Business to Date. (a) Since the date of the Financial Statements, except as provided in Schedule 3.7(a) attached hereto and except if presented in any of the provisions of Section 3 of this Agreement: (i) neither the Company nor the Subsidiary has amended any of its Organisational Documents; (ii) neither the Company nor the Subsidiary has entered into any transaction in excess of $25,000 per transaction or greater than $100,000 in the aggregate for a series of related transactions, as to both; (iii) there has been no material adverse change in the business, prospects (in so far as they may reasonably be foreseen), operations, assets, liabilities, or condition (financial or otherwise) of the Company or the Subsidiary; (iv) neither the Company nor the Subsidiary has made any payment of, or declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or the Subsidiary or made any purchase, repurchase, redemption, retirement or other acquisition by the Company or the Subsidiary, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or the Subsidiary; (v) there has not been any transfer, issue, sale or other disposition by the Company or the Subsidiary of any shares of capital stock or other securities of the Company or the Subsidiary or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities; (vi) neither the Company nor the Subsidiary has increased or entered into an agreement to increase the compensation payable or to become payable, or awarded or paid any bonuses to employees, consultants, independent contractors, officers, directors, shareholders or representatives of the Company or the Subsidiary or agreed to increase the coverage or benefits available under any severance pay, deferred compensation, bonus or other incentive compensation, pension or other employee benefit plan, payment or arrangement made to, for or with such employees, consultants, independent contractors, officers, directors, shareholders or representatives, other than in the ordinary course of business consistent with past practice and with the Company’s or the Subsidiary’s operating expense budget; (vii) there has not been satisfaction or discharge of any lien, claim or encumbrance or payment of any obligation by the Company or the Subsidiary, except in the ordinary course of business and that is not material to the business, operations, properties, assets, liabilities, financial condition or results of operations of the Company or the Subsidiary (as such business is presently conducted and as it is presently proposed to be conducted); (viii) there has not been any termination or change to a material contract or arrangement by which the Company or the Subsidiary or any of its assets is bound or subject; (ix) there has not been any resignation or termination of employment of any Senior Employee, consultant or independent contractor of the Company or the Subsidiary; (x) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or the Subsidiary having a replacement cost of more than $10,000 for any single loss or $50,000 for all such losses in the aggregate; (xi) neither the Company nor the Subsidiary have mortgaged, pledged or subjected to any lien any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or the Subsidiary, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business consistent with past practice; (xii) neither the Company nor the Subsidiary have cancelled or compromised any debt or claim or amended, cancelled, terminated, relinquished, waived or released any contract or right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or the Subsidiary; (xiii) neither the Company nor the Subsidiary has entered into any material transaction except for this Agreement and the Transaction Documents; (xiv) neither the Company nor the Subsidiary have encountered any labour disputes, strikes, slowdowns, work stoppages or labour union organizing activities; (xv) neither the Company nor the Subsidiary have made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted; (xvi) neither the Company nor the Subsidiary have disclosed to any person any material trade secrets except for disclosures made to persons subject to valid and enforceable confidentiality agreements; (xvii) neither the Company nor the Subsidiary have suffered or experienced any change in the relationship or course of dealings between the Company or the Subsidiary and any of their suppliers or customers which supply goods or services to the Company or the Subsidiary or purchase goods or services from the Company or the Subsidiary, which has resulted in, or could reasonably be expected to result in, a material adverse change; (xviii) neither the Company nor the Subsidiary have made any loans, advances or capital contributions or payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate or paid any fees or expenses to any Affiliate of the Company; (xix) neither the Company nor the Subsidiary have entered into any agreement or commitment (contingent or otherwise) to do any of the foregoing; (xx) there has been no sale, assignment, or transfer of any tangible asset of the Company or the Subsidiary except in the ordinary course of business and no sale, assignment, or transfer of any patent, trademark, trade secret, or other intangible asset of the Company or the Subsidiary; and (xxi) neither the Company nor the Subsidiary have taken any actions to reduce the scale of operations, work-force or scope of business as a result of shortages of funds. (b) Neither the Company nor the Subsidiary have any debts or liabilities of any nature whatsoever, fixed or variable or contingent, except as shown on Schedule 3.7(b) (except for up to $50,000 in the aggregate as to both the Company and any Subsidiary). (c) Except as set forth in Schedule 3.7(c), there are no outstanding debts owed to the Company or the Subsidiary. (d) Except as set forth in Schedule 3.7(d), there are no bad or doubtful debts on the Company’s or the Subsidiary’s books at the date hereof. (e) Full and accurate details of all bank accounts, overdrafts, loans, guarantees or other financial facilities outstanding or available to the Company or the Subsidiary are contained in Schedule 3.7(e).
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Sources: Share Purchase Agreement (Voltaire Ltd.), Share Purchase Agreement (Voltaire Ltd.)
Business to Date. (a) Since the date of the Financial StatementsSeptember 30, 2006, except as provided in Schedule 3.7(a) attached hereto and except if presented in any of the provisions of Section 3 of this Agreement:
(i) neither the Company nor the Subsidiary has amended any of its Organisational Documents;
(ii) neither the Company nor the Subsidiary has entered into any transaction in excess of $25,000 per transaction or greater than $100,000 in the aggregate for a series of related transactions, as to both;
(iii) there has been no material adverse change in the business, prospects (in so far as they may reasonably be foreseen), operations, assets, liabilities, or condition (financial or otherwise) of the Company or the Subsidiary;
(iv) neither the Company nor the Subsidiary has made any payment of, or declaration, setting a record date, setting aside or authorizing the payment of, any dividend or other distribution in respect of any shares of capital stock of the Company or the Subsidiary or made any purchase, repurchase, redemption, retirement or other acquisition by the Company or the Subsidiary, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or the Subsidiary;
(v) there has not been any transfer, issue, sale or other disposition by the Company or the Subsidiary of any shares of capital stock or other securities of the Company or the Subsidiary or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(vi) neither the Company nor the Subsidiary has increased or entered into an agreement to increase the compensation payable or to become payable, or awarded or paid any bonuses to employees, consultants, independent contractors, officers, directors, shareholders or representatives of the Company or the Subsidiary or agreed to increase the coverage or benefits available under any severance pay, deferred compensation, bonus or other incentive compensation, pension or other employee benefit plan, payment or arrangement made to, for or with such employees, consultants, independent contractors, officers, directors, shareholders or representatives, other than in the ordinary course of business consistent with past practice and with the Company’s or the Subsidiary’s operating expense budget;
(vii) there has not been satisfaction or discharge of any lien, claim or encumbrance or payment of any obligation by the Company or the Subsidiary, except in the ordinary course of business and that is not material to the business, operations, properties, assets, liabilities, financial condition or results of operations of the Company or the Subsidiary (as such business is presently conducted and as it is presently proposed to be conducted);
(viii) there has not been any termination or change to a material contract or arrangement by which the Company or the Subsidiary or any of its assets is bound or subject;
(ix) there has not been any resignation or termination of employment of any Senior Employee, consultant or independent contractor of the Company or the Subsidiary;
(x) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property or assets of the Company or the Subsidiary having a replacement cost of more than $10,000 for any single loss or $50,000 for all such losses in the aggregate;
(xi) neither the Company nor the Subsidiary have mortgaged, pledged or subjected to any lien any of its assets, or acquired any assets or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or the Subsidiary, except for assets acquired or sold, assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary course of business consistent with past practice;
(xii) neither the Company nor the Subsidiary have cancelled or compromised any debt or claim or amended, cancelled, terminated, relinquished, waived or released any contract or right except in the ordinary course of business consistent with past practice and which, individually or in the aggregate, would not be material to the Company or the Subsidiary;
(xiii) neither the Company nor the Subsidiary has entered into any material transaction except for this Agreement and the Transaction Documents;
(xiv) neither the Company nor the Subsidiary have encountered any labour disputes, strikes, slowdowns, work stoppages or labour union organizing activities;
(xv) neither the Company nor the Subsidiary have made any change in the accounting principles, methods or practices followed by it or depreciation or amortization policies or rates theretofore adopted;
(xvi) neither the Company nor the Subsidiary have disclosed to any person any material trade secrets except for disclosures made to persons subject to valid and enforceable confidentiality agreements;
(xvii) neither the Company nor the Subsidiary have suffered or experienced any change in the relationship or course of dealings between the Company or the Subsidiary and any of their suppliers or customers which supply goods or services to the Company or the Subsidiary or purchase goods or services from the Company or the Subsidiary, which has resulted in, or could reasonably be expected to result in, a material adverse change;
(xviii) neither the Company nor the Subsidiary have made any loans, advances or capital contributions or payment to, or received any payment from, or made or received any investment in, or entered into any transaction or series of related transactions (including without limitation, the purchase, sale, exchange or lease of assets, property or services, or the making of a loan or guarantee) with any Affiliate or paid any fees or expenses to any Affiliate of the Company;
(xix) neither the Company nor the Subsidiary have entered into any agreement or commitment (contingent or otherwise) to do any of the foregoing;
(xx) there has been no sale, assignment, or transfer of any tangible asset of the Company or the Subsidiary except in the ordinary course of business and no sale, assignment, or transfer of any patent, trademark, trade secret, or other intangible asset of the Company or the Subsidiary; and
(xxi) neither the Company nor the Subsidiary have taken any actions to reduce the scale of operations, work-force or scope of business as a result of shortages of funds.
(b) Neither the Company nor the Subsidiary have any debts or liabilities of any nature whatsoever, fixed or variable or contingent, except as shown on Schedule 3.7(b) (except for up to $50,000 in the aggregate as to both the Company and any Subsidiary).
(c) Except as set forth in Schedule 3.7(c), there are no outstanding debts owed to the Company or the Subsidiary.
(d) Except as set forth in Schedule 3.7(d), there are no bad or doubtful debts on the Company’s or the Subsidiary’s books at the date hereof.
(e) Full and accurate details of all bank accounts, overdrafts, loans, guarantees or other financial facilities outstanding or available to the Company or the Subsidiary are contained in Schedule 3.7(e).
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