of any debts or claims a Company, but, in each case, only to the extent such action would reasonably be expected to have a significant effect on Purchaser or any material amendment, termination or waiver of any rights of the Company or its SubsidiariesCompany;
(i) terminated, abandoned, canceled, let lapse, failed to continue to prosecute or renew, sold, transferred or otherwise disposed of any capital expenditure or commitment or addition to property, plant or equipment of the Company or its Subsidiaries in excess of $100,000 individually or $200,000 in the aggregatematerial Post Intellectual Property;
(j) made or committed to make any material increase in capital expenditures to be made following the compensation of employees of the Company or its Subsidiaries (including any increase pursuant to any written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment)Closing, or (ii) failed to make any increase material capital expenditure, in any such compensation or bonus payable either case in a manner inconsistent with the annual budget for the Post Business provided to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $100,000;Purchaser; and
(k) other than transactions in connection with Section 1.06, made any damageloans, destruction advances or loss (whether or not covered by insurance) affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or Loss in excess of $100,000;
(l) any change in the independent public accountants of the Company or its Subsidiaries or any material change in the accounting methods or accounting practices followed by the Company or its Subsidiaries, as applicablecapital contributions to, or investments in, any material change in depreciation or amortization policies or rates;
other person (m) any resignation or termination of any officer, key employee or group of employees of the Company or any of its Subsidiaries;
(n) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder; or
(o) any agreement, whether in writing or otherwise, to take any of the actions specified in the foregoing items (a) through (nother than a Company).
Appears in 1 contract
Absence of Changes or Events. Since December 31, 2003, the business date of the Company Interim Financial Statements, each of GSLLC and its Subsidiaries has been the Corporation have conducted their businesses only in the usual and ordinary course consistent with past practice practices and there has not been any event, violation or other matter that could, individually or in the aggregate, have a Material Adverse Effect. Except as set forth on Schedule 3.23 and except as contemplated by the Restructuring Documents, the Stonehouse Restructuring Agreement, the Stonehouse Royalty Agreement and the Transaction Documents, since December 31, 2003, the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not beenany:
(ai) any obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by the Company or any of its Subsidiaries, in excess of $100,000 individually, other than obligations under customer contracts, current obligations and liabilities, in each case incurred in the ordinary course of business and consistent with past practice;
(b) any payment, discharge, satisfaction or settlement of any suit, action, claim, arbitration, proceeding or obligation of the Company or any of its Subsidiaries, except in the ordinary course of business and consistent with past practice;
(c) any declaration, setting payment of or set aside or for payment of any dividend or other distribution with or repayment in respect to any the shares of the capital stock of the Company Corporation or the membership interests of GSLLC or any of its Subsidiaries repurchase or any direct or indirect redemption, purchase or other acquisition redemption of any such shares;
shares of capital stock, membership interests or other securities; (dii) adoption of or change in any issuance employee benefit plan or salelabor policy, or any contract entered into for loan made by either GSLLC or the issuance Corporation to any employee, manager or sale, of any shares of capital stock or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company director or any change in any compensation arrangement with any employee; (iii) damage, destruction, or loss to any assets or property of its Subsidiaries;
GSLLC or the Corporation, whether or not covered by insurance; (eiv) any salesale (other than sales of inventory in the ordinary course of business), assignment, pledgeconveyance, encumbrance, transfer lease or other disposition of any tangible asset or property of GSLLC or the Company Corporation or mortgage, pledge or imposition of any lien or other encumbrance on any assets or property of its Subsidiaries GSLLC or the Corporation; (v) occurrence or repayment of any liability or obligation (whether absolute or contingent) to any related party or other Affiliate or, other than sales or the licensing of its products to customers current liabilities incurred and obligations under agreements entered into in the ordinary course of business consistent with past practice), to any other Person or any sale, assignment, transfer discharge or other disposition satisfaction of any Intellectual Property (lien, claim or encumbrance, other than licensing of products of the Company or its Subsidiaries in the ordinary course of business and on a non-exclusive basis);
consistent with past practice; (fvi) any creation of any Lien on any property of the Company or any of its Subsidiaries except for Liens in existence on the date of this Agreement that are described on Schedules 3.15, 3.16, 3.17 or 3.18;
(g) any write-downs down or write-off of the value of any asset of the Company or its Subsidiaries or any except for write-off as uncollectible of any accounts or notes receivable or any portion thereof except downs and write-offs in the ordinary course of business and in a magnitude consistent with historical past practice;
(h) , or any cancellation of any debts or claims or any material amendment, termination or waiver of any other rights of the Company or its Subsidiaries;
claims; (ivii) any capital expenditure or commitment or addition to property, plant or equipment of the Company or its Subsidiaries in excess of $100,000 individually or $200,000 in the aggregate;
(j) any material increase in the compensation of employees of the Company or its Subsidiaries (including any increase pursuant to any written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or (ii) any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $100,000;
(k) any damage, destruction or loss (whether or not covered by insurance) affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or Loss in excess of $100,000;
(l) any change in the independent public accountants business or operations of either GSLLC or the Company Corporation or its Subsidiaries in the manner of conducting the same or entry by either GSLLC or the Corporation into any material transaction, other than in the ordinary course of business consistent with past practice; (viii) change in the accounting methods methods, principles or accounting practices followed by GSLLC or the Company or its SubsidiariesCorporation, except as applicablerequired by GAAP, or any material change in depreciation or amortization policies or rates;
(m) any resignation or termination of any officer, key employee or group of employees of the Company or any of its Subsidiaries;
(n) any material change in any compensation arrangement of the assumptions underlying, or agreement with methods of calculating, any employeebad debt, officercontingency, director or stockholderother reserve; or
(oix) an occurrence of any event, fact, conditional change or effect that is or could be adverse to the business, operations, results of operations, condition (financial or otherwise), assets, earnings, prospects or liabilities of GSLLC or the Corporation; (x) Any capital expenditure outside the ordinary course of business, except for the lease-purchase of certain computer equipment in the approximate amount of $100,000; or (xi) any agreementagreement or commitment, whether or not in writing or otherwisewriting, to take do any of the actions specified in foregoing by GSLLC or the foregoing items (a) through (n)Corporation.
Appears in 1 contract
Sources: Securities Purchase and Subscription Agreement (Torotel Inc)
Absence of Changes or Events. Since December 31, 20032019 (the “Reference Date”), the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been any eventone or more related or unrelated changes, violation events, developments or other matter that couldcircumstances which, individually or in the aggregate, have a Material Adverse Effecthad, or could reasonably be expected to have, an effect that is materially adverse to the business, assets, liabilities, condition (financial or otherwise), operations or results of operations, prospects, cash flows or employee, client or customer relations of any Seller. Except as set forth on disclosed in the applicable subsection of Schedule 3.23 and except as contemplated by the Restructuring Documents, the Stonehouse Restructuring Agreement, the Stonehouse Royalty Agreement and the Transaction Documents3.9, since December 31the Reference Date, 2003, Sellers have conducted the business of the Company and its Subsidiaries has been conducted Business in the ordinary course of business consistent with past practice and practice. Without limiting the generality of the foregoing, except as disclosed in the applicable subsection of Schedule 3.9, since Reference Date, there has not beenbeen with respect to the Business:
(a) any obligation sale, lease, transfer or liability (whether absoluteother disposition of, accrued, contingent or otherwise, and whether due or to become due) incurred by the Company or any mortgage or pledge, or imposition of its Subsidiariesany Lien on, in excess any of $100,000 individuallythe Assets, other than obligations under customer contracts, current obligations except for inventory and liabilities, in each case incurred immaterial amounts of personal property sold or otherwise disposed of for fair value in the ordinary course of business and consistent with past practice;
(b) any payment, discharge, satisfaction or settlement of any suit, action, claim, arbitration, proceeding or obligation of the Company or any of its Subsidiaries, except in the ordinary course of business and consistent with past practice;
(c) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of the Company or any of its Subsidiaries or any direct or indirect redemption, purchase or other acquisition of any such shares;
(d) any issuance or sale, or any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company or any of its Subsidiaries;
(e) any sale, assignment, pledge, encumbrance, transfer or other disposition of any tangible asset of the Company or any of its Subsidiaries (other than sales or the licensing of its products to customers in the ordinary course of business consistent with past practice), or any sale, assignment, transfer or other disposition of any Intellectual Property (other than licensing of products of the Company or its Subsidiaries in the ordinary course of business and on a non-exclusive basis);
(f) any creation of any Lien on any property of the Company or any of its Subsidiaries except for Liens in existence on the date of this Agreement that are described on Schedules 3.15, 3.16, 3.17 or 3.18;
(g) any write-downs of the value of any asset of the Company or its Subsidiaries or any write-off as uncollectible of any notes or accounts or notes receivable or any portion thereof except in the ordinary course of business and in other cash obligations owed to a magnitude consistent with historical practiceSeller;
(hc) any cancellation of Liens imposed on any debts or claims or any material amendment, termination or waiver of any rights of the Company Assets or its Subsidiaries;
(i) any capital expenditure or commitment or addition to property, plant or equipment of the Company or its Subsidiaries in excess of $100,000 individually or $200,000 in the aggregate;
(j) any material increase in the compensation of employees of the Company or its Subsidiaries (including any increase pursuant to any written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or (ii) any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $100,000;
(k) any damage, destruction or other casualty loss (whether or not covered by insurance) affecting any asset the Business, the Assets or property of the Company or any of its Subsidiaries resulting in liability or Loss in excess of $100,000a Seller;
(ld) any entry into, amendment or modification of, or any affirmative action to terminate, any Contract;
(e) any transfer, assignment or grant of any license or sublicense of any rights under or with respect to any Intellectual Property;
(f) any hiring, termination, change in the compensation or benefits of or other change in employment terms of any non-billable employee of the Business (including any non-billable employee set forth, or that should have been set forth, on Schedule 3.21);
(g) any change by a Seller in the independent public accountants its method of the Company or its Subsidiaries or any material change in the accounting methods or accounting practices followed by the Company or its Subsidiaries, as applicablepractice, or any material change failure by Seller to maintain its books, accounts and records in depreciation or amortization policies or ratesthe ordinary course of business consistent with past practices;
(mh) any resignation other material occurrence, event, incident, action, failure to act, or termination of any officer, key employee or group of employees transaction outside of the Company or any ordinary course of its Subsidiaries;
(n) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholderthe operation and conduct of the Business; or
(oi) any agreement, whether in writing understanding or otherwise, commitment by a Seller to take do any of the actions specified in the foregoing items (a) through (n)foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Helix Technologies, Inc.)
Absence of Changes or Events. Since December 31, 2003, the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been any event, violation or other matter that could, individually or in the aggregate, have a Material Adverse Effect. (a) Except as set forth on Schedule 3.23 and except as contemplated 3.15 or required by the Restructuring Documents, the Stonehouse Restructuring this Agreement, since the Stonehouse Royalty Agreement Interim Balance Sheet Date and as at the Transaction Documentsdate hereof, since December 31(a) there has been no event, 2003, the business of change or circumstance that constitutes a Company Material Adverse Effect and (b) the Company and its Subsidiaries has been Company Subsidiary have conducted their respective businesses in the ordinary course and consistent with their respective past practice practices.
(b) Without limiting the generality of the foregoing, since the Interim Balance Sheet Date and as at the date hereof, except as set forth on Schedule 3.15(b), there has not beenbeen with respect to the Company and/or Company Subsidiary any:
(ai) declaration, setting aside or payment of any obligation dividend or liability any other distribution (whether absoluteof cash or other assets) to its shareholders; provided, accruedhowever, contingent that (A) dividends and distributions (whether of cash or otherwise, and whether due or to become dueother assets) incurred may be made by the Company or any Subsidiary to the Company, (B) payment of the assignment fee by the Company to the assignors under the Trademark Assignment Agreement and (C) payments in respect of intercompany indebtedness may be made by the Company to Seller and its Subsidiaries, in excess of $100,000 individually, other than obligations under customer contracts, current obligations and liabilities, in each case incurred affiliates;
(ii) except (A) in the ordinary course of business and consistent with past practice, (B) in connection with a promotion based on job performance or workplace requirements, (C) as required under any Benefit Plan or Benefit Agreement, or applicable Laws or (D) any increases for which Seller or its affiliates (other than the Company or the Company Subsidiary) shall be solely obligated, (1) adoption or amendment to any Benefit Plan or Benefit Agreement, if such adoption or amendment would result in an increase in costs to Purchaser on or after the Closing Date or (2) grant to any Participant who is currently employed by the Company or the Company Subsidiary of any material increase in base salary, wages, bonuses or incentive compensation;
(biii) any paymentsale, dischargelease, satisfaction license, pledge, or settlement of any suitother disposition of, actionor Lien on, claim, arbitration, proceeding or obligation of the Company or any of its Subsidiaries, except properties or material assets (other than sales of inventory for fair consideration and in the ordinary course of business and consistent with past practice;
(c) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of the Company or any of its Subsidiaries or any direct or indirect redemption, purchase or other acquisition of any such shares;
(d) any issuance or sale, or any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company or any of its Subsidiaries;
(e) any sale, assignment, pledge, encumbrance, transfer or other disposition of any tangible asset of the Company or any of its Subsidiaries (other than sales or the licensing of its products to customers in the ordinary course of business consistent with past practice), or any sale, assignment, transfer or other disposition of any Intellectual Property (other than licensing of products of the Company or its Subsidiaries in the ordinary course of business and on a non-exclusive basis);
(fiv) settlement or compromise in connection with any creation of any Lien on any property of Proceeding involving the Company or any of its Subsidiaries except for Liens in existence on the date of this Agreement that are described on Schedules 3.15, 3.16, 3.17 or 3.18;
(g) any write-downs of the value of any asset of and/or the Company Subsidiary or its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof except in the ordinary course of business and in a magnitude consistent with historical practice;
(h) any cancellation of any debts or claims or any material amendmentcancellation, termination compromise, release or waiver of any claims or rights (or series of the Company related claims or its Subsidiaries;
(irights) any capital expenditure or commitment or addition to property, plant or equipment of the Company or its Subsidiaries in excess of $100,000 individually or $200,000 in the aggregate;
(j) any material increase in the compensation of employees of the Company or its Subsidiaries (including any increase pursuant to any written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or (ii) any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $100,000;
(k) any damage, destruction or loss (whether or not covered by insurance) affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or Loss in excess of $100,000;
(l) any change in the independent public accountants of the Company or its Subsidiaries or any material change in the accounting methods or accounting practices followed by the Company or its Subsidiaries, as applicable, or any material change in depreciation or amortization policies or rates;
(m) any resignation or termination of any officer, key employee or group of employees of the Company or any of its Subsidiaries;
(n) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholdera value exceeding £250,000; or
(ov) any authorization, consent or agreement, whether in writing or otherwise, to take do any of the actions specified in the foregoing items (a) through (n)foregoing.
Appears in 1 contract
Absence of Changes or Events. Since Except as specifically identified in Section 3.16 of the Disclosure Schedule as an event which is reasonably likely to give rise to a Material Adverse Effect, since December 31, 20032004, the business of the Company and its Subsidiaries there has been conducted no Material Adverse Effect nor has there occurred any event which is reasonably likely to result in the ordinary course consistent with past practice and there has not been any event, violation or other matter that could, individually or in the aggregate, have a Material Adverse Effect. Except as set forth on Schedule 3.23 and except as contemplated by in Section 3.16 of the Restructuring DocumentsCompany Disclosure Schedule, since September 30, 2005, the Stonehouse Restructuring Agreement, Company has conducted its business and operations only in the Stonehouse Royalty Agreement ordinary and usual course of business consistent with past custom and practice and has incurred no Liabilities other than in the Transaction Documentsordinary and usual course of business consistent with past custom and practice. Except as set forth in Section 3.16 of the Company Disclosure Schedule, since September 30, 2005 (and, with respect to clauses (c), (e), (l), (m) and (o), December 31, 20032004), the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not beennot:
(a) sold, assigned or transferred any obligation asset or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by the Company or any of its Subsidiaries, in excess of $100,000 individually, other than obligations under customer contracts, current obligations and liabilities, in each case incurred in the ordinary course of business and consistent with past practice;
(b) any payment, discharge, satisfaction or settlement of any suit, action, claim, arbitration, proceeding or obligation of the Company or any of its Subsidiaries, except in the ordinary course of business and consistent with past practice;
(c) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of the Company or any of its Subsidiaries or any direct or indirect redemption, purchase or other acquisition of any such shares;
(d) any issuance or sale, or any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company or any of its Subsidiaries;
(e) any sale, assignment, pledge, encumbrance, transfer or other disposition of any tangible asset of the Company or any of its Subsidiaries property right (other than sales or the licensing of its products to customers assets in the ordinary and usual course of business consistent with past practice), or mortgaged, pledged or subjected them to any saleLien, assignment, transfer charge or other disposition restriction, except for Permitted Encumbrances;
(b) sold, assigned, transferred, abandoned or permitted to lapse any Permit or any of the Intellectual Property or other intangible assets of the Company, disclosed any material confidential information or trade secret to any person or granted any license or sublicense of any rights under or with respect to any Intellectual Property or other intangible assets;
(c) made or granted any increase in, or amended or terminated, any existing plan, program, policy or arrangement, including, without limitation, any Employee Benefit Plan or arrangement or adopted any new Employee Benefit Plan or arrangement or entered into any new collective bargaining agreement or multi-employer plan;
(d) conducted the cash management customs and practices (including the timing of collection of receivables and payment of payables and other than licensing of products current liabilities) and maintained the books and records of the Company or its Subsidiaries other than in the usual and ordinary and usual course of business consistent with past custom and on a non-exclusive basis)practice;
(e) made any material loans or advances to, or guarantees for the benefit of, or entered into any transaction with any employee, officer or director of the Company;
(f) suffered any creation extraordinary loss, damage, destruction or casualty loss or waived any rights of any Lien on any property material value, whether or not covered by insurance and whether or not in the ordinary and usual course of the Company or any of its Subsidiaries except for Liens in existence on the date of this Agreement that are described on Schedules 3.15, 3.16, 3.17 or 3.18business consistent with past practice;
(g) received notification, and the Company has no Knowledge, that any write-downs client, customer or supplier will, except as reflected in the 2006 Projection, (i) stop or decrease in any respect the rate of business done with the value Company, (ii) make any or seek to make any other alteration to its relationship with the Company or (iii) seek to have any agreement, arrangement, contract or commitment amended or otherwise modified in a manner that has the effect of any asset reducing the margins of the Company or its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof except in otherwise adversely affects the ordinary course of business and in a magnitude consistent with historical practiceCompany;
(h) declared, set aside or paid any cancellation dividend or distribution of cash or other property to any debts stockholder or claims member or purchased, redeemed or otherwise acquired any material amendment, termination Company Stock or waiver of made any rights of the Company or its Subsidiariesother payments to any stockholder;
(i) any capital expenditure amended or commitment or addition to property, plant or equipment authorized the amendment of the Company organizational documents of the Company;
(j) waived any right or its Subsidiaries canceled or compromised any debt or claim, other than in excess the ordinary and usual course of business consistent with past practice;
(k) made (or incurred obligations to make) capital expenditures in an amount which exceeds $25,000 for any item or $100,000 individually or $200,000 in the aggregate;
(jl) any material increase in increased the compensation of employees of the Company or its Subsidiaries (including any increase pursuant to any written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or (ii) any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant salaried employee except in the ordinary and usual course of business consistent with past practices;
(m) hired or agent terminated any senior management employee (whether or not in the ordinary and usual course of the Company or any of its Subsidiaries having business consistent with past practice) who has an annual salary or remuneration in excess of $100,000;
(kn) borrowed any damagemoney (other than trade payables or other current expenses, destruction all in the ordinary and usual course of business consistent with past practice) or loss (whether issued any bonds, debentures, notes or not covered by insurance) affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or Loss in excess of $100,000other corporate securities evidencing money borrowed;
(lo) adopted or made any change in the independent public accountants of the Company any financial or its Subsidiaries Tax accounting methods, principles or practices or made or changed any Tax elections;
(p) engaged in any merger or consolidation with any other entity (or any material change transaction having a similar effect) or any acquisition of any business unit or operation (however effected) of any other Person;
(q) purchased any asset outside the ordinary course of business (other than as set forth in the accounting methods Section 3.16(k));
(r) engaged in any sale, lease or accounting practices followed other conveyance of all or any portion of (or any interest in) any property owned by the Company or its Subsidiaries, as applicable, or any material change in depreciation or amortization policies or rates;
(m) any resignation or termination outside the ordinary course of any officer, key employee or group of employees of the Company or any of its Subsidiaries;
(n) any material change in any compensation arrangement or agreement business consistent with any employee, officer, director or stockholderpast custom and practice; or
(os) any agreementcommitted, whether in writing or otherwise, to take any of the actions specified in the foregoing items (a) through (n)foregoing.
Appears in 1 contract
Sources: Merger Agreement (Ventiv Health Inc)
Absence of Changes or Events. (a) Since December 31the Balance Sheet Date, 2003Company has conducted the Business in the Ordinary Course of Business (including the collection of Receivables, the business payment of payables and the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice making of capital expenditures) and there has not been occurred any event, violation event or other matter that couldcondition which, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse EffectEffect on Company. Except Without limiting the generality of the foregoing, since the Balance Sheet Date, Company has used commercially reasonable efforts to preserve the Business and business organization intact, to retain their Permits, and to preserve the existing Contracts and Goodwill of its suppliers, vendors, service providers, insurance carriers, brokers, agents, personnel and others having business relations with Company.
(b) Without limiting the generality of the foregoing, since the Balance Sheet Date, except as set forth on Schedule 3.23 and except as contemplated by the Restructuring Documents, the Stonehouse Restructuring Agreement, the Stonehouse Royalty Agreement and the Transaction Documents, since December 31, 2003, the business in Section 5.13(b) of the Disclosure Schedule, Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not beennot:
(ai) any obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by the Company or amended any of its SubsidiariesOrganizational Documents;
(ii) changed the compensation of any of its officers, Employees, directors, agents, representatives or consultants, or paid or agreed to pay any bonus or similar payment, in each case, other than in the Ordinary Course of Business;
(iii) entered into, adopted or amended or committed to enter into, adopt or amend any Employee Benefit Plan;
(iv) incurred any Indebtedness, made any loans or advances, issued any debt Securities or assumed, guaranteed or otherwise became responsible for the obligations of any Person, or subjected any of its properties or assets to any Encumbrance, except for the routine advancement of expenses to any Employee in the Ordinary Course of Business;
(v) entered into, materially amended or terminated (except to the extent expired pursuant to its terms) any Material Contract;
(vi) acquired, disposed, sold, leased or licensed any material assets or properties, or made any commitment to do so, except in the Ordinary Course of Business;
(vii) adopted or changed any method of accounting (including any method of Tax accounting);
(viii) changed its method of management, reporting or operations, in each case, in any material respect;
(ix) promoted, demoted, changed the job title of, or otherwise altered in any material respect the responsibilities or duties of, any officer;
(x) made or caused to be made any dividend, distribution, redemption, repurchase, recapitalization, reclassification, issuance, split, combination or other transaction involving limited liability company membership interests of Company or other equity Securities, or any option, warrant or right to acquire any such limited liability company membership interests of Company or equity Securities;
(xi) made, changed or revoked any Tax election or entered into any Contract or arrangement with respect to Taxes;
(xii) changed its commissions payable to Customer Facing Persons or any consultants, other than in the Ordinary Course of Business;
(xiii) acquired, or agreed to acquire, any business or Person, whether by merger or consolidation, purchase of assets or equity Securities or any other manner;
(xiv) canceled or waived any rights of substantial value, or paid, discharged or settled any Claim of substantial value in an amount in excess of $100,000 individually, other than obligations under customer contracts, current obligations and liabilities10,000;
(xv) failed to make any capital expenditures consistent with the existing budget of Company or committed to make any capital expenditures after the Balance Sheet Date, in each case incurred case, in the ordinary course of business and consistent with past practice;
(b) any payment, discharge, satisfaction or settlement of any suit, action, claim, arbitration, proceeding or obligation of the Company or any of its Subsidiaries, except in the ordinary course of business and consistent with past practice;
(c) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of the Company or any of its Subsidiaries or any direct or indirect redemption, purchase or other acquisition of any such shares;
(d) any issuance or sale, or any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company or any of its Subsidiaries;
(e) any sale, assignment, pledge, encumbrance, transfer or other disposition of any tangible asset of the Company or any of its Subsidiaries (other than sales or the licensing of its products to customers in the ordinary course of business consistent with past practice), or any sale, assignment, transfer or other disposition of any Intellectual Property (other than licensing of products of the Company or its Subsidiaries in the ordinary course of business and on a non-exclusive basis);
(f) any creation of any Lien on any property of the Company or any of its Subsidiaries except for Liens in existence on the date of this Agreement that are described on Schedules 3.15, 3.16, 3.17 or 3.18;
(g) any write-downs of the value of any asset of the Company or its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof except in the ordinary course of business and in a magnitude consistent with historical practice;
(h) any cancellation of any debts or claims or any material amendment, termination or waiver of any rights of the Company or its Subsidiaries;
(i) any capital expenditure or commitment or addition to property, plant or equipment of the Company or its Subsidiaries an amount in excess of $100,000 individually or $200,000 in the aggregate;25,000; and
(jxvi) any material increase in the compensation of employees of the Company or its Subsidiaries (including any increase pursuant committed to any written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or (ii) any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $100,000;
(k) any damage, destruction or loss (whether or not covered by insurance) affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or Loss in excess of $100,000;
(l) any change in the independent public accountants of the Company or its Subsidiaries or any material change in the accounting methods or accounting practices followed by the Company or its Subsidiaries, as applicable, or any material change in depreciation or amortization policies or rates;
(m) any resignation or termination of any officer, key employee or group of employees of the Company or any of its Subsidiaries;
(n) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder; or
(o) any agreement, whether in writing or otherwise, to take do any of the actions specified foregoing referred to in the foregoing items clauses (ai) through - (nxv).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Newtek Business Services Corp.)
Absence of Changes or Events. Since December 31, 20032005, Sellers have operated the business of the Company and its Subsidiaries has been conducted Business in the ordinary course consistent with past practice and there has not been any no event, violation circumstance, occurrence, fact, condition, change, development or other matter that couldeffect exists or has occurred that, either individually or in the aggregate, have has had or resulted in, or could reasonably be expected to result in, a Material Adverse Effect. Except as Without limiting the generality of the foregoing, except to the extent set forth on Schedule 3.23 and except as contemplated by the Restructuring Documents, the Stonehouse Restructuring Agreement, the Stonehouse Royalty Agreement and the Transaction Documents5.11 hereto, since December 31, 2003, the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been:
2004 neither Seller has: (a) incurred any obligation or liability liability, secured or unsecured (whether absolute, accrued, contingent contingent, or otherwise), and whether due or to become due) incurred by the Company or any of its Subsidiaries, in excess of $100,000 individually, other than obligations under customer contracts, except current obligations and liabilities, in each case liabilities incurred in the ordinary course of business and consistent with past practice;
not in excess of $5,000; (b) discharged or satisfied any paymentEncumbrance, discharge, satisfaction or settlement of paid any suit, action, claim, arbitration, proceeding material obligation or obligation of the Company or any of its Subsidiariesliability, except current liabilities becoming due in the ordinary course of business and consistent with past practice;
not in excess of $5,000; (c) any declarationdeclared, setting set aside or made any payment of any dividend or other distribution to stockholders with respect to any shares of capital stock of the Company such Seller, purchased or redeemed any of its Subsidiaries securities or agreed to do so or entered into any direct contract, agreement or indirect redemption, purchase understanding with any officers or other acquisition of any such shares;
directors; (d) any issuance or salemortgaged, pledged, or subjected to lien, charge, security interest or other Encumbrance any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company or any of its Subsidiaries;
Purchased Assets; (e) terminated or discontinued any salebusiness operation of such Seller, assignmentor sold, pledgetransferred, encumbrance, transfer licensed or other disposition otherwise disposed of any tangible asset of the Company Purchased Assets; (f) cancelled or compromised any debt or claim, or waived or released any right of its Subsidiaries material value; (other than sales g) increased the compensation or the licensing of its products to customers benefits of, entered into any employment or compensation arrangement or agreement (including any deferred compensation, severance or equity incentive arrangement) with, hired, or awarded or, except in the ordinary course of business consistent with past practice), or paid any sale, assignment, transfer bonus or other disposition of incentive compensation to, any Intellectual Property (director, officer, employee, agent or other than licensing of products of the Company or its Subsidiaries in the ordinary course of business and on a non-exclusive basis);
(f) any creation of any Lien on any property of the Company or any of its Subsidiaries except for Liens in existence on the date of this Agreement that are described on Schedules 3.15, 3.16, 3.17 or 3.18;
(g) any write-downs of the value of any asset of the Company or its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof except in the ordinary course of business and in a magnitude consistent with historical practice;
individual; (h) terminated, amended or failed to renew or received any cancellation notice of termination, suspension, limitation, revocation, impairment, forfeiture or nonrenewal of any debts Contract, Permit or claims or any material amendment, termination or waiver of any rights of the Company or its Subsidiaries;
Intangible Right; (i) any capital expenditure or commitment or addition to property, plant or equipment of the Company or its Subsidiaries in excess of $100,000 individually or $200,000 in the aggregate;
(j) any material increase in the compensation of employees of the Company or its Subsidiaries (including any increase pursuant to any written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or (ii) any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $100,000;
(k) suffered any damage, destruction or loss (whether or not covered by insurance) adversely affecting any asset or property of the Company Purchased Assets, or suffered any taking or seizure of any of the Purchased Assets by condemnation or eminent domain; (j) acquired any capital stock or other securities of any corporation or any of its Subsidiaries resulting interest in liability any business enterprise, or Loss otherwise made any loan or advance to or investment in excess of any person, firm or corporation; (k) made any capital expenditures exceeding $100,000;
5,000 singly or related capital expenditures exceeding $10,000 in the aggregate or made any commitments for capital expenditures exceeding $5,000 singly or any commitments for related capital expenditures exceeding $10,000 in the aggregate which are non-terminable without payment or penalty; (l) instituted, settled or agreed to settle any litigation, action or proceeding before any Governmental Authority affecting its financial condition, its property or its business operations; (m) had any change in the independent public accountants of the Company its relations with its employees, agents, customers or its Subsidiaries suppliers, which change has had or any material change in the accounting methods or accounting practices followed by the Company or its Subsidiaries, as applicable, or any material change in depreciation or amortization policies or rates;
(m) any resignation or termination of any officer, key employee or group of employees of the Company or any of its Subsidiaries;
would be reasonably likely to have a Material Adverse Effect; (n) made any material change in any compensation arrangement accounting principles or agreement with any employeemethods, officeror in the manner of keeping books, director or stockholderaccounts and records of such Seller; or
(o) except for inventory acquired or to be acquired in the ordinary course of business, acquired or made any agreement, whether agreement or commitment to acquire new or additional assets with an economic value exceeding $5,000 singly or $10,000 in writing the aggregate; (p) entered into any transaction other than in the ordinary course of business; or otherwise, (q) entered into any agreement or made any commitment to take do any of the actions specified things described in the foregoing items preceding subsections (a) through (n)q) of this Section 5.11.
Appears in 1 contract
Absence of Changes or Events. Since December 31, 2003, the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been any event, violation or other matter that could, individually or in the aggregate, have a Material Adverse Effect. Except as set forth on Schedule 3.23 and except PART 3.8 of the Disclosure Schedule, or as permitted or contemplated by the Restructuring Documents, the Stonehouse Restructuring this Agreement, the Stonehouse Royalty Agreement and the Transaction Documents, since December October 31, 20031996, the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been:
(a) any obligation material adverse change affecting the business, assets or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by financial condition of the Company and its Subsidiary, taken as a whole, or any of its Subsidiaries, in excess of $100,000 individually, other than obligations under customer contracts, current obligations and liabilities, in each case incurred material adverse change in the ordinary course financial performance of business the Company and consistent with past practiceits Subsidiary, taken as a whole;
(b) any paymentpurchase, dischargelease, satisfaction sale, abandonment, acquisition or settlement sale by the Company or its Subsidiary of any suitmaterial asset or property other than in the ordinary course of business;
(c) any damage, actiondestruction or loss, claimwhether or not covered by insurance, arbitrationthat had a material adverse effect on the business, proceeding assets or obligation financial condition of the Company or any of and its SubsidiariesSubsidiary, taken as a whole;
(d) except in the ordinary course of its business and consistent with its past practice;
practices, (c1) the creation or assumption of any Encumbrance upon any of the business or assets of the Company and its Subsidiary; (2) the incurrence of any obligation by the Company or its Subsidiary; (3) the making of any loan or advance to any Person by the Company or its Subsidiary; (4) the assumption, guarantee or liability for any obligation of any Person by the Company or its Subsidiary; (5) any declaration, setting aside capital expenditure by the Company or payment its Subsidiary; (6) any waiver of any dividend right or cancellation of any debt or claim by the Company or its Subsidiary; (7) assumption or entering into any Contract other distribution with respect than this Agreement; (8) any increase or authorization of an increase in, the compensation or benefits paid or provided to any shares of capital stock its directors, officers, employees, salesmen, agents or representatives of the Company or any its Subsidiary; or (9) anything else outside the ordinary course of its Subsidiaries or any direct or indirect redemption, purchase or other acquisition of any such shares;
(d) any issuance or sale, or any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable or exchangeable for shares of capital stock business of the Company or its Subsidiary, whether or not specifically described in any of its Subsidiaries;the foregoing clauses; or
(e) any sale, assignment, pledge, encumbrance, transfer or other disposition of any tangible asset of the Company or any of its Subsidiaries (other than sales or the licensing of its products to customers Even in the ordinary course of its business consistent with its past practice), or any sale, assignment, transfer or other disposition of any Intellectual Property practices (other than licensing with respect to customer Contracts), neither the Company nor its Subsidiary has incurred any obligation, made any loan to any Person, acquired or disposed of products any business or assets, entered into any Contract or other transaction, or done any of the Company or its Subsidiaries other things described in the ordinary course of business and on a non-exclusive basisSECTION 3.8(d);
(f) , involving an amount exceeding $50,000 in any creation of any Lien on any property of the Company or any of its Subsidiaries except for Liens in existence on the date of this Agreement that are described on Schedules 3.15, 3.16, 3.17 or 3.18;
(g) any write-downs of the value of any asset of the Company or its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof except in the ordinary course of business and in a magnitude consistent with historical practice;
(h) any cancellation of any debts or claims or any material amendment, termination or waiver of any rights of the Company or its Subsidiaries;
(i) any capital expenditure or commitment or addition to property, plant or equipment of the Company or its Subsidiaries in excess of $100,000 individually single case or $200,000 150,000 in the aggregate;
(j) any material increase in the compensation of employees of the Company or its Subsidiaries (including any increase pursuant to any written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or (ii) any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $100,000;
(k) any damage, destruction or loss (whether or not covered by insurance) affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or Loss in excess of $100,000;
(l) any change in the independent public accountants of the Company or its Subsidiaries or any material change in the accounting methods or accounting practices followed by the Company or its Subsidiaries, as applicable, or any material change in depreciation or amortization policies or rates;
(m) any resignation or termination of any officer, key employee or group of employees of the Company or any of its Subsidiaries;
(n) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder; or
(o) any agreement, whether in writing or otherwise, to take any of the actions specified in the foregoing items (a) through (n).
Appears in 1 contract
Absence of Changes or Events. Since Except as set forth on Schedule 2.16 or in the Company SEC Documents filed with the SEC prior to the date hereof, since December 31, 20031998, the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been any event, violation or other matter that could, individually or in the aggregate, have a Material Adverse Effect. Except as set forth on Schedule 3.23 and except as contemplated by the Restructuring Documents, the Stonehouse Restructuring Agreement, the Stonehouse Royalty Agreement and the Transaction Documents, since December 31, 2003, the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been:
(a) any event, violation or other matter that could, individually or in the aggregate, reasonably be expected to have or result in a Material Adverse Effect;
(b) any obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by the Company or any of its SubsidiariesCompany, in excess of $100,000 individuallyin the singular or the aggregate, other than obligations under customer contracts, current obligations and liabilities, in each case liabilities incurred in the ordinary course of business and consistent with past practice;
(bc) any payment, discharge, satisfaction or settlement of any suit, action, claim, arbitration, proceeding claim or obligation of the Company or any of its SubsidiariesCompany, except in the ordinary course of business and consistent with past practice;
(cd) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock the Company (except in respect of taxes payable by the Parent Stockholders as permitted by the Indenture of the Company or any of its Subsidiaries and Key Components Finance Corp., dated May 28, 1998 (the "Indenture") or any direct or indirect redemption, purchase or other acquisition of any such shares;
(de) except for (i) this Agreement, (ii) the Additional Investment and the rights of the Investor and Sub set forth in the other Operative Agreements and (iii) issuances of equity interests set forth on Schedule 2.4(c), any issuance or sale, or any contract entered into for the issuance or sale, of any shares of capital stock the Company or securities convertible into or exercisable or exchangeable for shares of capital stock of an equity interest in the Company or any of its SubsidiariesCompany;
(ef) any sale, assignment, pledge, encumbrance, transfer or other disposition of any tangible asset of the Company or any of its Subsidiaries (other than sales or the licensing of its products Products to customers in the ordinary course of business consistent with past practice), or any sale, assignment, transfer or other disposition of any Intellectual Property (other than licensing of products Products of the Company or its Subsidiaries in the ordinary course of business and on a non-exclusive basis);
(fg) any creation of any Lien on any property of the Company or any except statutory liens for the payment of its Subsidiaries except for Liens in existence on the date of this Agreement current taxes that are described on Schedules 3.15, 3.16, 3.17 not yet delinquent and security interests which arise in the ordinary course of business and which do not affect the properties or 3.18assets of the Company in any material respect;
(gh) any write-downs down of the value of any asset of the Company or its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof except in the ordinary course of business and in a magnitude consistent with historical practice;
(hi) any cancellation of any debts or claims or any material amendment, termination or waiver of any rights of the Company or its Subsidiaries;
(i) any capital expenditure or commitment or addition to property, plant or equipment of the Company or its Subsidiaries in excess of $100,000 individually or $200,000 except in the aggregateordinary course of business consistent with past practice;
(j) any material general increase in the compensation of employees of the Company or its Subsidiaries (including any increase pursuant to any written bonus, pension, profit profit-sharing or other benefit or compensation plan, policy or arrangement or commitment), any increase in fees or (ii) payments made or due to Millbrook Capital Management, Inc., or any increase in any such compensation or bonus payable to any officer, stockholdermember, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $100,000;
(k) any damage, destruction or loss (whether or not covered by insurance) affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or Loss loss in excess of $100,000;
(l) any change in the independent public accountants of the Company or its Subsidiaries or any material change in the accounting methods or accounting practices followed by the Company or its Subsidiaries, as applicable, or any material change in depreciation or amortization policies or rates;
(m) any resignation or termination of any officer, key employee or group of employees of the Company or any of its Subsidiaries;
(n) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder; or
(om) any agreement, whether in writing or otherwise, to take any of the actions specified in the foregoing items (a) through (nl).
Appears in 1 contract
Sources: Share Purchase Agreement (Key Components Finance Corp)
Absence of Changes or Events. Since Except as set forth on Schedule 2.15, since December 31, 20032004, the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been any event, violation or other matter that could, individually or in the aggregate, have a Material Adverse Effect. Except as set forth on Schedule 3.23 and except as contemplated by the Restructuring Documents, the Stonehouse Restructuring Agreement, the Stonehouse Royalty Agreement and the Transaction Documents, since December 31, 2003, the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been:
(a) any event, violation or other matter that could, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect;
(b) any obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by the Company or any of its Subsidiaries, in excess of $100,000 35,000 individually, other than obligations under customer contracts, current obligations and liabilities, in each case incurred in the ordinary course of business and consistent with past practice;
(bc) any payment, discharge, satisfaction or settlement of any suit, action, claim, arbitration, proceeding claim or obligation of the Company or any of its SubsidiariesCompany, except in the ordinary course of business and consistent with past practice;
(cd) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock equity securities of the Company or any of its Subsidiaries or any direct or indirect redemption, purchase or other acquisition of any such shares;
(de) any issuance or sale, or any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company or any of its SubsidiariesCompany;
(ef) any sale, assignment, pledge, encumbrance, transfer or other disposition of any tangible asset of the Company or any of its Subsidiaries (other than sales or the licensing of its products to customers in the ordinary course of business consistent with past practice), or any sale, assignment, transfer or other disposition of any Intellectual Property (other than licensing of products of the Company or its Subsidiaries in the ordinary course of business and on a non-exclusive basis);
(fg) any creation of any Lien on any property of the Company or any of its Subsidiaries except for Liens in existence on the date of this Agreement that have been incurred in the ordinary course of business and are described on Schedules 3.15, 3.16, 3.17 or 3.18Schedule 2.15(g);
(gh) any write-downs of the value of any asset of the Company or its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof except in the ordinary course of business and in a magnitude consistent with historical practice;
(hi) any cancellation of any debts or claims or any material amendment, termination or waiver of any rights of the Company, except for those that would not have a Company or its SubsidiariesMaterial Adverse Effect;
(ij) any capital expenditure or commitment or addition to property, plant or equipment of the Company or its Subsidiaries in excess of $100,000 35,000 individually or $200,000 75,000 in the aggregate;
(jk) (A) any material increase in the compensation of employees of the Company or its Subsidiaries (including any increase pursuant to any written bonus, severance, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment)) or any declaration, payment or commitment to pay any severance or termination benefit, or (iiB) any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $100,00035,000;
(kl) any damage, destruction or loss (whether or not covered by insurance) affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or Loss loss in excess of $100,00075,000;
(lm) any change in the independent public accountants of the Company or its Subsidiaries or any material change in the accounting methods or accounting practices followed by the Company or its Subsidiaries, as applicable, or any material change in depreciation or amortization policies or rates;
(mn) any resignation or termination of any officer, key employee or group of employees of the Company or any of its SubsidiariesCompany;
(no) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder; orsecurity holder;
(op) any labor organization activity related to the Company;
(q) any agreement, whether in writing or otherwise, to take any of the actions specified in the foregoing items (a) through (np);
(r) any termination or failure to exercise an option under any Government Contract, or the initiation of any investigation or audit in connection with any Government Contract;
(s) any proposal, initiation, threat or finalization of or for the suspension or debarment, or any finding of ineligibility, of the Company or any of its stockholders, directors, officers, agents or employees from bidding on or performing Government Contracts or doing business with any Governmental Authority;
(t) any (i) termination under or relating to any Government Contract, (ii) initiation of an investigation or audit (other than audits conducted in the ordinary course of business) in connection with any Government Contract, (iii) material non-compliance with any Government Contract or the Legal Requirements or certifications applicable thereto, or (iv) reason that the Company’s ability to continue to operate and perform under existing Government Contracts or enter into new Government Contracts would reasonably be expected to be adversely affected;
(u) any cure or show cause notices issued to the Company; any material performance problems by the Company in connection with any Government Contracts; any initiation of an investigation, appeal or lawsuit in connection with any Government Contracts; or
(v) any agreement, whether in writing or otherwise, to take any of the actions specified in the foregoing items (a) through (u).
Appears in 1 contract
Absence of Changes or Events. Since December 31Except as set forth in Schedule 2.5, 2003since the Balance Sheet Date, the Company has conducted its business of the Company and its Subsidiaries has been conducted in the ordinary course substantially consistent with past practice practices; provided that from and there has not been any eventafter the filing of the Petition, violation or the Company may be required to subject certain transactions to Bankruptcy Court approval, may be precluded from paying pre-petition liabilities except as otherwise authorized by the Bankruptcy Court, may be granted authority to incur new and replacement Liens in favor of its debtor-in-possession lenders and certain other matter that couldsecured creditors, individually or and may be subject to set-off, recoupment and reclamation claims by creditors, and to the alteration of normal trade credit terms by many suppliers. As a result of the Petition, the Company may be in the aggregatedefault in many of its obligations to creditors, have a Material Adverse Effectwhich creditors are stayed from proceeding on their claims. Except as set forth on Schedule 3.23 and except as contemplated by the Restructuring Documentsabove, the Stonehouse Restructuring Agreement, the Stonehouse Royalty Agreement and the Transaction Documents, since December 31, 2003, the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not beenbeen since the Balance Sheet Date:
(a) any obligation or liability (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by the Company or any of its Subsidiaries, in excess of $100,000 individually, other than obligations under customer contracts, current obligations and liabilities, in each case incurred material adverse change in the ordinary course condition of business the Company's business, operating results, assets or properties (including, but not limited to, the Company's plants, properties and consistent with past practiceequipment), taken as a whole;
(b) any payment, discharge, satisfaction creation or settlement assumption by the Company of any suit, action, claim, arbitration, proceeding or obligation Lien on any of the Company Company's properties or any of its Subsidiaries, except in the ordinary course of business and consistent with past practice;
(c) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of the Company or any of its Subsidiaries or any direct or indirect redemption, purchase or other acquisition of any such shares;
(d) any issuance or sale, or any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company or any of its Subsidiaries;
(e) any sale, assignment, pledge, encumbrance, transfer or other disposition of any tangible asset of the Company or any of its Subsidiaries (assets other than sales or the licensing of its products to customers in the ordinary course of business consistent with past practice), or practices;
(c) any sale, assignment, transfer or other disposition making of any Intellectual Property (loan, advance or capital contribution to or investment in any Person other than licensing of products in customers or suppliers of the Company or its Subsidiaries (who are not Affiliates) in the ordinary course of business and on a non-exclusive basis)business;
(f) any creation of any Lien on any property of the Company or any of its Subsidiaries except for Liens in existence on the date of this Agreement that are described on Schedules 3.15, 3.16, 3.17 or 3.18;
(g) any write-downs of the value of any asset of the Company or its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof except in the ordinary course of business and in a magnitude consistent with historical practice;
(h) any cancellation of any debts or claims or any material amendment, termination or waiver of any rights of the Company or its Subsidiaries;
(i) any capital expenditure or commitment or addition to property, plant or equipment of the Company or its Subsidiaries in excess of $100,000 individually or $200,000 in the aggregate;
(j) any material increase in the compensation of employees of the Company or its Subsidiaries (including any increase pursuant to any written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or (ii) any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $100,000;
(kd) any damage, destruction or other casualty loss (whether or not covered by insurance) or condemnation or other governmental taking or sale in lieu thereof affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or Loss in excess of $100,000Company;
(le) any transaction or commitment made, or any contract or agreement entered into, by the Company (including the acquisition or disposition of any assets not in the ordinary course of business) or any relinquishment by the Company of any contract or other right, in any such case, that is material to its business, except for dispositions of obsolete or worn-out equipment;
(f) any change in any method of accounting or accounting practice (including consistent application) by the independent public accountants Company, except, after the filing of the Petition, as may be required by GAAP;
(g) any (i) individual employment, deferred compensation, severance, retirement or other similar agreement entered into with any director, officer or employee of the Company or its Subsidiaries (or any material amendment to any such existing agreement), (ii) grant of any severance or termination pay to any director, officer or employee of the Company, or (iii) change in the accounting methods compensation or accounting practices followed by other benefits payable to any director, officer or employee of the Company pursuant to any severance or its Subsidiariesretirement plans or policies thereof, except in each case, such agreements, grants or changes as applicablehave been (A) on a Company-wide basis pursuant to a written Company policy concurrently in effect, (B) in the ordinary course of business consistent with past practices or any material change (C) after the filing of the Petition, set forth in depreciation or amortization policies or rates;the Reorganization Plan; or
(mh) any resignation agreement (including any modification, cancellation or termination of any officerexisting agreement) with or for the benefit of (i) any stockholder, key employee officer or group of employees director of the Company Company, or (ii) Consumers Packaging, Inc., G&G Investments, Inc., Glenshaw Holdings, Inc., GGC Holdings, Inc., Hillsboro Glass Company, I.M.T.E.C. Enterprises Inc., Consumers International Inc., Consumers U.S., Inc., or CUS II, Inc. or (iii) any of its Subsidiariestheir respective officers, directors or Affiliates, other than, compensatory arrangements with non-executive employees entered into in the ordinary course of business;
(ni) any material change in any compensation arrangement capital expenditure, or agreement commitment for a capital expenditure, for additions or improvements to property, plant and equipment, which expenditure or commitment, when taken together with any employeeall other such expenditures and commitments, officer, director or stockholder; or
(o) any agreement, whether in writing or otherwise, exceeds that set forth on the Company's budget previously furnished by the Company to take any of the actions specified in the foregoing items (a) through (n)Investors.
Appears in 1 contract
Sources: Reorganization Agreement (Anchor Glass Container Corp /New)
Absence of Changes or Events. Since December 31, 20032001, the business of the Company and its Subsidiaries Purchased Business has been conducted carried on in the ordinary course in a manner consistent with past practice and there has not been any event, violation or other matter that could, individually or in the aggregate, practice. Sellers have a Material Adverse Effect. Except as set forth on Schedule 3.23 and except as contemplated by the Restructuring Documents, the Stonehouse Restructuring Agreement, the Stonehouse Royalty Agreement and the Transaction Documentsnot, since December 31, 20032001, the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been:
(a) incurred any obligation or liability relating to the Assets or the Purchased Business (whether absolute, accrued, contingent or otherwise, and whether due or to become due) incurred by the Company or any of its Subsidiaries, in excess of $100,000 individually), other than obligations under customer contracts, current obligations and liabilities, in each case incurred in the ordinary course of business and consistent with past practice;
; (b) mortgaged, pledged, granted a security interest in or subjected to any payment, discharge, satisfaction or settlement of Encumbrance any suit, action, claim, arbitration, proceeding or obligation of the Company Assets; (c) sold or transferred any of its Subsidiariesthe Assets, except other than in the ordinary course of business and consistent with past practice;
(c) business, or canceled any declaration, setting aside debts or payment of claims or waived or released any dividend or other distribution with respect to any shares of capital stock rights of the Company or any of its Subsidiaries or any direct or indirect redemption, purchase or other acquisition of any such shares;
Purchased Business; (d) leased, licensed or granted to any issuance or sale, or third party any contract entered into for the issuance or sale, of rights in any shares of capital stock or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company or any of its Subsidiaries;
Assets; (e) experienced any saleevent, assignmentcircumstance or condition which has had, pledgeor with the passage of time is reasonably likely to have, encumbrancea Material Adverse Effect; (f) suffered any material damage, transfer destruction or loss of physical property or goods, whether or not covered by insurance, relating to the Assets; (g) made any change in any accounting principles or practices or in its method of applying such accounting principles or practices, or made any material change in any business practice affecting the Purchased Business; (h) granted any material increase in the salary, commission rate or other disposition of compensation (including, without limitation, bonuses, profit sharing or deferred compensation) payable or to become payable to any tangible asset Employee, Former Employee, consultant or agent of the Company or any of its Subsidiaries (Purchased Business other than sales or the licensing of its products to customers in the ordinary course of business consistent with past practice); (i) waive any material right or cancel or enter into any material contract, lease, license, obligation, commitment, purchase or any sale, assignment, transfer debt or other disposition of any Intellectual Property (claim relating to the Purchased Business other than licensing of products of the Company or its Subsidiaries in the ordinary course of business and on a non-exclusive basis);
(f) any creation of any Lien on any property of the Company business; or any of its Subsidiaries except for Liens in existence on the date of this Agreement that are described on Schedules 3.15, 3.16, 3.17 or 3.18;
(g) any write-downs of the value of any asset of the Company or its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof except in the ordinary course of business and in a magnitude consistent with historical practice;
(h) any cancellation of any debts or claims or any material amendment, termination or waiver of any rights of the Company or its Subsidiaries;
(i) any capital expenditure or commitment or addition to property, plant or equipment of the Company or its Subsidiaries in excess of $100,000 individually or $200,000 in the aggregate;
(j) entered into any material increase in the compensation of employees of the Company or its Subsidiaries (including any increase pursuant agreement to any written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or (ii) any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $100,000;
(k) any damage, destruction or loss (whether or not covered by insurance) affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or Loss in excess of $100,000;
(l) any change in the independent public accountants of the Company or its Subsidiaries or any material change in the accounting methods or accounting practices followed by the Company or its Subsidiaries, as applicable, or any material change in depreciation or amortization policies or rates;
(m) any resignation or termination of any officer, key employee or group of employees of the Company or any of its Subsidiaries;
(n) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder; or
(o) any agreement, whether in writing or otherwise, to take do any of the actions specified in the foregoing items (a) through (n)foregoing.
Appears in 1 contract
Sources: Asset Purchase Agreement (Universal Broadband Communications Inc)
Absence of Changes or Events. Since December 31, 2003, Except as disclosed on the business of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and there has not been any event, violation Financial Statements or other matter that could, individually or in the aggregate, have a Material Adverse Effect. Except as set forth on Schedule 3.23 and except as contemplated by the Restructuring Documents, the Stonehouse Restructuring Agreement, the Stonehouse Royalty Agreement and the Transaction Documents3.8, since December 31, 20032011, Sellers have conducted the business Business in the Ordinary Course of Business. Without limiting the generality of the Company and its Subsidiaries has been conducted in the ordinary course consistent with past practice and foregoing, since December 31, 2011, except as disclosed on Schedule 3.8, there has not been:
(a) one or more events, occurrences, developments or states of circumstances or facts which, individually or in the aggregate, has had, or could reasonably be expected to have, a Material Adverse Effect;
(b) any obligation amendment, termination, cancellation or liability non-renewal of any material Contract relating to the Business;
(c) any acquisition, disposition or abandonment by either Seller of any business or line of business or the disposition of assets, which acquisition, disposition or abandonment relates to the Business, whether absoluteby merger, accruedpurchase or sale of stock, contingent purchase or sale of assets or otherwise, and whether due or to become due) incurred by the Company or any of its Subsidiaries, in excess of $100,000 individually, other than obligations under customer contracts, current obligations and liabilities, in each case incurred the sale of inventory in the ordinary course of business and consistent with past practice;
(b) any payment, discharge, satisfaction or settlement the disposition of any suit, action, claim, arbitration, proceeding obsolete inventory or obligation of the Company or any of its Subsidiaries, except in the ordinary course of business and consistent with past practice;
(c) any declaration, setting aside or payment of any dividend or other distribution with respect to any shares of capital stock of the Company or any of its Subsidiaries or any direct or indirect redemption, purchase or other acquisition of any such sharesequipment;
(d) any issuance damage, destruction or saleother casualty loss (whether or not covered by insurance) materially affecting the Business, the Acquired Assets, or any contract entered into for the issuance or sale, of any shares of capital stock or securities convertible into or exercisable or exchangeable for shares of capital stock of the Company or any of its Subsidiarieseither Seller;
(e) any saledelay or postponement of any payment of any accounts payable or any other liability relating to the Business, assignment, pledge, encumbrance, transfer or any extension or agreement to extend the payment date of any such accounts payable or other disposition of liability relating to the Business, in any tangible asset of the Company or any of its Subsidiaries (case, other than sales or the licensing of its products to customers in the ordinary course of business consistent with past practice), practices;
(f) any change in the methods or any sale, assignment, transfer procedures for billing or other disposition collection of customer accounts or recording of customer accounts receivable or reserves for doubtful accounts or cancellation of any Intellectual Property debts or waivers of any claims or rights of substantial value;
(g) any change by either Seller in its method of accounting or accounting practice (other than licensing of products of the Company changes required under applicable Law or GAAP) or any failure by either Seller to maintain its Subsidiaries books, accounts and records in the ordinary course of business and on a non-exclusive basis);
(f) any creation of any Lien on any property of the Company or any of its Subsidiaries except for Liens in existence on the date of this Agreement that are described on Schedules 3.15, 3.16, 3.17 or 3.18;
(g) any write-downs of the value of any asset of the Company or its Subsidiaries or any write-off as uncollectible of any accounts or notes receivable or any portion thereof except in the ordinary course of business and in a magnitude consistent with historical practicepast practices;
(h) any cancellation acceleration or delay in the sale or delivery of any debts products or claims or any material amendment, termination or waiver of any rights services of the Company or its Subsidiaries;Business in a manner inconsistent with past practices; or
(i) any capital expenditure or binding commitment or addition by either Seller to property, plant or equipment of the Company or its Subsidiaries in excess of $100,000 individually or $200,000 in the aggregate;
(j) any material increase in the compensation of employees of the Company or its Subsidiaries (including any increase pursuant to any written bonus, pension, profit sharing or other benefit or compensation plan, policy or arrangement or commitment), or (ii) any increase in any such compensation or bonus payable to any officer, stockholder, director, consultant or agent of the Company or any of its Subsidiaries having an annual salary or remuneration in excess of $100,000;
(k) any damage, destruction or loss (whether or not covered by insurance) affecting any asset or property of the Company or any of its Subsidiaries resulting in liability or Loss in excess of $100,000;
(l) any change in the independent public accountants of the Company or its Subsidiaries or any material change in the accounting methods or accounting practices followed by the Company or its Subsidiaries, as applicable, or any material change in depreciation or amortization policies or rates;
(m) any resignation or termination of any officer, key employee or group of employees of the Company or any of its Subsidiaries;
(n) any material change in any compensation arrangement or agreement with any employee, officer, director or stockholder; or
(o) any agreement, whether in writing or otherwise, to take do any of the actions specified in the foregoing items (a) through (n)foregoing.
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Sources: Asset Purchase Agreement (Western Capital Resources, Inc.)