Common use of Absence of Certain Transactions Clause in Contracts

Absence of Certain Transactions. Except as set forth on SCHEDULE 4.08 and except for the transactions expressly contemplated hereby, since the Balance Sheet Date, the Company and the Company Subsidiaries have conducted their respective businesses in the ordinary and usual course consistent with past practices. Since the Balance Sheet Date, there have not been any events, changes, effects or developments which have had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as set forth on SCHEDULE 4.08 and except for actions following the date of this Agreement undertaken in accordance with the other provisions of this Agreement, since the Balance Sheet Date: (a) Neither the Company nor any Company Subsidiary has (i) declared or paid any dividend or made any other distribution with respect to Company Stock or the capital stock of any Company Subsidiary (other than dividends or distributions made by any Company Subsidiary to the Company), (ii) redeemed, purchased, canceled or otherwise acquired, directly or indirectly, any outstanding shares of Company Stock or any shares of capital stock of any Company Subsidiary (other than repurchases or acquisitions of Company Stock from management pursuant to subscription agreements entered into with such members of management), (iii) issued additional stock (other than upon the exercise or conversion of outstanding options, warrants or convertible securities), warrants, options or any other similar rights to acquire Company Stock or any shares of capital stock of any Company Subsidiary, or (iv) split, combined or reclassified any shares of Company Stock or any shares of capital stock of any Company Subsidiary or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for shares of, shares of Company Stock or any shares of capital stock of any Company Subsidiary; (b) Neither the Company nor any Company Subsidiary has merged or consolidated with any other Person or reorganized, restructured, recapitalized, liquidated or filed a voluntary petition in bankruptcy; (c) Neither the Company nor any Company Subsidiary has incurred any obligation for borrowed money or entered into or modified any material contract, agreement, commitment or arrangement with respect to borrowed money, except borrowings in the ordinary course of business pursuant to the Company's existing revolving credit facilities; (d) Neither the Company nor any Company Subsidiary has granted any increase in compensation to any salaried employees or paid any bonus, except for increases in salary or wages or payment of bonuses in the ordinary course of business or in accordance with existing Employee Plans; (e) Other than provision of services or sales in the ordinary course of business, neither the Company nor any Company Subsidiary has (i) sold, leased, transferred or otherwise disposed of any of its assets having a book or market value in excess of $1,000,000 individually or $10,000,000 in the aggregate, or (ii) entered into, or consented to the entering into of, any agreement granting a preferential right to sell, lease or otherwise dispose of any of such assets; (f) Neither the Company nor any Company Subsidiary has (i) incurred or committed to incur any capital expenditures or liabilities in connection therewith other than capital expenditures or liabilities that do not individually exceed $1,000,000; (ii) acquired or agreed to acquire by merging or consolidating with, or acquired or agreed to acquire by purchasing a substantial portion of the assets of, or in any other manner, any business or Person; or (iii) except with respect to inventory purchased or to be purchased for resale to customers in the ordinary course of business, acquired or agreed to acquire any other assets or made any individual lease commitments involving payments in excess of $500,000 in any one year; (g) The Company has not made any material Tax election; (h) The Company has not changed its methods of accounting in effect at December 31, 2005, except as required by GAAP; (i) Neither the Company nor any Company Subsidiary has entered into or amended any Material Contract other than in the ordinary course of business; and (j) Neither the Company nor any Company Subsidiary has agreed or committed to do any of the foregoing.

Absence of Certain Transactions. Except as set forth on SCHEDULE 4.08 and except as set forth in the SEC Filings prior to the date of this Agreement and except for the transactions expressly contemplated hereby, since the Balance Sheet DateDecember 31, 1999, the Company and the Company Subsidiaries have conducted their respective businesses only in the ordinary and usual course consistent with past practices. Since practices and, to the Balance Sheet DateCompany's knowledge, there have not been any events, changes, effects or developments which have had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as set forth on SCHEDULE 4.08 and except for actions following the date of this Agreement undertaken in accordance with the other provisions of as permitted by this Agreement, since the Balance Sheet DateDecember 31, 1999: (a) The Company and each Company Subsidiary has carried on its business in the usual and ordinary course consistent with past practice; (b) Neither the Company nor any Company Subsidiary has (i) declared or paid any dividend or made any other distribution with respect to Company Stock or the capital stock of any Company Subsidiary (other than dividends or distributions made by any Company Subsidiary to the Company)Subsidiary, (ii) redeemed, purchased, canceled or otherwise acquired, directly or indirectly, any outstanding shares of Company Stock or any shares of capital stock of any Company Subsidiary (other than repurchases or acquisitions of Company Stock from management pursuant to subscription agreements entered into with such members of management)Subsidiary, (iii) issued additional stock (other than upon the exercise or conversion of outstanding options, warrants or convertible securities), warrants, options or any other similar rights to acquire Company Stock or any shares of capital stock of any Company Subsidiary, or (iv) split, combined or reclassified any shares of Company Stock or any shares of capital stock of any Company Subsidiary or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for shares of, shares of Company Stock or any shares of capital stock of any Company Subsidiary; (bc) Neither the Company nor any Company Subsidiary has merged or consolidated with any other Person or consolidated, reorganized, restructured, recapitalized, liquidated or filed a voluntary petition in bankruptcy; (cd) Neither the Company nor any Company Subsidiary has incurred any obligation for borrowed money or entered into or modified any material contract, agreement, commitment or arrangement with respect to borrowed money, except borrowings in the ordinary course of business consistent with past practice pursuant to the Company's existing revolving credit facilitiesline of credit; (de) Neither the Company nor any Company Subsidiary has granted any increase in compensation compensation, benefits or bonus to any salaried employees present or paid any bonusformer director, officer, consultant or employee, except for increases in salary or wages or payment of bonuses in the ordinary course of business or in accordance consistent with existing Employee Planspast practice; (ef) Other than provision of services or sales in the ordinary course of businessbusiness and consistent with past practices, neither the Company nor any Company Subsidiary has (i) sold, leased, transferred or otherwise disposed of any of its assets having a book or market value in excess of $1,000,000 individually or $10,000,000 in the aggregate250,000, or (ii) entered into, or consented to the entering into of, any agreement granting a preferential right to sell, lease or otherwise dispose of any of such assets; (fg) Neither the Company nor any Company Subsidiary has (i) incurred or committed to incur any capital expenditures expenditures, obligations or liabilities in connection therewith other than capital expenditures expenditures, obligations or liabilities that do not individually exceed $1,000,000250,000; (ii) acquired or agreed to acquire by merging or consolidating with, or acquired or agreed to acquire by purchasing a substantial portion of the assets of, or in any other manner, any business or Person; or (iii) except with respect to inventory purchased or to be purchased for resale to customers in the ordinary course of business, acquired or agreed to acquire any other assets or made any individual lease commitments involving payments in excess of $500,000 10,000 in any one year; (g) The Company has not made any material Tax election; (h) The Company has not changed its methods of accounting in effect at December 31, 20051999, except as required by GAAPGAAP as concurred in by the Company's independent auditors (such required changes having been notified to Purchaser in writing); (i) Neither the Company nor any Company Subsidiary has entered into or amended any Material Contract, and no party to any Contract other than in has terminated or failed to renew any Contract upon the ordinary course of businessexpiration thereof; and (j) Neither the Company nor any Company Subsidiary has agreed or committed to do any of the foregoing.

Absence of Certain Transactions. Except as set forth on SCHEDULE in Section 4.08 of the NetGen Disclosure Schedule and except for the transactions expressly contemplated hereby, since the NetGen Balance Sheet Date, the Company NetGen and the Company NetGen Subsidiaries have conducted their respective businesses in the ordinary and usual course consistent with past practices. Since the NetGen Balance Sheet DateDate to the date hereof, there have not been occurred any events, changes, effects or developments which have had or would reasonably be expected to havethat, individually or in the aggregate, have had a Company Material Adverse Effect. Except as set forth on SCHEDULE in Section 4.08 and except for actions following of the date of this Agreement undertaken in accordance with the other provisions of this AgreementNetGen Disclosure Schedule, since the NetGen Balance Sheet DateDate to the date hereof: (ai) Neither the Company NetGen nor any Company NetGen Subsidiary has (ia) declared or paid any dividend or made any other distribution with respect to Company NetGen Stock or the capital stock of any Company NetGen Subsidiary (other than dividends or distributions made by any Company NetGen Subsidiary to the CompanyNetGen), (iib) redeemed, purchased, canceled or otherwise acquired, directly or indirectly, any outstanding shares of Company NetGen Stock or any shares of capital stock of any Company NetGen Subsidiary (other than repurchases or acquisitions of Company NetGen Stock from management pursuant to subscription agreements entered into with such members of management), or (iiic) issued additional stock (other than upon the exercise split, combined or conversion reclassified any shares of outstanding options, warrants or convertible securities), warrants, options or any other similar rights to acquire Company NetGen Stock or any shares of capital stock of any Company Subsidiary, or (iv) split, combined or reclassified any shares of Company Stock or any shares of capital stock of any Company NetGen Subsidiary or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for shares of, shares of Company NetGen Stock or any shares of capital stock of any Company NetGen Subsidiary; (bii) Neither the Company NetGen nor any Company NetGen Subsidiary has merged or consolidated with any other Person or reorganized, restructured, recapitalized, liquidated or filed a voluntary petition in bankruptcy; (ciii) Neither the Company NetGen nor any Company NetGen Subsidiary has incurred any obligation for borrowed money or entered into or modified any material contract, agreement, commitment or arrangement Material Contract with respect to borrowed money, except borrowings in the ordinary course of business pursuant to the Company's existing revolving credit facilities;. (div) Neither the Company NetGen nor any Company NetGen Subsidiary has granted any increase in compensation to any salaried employees or paid any bonus, except for (a) increases in salary or wages or payment of bonuses in the ordinary course of business or in accordance with existing Employee PlansPlans (including in connection with promotions), (b) equity awards granted in the ordinary course of business and set forth in Section 4.03(b) of the NetGen Disclosure Schedule and (c) other bonuses that do not exceed $10,000 individually or $50,000 in the aggregate; (ev) Other than provision of services or sales in the ordinary course of business, neither the Company NetGen nor any Company NetGen Subsidiary has (ia) sold, leased, transferred or otherwise disposed (other than to NetGen or any NetGen Subsidiary) of any of its assets having a net book or market value in excess of $1,000,000 50,000 individually or $10,000,000 200,000 in the aggregate, or (iib) entered into, or consented to the entering into of, any agreement granting a preferential right to sell, lease or otherwise dispose of any of such assets; (fvi) Neither the Company NetGen nor any Company NetGen Subsidiary has (ia) incurred or committed to incur any capital expenditures or liabilities in connection therewith other than capital expenditures or liabilities that do not individually exceed $1,000,000were contemplated as part of the Fiscal Year 2008 financial plan made available through the Dataroom; (iib) acquired or agreed to acquire by merging or consolidating with, or acquired or agreed to acquire by purchasing a substantial portion of the assets of, or in any other manner, any business or Person; or (iiic) except with respect to (x) inventory purchased or to be purchased for resale to customers in the ordinary course of business, (y) acquisitions of equipment and supplies in the ordinary course of business or (z) as otherwise contemplated in the NetGen Fiscal Year 2008 financial plan made available through the Dataroom, acquired or agreed to acquire any other assets (excluding assets acquired pursuant to capital expenditures) or made any individual lease commitments involving payments in excess of $500,000 50,000 individually or $200,000 in any one yearthe aggregate; (gvii) The Company Neither NetGen nor any NetGen Subsidiary has not made any material Tax election, settled or compromised any material Tax liability, filed any amended Tax Return with respect to any material Tax, entered into any closing agreement with respect to any material Tax, or surrendered any right to claim a material Tax refund; (hviii) The Company Neither NetGen nor any NetGen Subsidiary has not changed its accounting methods or method of Tax accounting in effect at December 31, 20052006, except as required by GAAPGAAP or the Code, as applicable; (iix) Neither the Company NetGen nor any Company NetGen Subsidiary has entered into paid or amended distributed any Material Contract other than in amount of cash to any of the ordinary course of businessSponsors; and (jx) Neither the Company NetGen nor any Company NetGen Subsidiary has agreed or committed to do any of the foregoing.

Absence of Certain Transactions. Except as set forth on SCHEDULE 4.08 and Schedule 4.1(E), since the date of the March Balance Sheet, the Business (except for the transactions expressly contemplated herebyoperations of EMA, since which the Balance Sheet Date, Seller does not control) has been and as of the Company and the Company Subsidiaries Closing Date will have been conducted their respective businesses in the ordinary and usual course consistent with past practices. Since the Balance Sheet Date, there have not been any events, changes, effects or developments which have had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Except as set forth on SCHEDULE 4.08 and except for actions following the date of this Agreement undertaken in accordance with the other provisions of this Agreement, since the Balance Sheet Date: (a) Neither the Company nor any Company Subsidiary has (i) declared or paid any dividend or made any other distribution with respect to Company Stock or the capital stock of any Company Subsidiary (other than dividends or distributions made by any Company Subsidiary to the Company), (ii) redeemed, purchased, canceled or otherwise acquired, directly or indirectly, any outstanding shares of Company Stock or any shares of capital stock of any Company Subsidiary (other than repurchases or acquisitions of Company Stock from management pursuant to subscription agreements entered into with such members of management), (iii) issued additional stock (other than upon the exercise or conversion of outstanding options, warrants or convertible securities), warrants, options or any other similar rights to acquire Company Stock or any shares of capital stock of any Company Subsidiary, or (iv) split, combined or reclassified any shares of Company Stock or any shares of capital stock of any Company Subsidiary or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for shares of, shares of Company Stock or any shares of capital stock of any Company Subsidiary; (b) Neither the Company nor any Company Subsidiary has merged or consolidated with any other Person or reorganized, restructured, recapitalized, liquidated or filed a voluntary petition in bankruptcy; (c) Neither the Company nor any Company Subsidiary has incurred any obligation for borrowed money or entered into or modified any material contract, agreement, commitment or arrangement with respect to borrowed money, except borrowings in the ordinary course of business pursuant to the Company's existing revolving credit facilities; (d) Neither the Company nor any Company Subsidiary has granted any increase in compensation to any salaried employees or paid any bonus, except for increases in salary or wages or payment of bonuses in the ordinary course of business or in accordance with existing Employee Plans; (e) Other than provision of services or sales only in the ordinary course of business, neither the Company nor any Company Subsidiary consistent with past practice and there has not and will not have been any: (i) soldMaterial Adverse Change; (ii) change in any Acquired Company's authorized or issued Equity Securities; grant of any option, leasedright to purchase or similar right regarding Equity Securities of any Acquired Company; voluntary change in any Acquired Company's or the Seller's percentage interest in EMA (on a fully diluted basis); grant of any registration rights by any Acquired Company; purchase, transferred redemption, retirement, or otherwise disposed other acquisition by any Acquired Company of any such Equity Securities; or declaration or payment of any dividend or other distribution or payment in respect of Equity Securities of any Acquired Company, except that all cash balances of every subsidiary of the Seller are concentrated daily in the Seller's accounts, no material cash balances are held by any of the Acquired Companies and no intercompany payable or receivable will be shown on the Closing Statement; (iii) amendment to the certificate or articles of incorporation or bylaws of any Acquired Company, or any action with respect to the certificate of incorporation or bylaws of the Seller which would impair the Seller's ability to consummate the transactions contemplated hereby or to perform its obligations hereunder; (iv) payment of any bonuses, or increase in salaries or other compensation, by any Acquired Company to any of its assets having a book or market value in excess of $1,000,000 individually or $10,000,000 in the aggregatestockholders, directors, officers (other than Dxxxxx X. Xxxxx), or (ii) entered intoCompany Employees, or consented by the Seller to any Seller Employee, except for annual bonus awards and increases in salaries consistent with past practice; or entry into any employment, severance, or similar Commitment with any stockholder, director, officer (other than Dxxxxx X. Xxxxx), Company Employee or Seller Employee except for any severance Commitment under and in accordance with the entering into of, any agreement granting a preferential right to sell, lease or otherwise dispose of any of such assetsSeller's Severance Plan listed on Schedule 4.1(M); (fv) Neither the Company nor any Company Subsidiary has (i) incurred or committed to incur any capital expenditures or liabilities in connection therewith other than capital expenditures or liabilities that do not individually exceed $1,000,000; (ii) acquired or agreed to acquire by merging or consolidating with, or acquired or agreed to acquire by purchasing a substantial portion of the assets adoption of, or increase in any other mannerthe schedule of payments or benefits under, any business Employee Benefit Plan, Arrangement or Person; Benefit Plan for or with any Company Employee or Seller Employee except for discretionary payments to Seller Employees under the Unique Casual Restaurants Savings and Retirement Plan listed on Schedule 4.1(M) consistent with past practice; (iiivi) damage to or destruction or loss of any Asset or Transferred Seller Asset, whether or not covered by Insurance, which has had a Material Adverse Effect on the Business; (vii) entry into, termination of, or receipt of notice of termination of any License, distributorship, dealership, joint venture, credit, franchise or other Threshold Commitment, in each case by any Acquired Company or by the Seller relating to the Business, other than financing arrangements entered into by the Seller, provided, however, that notwithstanding the foregoing, the Company may enter into franchise agreements with franchisees pursuant to those Business Commitments listed on Schedule 4.1(E) and on Schedule 4.1(G); (viii) sale, purchase, lease, license or other Transfer of any Asset (except (a) for sales of assets located at or held in connection with respect to inventory purchased the operation of "Fuddruckers" restaurants at the Midlothian, Virginia location, the Colonial Heights, Virginia location, and the Boston Restaurant and (b) the sale of excess or to be purchased for resale to customers obsolete furniture, fixtures and equipment in the ordinary course of business, acquired and in any case for not more than $100,000 individually and $200,000 in the aggregate), any Transferred Seller Asset, or agreed to acquire the Shares or mortgage, pledge, or imposition of any Lien on any Asset, any Transferred Seller Asset, or the Shares, including any sale, purchase, lease, license or other Transfer of any Intellectual Property; (ix) incurrence of indebtedness or guarantee of debt or other Liability of any other assets Person by any Acquired Company; (x) except as disclosed on Schedule 4.1(E), cancellation or made waiver of any claims or rights of an Acquired Company against third Persons with an individual lease commitments involving payments value in excess of $500,000 in any one year25,000; (gxi) The material change in the accounting methods or principles used by the Seller or any Acquired Company has not made any material Tax election; except for (hA) The Company has not changed its methods write-downs or write-offs in the value of accounting in effect at December 31, 2005, except assets as required by GAAP;GAAP or (B) such adjustments as required by GAAP as a result of the transactions contemplated by this Agreement; or (xii) agreement, whether oral or written, by the applicable party bound by clauses (i) Neither through (xi), as the Company nor any Company Subsidiary has entered into or amended any Material Contract other than in the ordinary course of business; and (j) Neither the Company nor any Company Subsidiary has agreed or committed case may be, to do any of the foregoing.