Absence of Certain Developments. Except as set forth on Schedule 2.1(dd), since December 31, 2008, neither the Company nor any Subsidiary has:
(i) issued any stock, bonds or other corporate securities or any rights, options or warrants with respect thereto;
(ii) borrowed any amount or incurred or become subject to any liabilities (absolute or contingent) except current liabilities incurred in the ordinary course of business which are comparable in nature and amount to the current liabilities incurred in the ordinary course of business during the comparable portion of its prior fiscal year;
(iii) discharged or satisfied any lien or encumbrance or paid any obligation or liability (absolute or contingent), other than current liabilities paid in the ordinary course of business;
(iv) declared or made any payment or distribution of cash or other property to stockholders with respect to its stock, or purchased or redeemed, or made any agreements so to purchase or redeem, any shares of its capital stock;
(v) sold, assigned or transferred any other tangible assets, or canceled any debts or claims, except in the ordinary course of business;
(vi) sold, assigned or transferred any patent rights, trademarks, trade names, copyrights, trade secrets or other intangible assets or intellectual property rights, or disclosed any proprietary confidential information to any person except to customers in the ordinary course of business;
(vii) suffered any substantial losses or waived any rights of material value, whether or not in the ordinary course of business, or suffered the loss of any material amount of prospective business;
(viii) made any changes in employee compensation except in the ordinary course of business and consistent with past practices;
(ix) made capital expenditures or commitments therefor that aggregate in excess of $100,000;
(x) entered into any other transaction other than in the ordinary course of business, or entered into any other material transaction, whether or not in the ordinary course of business;
(xi) made charitable contributions or pledges in excess of $25,000;
(xii) suffered any material damage, destruction or casualty loss, whether or not covered by insurance;
(xiii) experienced any material problems with labor or management in connection with the terms and conditions of their employment;
(xiv) effected any two or more events of the foregoing kind which in the aggregate would be material to the Company or its Subsidiaries; or
(xv) entered into an agreement, written or otherwi...
Absence of Certain Developments. Except as set forth on §3(h) of the Disclosure Schedule or otherwise contemplated by this Agreement, since the Most Recent Fiscal Month End, there has not been any Material Adverse Effect. In addition to the foregoing, since that date and except as set forth on §3(h) of the Disclosure Schedule, the Company and its Subsidiaries have operated in the Ordinary Course of Business and neither the Company nor any of its Subsidiaries has:
(i) borrowed any amount or incurred any material liabilities, except amounts borrowed or liabilities incurred in the Ordinary Course of Business or under contracts entered into in the Ordinary Course of Business;
(ii) mortgaged, pledged or subjected to any material lien, charge or other encumbrance, any material portion of its assets, except for Permitted Liens arising in the Ordinary Course of Business;
(iii) sold, assigned, licensed or transferred any Owned Real Property, Leased Real Property or any material portion of its other tangible assets, except in the Ordinary Course of Business;
(iv) sold, assigned or transferred any material patents, trademarks, trade names, copyrights, trade secrets or other intangible assets;
(v) made any material capital expenditures or commitments therefor outside the Ordinary Course of Business or failed to make any material capital expenditures that otherwise would have been made in the Ordinary Course of Business;
(vi) entered into, materially amended or modified, or waived any material rights with respect to, any material agreement, contract, lease or license outside the Ordinary Course of Business;
(vii) issued, sold or transferred any of its equity securities, securities convertible into its equity securities or warrants, options or other rights to acquire its equity securities, or any notes, bonds or debt securities;
(viii) declared or paid any dividend, made any distribution on its capital stock or equity interests, redeemed or purchased any shares of its capital stock or equity interests, or paid any management or other fees to any Shareholder or any Affiliates of any Shareholder; provided, that the Company may pay a cash dividend to the Shareholders as long as the amount of such cash dividend is obtained solely from either (A) Cash of the Company existing on January 3, 2004 and deducted from the definition of Closing Cash Consideration or (B) Funded Indebtedness of the Company that is repaid at or prior to the Closing (including any interest, expenses or fees incurred in connection with ...
Absence of Certain Developments. Except as disclosed in any Current Reports of TCF on Form 8-K filed prior to the date of this Agreement, or on Schedule 2.9 unless otherwise expressly contemplated or permitted by this Agreement, since December 31, 1996 to the date hereof, TCF has not:
(a) issued or sold any of its equity securities, securities convertible into or exchangeable for its equity securities, warrants, options or other rights to acquire its equity securities, except (i) deposit and other bank obligations in the ordinary course of business, (ii) pursuant to the exercise of stock options and warrants issued under, or otherwise pursuant to, the agreements, arrangements or commitments identified on Schedule 2.3, or (iii) the grant to employees and directors of stock options and restricted stock under TCF's 1995 Incentive Stock Program and Director Stock Program (the "TCF Stock Plans") in the ordinary course of business;
(b) redeemed, purchased, acquired or offered to acquire, directly or indirectly, any shares of capital stock of TCF or any of the TCF Subsidiaries or other securities of TCF or any of the TCF Subsidiaries, except pursuant to the exercise of stock options and warrants issued under, or otherwise pursuant to, the agreements, arrangements or commitments identified on Schedule 2.3, or stock options issued in the ordinary course of business after the date hereof;
(c) split, combined or reclassified any of its outstanding shares of capital stock or declared, set aside or paid any dividends or other distribution payable in cash, property or otherwise with respect to any shares of its capital stock or other securities, except (i) dividends paid in cash by the TCF Subsidiaries which are wholly owned by TCF to TCF or to another wholly owned TCF Subsidiary and (ii) the regular quarterly cash dividend of $.1875 for each share of TCF Common Stock;
(d) borrowed any amount or incurred or became subject to any material liability in excess of $1,000,000 except borrowings or liabilities incurred in the ordinary course of business;
(e) sold, assigned or transferred any assets with an aggregate market value in excess of $150,000 for less than fair consideration, except (i) in the ordinary course of business, (ii) liens and encumbrances for current property taxes not yet due and payable or being contested in good faith, and (iii) liens and encumbrances which do not materially affect the value of, or materially interfere with, the current use or ability to convey, the property subject ther...
Absence of Certain Developments. Except as set forth in the Commission Documents or provided on Schedule 2.1(y) hereto, since August 31, 2005, neither the Company nor any Subsidiary has:
(i) issued any stock, bonds or other corporate securities or any right, options or warrants with respect thereto;
(ii) borrowed any amount in excess of $100,000 or incurred or become subject to any other liabilities in excess of $100,000 (absolute or contingent) except current liabilities incurred in the ordinary course of business which are comparable in nature and amount to the current liabilities incurred in the ordinary course of business during the comparable portion of its prior fiscal year, as adjusted to reflect the current nature and volume of the business of the Company and its Subsidiaries;
(iii) discharged or satisfied any lien or encumbrance in excess of $100,000 or paid any obligation or liability (absolute or contingent) in excess of $100,000, other than current liabilities paid in the ordinary course of business;
(iv) declared or made any payment or distribution of cash or other property to stockholders with respect to its stock, or purchased or redeemed, or made any agreements so to purchase or redeem, any shares of its capital stock, in each case in excess of $50,000 individually or $100,000 in the aggregate;
(v) sold, assigned or transferred any other tangible assets, or canceled any debts or claims, in each case in excess of $100,000, except in the ordinary course of business;
(vi) sold, assigned or transferred any patent rights, trademarks, trade names, copyrights, trade secrets or other intangible assets or intellectual property rights in excess of $100,000, or disclosed any proprietary confidential information to any person except to customers in the ordinary course of business or to the Purchasers or their representatives;
(vii) suffered any material losses or waived any rights of material value, whether or not in the ordinary course of business, or suffered the loss of any material amount of prospective business;
(viii) made any changes in employee compensation except in the ordinary course of business and consistent with past practices;
(ix) made capital expenditures or commitments therefor that aggregate in excess of $100,000;
(x) entered into any material transaction, whether or not in the ordinary course of business which has not been disclosed in the Commission Documents;
(xi) made charitable contributions or pledges in excess of $10,000;
(xii) suffered any material damage, d...
Absence of Certain Developments. Except as expressly contemplated by this Agreement or as set forth on Company Disclosure Schedule 4.8, since the Balance Sheet Date, (a) the Company has conducted the Business only in the Ordinary Course of Business and (b) there has not been any event, change, occurrence or circumstance that, individually or in the aggregate, with any other events, changes, occurrences or circumstances, has had or could reasonably be expected to have a Material Adverse Effect with respect to the Company. Without limiting the generality of the foregoing, since the Balance Sheet Date or as set forth on Company Disclosure Schedule 4.8:
(a) there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the Purchased Assets having a replacement cost of more than $10,000 for any single loss or $50,000 for all such losses except shrinkage of biodiesel inventory in the Ordinary Course of Business;
(b) other than in the Ordinary Course of Business, the Company has not awarded or paid any bonuses to Former Employees or Employees of the Company, except to the extent accrued on the Balance Sheet, or entered into any employment, deferred compensation, long-term incentive, severance, stay bonus, bonus, or similar agreement (nor amended any such agreement) or agreed to increase the compensation payable or to become payable by it to any of the Company’s directors, officers, employees, agents or representatives or agreed to increase the coverage or benefits available under any severance pay, termination pay, vacation pay, company awards, salary continuation for disability, sick leave, deferred compensation, bonus or other incentive compensation, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with such directors, officers, employees, agents or representatives;
(c) there has not been any change by the Company in accounting or Tax reporting principles, methods or policies;
(d) the Company has not failed to promptly pay and discharge current Liabilities except for Liabilities not material in amount;
(e) the Company has not made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person, other than advances to Employees in the Ordinary Course of Business;
(f) the Company has not 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,...
Absence of Certain Developments. Except as expressly contemplated by this Agreement or as set forth on Schedule 6.10, since December 31, 2008, Subsidiary and the Business has been conducted only in the Ordinary Course of Business, and, with respect to the Business, the Purchased Assets and Subsidiary, there has not been:
(a) any event, change or circumstance which has had, or is reasonably likely to have, a Seller Material Adverse Effect;
(b) any material damage (normal wear and tear excepted), destruction, eminent domain taking or other casualty loss (whether or not covered by insurance) affecting Subsidiary or the Business or any Purchased Asset in any material respect;
(c) any purchase, sale, mortgage, pledge, lease, or creation or other incurrence of any Lien on the Business, any Purchased Asset or asset of Subsidiary, other than purchases, sales or leases of assets in the Ordinary Course of Business or the creation or incurrence of Permitted Exceptions;
(d) any material change in any method of accounting or accounting practice with respect to the Business or Subsidiary;
(e) any entry into, termination, amendment, cancellation, or other modification of any Agreement or any waiver of, or agreement with respect to, any rights or obligations set forth therein, other than in the Ordinary Course of Business;
(f) any material settlement, waiver or agreement with respect to any Legal Proceeding, Liability, or other right;
(g) any incurrence or assumption of any Indebtedness in an aggregate amount greater than Fifty Thousand Dollars ($50,000);
(h) any (i) delay or postponement of the payment of any accounts payable or any change in the methodology employed by Seller or Subsidiary with respect to the payment thereof, (ii) acceleration of the collection of Accounts Receivable or any change in the methodology employed by Seller or Subsidiary with respect to the payment thereto, (iii) turnover of inventory, or (iv) incurrence of other Liabilities outside of the Ordinary Course of Business, which in the case of (i)-(iv) above, exceeds in the aggregate an amount greater than Fifty Thousand Dollars ($50,000);
(i) any transaction with any Affiliate outside of the Ordinary Course of Business;
(j) any declaration, setting aside or payment of any dividend or other distribution in respect of the capital stock (or other applicable equity or beneficial interest) of Subsidiary, or any direct or indirect redemption, purchase or other acquisition by Seller or its Affiliates of any such capital stock (or other...
Absence of Certain Developments. Since December 31, 2017 and other than as a result of and/or with respect to the transactions contemplated hereby and/or previously disclosed to the Purchaser in writing including in Financial Statements made available to Purchaser, neither the Business nor any Purchased Assets has: (a) suffered a Material Adverse Effect or suffered any material theft, damage, destruction or casualty loss that is not covered by insurance; (b) sold, leased, assigned, distributed, licensed, sublicensed, transferred or otherwise encumbered a portion of its assets or properties (tangible or intangible), except for sales of inventory or services in the ordinary course of business to unaffiliated third Persons on an arm’s length basis, or canceled without fair consideration any material debts or claims owing to or held by it; (c) entered into, amended or terminated any material Contract or License or materially changed any business practice; (d) made, granted or promised any bonus, severance, retention or other incentive amount or any wage, salary, compensation or benefit increase to any current or former director, officer, employee or sales representative, group of employees, individual service provider or consultant; (e) adopted, entered into, amended or terminated any Plan, other than as required by Law; (f) entered into any transaction with any Insider (or any Affiliate of any Insider); (g) conducted its cash management customs and practices other than in the ordinary course of business (including with respect to maintenance of working capital balances, maintenance of inventory levels, collection of accounts receivable and payment of accounts payable); (h) failed to make any material capital expenditures that were previously budgeted or scheduled to be made; (i) offered any discounts on any of its products or services or any promotions, rebates, coupons or special offers with respect to any of its products or services with terms and conditions that differ materially from the terms and conditions previously offered by Seller with respect to the Business; (j) changed in any material respect any of the terms and conditions with respect to the pricing of any of its products or services (including any terms and conditions that are ancillary to, or otherwise affect, the aggregate price paid for any of its products or services) that differ from the terms and conditions previously offered by Seller with respect to the Business; and/or (k) committed or agreed to any of the foregoing.
Absence of Certain Developments. In the ordinary course of business or in the context of the Transactions contemplated in this Agreement and the Transaction Documents:
(a) there has not been any Material Adverse Change nor has any event occurred which could result in any Material Adverse Change;
(b) there has not been any 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 its Subsidiaries or any repurchase, redemption or other acquisition by the Company or its Subsidiaries, of any of the outstanding shares of capital stock or other securities of, or other ownership interest in, the Company or its Subsidiaries;
(c) there has not been any transfer, issue, sale or other disposition by the Company of any shares of capital stock or other securities of the Company or its Subsidiaries or any grant of options, warrants, calls or other rights to purchase or otherwise acquire shares of such capital stock or such other securities;
(d) neither the Company nor its Subsidiaries has (i) awarded or paid any bonuses to employees or representatives of the Company, (ii) entered into any employment, deferred compensation, severance or similar agreements (nor amended any such agreement), other than in the ordinary course of business;
(e) neither the Company nor its Subsidiaries has made any loans, advances (other than advances to officers and employees of the Company or its Subsidiaries which advances are made in the ordinary course of business), or capital contributions to, or investments in, any Person or paid any fees or expenses to any Affiliate of the Company other than its Subsidiaries;
(f) neither the Company nor its Subsidiaries has transferred or granted any rights under any Contracts or licenses, used by the Company in its business;
(g) 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 its Subsidiaries having a replacement cost of more than $10,000 for any single loss or $20,000 for all such losses;
(h) neither the Company nor its Subsidiaries has mortgaged, pledged or subjected to any Lien any of its assets, or acquired any assets for a purchase price in excess of $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or otherwise disposed of any assets of the Company or its Subsidiaries for a sale price in excess of $10,000 in the aggregate except for assets acq...
Absence of Certain Developments. (a) Except as set forth in the attached "Developments Schedule," since August 31, 1998, Seller has conducted the Business only in the ordinary course of business consistent with past custom and practice (including, without limitation, with respect to the offering of special sales or incentive programs or the filling of its distribution channels), has incurred no liabilities other than in the ordinary course of business consistent with past custom and practice, and Seller has not:
(i) sold, assigned or transferred any of its assets, except for sales of inventory in the ordinary course of business consistent with past custom and practice, or mortgaged, pledged or subjected them to any material Lien, except for Liens for current property Taxes not yet due and payable, or canceled without fair consideration any material debts or claims owing to or held by it;
(ii) sold, assigned, transferred, abandoned or permitted to lapse any Government Licenses which, individually or in the aggregate, are material to the Business or any portion thereof, or any of the Proprietary Rights or other intangible assets, or disclosed any material proprietary confidential information to any Person, except in the ordinary course of business consistent with past custom and practice, or granted any license or sublicense of any rights under or with respect to any Proprietary Rights;
(iii) conducted its cash management customs and practices (including, without limitation, the collection of receivables, payment of payables and maintenance of inventory control and pricing and credit practices (including, without limitation, extension of credit terms or sales discount programs)) other than in the usual and ordinary course of business consistent with past custom and practice;
(iv) made any loans or advances to, or guarantees for the benefit of, or entered into any transaction with PDK or any of its other stockholders or any employee, officer or director of Seller or PDK, except for the transactions contemplated by this Agreement and for advances consistent with past custom and practice made to Seller's employees, officers and directors for travel expenses incurred in the ordinary course of business or entered into any transaction, arrangement or contract (including, without limitation, any transfer of any assets of placing a Lien on any assets) except on an arms-length basis in the ordinary course of business consistent with past custom and practice;
(v) suffered any extraordinary loss, dama...
Absence of Certain Developments. Except as set forth in Section 2.8 of the Disclosure Schedule (arranged in subsections corresponding to the subsections set forth below), since the Balance Sheet Date, Seller has conducted the Business in the Ordinary Course and:
i. there has not been a Seller Material Adverse Change;
ii. there has not been any damage, destruction or loss, whether or not covered by insurance, with respect to the property and assets of Seller used in the Business of more than $25,000 for any single loss or $125,000 the aggregate for any related losses, or any failure to maintain insurance policies unmodified and without interruption; and
iii. Seller has not:
1. failed to maintain its assets used in the Business in the same condition as on the Balance Sheet Date (ordinary wear and tear excluded);
2. made any change in the rate, timing, vesting, or funding of compensation, commission, bonus, or other direct or indirect remuneration payable or paid, or agreed or orally promised to pay, conditionally or otherwise, any bonus, incentive, retention, or other compensation, retirement, welfare, fringe or severance benefit, or vacation pay, to or in respect of any manager, officer, employee, distributor, or agent of Seller involved in the Business, other than increases in the Ordinary Course in the base wages or salaries of employees of Seller other than officers or managers or as required by any employment Contract;
3. hired or terminated any employee or engaged or terminated any independent contractor involved in the Business other than in the Ordinary Course;
4. Breached or waived any Breach or any material right with respect to any Included Contract;
5. canceled, written off, or compromised any debt or claim or amended, canceled, terminated, relinquished, waived, or released any Included Contract or right, except in the Ordinary Course and which, in the aggregate, are not material to Seller;
6. modified its pricing and purchasing policies and levels with respect to the Business, or entered into, amended, renewed, terminated, or permitted to lapse any Included Contract or transaction with any of its Affiliates, or paid to or received from any Affiliate of Seller any amount;
7. entered into any prepaid transactions outside of the Ordinary Course or otherwise accelerated revenue recognition or the sales for periods prior to the Closing with respect to in the Business;
8. changed its policies or practices with respect to the payment of accounts payable or other current liabilities or...
