Common use of Absence of Material Adverse Effect and Certain Events Clause in Contracts

Absence of Material Adverse Effect and Certain Events. (a) Except as set forth on Schedule 6.17(a), no conditions, circumstances or state of facts exist, and since December 31, 2010, there have not been any events, occurrences, changes, developments or circumstances, which, individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect with respect to the Company. (b) Without limiting the generality of the foregoing, except as set forth on Schedule 6.17(b), from and after December 31, 2010, the Company has conducted the Business only in the ordinary course consistent with past practices and the Company has not: (i) suffered damages, destruction or casualty losses (whether or not covered by insurance) in excess of $10,000 in the aggregate; (ii) made any capital expenditure or series of capital expenditures in excess of $10,000 in the aggregate; (iii) except for regularly scheduled increases or decreases in compensation to employees made in the ordinary course of business consistent with past practices, made any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable or to become payable to any of their respective directors, officers, employees or agents, or agreed or promised (orally or otherwise) to pay, conditionally or otherwise, any bonus or extra compensation or other employee benefit to any of such directors, officers, employees or agents; (iv) (A) entered into any employment agreement with or for the benefit of any Person referred to in subparagraph (iii) above; (B) paid any pension, retirement allowance or other employee benefit not required by any Plan, agreement or arrangement existing as of December 31, 2010 to any Person referred to in subparagraph (iii) above or (C) agreed or promised (orally or otherwise) to pay (conditionally or otherwise) or otherwise committed itself (conditionally or otherwise) to any additional pension, profit sharing, bonus, incentive, deferred compensation, stock purchase, stock option, stock appreciation, group insurance, vacation pay, severance pay, retirement or other employee benefit plan, agreement or arrangement, or changed the terms of any existing Plan or employee agreement or arrangement; (v) sold, assigned, leased or transferred any of its assets or properties, other than sales of inventory in the ordinary course of business consistent with past practices; (vi) amended or renegotiated in any material respect or terminated (other than by completion thereof) any Material Contract; (vii) incurred, assumed or created any Indebtedness or other Liability (other than Liabilities which are Indebtedness in the ordinary course of business consistent with past practices) or guaranteed any Indebtedness or other Liability of any other Person; (viii) made, incurred, assumed, created or guaranteed any loan or made any advance (other than the making of employee advances for travel and entertainment in the ordinary course of business consistent with past practices) or capital contribution to or investment in any Person; (ix) subjected any of its assets or properties to any Lien or permitted any of its assets or properties to be subjected to any Lien, other than Permitted Liens; (x) made any change in its accounting methods, policies, practices or principles; (xi) waived or released any rights or claims of material value, including rights or claims under any Material Contract or waived or released any rights or claims against any Affiliate, employee, officer, director or shareholder of the Company or any Affiliate or Associate of any thereof; (xii) changed or modified any of the credit, collection or payment policies, procedures or practices of the Company, including acceleration of collections of receivables, failure to make or delay in making collections of receivables, acceleration of payment of payables or other Liabilities or failure to pay or delay in payment of payables or other Liabilities; (xiii) engaged in any discount activity with customers of the Company or any other activity that has accelerated or would accelerate to pre-Closing periods sales that would otherwise in the ordinary course of business consistent with past practices be expected to occur in post-Closing periods; (xiv) acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, or by any other manner, any business or any corporation, partnership, limited liability entity, joint venture, association or other business organization or Person, or division, operating unit or product line thereof; (xv) declared, set aside, paid or made any dividend or other distribution with respect to any of its membership interests, or otherwise made any payments to any of its members in their capacity as such; (xvi) amended its certificate of incorporation, operating agreement or by-laws (or other similar governing documents); (xvii) revalued any of the Assets, including writing down the value of its inventory or writing off notes or accounts receivable; (xviii) made any Tax election, changed any annual Tax accounting period, amended any Tax return, settled or compromised any income Tax liability, entered into any closing agreement, settled any Tax claim or assessment, surrendered any right to claim a Tax refund or failed to make the payments or consented to any extension or waiver of the limitations period applicable to any tax claim or assessment; (xix) (A) entered into any transaction with any Affiliate, employee, officer, director or shareholder of the Company or any Affiliate or Associate of any thereof or (B) made, directly or indirectly, any payments or transferred, directly or indirectly, any funds or other property to or on behalf of any Affiliate, employee, officer, director or shareholder of the Company or any Affiliate or Associate of any thereof (other than (1) regularly scheduled cash compensation payments and payments under existing employee benefit plans listed on Schedule 6.16(b) to such Persons who are employees of the Company based on such Person's salary and employee benefits as were in effect on December 31, 2010 and (2) reimbursements of ordinary and necessary business expenses of employees of the Company incurred in connection with their employment consistent with written policies of the Company); (xx) entered into any Lease (including any capitalized lease obligations); (xxi) settled or compromised any Action; or (xxii) entered into any agreement or Contract (other than the Transaction Documents) to take any of the types of actions described in subclauses (i) through (xxv) of this Section 6.17(b).

Absence of Material Adverse Effect and Certain Events. (a) Except as set forth on Schedule 6.17(a5.18(a), no conditions, circumstances or state of facts exist, and since December 31, 2010, there have not been any events, occurrences, changes, developments or circumstances, which, individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect with respect to the CompanyEffect. (b) Without limiting the generality of the foregoing, except Except as set forth on Schedule 6.17(b5.18(b), from and after December 31, 2010, neither the Company has conducted nor Seller (with respect to the Business only in the ordinary course consistent with past practices and the Company has notBusiness) has: (i) suffered damages, destruction or casualty losses (whether or not covered by insurance) in excess of $10,000 100,000 in the aggregate; (ii) made any capital expenditure or series of capital expenditures in excess of $10,000 100,000 in the aggregate; (iii) except for regularly scheduled increases or decreases in compensation to employees made in the ordinary course of business consistent with past practicessince January 1, 1999, made any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable or to become payable to any of their respective directors, officers, employees or agents, or agreed or promised (orally or otherwise) to pay, conditionally or otherwise, any bonus or extra compensation or other employee benefit to any of such directors, officers, employees or agents; (iv) (A) entered into any employment or consulting agreement with or for the benefit of any Person referred to in subparagraph (iii) above; (B) paid any pension, retirement allowance or other employee benefit not required by any Plan, agreement or arrangement existing as of December 31, 2010 to any Person referred to in subparagraph (iii) above or (C) since January 1, 1999 agreed or promised (orally or otherwise) to pay (conditionally or otherwise) or otherwise committed itself (conditionally or otherwise) to any additional pension, profit sharing, bonus, incentive, deferred compensation, stock purchase, stock option, stock appreciation, group insurance, vacation pay, severance pay, retirement or other employee benefit plan, agreement or arrangement, or changed the terms of any existing Plan or employee agreement or arrangement; (v) sold, assigned, leased or transferred any of its assets or properties, properties (other than sales the sale of inventory and immaterial assets in the ordinary course of business consistent with past practicesbusiness); (vi) amended or renegotiated in any material respect or terminated (other than by completion thereof) any Material Contract; (vii) incurred, assumed or created any Indebtedness indebtedness or other Liability (other than Liabilities which are Indebtedness in the ordinary course of business consistent with past practices) or guaranteed any Indebtedness or other Liability of any other Personmaterial Liabilities; (viii) made, incurred, assumed, created or guaranteed any loan or made any advance (other than the making of employee advances for travel and entertainment in the ordinary course of business consistent with past practices) or capital contribution to or investment in any Person; (ixvii) subjected any of its assets or properties to any Lien or permitted any of its assets or properties to be subjected to any Lien, other than Permitted Liens; (xviii) made any change in its accounting methods, policies, practices or principles; (xiix) waived or released any rights or claims of material value, including rights or claims under any Material Contract Commitment or relating to Business Intellectual Property, or waived or released any rights or claims against any Affiliate, employeedirector, officer, director officer or shareholder employee of the Company or any Affiliate or Associate of any thereof; (xiix) changed sold, transferred or modified permitted to lapse, any of the credit, collection or payment policies, procedures or practices of the Company, including acceleration of collections of receivables, failure to make or delay in making collections of receivables, acceleration of payment of payables or other Liabilities or failure to pay or delay in payment of payables or other LiabilitiesBusiness Intellectual Property; (xiii) engaged in any discount activity with customers of the Company or any other activity that has accelerated or would accelerate to pre-Closing periods sales that would otherwise in the ordinary course of business consistent with past practices be expected to occur in post-Closing periods; (xivxi) acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, or by any other manner, any business or any corporation, partnership, limited liability entity, joint venture, association or other business organization or Person, or division, operating unit or product line thereof; (xvxii) other than the creation and issuance of the Shares, issued, delivered, pledged or otherwise encumbered, sold or disposed of any shares of its capital stock or other securities, or created, issued, delivered, pledged or otherwise encumbered, sold or disposed of any securities convertible into, or rights with respect to, or options or warrants to purchase or rights to subscribe to, any shares of its capital stock or other securities; (xiii) split, combined or reclassified any of its shares of capital stock or issued or authorized the issuance of any other securities in respect of, in lieu of or in substitution for any of its shares of capital stock; (xiv) declared, set aside, paid or made any dividend or other distribution with respect to any of its membership interestsshares of capital stock, or otherwise made any payments to any of its members shareholders in their capacity as such, or redeemed, repurchased or otherwise acquired any shares of its capital stock or other securities or any rights, options or warrants to acquire any such shares or other securities; (xv) amended its memorandum and articles of association (or other similar governance documents); (xvi) amended revalued any of its certificate of incorporation, operating agreement or by-laws (or other similar governing documents)assets; (xvii) revalued any of the Assets, including writing down the value of its inventory or writing off notes or accounts receivable; (xviii) made any Tax tax election, changed any annual Tax tax accounting period, amended any Tax tax return, settled or compromised any income Tax tax liability, entered into any closing agreement, settled any Tax tax claim or assessment, surrendered any right to claim a Tax tax refund or failed to make the payments or consented consent to any extension or waiver of the limitations period applicable to any tax claim or assessment; (xixxviii) (A) entered into any transaction with any Affiliate, employeedirector, officer, director officer or shareholder employee of the Company or any Affiliate or Associate of any thereof or (B) made, directly or indirectly, any payments or transferred, directly or indirectly, any funds or other property to or on behalf of any Affiliate, employeedirector, officer, director officer or shareholder employee of the Company or any Affiliate or Associate of any thereof (other than (1) regularly scheduled cash compensation payments and payments under existing employee benefit plans listed on Schedule 6.16(b5.17(b) to such Persons who are employees of the Company based on such Person's salary and employee benefits as were in effect on December 31, 2010 and (2) reimbursements of employees' ordinary and necessary business expenses of employees of the Company incurred in connection with their employment consistent with written policies of the Companyemployment); (xxxix) purchased any real property or, other than Leases set forth in Schedule 5.11(a) and other Leases of immaterial personal property which are no longer in effect, entered into any Lease (including any capitalized lease obligations)Lease; (xxixx) settled or compromised any Action; (xxi) suffered any other occurrence, event, incident, action, failure to act or transaction which has had a Material Adverse Effect or which could reasonably be expected to have a Material Adverse Effect; or (xxii) entered into any agreement or Contract commitment (other than the Transaction Documents) out of the ordinary course of business or to take any of the types of actions action described in subclauses (i) through (xxvxxi) of this Section 6.17(b5.18(b).

Absence of Material Adverse Effect and Certain Events. (a) Except as set forth on Schedule 6.17(a5.16(a), no conditions, circumstances or state of facts exist, and since December March 31, 20101999, there have has not been any eventsevent, occurrencesoccurrence, changeschange, developments development or circumstances, circumstances which, individually or in the aggregate, have had or could reasonably be expected to have a Material Adverse Effect with respect to the CompanyEffect. (b) Without limiting the generality of the foregoing, except as set forth on Schedule 6.17(b5.16(b) or Schedule 5.15(c) (Employee Agreements), from and after December March 31, 20101999, the Company has conducted the Business only in the ordinary course consistent with past practices and the Company has not: (i) suffered damagesany loss to its property (whether through destruction, destruction accident, casualty, expropriation, condemnation or casualty losses otherwise) or its business, or incurred any liability, damage, award or judgment for injury to the property or business of others or for injury to any person (in each case, whether or not covered by insurance) in excess of $10,000 Pound Sterling100,000 in the aggregate; (ii) made any capital expenditure or series of capital expenditures in excess of $10,000 Pound Sterling50,000 in the aggregate; (iii) except for regularly scheduled increases or decreases in compensation to employees made in the ordinary course of business consistent with past practices, made any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable or to become payable to any of their respective directors, officers, employees or agents, or agreed or promised (orally or otherwise) to pay, conditionally or otherwise, any bonus or extra compensation or other employee benefit to any of such directors, officers, employees or agentsagents or, if it has done so, the position immediately prior to the date of this Agreement is set forth in Schedules 5.15(b) and (d); (iv) (A) entered into any employment agreement with or for the benefit of any Person referred to in subparagraph (iii) above; (B) paid any pension, retirement allowance or other employee benefit not required by any Plan, agreement or arrangement existing as of December 31, 2010 to any Person referred to in subparagraph (iii) above or (C) agreed or promised (orally or otherwise) to pay (conditionally or otherwise) or otherwise committed itself (conditionally or otherwise) to any additional pension, profit sharing, bonus, incentive, deferred compensation, stock purchase, stock option, stock appreciation, group insurance, vacation pay, severance pay, retirement or other employee benefit plan, agreement or arrangement, or changed the terms of any existing Plan or employee agreement or arrangement; (v) sold, assigned, leased or transferred any of its assets or properties, other than sales of inventory in the ordinary course of business consistent with past practicesbusiness; (viv) amended or except as set forth in Schedules 5.9(b) and (c)(Contracts), amended, renegotiated in any material respect or terminated (other than by completion thereof) any Material Contract; (vii) incurred, assumed or created any Indebtedness or other Liability (other than Liabilities which are Indebtedness in the ordinary course of business consistent with past practices) or guaranteed any Indebtedness or other Liability of any other Person; (viii) made, incurred, assumed, created or guaranteed any loan or made any advance (other than the making of employee advances for travel and entertainment in the ordinary course of business consistent with past practices) or capital contribution to or investment in any Person; (ix) subjected any of its assets or properties to any Lien or permitted any of its assets or properties to be subjected to any Lien, other than Permitted Liens; (xvi) made any change in its accounting methods, policies, practices or principles; (xivii) waived or released any rights or claims of material value, including rights or claims under any Material Contract or waived or released any rights or claims against any Affiliate, employeedirector, officer, director officer or shareholder of the Company or any Affiliate or Associate of any thereof; (xiiviii) changed or modified any of the credit, collection or payment policies, procedures or practices of the Company, including acceleration of collections of receivables, failure to make or delay in making collections of receivables, acceleration of payment of payables or other Liabilities or failure to pay or delay in payment of payables or other Liabilities; (xiiiix) engaged in any discount activity with customers of the Company or any other activity that has accelerated or would accelerate to pre-Closing periods sales that would otherwise in the ordinary course of business consistent with past practices be expected to occur in post-Closing later periods;; 20 130 (xiv) acquired or agreed to acquire by merging or consolidating with, or by purchasing a substantial portion of the capital stock or assets of, or by any other manner, any business or any corporation, partnership, limited liability entity, joint venture, association or other business organization or Person, or division, operating unit or product line thereof; (xvx) declared, set aside, paid or made any dividend or other distribution with respect to any of its membership interestsshares of capital stock, or otherwise made any payments to any of its members shareholders in their capacity as such, or redeemed, repurchased or otherwise acquired any shares of its capital stock or other securities or any rights, options or warrants to acquire any such shares or other securities; (xvi) amended its certificate of incorporation, operating agreement or by-laws (or other similar governing documents); (xvii) revalued any of the Assets, including writing down the value of its inventory or writing off notes or accounts receivable; (xviiixi) made any Tax tax election, changed any annual Tax tax accounting period, amended any Tax tax return, settled or compromised any income Tax tax liability, entered into any closing agreement, settled any Tax tax claim or assessment, surrendered any right to claim a Tax tax refund or failed to make the payments or consented consent to any extension or waiver of the limitations period applicable to any tax claim or assessment; (xix) (A) entered into any transaction with any Affiliate, employee, officer, director or shareholder of the Company or any Affiliate or Associate of any thereof or (B) made, directly or indirectly, any payments or transferred, directly or indirectly, any funds or other property to or on behalf of any Affiliate, employee, officer, director or shareholder of the Company or any Affiliate or Associate of any thereof (other than (1) regularly scheduled cash compensation payments and payments under existing employee benefit plans listed on Schedule 6.16(b) to such Persons who are employees of the Company based on such Person's salary and employee benefits as were in effect on December 31, 2010 and (2) reimbursements of ordinary and necessary business expenses of employees of the Company incurred in connection with their employment consistent with written policies of the Company); (xx) entered into any Lease (including any capitalized lease obligations); (xxi) settled or compromised any Action; or (xxiixii) entered into any agreement or Contract (other than the Transaction Documents) to take any of the types of actions action described in subclauses (i) through (xxvxi) of this Section 6.17(b5.16(b).