Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of Business. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: (a) the Acquired Companies have not sold, leased, transferred or assigned any of their assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; (b) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; (d) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business; (g) the Acquired Companies have not experienced any material damage, destruction or loss (whether or not covered by insurance) to the Assets; (h) the Acquired Companies have not entered into any employment Contract (other than as may be implied by law) or collective bargaining agreement or modified the terms of any existing employment Contract or collective bargaining agreement outside the Ordinary Course of Business; (i) the Acquired Companies have not made any other change in employment terms for any of their respective directors, officers or Management Employees or any class or group of other employees, in each case outside the Ordinary Course of Business; (j) the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Business.
Appears in 2 contracts
Samples: Stock Purchase Agreement (WHX Corp), Stock Purchase Agreement (Worthington Industries Inc)
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of Sellers have operated the Acquired Companies has operated Ringtail Business only in the Ordinary Course of BusinessBusiness and neither the Sellers nor the Ringtail Business has suffered a Material Adverse Effect. Without In addition to and without limiting the generality of the foregoing, since the Most Recent Fiscal Year Endthat date, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: on Schedule 3.6:
(a) none of the Acquired Companies have not Sellers has sold, leased, transferred transferred, or assigned any material asset that would be included within the definition of their assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assetsAcquired Assets, other than for a fair consideration in the Ordinary Course assets disposed of Business and have not incurred any Liability other than in the Ordinary Course of Business; ;
(b) none of the Acquired Companies have not Sellers has entered into any Applicable Contract, Material Contract relating to the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, Ringtail Business outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; Business;
(c) no Seller, and to each Seller’s Knowledge no other party thereto, has accelerated, terminated, made material modifications to, or cancelled any Material Contract relating to the Ringtail Business;
(d) none of the Sellers has imposed any Security Interest upon any of the Acquired Companies have not accelerated, delayed or postponed Assets;
(e) none of the payment of accounts payable and other Liabilities with a fair market value Sellers has made any capital expenditures in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in relating to the aggregate in respect of all such individual accounts payable or other Liabilities, Ringtail Business outside the Ordinary Course of Business Business;
(f) none of the Sellers has granted any license or the collection sublicense of notes any material rights under or accounts receivable with respect to any Intellectual Property outside the Ordinary Course of Business; (d) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business; Asset Purchase Agreement 18
(g) none of the Acquired Companies have not Sellers has experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to the Acquired Assets; ;
(h) none of the Acquired Companies have not Sellers has made any loan to, or entered into any employment Contract other transaction with, any of the Ringtail Employees outside the Ordinary Course of Business;
(other than as may be implied by lawi) or collective bargaining agreement or modified none of the terms Sellers has granted any material increase in the compensation of any existing of the Ringtail Employees outside the Ordinary Course of Business;
(j) none of the Sellers has made any other material change in employment Contract or collective bargaining agreement terms for any of the Ringtail Employees outside the Ordinary Course of Business; (i) the Acquired Companies have not made any other change in employment terms for any of their respective directors, officers or Management Employees or any class or group of other employees, in each case outside the Ordinary Course of Business; (j) the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); and
(k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation none of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income Sellers has committed to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than foregoing in the Ordinary Course of Businessfuture.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Fti Consulting Inc)
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of Business. Without limiting the generality of the foregoing, since that date:
(i) none of the Most Recent Fiscal Year EndWeston Parties, except as set forth in SCHEDULE 5.6 Weston Group Subsidiaries or as otherwise provided in this Agreement: (a) the Acquired Companies have not Xxxxxxx Xxxxxx Subsidiaries has sold, leased, transferred transferred, or assigned any of their material assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; (b) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; ;
(dii) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business none of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceledWeston Parties, compromisedWeston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries has entered into any material agreement, waived contract, lease, or released any right or claim (or series of related rights and claims) license outside the Ordinary Course of Business; ;
(giii) no party (including the Acquired Companies Weston Parties, Weston Group Subsidiaries and Xxxxxxx Xxxxxx Subsidiaries) has accelerated, terminated, made material modifications to, or cancelled any material agreement, contract, lease, or license to which any of the Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries is a party or by which any of them is bound;
(iv) none of the Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries has imposed any Lien upon any of its assets, tangible or intangible;
(v) none of the Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries has made any material capital expenditures outside the Ordinary Course of Business;
(vi) none of the Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries has made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(vii) none of the Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries have not created, incurred, assumed, or guaranteed more than $1,000 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) none of the Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries has transferred, assigned, or granted any license or sublicense of any material rights under or with respect to any Intellectual Property;
(ix) there has been no change made or authorized in the charter or bylaws of any of the Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries;
(x) none of the Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries has issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) except specifically approved by Emeritus, in a writing signed by an officer of Emeritus after the date of this Agreement, none of the Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries has declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) none of the Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries has experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to its property;
(xiii) none of the Assets; (h) the Acquired Companies have not Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries has made any loan to, or entered into any other transaction with, any of its directors, officers, and employees outside the Ordinary Course of Business;
(xiv) none of the Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries has entered into or terminated any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or agreement, or entered into any collective bargaining agreement relationship;
(xv) none of the Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries has granted any increase in the base compensation of any of its directors, officers, and employees outside the Ordinary Course of Business; ;
(ixvi) none of the Acquired Companies have not Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries has adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan);
(xvii) none of the Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries has made any other material change in employment terms for any of their respective its directors, officers or Management Employees or any class or group of other employeesofficers, in each case and employees outside the Ordinary Course of Business; ;
(jxviii) none of the Acquired Companies have not madeWeston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries has implemented any employee layoffs requiring notice under the Worker Adjustment and Retraining Notification Act of 1988, as amended, or agreed to makeany similar state, any payment of cash local, or distribution of assets non-U.S. law, regulation, or property of any kind to Seller or any Affiliate of Seller ordinance (other than an Acquired Companycollectively the “WARN Act”); ;
(kxix) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation none of the Financial Statements; (l) the Acquired Companies Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries have not prepared changed their normal business practices or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in action outside the Ordinary Course of Business in order to generate Cash;
(xx) none of the Weston Parties, Weston Group Subsidiaries or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or Xxxxxxx Xxxxxx Subsidiaries has made any increase loans or enhancement advances of benefits in money; and
(xxi) none of the Weston Parties, Weston Group Subsidiaries or Xxxxxxx Xxxxxx Subsidiaries has committed to any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth on Schedule 3(h), there has not been any material adverse change in SCHEDULE 5.6 the business, financial condition, operations, results of operations or as provided in this Agreement, each future prospects of the Acquired Companies has operated in the Ordinary Course of BusinessSeller taken as a whole. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(ai) the Acquired Companies have Seller has not sold, disposed of, leased, transferred or assigned any of their material assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in outside the Ordinary Course of Business and have Business;
(ii) the Seller has not incurred entered into any Liability material agreement, contract, lease or license outside the Ordinary Course of Business;
(iii) the Seller has not accelerated, terminated, made material modifications to or cancelled any material agreement, contract, lease or license to which Seller is a party or by which Seller is bound;
(iv) the Seller has not imposed any Security Interest upon any of the Acquired Assets;
(v) the Seller has not made any capital expenditures outside the Ordinary Course of Business;
(vi) the Seller has not made any capital investment or any loan to, any other Person outside the Ordinary Course of Business;
(vii) the Seller has not created, incurred, assumed or guaranteed any indebtedness for borrowed money other than capitalized lease obligations in the Ordinary Course of Business; ;
(bviii) the Acquired Companies have Seller has not entered into granted any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect license or sublicense of any individual Applicable Contract and $50,000 material rights under or with respect to any Intellectual Property;
(ix) there has been no change made or authorized in the aggregate in respect Charter or Bylaws or any other governing instrument of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; Seller;
(cx) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; (d) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business; (g) the Acquired Companies have Seller has not experienced any material damage, destruction or loss (whether or not covered by insurance) to the Acquired Assets; ;
(hxi) the Acquired Companies have not entered into any employment Contract (other than Seller has not, except as may be implied required by law) GAAP or collective bargaining agreement or modified the terms of any existing employment Contract or collective bargaining agreement outside the Ordinary Course of Business; (i) the Acquired Companies have not made any other change in employment terms for any of their respective directorsapplicable Law, officers or Management Employees or any class or group of other employees, in each case outside the Ordinary Course of Business; (j) the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made permitted any change in the accounting principles and practices used by any practice or policy relating to the Acquired Companies from those applied in the preparation of the Financial Statements; Assets regarding accounting, pricing, marketing, purchasing, investment, inventory, credit or allowance;
(lxii) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have has not paid, agreed discharged or settled any claims, liabilities or obligations relating to pay or incurred any Liability for any payment for any contribution to any Applicable Plan the Acquired Assets, other than in the Ordinary Course of Business or paid any bonus to any employees other than as they come due, in excess of $5,000 individually;
(xiii) the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or Seller has not made any increase loan to or enhancement of benefits in entered into any other transaction with, any of the Applicable Plans other than in its directors, officers and employees outside the Ordinary Course of Business;
(xiv) the Seller has not entered into any employment contract or collective bargaining agreement, written or oral or modified the terms of any existing such contract or agreement;
(xv) the Seller has not granted any increase in the base compensation of any of its directors, officers and employees outside the Ordinary Course of Business;
(xvi) the Seller has not adopted, amended, modified or terminated any bonus, profit sharing, incentive, severance or other plan, contract, or commitment for the benefit of any of its directors, officers and employees;
(xvii) the Seller has not made any other material change in employment terms for any of its directors, officers and employees outside the Ordinary Course of Business;
(xviii) the Seller has not paid any amount to any Person with respect to any liability or obligation (including any costs and expenses the Seller has incurred or may incur in connection with this Agreement and the transactions contemplated hereby) which would not constitute an Assumed Liability if in existence as of the Closing; and
(xix) the Seller has not committed to any of the foregoing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Newtek Business Services Inc)
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since adverse change in the Most Recent Fiscal Year EndBusiness, except as set forth in SCHEDULE 5.6 other business, financial condition, operations, results of operations, or as provided in this Agreement, each future prospects of any of the Acquired Companies has operated in the Ordinary Course of BusinessSeller and its Subsidiaries. Without limiting the generality of the foregoing, since that date:
(i) none of the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: (a) the Acquired Companies have not Seller and its Subsidiaries has sold, leased, transferred transferred, pledged or assigned any of their its assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business Business;
(ii) none of the Seller and have not incurred its Subsidiaries has entered into (or issued), accelerated, terminated, modified, or canceled any Liability other agreement, contract, lease, note, bond, debt security or license either involving more than in $5,000 or outside the Ordinary Course of Business; ;
(biii) none of the Acquired Companies have not entered into Seller and its Subsidiaries has made any Applicable Contract, the terms capital expenditure (or series of which cause payments in excess of related capital expenditures) either involving more than $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, 5,000 or outside the Ordinary Course of Business or capital expenditures identified in Business;
(iv) none of the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, Seller and its Subsidiaries has delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; ;
(dv) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business none of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not Seller and its Subsidiaries has canceled, compromised, waived waived, or released any right or claim (or series of related rights and claims) either involving more than $5,000 or outside the Ordinary Course of Business; ;
(gvi) none of the Acquired Companies have not Seller and its Subsidiaries has issued, sold, disposed of or granted any rights to purchase any of its capital stock, or declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind), or redeemed, purchased, or otherwise acquired any of its capital stock;
(vii) none of the Seller and its Subsidiaries has experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to its property;
(viii) none of the Assets; Seller and its Subsidiaries has made any loan to, or entered into any other transaction with, any of its directors, officers, and employees outside the Ordinary Course of Business;
(hix) none of the Acquired Companies have not Seller and its Subsidiaries has (a) entered into any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement outside the Ordinary Course of Businessagreement; (ib) granted any increase in the Acquired Companies have not base compensation of any of its directors, officers, and employees (or made any other change in employment terms for any of their respective directors, officers or Management Employees or any class or group of other employees, in each case such persons) outside the Ordinary Course of Business; or (jc) the Acquired Companies have not madeadopted, amended, modified, or agreed terminated any Employee Benefit Plan;
(x) there has not been any other occurrence, event, incident, action, failure to makeact, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in transaction outside the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in involving any of the Applicable Plans other than in Seller and its Subsidiaries; and
(xi) none of the Ordinary Course Seller and its Subsidiaries has committed to any of Businessthe foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Changematerial adverse change in the Assets, financial condition, operations, results of operations, or the Industrial Container Business of the Acquired Companies. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 Schedule 4.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of Business. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year Endthat date, except as set forth in SCHEDULE 5.6 Schedule 4.6 or as otherwise provided in this Agreement: (a) the Acquired Companies have not sold, leased, transferred transferred, or assigned any of their assetsAssets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; (b) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3Business; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; (d) the Acquired Companies have maintained inventory (including work-inwork -in-process) at levels consistent with their past practices in the Ordinary Course of Business; , (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived waived, or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business; (g) the Acquired Companies have not experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to the their Assets; (h) the Acquired Companies have not entered into any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement outside the Ordinary Course of Business; (i) the Acquired Companies have not made any other change in employment terms for any of their respective its directors, officers or Management Employees or any class or group of other employeesofficers, in each case and employees outside the Ordinary Course of Business; (j) the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate affiliate of Seller (other than an Acquired Company)except for payments for services rendered or products delivered in the Ordinary Course of Business and except for distributions of cash made in the Ordinary Course of Business; (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election election, or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable pursuant to Section 9.2(b) or accelerating deductions to periods for which Seller is liableliable pursuant to Section 9.2(a); and , (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of BusinessBusiness and (s) there has not been any other occurrence, event, incident, action, failure to act, or transaction outside the Ordinary Course of Business involving any of the Acquired Companies.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since Except with respect ------------------------------------------------ to those areas of Subsidiary's business, management and operations that Buyer has agreed to operate prior to execution of this Agreement by the Most Recent Fiscal Year EndParties, since June 30, 2000, there has not been any Material Adverse Change. Since material adverse change in the Most Recent Fiscal Year Endbusiness, except as set forth in SCHEDULE 5.6 financial condition, operations, results of operations, or as provided in this Agreement, each future prospects of the Acquired Companies has operated in Seller relating to the Ordinary Course of BusinessPurchased Assets. Without limiting the generality of the foregoing, since that date through the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: Closing Date:
(ai) the Acquired Companies have Seller has not sold, leased, licensed, transferred or assigned any of their assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; Purchased Assets;
(bii) the Acquired Companies have Seller has not entered into any Applicable Contractagreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) relating to the Purchased Assets;
(iii) no party has accelerated, terminated, modified, or cancelled any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) relating to the Purchased Assets to which the Seller is a party or by which it is bound;
(iv) the Seller has not imposed any Security Interest upon any of the Purchased Assets;
(v) except with respect to the Note, the terms of which cause payments in excess of $10,000 in respect of Seller has not issued any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contractsnote, outside the Ordinary Course of Business bond or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; other debt security, or created, incurred, assumed or guaranteed any indebtedness for borrowed money or capitalized lease obligation;
(cvi) the Acquired Companies have Seller has not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect performance of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; Assumed Liability;
(dvii) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have Seller has not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceledcancelled, compromised, waived waived, or released any right or claim (or series of related rights and claims) outside relating to the Ordinary Course of Business; Purchased Assets;
(gviii) the Acquired Companies have Seller has not granted any license or sublicense of any rights under or with respect to all or any portion of any Intellectual Property relating directly or indirectly to the Purchased Assets;
(ix) there has been no change made or authorized in the charter or bylaws of the Seller;
(x) the Seller has not experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to the Purchased Assets;
(xi) there has not been any other material occurrence, event, incident, action, failure to act, or transaction involving the Purchased Assets; and
(hxii) the Acquired Companies have Seller has not entered into any employment Contract (other than as may be implied by law) or collective bargaining agreement or modified the terms of any existing employment Contract or collective bargaining agreement outside the Ordinary Course of Business; (i) the Acquired Companies have not made any other change in employment terms for any of their respective directors, officers or Management Employees or any class or group of other employees, in each case outside the Ordinary Course of Business; (j) the Acquired Companies have not made, or agreed committed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the ---------------------------------------------------- Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of Business. Without limiting the generality of the foregoing, since that date:
(A) none of Buyer and its Subsidiaries has sold, leased, transferred, or assigned any material assets, tangible or intangible, outside the Most Recent Fiscal Year EndOrdinary Course of Business;
(B) none of Buyer and its Subsidiaries has entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;
(C) no party (including any of Buyer and its Subsidiaries) has accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license to which any of Buyer and its Subsidiaries is a party or by which any of them is bound;
(D) none of Buyer and its Subsidiaries has imposed any Lien upon any of its assets, tangible or intangible;
(E) none of Buyer and its Subsidiaries has made any material capital expenditures outside the Ordinary Course of Business;
(F) none of Buyer and its Subsidiaries has made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(G) Neither Buyer nor any of its Subsidiaries has created, incurred, assumed, or guaranteed more than $100,000.00 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(H) none of Buyer and its Subsidiaries has transferred, assigned, or granted any license or sublicense of any material rights under or with respect to any Intellectual Property;
(I) there has been no change made or authorized in the charter or bylaws of any of Buyer and its Subsidiaries, except as set forth in SCHEDULE 5.6 Section (viii)(I) of Schedule II;
(J) none of Buyer and its Subsidiaries has declared, set aside, or as paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise provided in this Agreement: (a) the Acquired Companies have not sold, leased, transferred or assigned acquired any of their assets, tangible or intangible, with a fair market value in excess its capital stock;
(K) none of $10,000 in respect of any individual asset Buyer and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; (b) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; (d) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business; (g) the Acquired Companies have not its Subsidiaries has experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to its property;
(L) none of Buyer and its Subsidiaries has made any loan to, or entered into any other transaction with, any of its directors, officers, and employees outside the Assets; Ordinary Course of Business;
(hM) the Acquired Companies have not none of Buyer and its Subsidiaries has entered into any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement agreement;
(N) none of Buyer and its Subsidiaries has granted any increase in the base compensation of any of its directors, officers, and employees outside the Ordinary Course of Business; ;
(iO) none of Buyer and its Subsidiaries has adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the Acquired Companies have not benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan);
(P) none of Buyer and its Subsidiaries has made any other material change in employment terms for any of their respective its directors, officers or Management Employees or any class or group of other employeesofficers, in each case and employees outside the Ordinary Course of Business; ;
(jQ) the Acquired Companies have not made, or agreed to make, any payment none of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not Buyer and its Subsidiaries has made any change in the accounting principles loans or advances of money; and
(R) none of Buyer and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income its Subsidiaries has committed to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year EndEnd and except for the spin-off of the Seller's business from Xxxxxx International on March 31, 2000, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of Business. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 that date (or as otherwise any other date specifically provided in this Agreement: for below):
(ai) the Acquired Companies have Seller has not sold, leased, transferred transferred, or assigned any of their the Business' assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; ordinary course;
(bii) the Acquired Companies have Seller has not entered into any Applicable Contractagreement, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contractscontract, outside the Ordinary Course of Business lease, or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; (d) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim license (or series of related rights agreements, contracts, leases, and claimslicenses) relating to the Business either involving more than $25,000 (other than contracts on the Seller's standard form purchase order set forth in Section 3(q) of the Disclosure Schedule) or outside the Ordinary Course ordinary course;
(iii) no party has accelerated, terminated, modified, or cancelled any agreement, contract, lease, or license (or series of Business; related agreements, contracts, leases, and licenses) relating to the Business involving more than $25,000 to which the Seller is a party or by which it is bound;
(giv) the Acquired Companies have Seller has not granted any license or sublicense of any rights under or with respect to any Intellectual Property;
(v) the Seller has not experienced any material damage, destruction destruction, or loss (normal wear and tear excepted) (whether or not covered by insurance) to the Assets; any Acquired Asset;
(hvi) the Acquired Companies have Seller has not made any loan to, or entered into any other transaction with, any of the Transferred Employees outside the ordinary course;
(vii) the Seller has not entered into any employment Contract (other than as may be implied by law) contract or collective bargaining agreement relating to any Transferred Employee, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement agreement;
(viii) the Seller has not granted any increase in the base compensation of any Transferred Employee outside the Ordinary Course ordinary course;
(ix) since April 1, 2000, the Seller has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of Business; any of the Transferred Employees or taken any such action with respect to any other Employee Benefit Plan that is not in the ordinary course of business or that has not been disclosed to the Buyer in the Disclosure Schedule;
(ix) the Acquired Companies have Seller has not made any other change in employment terms for any of their respective directors, officers or Management the Transferred Employees or any class or group of other employees, in each case outside the Ordinary Course of ordinary course;
(xi) there has not been any other material occurrence, event, incident, action, failure to act, or transaction outside the ordinary course involving the Business; or
(jxii) the Acquired Companies have Seller has not made, or agreed committed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Edwards Lifesciences Corp)
Events Subsequent to Most Recent Fiscal Year End. Since Except as set forth on Schedule 3(h), since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year EndEffect, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies and Seller has operated the Businesses in the Ordinary Course of BusinessBusiness in all material respects. Without limiting the generality of the foregoingforegoing and with respect to the Stratford or Simmxxx Xxxiness, since the Most Recent Fiscal Year EndDecember 31, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: 1998:
(ai) the Acquired Companies have not neither Seller has sold, leased, transferred transferred, or assigned any of their its material assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; ;
(bii) the Acquired Companies have not neither Seller has entered into any Applicable Contractwritten agreement, contract, lease or license for personal property either involving more than $50,000 or outside the terms Ordinary Course of which cause Business;
(iii) no Person has accelerated, terminated, modified, or cancelled any written agreement, contract, lease, or license involving annual payments in excess of $10,000 in respect 50,000 to which either Seller is a party or by which either Seller is bound;
(iv) neither Seller has imposed or permitted any Security Interest upon any of the Acquired Assets;
(v) neither Seller has made any individual Applicable Contract and capital expenditure either involving more than $50,000 in the aggregate in respect of all such individual Applicable Contracts, or outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; Business;
(cvi) the Acquired Companies have not accelerated, delayed or postponed neither Seller has accelerated the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business Business;
(vii) neither Seller has materially changed the manner in which it maintains its books, records or accounts, including the manner in which is accrues for Reserves, Liabilities or other items noted on the Financial Statements;
(viii) neither Seller has cancelled, compromised, waived, or released any right or claim either involving more than $50,000 or outside the Ordinary Course of Business, except where such cancellation, compromise, waiver or release would not reasonably be expected to have a Material Adverse Effect;
(ix) neither Seller has experienced any material damage, destruction, or loss with respect to the Acquired Assets or the collection Businesses, taken as a whole (whether or not covered by insurance);
(x) neither Seller has entered into any employment contract or collective bargaining agreements or modified the terms of notes any existing such contract or accounts receivable agreement;
(xi) neither Seller has granted any increase in the base compensation of any of its directors, officers, or employees outside the Ordinary Course of Business;
(xii) neither Seller has made any other material change in employment terms for any of its directors, officers, or employees outside the Ordinary Course of Business; and
(dxiii) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business; (g) the Acquired Companies have not experienced any material damage, destruction or loss (whether or not covered by insurance) neither Seller has committed to the Assets; (h) the Acquired Companies have not entered into any employment Contract (other than as may be implied by law) or collective bargaining agreement or modified the terms of any existing employment Contract or collective bargaining agreement outside the Ordinary Course of Business; (i) the Acquired Companies have not made any other change in employment terms for any of their respective directors, officers or Management Employees or any class or group of other employees, in each case outside the Ordinary Course of Business; (j) the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in do any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since Except as set forth on Schedule 3.7, since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since material adverse change in the Most Recent Fiscal Year Endbusiness, except as set forth in SCHEDULE 5.6 or as provided in this Agreementfinancial condition, each operations, results of operations, or, to the Knowledge of the Acquired Companies has operated Seller, in the Ordinary Course future prospects, of Businessthe Distribution Division. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(a) the Acquired Companies have Distribution Division has not sold, leased, transferred transferred, or assigned any of their its assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business Business;
(b) the Distribution Division has not entered into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and have not incurred any Liability other licenses) either involving more than in $35,000 or outside the Ordinary Course of Business; (b) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; ;
(c) the Acquired Companies have Distribution Division has not accelerated, terminated, modified, or canceled any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) involving more than $25,000 to which the Distribution Division is a party or by which any of them is bound;
(d) neither the Seller nor the Distribution Division has permitted any Lien to be imposed upon any of the Acquired Assets, tangible or intangible;
(e) neither the Seller nor the Distribution Division has delayed or postponed the payment of accounts payable and Accounts Payable or any other Liabilities with a fair market value in excess of $10,000 in respect applicable to the Distribution Division;
(f) neither the Seller nor the Distribution Division has granted any license or sublicense of any individual account payable rights under or other Liability and $50,000 with respect to any Intellectual Property used or useful in the aggregate in respect conduct of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; (d) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business; Distribution Division;
(g) the Acquired Companies have Distribution Division has not experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to any property used or useful in the Assetsconduct of the business of the Distribution Division; and
(h) the Acquired Companies have there has not entered into been any employment Contract (other than as may be implied by law) material occurrence, event, incident, action, failure to act, or collective bargaining agreement or modified the terms of any existing employment Contract or collective bargaining agreement transaction outside the Ordinary Course of Business; (i) Business involving the Acquired Companies have not made any other change in employment terms for any of their respective directors, officers or Management Employees Distribution Division or any class or group of other employees, in each case outside the Ordinary Course of Business; (j) the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of BusinessAsset.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the Company Most Recent Fiscal Year End, there has not been any Company Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of Business. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(a) neither the Acquired Companies have not Company nor its Subsidiaries has sold, leased, transferred transferred, or assigned any of their material assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; (b) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; ;
(db) neither the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not acceleratedCompany nor its Subsidiaries has entered into any material agreement, delayed contract, lease, or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) license outside the Ordinary Course of Business; ;
(c) no party (including the Company or any of its Subsidiaries) has accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license to which the Company or any of its Subsidiaries is a party or by which any of them is bound;
(d) neither the Company nor its Subsidiaries has imposed any Lien upon any of its assets, tangible or intangible;
(e) neither the Company nor its Subsidiaries has made any material capital expenditures outside the Ordinary Course of Business;
(f) neither the Company nor its Subsidiaries has made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(g) Except in the Acquired Companies ordinary course of business and/or as disclosed in the Company Disclosure Schedule the Company and its Subsidiaries have not created, incurred, assumed, or guaranteed any indebtedness for borrowed money and capitalized lease obligations;
(h) neither the Company nor its Subsidiaries has transferred, assigned, or granted any license, sublicense, agreement, covenant not to sxx, or permission with respect to any material Intellectual Property;
(i) there has been no change made or authorized in the charter, operating agreement or bylaws of the Company or any of its Subsidiaries;
(j) neither the Company nor its Subsidiaries has issued, sold, or otherwise disposed of any of its equity, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its equity;
(k) neither the Company nor its Subsidiaries has declared, set aside, or paid any dividend or made any distribution with respect to its equity (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its equity;
(l) neither the Company nor its Subsidiaries has experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to its property;
(m) neither the Assets; (h) the Acquired Companies have not Company nor its Subsidiaries has made any loan to, or entered into any other transaction with, any of its members, directors, officers, and employees outside the Ordinary Course of Business;
(n) neither the Company nor its Subsidiaries has entered into or terminated any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or agreement, or become bound by any collective bargaining agreement relationship;
(o) neither the Company nor its Subsidiaries has granted any increase in the base compensation of any of its members, directors, officers, and employees outside the Ordinary Course of Business; ;
(ip) neither the Acquired Companies have not Company nor its Subsidiaries has adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan);
(q) neither the Company nor its Subsidiaries has made any other material change in employment terms for any of their respective its members, directors, officers or Management Employees or any class or group of other employeesofficers, in each case and employees outside the Ordinary Course of Business; ;
(jr) neither the Acquired Companies have not madeCompany nor its Subsidiaries has implemented any employee layoffs requiring notice under the Worker Adjustment and Retraining Notification Act of 1988, as amended, or agreed to makeany similar state, any payment of cash local, or distribution of assets non-U.S. law, regulation, or property of any kind to Seller or any Affiliate of Seller ordinance (other than an Acquired Companycollectively the “WARN Act”); ;
(ks) neither the Acquired Companies have not Company nor its Subsidiaries has made any change in loans or advances of money; and
(t) neither the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income Company nor its Subsidiaries has committed to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Samples: Merger Agreement (Bio-Matrix Scientific Group, Inc.)
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, KCI has conducted its affairs only in the Ordinary Course of Business and there has not been been, occurred or arisen any event, condition or state of facts of any character that individually or in the aggregate would be reasonably likely to have a Material Adverse Change. Since the Most Recent Fiscal Year EndEffect, except as set forth in SCHEDULE 5.6 whether or as provided in this Agreement, each of the Acquired Companies has operated not arising in the Ordinary Course of Business. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(ai) the Acquired Companies have not none of KCI and its Subsidiaries has sold, leased, transferred transferred, or assigned any of their material assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in outside the Ordinary Course of Business; ;
(bii) the Acquired Companies have not none of KCI and its Subsidiaries has entered into any Applicable Contractmaterial agreement, contract, lease, or license outside the terms Ordinary Course of Business;
(iii) no party (including any of KCI and its Subsidiaries) has accelerated, terminated, made material modifications to, or canceled or failed to use reasonable business efforts to renew any material agreement, contract, lease, or license to which cause payments in excess any of $10,000 in respect KCI and its Subsidiaries is a party or by which any of them is bound, nor has KCI or any individual Applicable Contract of its Subsidiaries waived, released or assigned any material rights or claims thereunder;
(iv) none of KCI and $50,000 in the aggregate in respect its Subsidiaries has had imposed any Security Interest upon any of all such individual Applicable Contractsits assets, tangible or intangible;
(v) none of KCI and its Subsidiaries has made any material capital expenditures outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect 100,000;
(vi) none of KCI and its Subsidiaries has made any individual account payable material capital investment in, or any material loan to, any other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, Person outside the Ordinary Course of Business or in excess of $100,000;
(vii) none of KCI and its Subsidiaries has granted any license or sublicense of any material rights under or with respect to any Intellectual Property;
(viii) there has been no change made or authorized in the collection charter or bylaws or other organizational document of notes any of KCI and its Subsidiaries;
(ix) none of KCI and its Subsidiaries has issued, sold, or accounts receivable outside the Ordinary Course otherwise disposed of, or acquired, split, combined or reclassified, any of Business; (d) the Acquired Companies have maintained inventory its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including work-in-processupon conversion, exchange, or exercise) at levels consistent any of its capital stock;
(x) except for permitted Quarterly Tax Distributions and True Up Amounts, none of KCI and its Subsidiaries has declared, set aside, or paid any dividend or made any distribution with their past practices respect to its capital stock (whether in the Ordinary Course cash or in kind) or redeemed, purchased, or otherwise acquired any of Business; its capital stock;
(exi) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement none of machinery, equipment KCI and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business; (g) the Acquired Companies have not its Subsidiaries has experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to the Assets; (h) the Acquired Companies have not entered into any employment Contract (other than as may be implied by law) or collective bargaining agreement or modified the terms of any existing employment Contract or collective bargaining agreement outside the Ordinary Course of Business; (i) the Acquired Companies have not made any other change in employment terms for any of their respective directors, officers or Management Employees or any class or group of other employees, in each case outside the Ordinary Course of Business; (j) the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Business.its property;
Appears in 1 contract
Samples: Recapitalization Agreement (Key Components Finance Corp)
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since material adverse change in the Most Recent Fiscal Year Endbusiness, except as set forth in SCHEDULE 5.6 financial condition, operations or as provided in this Agreement, each results of operations of the Acquired Companies has operated in the Ordinary Course of BusinessSubsidiary. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(ai) the Acquired Companies have Subsidiary has not sold, leased, transferred transferred, or assigned any of their its assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in outside the Ordinary Course of Business; ;
(bii) the Acquired Companies have Subsidiary has not entered into any Applicable Contractmaterial agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) outside the terms Ordinary Course of Business;
(iii) no party (including the Subsidiary) has accelerated, terminated, modified, or canceled any material agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) to which cause payments in excess the Subsidiary is a party or by which it is bound;
(iv) the Subsidiary has not imposed any Security Interest upon any of $10,000 in respect its assets, tangible or intangible outside the Ordinary Course of Business;
(v) the Subsidiary has not made any individual Applicable Contract and $50,000 in material capital expenditures outside the aggregate in respect Ordinary Course of all such individual Applicable ContractsBusiness;
(vi) the Subsidiary has not made any material capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person outside the Ordinary Course of Business;
(vii) the Subsidiary has not accelerated the collection of outstanding accounts receivable, through the offer of discounts or otherwise, outside the Ordinary Course of Business Business;
(viii) the Subsidiary has not created, incurred, assumed, or capital expenditures identified guaranteed any indebtedness for borrowed money or capitalized lease obligation either involving more than $200,000 singly or $1.5 million in the capital expenditures budget set forth on SCHEDULE 5.13.3; aggregate;
(cix) the Acquired Companies have Subsidiary has not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; ;
(dx) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have Subsidiary has not canceled, compromised, waived waived, or released any material right or claim (or series of related rights and claims) outside the Ordinary Course of Business; ;
(gxi) the Acquired Companies have Subsidiary has not granted any license or sublicense of any rights under or with respect to any Intellectual Property outside the Ordinary Course of Business;
(xii) the Subsidiary has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xiii) there has been no change made or authorized in the charter or bylaws of the Subsidiary;
(xiv) the Subsidiary has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xv) the Subsidiary has not experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to the Assets; its property;
(hxvi) the Acquired Companies have Subsidiary has not made any loan to, or entered into any other transaction with, any of its directors, officers, and employees outside the Ordinary Course of Business;
(xvii) the Subsidiary has not entered into any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement outside the Ordinary Course of Business; ;
(ixviii) the Acquired Companies have Subsidiary has not granted any increase in the base compensation of any of its directors, officers or employees outside the Ordinary Course of Business;
(xix) the Subsidiary has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan);
(xx) the Subsidiary has not made any other material change in employment terms for any of their respective its directors, officers officers, or Management Employees or any class or group of other employees, in each case employees outside the Ordinary Course of Business; ;
(jxxi) the Acquired Companies have there has not madebeen any other material occurrence, event, incident, action, failure to act, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in transaction outside the Ordinary Course of Business or paid any bonus involving the Subsidiary; and
(xxii) the Subsidiary has not committed to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been, nor to DCI's knowledge has there been any Material Adverse Change. Since event or condition of any character (excluding events or conditions impacting the Most Recent Fiscal Year Endeconomy or the publishing industry in general) which is likely to have, except as set forth any material adverse change in SCHEDULE 5.6 the business, financial condition, operations, or as provided in this Agreementresults of operations, each of the Acquired Companies has operated in or the Ordinary Course of BusinessDCI Subsidiary taken as a whole. Without limiting the generality of the foregoing, since that date:
(i) Neither Company nor the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: (a) the Acquired Companies have not DCI Subsidiary has sold, leased, transferred transferred, or assigned any of their material assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; (b) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; ;
(dii) Neither Company nor the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not acceleratedDCI Subsidiary has entered into any material agreement, delayed contract, lease, or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) license outside the Ordinary Course of Business; ;
(giii) No party (including either of the Acquired Companies have not or the DCI Subsidiary) has accelerated, terminated, made material modifications to, or cancelled any material agreement, contract, lease, or license to which any of them is a party or by which any of them is bound;
(iv) Neither Company nor the DCI Subsidiary has imposed any Security Interest upon any of its assets, tangible or intangible;
(v) Neither Company nor the DCI Subsidiary has made any material capital expenditures outside the Ordinary Course of Business;
(vi) Neither Company nor the DCI Subsidiary has made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(vii) Neither Company nor the DCI Subsidiary has created, incurred, assumed, or guaranteed more than $100,000 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) Neither Company nor the DCI Subsidiary has granted any license or sublicense of any material rights under or with respect to any Intellectual Property;
(ix) There has been no change made or authorized in the constituent documents of either Company or the DCI Subsidiary;
(x) Neither Company nor the DCI Subsidiary has issued, sold, or otherwise disposed of any equity interests, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any equity interests;
(xi) Neither Company nor the DCI Subsidiary has experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to its material assets;
(xii) Neither Company nor the Assets; (h) the Acquired Companies have not DCI Subsidiary has made any loan to, or entered into any employment Contract other transaction with, any of its partners, shareholders, directors, officers, and employees outside the Ordinary Course of Business;
(other than as may be implied by lawxiii) or Neither Company nor the DCI Subsidiary has entered into any collective bargaining agreement or modified the terms of any existing employment Contract or collective bargaining agreement outside such agreement;
(xiv) Neither Company nor the Ordinary Course of Business; (i) the Acquired Companies have not made any other change in employment terms for any of their respective directorsDCI Subsidiary has adopted, officers or Management Employees or any class or group of other employeesamended, in each case outside the Ordinary Course of Business; (j) the Acquired Companies have not mademodified, or agreed to maketerminated any bonus, any payment of cash profit-sharing, incentive, severance, or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Business.plan,
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year EndMarch 31, 2008, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of Business. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(ai) the Acquired Companies have not neither VBV nor either VBV Subsidiary has sold, leased, transferred or assigned any of their assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in outside the Ordinary Course of Business; ;
(bii) the Acquired Companies have not neither VBV nor either VBV Subsidiary has entered into any Applicable Contractagreement, contract, lease or license outside the terms Ordinary Course of Business;
(iii) no party (including VBV or either VBV Subsidiary) has accelerated, terminated, made modifications to or canceled any agreement, contract, lease or license to which cause payments in excess VBV or either VBV Subsidiary is a party or by which any of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contractsthem is bound, outside the Ordinary Course of Business Business;
(iv) neither VBV nor either VBV Subsidiary has imposed any Lien upon any of its assets, tangible or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilitiesintangible, outside the Ordinary Course of Business or the collection of notes or accounts receivable Business;
(v) neither VBV nor either VBV Subsidiary has made any capital expenditures outside the Ordinary Course of Business; ;
(dvi) the Acquired Companies have maintained inventory (including work-neither VBV nor either VBV Subsidiary has made any capital investment in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisitionany material loan to, repair or replacement of machinery, equipment and any other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) Person outside the Ordinary Course of Business; ;
(gvii) VBV and the Acquired Companies VBV Subsidiaries have not created, incurred, assumed, or guaranteed more than $50,000 in aggregate indebtedness for borrowed money and capitalized lease obligations outside the Ordinary Course of Business;
(viii) neither VBV nor either VBV Subsidiary has transferred, assigned or granted any license or sublicense of any rights under or with respect to any Intellectual Property outside the Ordinary Course of Business;
(ix) there has been no change made or authorized in the certificate of formation or operating agreement of VBV or either VBV Subsidiary;
(x) neither VBV nor either VBV Subsidiary has issued, sold or otherwise disposed of any of its limited liability company interests, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its limited liability company interests outside the Ordinary Course of Business;
(xi) neither VBV nor either VBV Subsidiary has declared, set aside or paid any dividend or made any distribution with respect to its limited liability company interests (whether in cash or in kind) or redeemed, purchased or otherwise acquired any of its limited liability company interests outside the Ordinary Course of Business;
(xii) neither VBV nor either VBV Subsidiary has experienced any material damage, destruction or loss (whether or not covered by insurance) to its property outside the Assets; Ordinary Course of Business;
(hxiii) the Acquired Companies have not neither VBV nor either VBV Subsidiary (a) has made any loan to, or entered into any other transaction with, any of its managers, officers, and employees outside the Ordinary Course of Business, (b) has outstanding or arranged to have outstanding any "extensions of credit" to directors or executive officers within the meaning of Section 402 of SOX or (c) has entered into any transactions or relationships with any present or former manager or officer thereof, or any member of such manager's or officer's family or any Person controlled by such officer or manager or his or her family, or that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K;
(xiv) neither VBV nor either VBV Subsidiary has entered into or terminated any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement outside the Ordinary Course of Business; ;
(ixv) neither VBV nor either VBV Subsidiary has granted any increase in the Acquired Companies have not base compensation of any of its managers, officers, and employees outside the Ordinary Course of Business;
(xvi) neither VBV nor either VBV Subsidiary has adopted, amended, modified or terminated any bonus, profit sharing, incentive, severance, or other plan, contract or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan) outside the Ordinary Course of Business;
(xvii) neither VBV nor either VBV Subsidiary has made any other change in employment terms for any of their respective directorsits managers, officers officers, and employees outside the Ordinary Course of Business;
(xviii) neither VBV nor either VBV Subsidiary has made any loans or Management Employees or any class or group advances of other employees, in each case money outside the Ordinary Course of Business; and
(jxix) the Acquired Companies have not made, or agreed neither VBV nor either VBV Subsidiary has committed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Samples: Merger Agreement (NTR PLC)
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year EndMay 31, 2011, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of Business. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(ai) the Acquired Companies have Company has not has sold, leased, transferred transferred, or assigned any of their assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; (b) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable Threshold Amount outside the Ordinary Course of Business; ;
(dii) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices Company has not entered into any agreement, contract, lease, or license in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business excess of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) Threshold Amount outside the Ordinary Course of Business; ;
(giii) no party (including the Company) has accelerated, terminated, made material modifications to, or cancelled any material agreement, contract, lease, or license to which the Company is a party or by which the Company is bound;
(iv) the Acquired Companies have Company has not had any Lien imposed upon any of the Company’s assets, tangible or intangible (excluding any Lien to be released upon payment of the Debts To Be Paid At Closing);
(v) the Company has not made any capital expenditures in excess of the Threshold Amount outside the Ordinary Course of Business;
(vi) the Company has not made any capital investment in, or any loan to, any other Person in excess of the Threshold Amount outside the Ordinary Course of Business;
(vii) the Company has not created, incurred, assumed, or guaranteed indebtedness for borrowed money, and capitalized lease obligations, in excess of the Threshold Amount;
(viii) the Company has not transferred, assigned, or granted any license or sublicense of any material rights under or with respect to any Intellectual Property outside the Ordinary Course of Business;
(ix) there has been no change made or authorized in the charter or bylaws of Company;
(x) the Company has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) the Company has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) the Company has not experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to its property in excess of the Assets; Threshold Amount;
(hxiii) the Acquired Companies have Company has not made any loan to, or entered into any other transaction with, any of its directors or officers, and the Company has not made any loan to, or entered into any other transaction with, any of its employees outside the Ordinary Course of Business;
(xiv) the Company has not entered into or terminated any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or agreement, or become bound by any collective bargaining agreement relationship;
(xv) the Company has not granted any increase in the base compensation of any of its directors or officers, or granted any increase in base compensation to any of Company’s employees outside the Ordinary Course of Business; ;
(ixvi) the Acquired Companies have Company has not adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan);
(xvii) the Company has not made any other material change in employment terms for any of their respective directorsits directors or officers, officers or Management Employees or and Company has not made any class or group other material change in employment terms for any of other employees, in each case its employees outside the Ordinary Course of Business; ;
(jxviii) the Acquired Companies have Company has not madeimplemented any employee layoffs requiring notice under the Worker Adjustment and Retraining Notification Act of 1988, as amended, or agreed to makeany similar state, any payment of cash local, or distribution of assets non-U.S. law, regulation, or property of any kind to Seller or any Affiliate of Seller ordinance (other than an Acquired Companycollectively, the “WARN Act”); ;
(kxix) the Acquired Companies have Company has not made any change in the accounting principles and changed its normal business practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in action outside the Ordinary Course of Business or paid any bonus in order to any employees other than in generate Cash;
(xx) the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or Company has not made any increase loans or enhancement advances of benefits in money; and
(xxi) the Company has not committed to any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year EndJune 30, 2010, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of Business. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year Endthat date, and except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: Section 2.2(f) of the Global Ethanol Disclosure Schedule:
(ai) the Acquired Companies have Global Ethanol has not sold, leased, transferred or assigned any of their assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in outside the Ordinary Course of Business; ;
(bii) the Acquired Companies have Global Ethanol has not entered into any Applicable Contractagreement, contract, lease or license involving payments to or from the terms same of which cause payments in excess of more than $10,000 in respect of any individual Applicable Contract and 25,000 individually or $50,000 100,000 in the aggregate in respect outside the Ordinary Course of all such individual Applicable ContractsBusiness;
(iii) no party (including Global Ethanol) has accelerated, terminated, made modifications to or canceled any Material Contract to which Global Ethanol is a party or by which any of them is bound, outside the Ordinary Course of Business Business;
(iv) Global Ethanol has not imposed any Lien upon any of its assets, tangible or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilitiesintangible, outside the Ordinary Course of Business or the collection of notes or accounts receivable Business;
(v) Global Ethanol has not made any capital expenditures outside the Ordinary Course of Business; ;
(dvi) the Acquired Companies have maintained inventory (including work-Global Ethanol has not made any capital investment in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisitionany material loan to, repair or replacement of machinery, equipment and any other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) Person outside the Ordinary Course of Business; ;
(gvii) Global Ethanol has not created, incurred, assumed, or guaranteed more than $100,000 in aggregate indebtedness for borrowed money and capitalized lease obligations outside the Acquired Companies have Ordinary Course of Business;
(viii) Global Ethanol has not transferred, assigned or granted any license or sublicense of any rights under or with respect to any Intellectual Property outside the Ordinary Course of Business;
(ix) there has been no change made or authorized in the certificate of formation or operating agreement of Global Ethanol;
(x) Global Ethanol has not issued, sold or otherwise disposed of any of its limited liability company interests, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its limited liability company interests outside the Ordinary Course of Business;
(xi) Global Ethanol has not declared, set aside or paid any dividend or made any distribution with respect to its limited liability company interests (whether in cash or in kind) or redeemed, purchased or otherwise acquired any of its limited liability company interests outside the Ordinary Course of Business;
(xii) Global Ethanol has not experienced any material damage, destruction or loss (whether or not covered by insurance) to its property outside the Assets; Ordinary Course of Business;
(hxiii) Global Ethanol has not made any loan to, or entered into any other transaction with, any of its managers, officers, and employees outside the Acquired Companies have Ordinary Course of Business;
(xiv) Global Ethanol has not entered into or terminated any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement outside the Ordinary Course of Business; ;
(ixv) Global Ethanol has not granted any increase in the Acquired Companies have base compensation of any of its managers, officers, and employees outside the Ordinary Course of Business;
(xvi) Global Ethanol has not adopted, amended, modified or terminated any bonus, profit sharing, incentive, severance, or other plan, contract or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan) outside the Ordinary Course of Business;
(xvii) Global Ethanol has made not any other change in employment terms for any of their respective directorsits managers, officers officers, and employees outside the Ordinary Course of Business;
(xviii) Global Ethanol has not made any loans or Management Employees or any class or group advances of other employees, in each case money outside the Ordinary Course of Business; and
(jxix) the Acquired Companies have Global Ethanol has not made, or agreed committed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Samples: Merger Agreement (Green Plains Renewable Energy, Inc.)
Events Subsequent to Most Recent Fiscal Year End. Since Except as disclosed in Part 3.7 of the Disclosure Letter, since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since material adverse change in the Most Recent Fiscal Year Endbusiness, except as set forth in SCHEDULE 5.6 financial condition, operations or as provided in this Agreement, each results of operations of the Acquired Companies has operated in the Ordinary Course of BusinessDivision taken as a whole. Without limiting the generality of the foregoing, since that date and as it relates to the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: Division:
(a) the Acquired Companies have Xxxx has not sold, leased, transferred transferred, or assigned any of their material assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; (b) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; ;
(db) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have Xxxx has not acceleratedentered into any material agreement, delayed contract, lease, or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) license outside the Ordinary Course of Business; ;
(c) no party (including Xxxx) has accelerated, terminated, made material modifications to, or cancelled any material agreement, contract, lease, or license to which the Division is a party or by which it is bound;
(d) Xxxx has not made any material capital expenditures outside the Ordinary Course of Business;
(e) Xxxx has not made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(f) Xxxx has not granted any license or sublicense of any rights under or with respect to any Intellectual Property;
(g) the Acquired Companies have Xxxx has not experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to the Assets; its property;
(h) Xxxx has not made any loan to, or entered into any other transaction with, any of the Acquired Companies have employees of Xxxx;
(i) Xxxx has not entered into any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement agreement;
(j) Xxxx has not granted any increase in the base compensation of any of its employees outside the Ordinary Course of Business; ;
(ik) Xxxx has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the Acquired Companies have benefit of any of the employees of Xxxx, or taken any such action with respect to any other Employee Benefit Plan;
(l) Xxxx has not made any other material change in employment terms for any of their respective directors, officers or Management Employees or any class or group of other its employees, in each case outside the Ordinary Course of Business; (j) the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and ;
(m) the Acquired Companies have Xxxx has not paid, agreed to pay or incurred paid any Liability for any payment for any contribution amount to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus third party with respect to any employees other than liability or obligation (including any costs and expenses Xxxx has incurred or may incur in connection with this Agreement and the Ordinary Course transactions contemplated hereby) which would not constitute an Assumed Liability if in existence as of Business or granted any increase in compensation the Closing; and
(n) Xxxx has not committed to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since material adverse change in the Most Recent Fiscal Year Endbusiness, except as set forth in SCHEDULE 5.6 operations or as provided in this Agreement, each financial condition of the Acquired Companies has operated in the Ordinary Course of Aseptic Business. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(ai) the Acquired Companies have Transferor has not sold, leased, transferred or assigned any of their material assets, tangible or intangible, of the Aseptic Business, except for sales of inventory in the ordinary course of its business;
(ii) no party (including the Transferor) has accelerated, terminated, made material modifications to or canceled any material agreement, contract, lease or license to which the Transferor is a party or by which it is bound with a fair market value respect to the Aseptic Business;
(iii) the Transferor has not made any capital expenditures materially in excess of $10,000 in the budgeted amount for capital expenditures previously provided to the Transferee by the Transferor with respect of any individual asset and $50,000 in to the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Aseptic Business; ;
(biv) the Acquired Companies have Transferor has not entered into mortgaged, pledged or subjected to any Applicable Contract, Security Interest any of the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in assets or properties relating to the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; Aseptic Business;
(cv) the Acquired Companies have Transferor has not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; (d) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim of its material rights with respect to the Aseptic Business;
(or series of related rights and claims) outside the Ordinary Course of Business; (gvi) the Acquired Companies have Transferor has not granted any license or sublicense of any material rights under or with respect to any Intellectual Property related to the Aseptic Business;
(vii) the Transferor has not experienced any material damage, destruction or loss (whether or not covered by insurance) to property of the Assets; Aseptic Business;
(hviii) the Acquired Companies have Transferor has not made any loan to, or entered into any other transaction with, any of its officers with respect to the Aseptic Business other than the advance or reimbursement of reasonable business expenses incurred or to be incurred in the ordinary course of business;
(ix) the Transferor has not entered into any employment Contract (other than as may be implied by law) contract with any of its officers or any collective bargaining agreement with respect to the Aseptic Business, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement outside the Ordinary Course of Business; agreement;
(ix) the Acquired Companies have Transferor has not granted any increase in the compensation payable or to become payable to any of its officers with respect to the Aseptic Business, except for annual increases in the ordinary course of business consistent with past practice;
(xi) the Transferor has not adopted, amended, modified or terminated any bonus, profit-sharing, incentive, severance or other plan, contract or commitment for the benefit of any of its officers with respect to the Aseptic Business (or taken any such action with respect to any other Employee Benefit Plan);
(xii) the Transferor has not made any other material change in employment terms for any of their respective directors, its officers or Management Employees or any class or group of other employees, in each case with respect to the Aseptic Business outside the Ordinary Course ordinary course of Business; its business;
(jxiii) the Acquired Companies have Transferor has not made, or agreed to make, experienced any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any material adverse change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation business, operations or financial condition of the Financial StatementsAseptic Business; and
(lxiv) the Acquired Companies have Transferor has not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income committed to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year EndMarch 31, 2008, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of Business. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(ai) the Acquired Companies have not neither VBV nor either VBV Subsidiary has sold, leased, transferred or assigned any of their assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in outside the Ordinary Course of Business; ;
(bii) the Acquired Companies have not neither VBV nor either VBV Subsidiary has entered into any Applicable Contractagreement, contract, lease or license outside the terms Ordinary Course of Business;
(iii) no party (including VBV or either VBV Subsidiary) has accelerated, terminated, made modifications to or canceled any agreement, contract, lease or license to which cause payments in excess VBV or either VBV Subsidiary is a party or by which any of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contractsthem is bound, outside the Ordinary Course of Business Business;
(iv) neither VBV nor either VBV Subsidiary has imposed any Lien upon any of its assets, tangible or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilitiesintangible, outside the Ordinary Course of Business or the collection of notes or accounts receivable Business;
(v) neither VBV nor either VBV Subsidiary has made any capital expenditures outside the Ordinary Course of Business; ;
(dvi) the Acquired Companies have maintained inventory (including work-neither VBV nor either VBV Subsidiary has made any capital investment in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisitionany material loan to, repair or replacement of machinery, equipment and any other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) Person outside the Ordinary Course of Business; ;
(gvii) VBV and the Acquired Companies VBV Subsidiaries have not created, incurred, assumed, or guaranteed more than $50,000 in aggregate indebtedness for borrowed money and capitalized lease obligations outside the Ordinary Course of Business;
(viii) neither VBV nor either VBV Subsidiary has transferred, assigned or granted any license or sublicense of any rights under or with respect to any Intellectual Property outside the Ordinary Course of Business;
(ix) there has been no change made or authorized in the certificate of formation or operating agreement of VBV or either VBV Subsidiary;
(x) neither VBV nor either VBV Subsidiary has issued, sold or otherwise disposed of any of its limited liability company interests, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its limited liability company interests outside the Ordinary Course of Business;
(xi) neither VBV nor either VBV Subsidiary has declared, set aside or paid any dividend or made any distribution with respect to its limited liability company interests (whether in cash or in kind) or redeemed, purchased or otherwise acquired any of its limited liability company interests outside the Ordinary Course of Business;
(xii) neither VBV nor either VBV Subsidiary has experienced any material damage, destruction or loss (whether or not covered by insurance) to its property outside the Assets; Ordinary Course of Business;
(hxiii) the Acquired Companies have not neither VBV nor either VBV Subsidiary (a) has made any loan to, or entered into any other transaction with, any of its managers, officers, and employees outside the Ordinary Course of Business, (b) has outstanding or arranged to have outstanding any “extensions of credit” to directors or executive officers within the meaning of Section 402 of SOX or (c) has entered into any transactions or relationships with any present or former manager or officer thereof, or any member of such manager’s or officer’s family or any Person controlled by such officer or manager or his or her family, or that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K;
(xiv) neither VBV nor either VBV Subsidiary has entered into or terminated any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement outside the Ordinary Course of Business; ;
(ixv) neither VBV nor either VBV Subsidiary has granted any increase in the Acquired Companies have not base compensation of any of its managers, officers, and employees outside the Ordinary Course of Business;
(xvi) neither VBV nor either VBV Subsidiary has adopted, amended, modified or terminated any bonus, profit sharing, incentive, severance, or other plan, contract or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan) outside the Ordinary Course of Business;
(xvii) neither VBV nor either VBV Subsidiary has made any other change in employment terms for any of their respective directorsits managers, officers officers, and employees outside the Ordinary Course of Business;
(xviii) neither VBV nor either VBV Subsidiary has made any loans or Management Employees or any class or group advances of other employees, in each case money outside the Ordinary Course of Business; and
(jxix) the Acquired Companies have not made, or agreed neither VBV nor either VBV Subsidiary has committed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Samples: Merger Agreement (Green Plains Renewable Energy, Inc.)
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of Business. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(ai) the Acquired Companies have not sold, leased, transferred or assigned no party (including Triant Holdings and any of their its Subsidiaries) has accelerated, terminated, modified, or cancelled any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) involving more than USD$25,000 to which Triant Holdings or any of its Subsidiaries is a party or by which any of them is bound;
(ii) neither Triant Holdings nor any of its Subsidiaries has imposed or permitted to exist any Lien upon any of its assets, tangible or intangible;
(iii) neither Triant Holdings nor any of its Subsidiaries has issued any note, with a fair market value in excess bond, or other debt security or created, incurred, assumed, or guaranteed any indebtedness for borrowed money or capitalized lease obligation;
(iv) neither Triant Holdings nor any of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; (b) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, its Subsidiaries has delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; ;
(dv) the Acquired Companies have maintained inventory neither Triant Holdings nor any of its Subsidiaries has transferred, assigned, or granted any license or sublicense of any rights under or with respect to any Intellectual Property;
(including work-in-processvi) at levels consistent with their past practices in the Ordinary Course neither Triant Holdings nor any of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business; (g) the Acquired Companies have not its Subsidiaries has experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to the Assets; its property;
(hvii) the Acquired Companies have not neither Triant Holdings nor any of its Subsidiaries has entered into or terminated any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement agreement;
(viii) neither Triant Holdings nor any of its Subsidiaries has granted any increase in the base compensation of any of its directors, officers, and employees outside the Ordinary Course of Business;
(ix) neither Triant Holdings nor any of its Subsidiaries has adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan); and
(ix) the Acquired Companies have not neither Triant Holdings nor any of its Subsidiaries has made any other change in employment terms for any of their respective its directors, officers or Management Employees or any class or group of other employeesofficers, in each case and employees outside the Ordinary Course of Business; (j) the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Business.;
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since Except as disclosed in Section 3(h) of the Disclosure Schedule, since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since material adverse change in the Most Recent Fiscal Year Endfinancial condition, except as set forth in SCHEDULE 5.6 operations, or as provided in this Agreement, each results of operations of the Acquired Companies has operated Seller. No change in the Ordinary Course of Businesspublishing industry in general shall be deemed to affect this representation. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(ai) the Acquired Companies have Seller has not sold, leased, transferred transferred, or assigned any of their its assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business Business;
(ii) the Seller has not entered into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and have not incurred any Liability other than in licenses) outside the Ordinary Course of Business; ;
(biii) no party (including the Seller) has accelerated, terminated, modified, or canceled any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) involving more than $2,000 to which the Seller is a party or by which it is bound;
(iv) the Acquired Companies have Seller has not entered into imposed any Applicable ContractSecurity Interest upon any of its assets, tangible or intangible, which will not be satisfied from proceeds of closing;
(v) the terms Seller has not made any capital expenditure (or series of which cause payments in excess related capital expenditures) involving more than $2,000 and outside the Ordinary Course of $10,000 in respect Business, exclusive of paper, and except as otherwise disclosed;
(vi) the Seller has not made any individual Applicable Contract capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (or series of related capital investments, loans, and $50,000 in the aggregate in respect of all such individual Applicable Contracts, acquisitions) outside the Ordinary Course of Business for more than $2,000;
(vii) the Seller has not issued any note, bond, or capital expenditures identified other debt security or created, incurred, assumed, or guaranteed any indebtedness for borrowed money or capitalized lease obligation outside the Ordinary Course of Business for more than $2,000 singly or $5,000 in the capital expenditures budget set forth on SCHEDULE 5.13.3; aggregate;
(cviii) the Acquired Companies have Seller has not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; ;
(dix) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have Seller has not canceled, compromised, waived waived, or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business; Business involving more than $2,000;
(gx) the Acquired Companies have Seller has not granted any license or sublicense of any rights under or with respect to any Intellectual Property outside the Ordinary Course of Business, or without receiving fair consideration therefor;
(xi) there has been no change made or authorized in the charter or bylaws of the Seller, except as disclosed to Buyer;
(xii) the Seller has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock, except as disclosed to Buyer;
(xiii) the Seller has not taken any action which would give rise to a claim or lien on any of its capital stock;
(xiv) the Seller has not experienced any material materially adverse damage, destruction destruction, or loss (whether or not covered by insurance) to the Assets; its property;
(hxv) the Acquired Companies Seller has not made any loan to, or entered into any other transaction with, any of its directors, officers, and employees outside the Ordinary Course of Business which would have a material adverse effect on its business or property;
(xvi) the Seller has not entered into any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement outside the Ordinary Course of Business; , except as otherwise disclosed to Buyer;
(ixvii) the Acquired Companies have Seller has not granted any increase in the amounts of compensation of any of its directors, officers, and employees shown in Section 9(h)(xvii) of the Disclosure Schedule;
(xviii) the Seller has not adopted, amended, modified or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan) outside the Ordinary Course of Business except as otherwise disclosed to Buyer;
(xix) the Seller has not made any other change in employment terms for any of their respective its directors, officers or Management Employees or any class or group of other employeesofficers, in each case and employees outside the Ordinary Course of Business; (jxx) the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have has not made or pledged to make any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared charitable or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any other capital contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in outside the Ordinary Course of Business.;
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since Except as set forth on Section 3.8 of the Disclosure Schedule, since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of Business. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreementthat date: (a) the Acquired Companies have not Neither Seller nor any Subsidiary of Seller has sold, leased, transferred transferred, or assigned any of their its assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business; Neither Seller nor any Subsidiary of Seller has entered into any Contract (or series of related Contracts) outside the Ordinary Course of Business and have not incurred any Liability other than in this Agreement; No party (including Seller and its Subsidiaries) has accelerated, terminated, modified, or cancelled any Contract (or series of related Contracts) to which Seller or any Subsidiary of Seller is a party or by which any of them is bound; Neither Seller nor any Subsidiary of Seller has imposed any Liens upon any of its assets, tangible or intangible; Neither Seller nor any Subsidiary of Seller has made any capital expenditure (or series of related capital expenditures) outside the Ordinary Course of Business; Neither Seller nor any Subsidiary of Seller has made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person (bor series of related capital investments, loans, and acquisitions) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business Business; Neither Seller nor any Subsidiary of Seller has issued any note, bond, or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3other debt security or created, incurred, assumed, or guaranteed any Indebtedness for borrowed money or capitalized lease obligation; (c) the Acquired Companies have not accelerated, Neither Seller nor any Subsidiary of Seller has delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; (d) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent Neither Seller nor any Subsidiary of Seller has transferred, assigned, or granted any license or sublicense of any rights under or with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released respect to any right or claim (or series of related rights and claims) Intellectual Property outside the Ordinary Course of Business; (g) There has been no change or amendment or waiver of any rights relating to the Acquired Companies have not Charter; Neither Seller nor any Subsidiary of Seller has experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to the Assetsits property; (h) the Acquired Companies have not Neither Seller nor any Subsidiary of Seller has made any loan to, or entered into any other transaction with, any of its directors, trustees, officers, employees, or Affiliates outside the Ordinary Course of Business; Neither Seller nor any Subsidiary of Seller has entered into or terminated any employment Contract (other than as may be implied by law) or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract or collective bargaining agreement such Contract; Neither Seller nor any Subsidiary of Seller has granted any increase in the base compensation of any of its directors, trustees, officers, and employees outside the Ordinary Course of Business; Neither Seller nor any Subsidiary of Seller has adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, Contract, or commitment for the benefit of any of its directors, trustees, officers, and employees (i) the Acquired Companies have not or taken any such action with respect to any other Employee Benefit Plan); Neither Seller nor any Subsidiary of Seller has made any other change in employment terms for any of their respective its directors, officers or Management Employees or any class or group of other employeestrustees, in each case officers, and employees outside the Ordinary Course of Business; (j) Neither Seller nor any Subsidiary of Seller has made or pledged to make any charitable or other capital contribution outside the Acquired Companies have Ordinary Course of Business; There has not madebeen any other occurrence, event, incident, action, failure to act, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in transaction outside the Ordinary Course of Business involving Seller or paid any bonus to Subsidiary of Seller; Neither Seller nor any employees other than in the Ordinary Course Subsidiary of Business Seller has discharged a material Liability or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in Lien outside the Ordinary Course of Business; Neither Seller nor any Subsidiary of Seller has made any loans or advances of money; Neither Seller nor any Subsidiary of Seller has disclosed any Confidential Information in violation of the terms hereof; and Neither Seller nor any Subsidiary of Seller has committed to any of the foregoing.
Appears in 1 contract
Samples: Asset Purchase Agreement
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since Change and the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each business and operations of the Acquired Companies has operated Target and its Subsidiaries have been conducted in the Ordinary Course of Business. Without limiting the generality of the foregoing, except as disclosed on Section 4(h) of the Disclosure Schedule, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: :
(ai) the Acquired Companies have not none of Target and its Subsidiaries has sold, leased, transferred transferred, or assigned any of their material assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course sale of Business and have not incurred any Liability other than inventory in the Ordinary Course of Business; ;
(bii) the Acquired Companies have not none of Target and its Subsidiaries has entered into any Applicable Contractmaterial agreement, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contractscontract, outside the Ordinary Course of Business lease, or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable license outside the Ordinary Course of Business; ;
(diii) the Acquired Companies have maintained inventory no Person (including work-any of Target and its Subsidiaries) has accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license to which any of Target and its Subsidiaries is a party or by which any of them is bound;
(iv) none of Target and its Subsidiaries has imposed any Lien (other than Permitted Encumbrances) upon any of its assets, tangible or intangible;
(v) none of Target and its Subsidiaries has made any material capital expenditures other than in accordance with the Target's or a Subsidiary's budget;
(vi) none of Target and its Subsidiaries has made any material capital investment in-process, or any material loan to, any other Person;
(vii) at levels consistent Target and its Subsidiaries have not created, incurred, assumed, or guaranteed more than $250,000 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) none of Target and its Subsidiaries has transferred, assigned, or granted any license or sublicense of any material rights under or with their past practices respect to any Intellectual Property;
(ix) there has been no change made or authorized in the Ordinary Course charter or bylaws of Business; any of Target and its Subsidiaries;
(ex) the Acquired Companies have not acceleratednone of Target and its Subsidiaries has issued, delayed sold, or postponed the acquisitionotherwise disposed of any of its capital stock, repair or replacement granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of machineryits capital stock;
(xi) none of Target and its Subsidiaries has declared, equipment set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) none of Target and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business; (g) the Acquired Companies have not its Subsidiaries has experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to its property;
(xiii) none of Target and its Subsidiaries has made any loan to, or entered into any other transaction with, any of its directors, officers, and employees or any Affiliate of any Seller, other than advances for expenses in the Assets; Ordinary Course of Business;
(hxiv) the Acquired Companies have not none of Target and its Subsidiaries has entered into any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any such existing employment Contract contract or collective bargaining agreement outside agreement;
(xv) none of Target and its Subsidiaries has granted any increase in the compensation of any of its directors, officers, and employees, other than increases in the compensation of employees made in the Ordinary Course of Business; ;
(ixvi) none of Target and its Subsidiaries has adopted, amended, modified, terminated or increased any benefits under any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the Acquired Companies have not benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan) other than such changes for the benefit of its employees made in the Ordinary Course of Business;
(xvii) none of Target and its Subsidiaries has made any other material change in employment terms for any of their respective its directors, officers or Management Employees or any class or group of other officers, and employees, in each case outside the Ordinary Course of Business; (j) the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change such changes in the accounting principles and practices used by the Acquired Companies from those applied in the preparation employment terms of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, employees made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Business;
(xviii) none of Target and its Subsidiaries has made any loans or advances of money other than intercompany loans and advances to employees made in the Ordinary Course of Business;
(xix) none of Target and its Subsidiaries has settled any material action, investigation, proceeding, litigation, claim or suit;
(xx) none of Target and its Subsidiaries has made any change in its methods of accounting or accounting principles or practices (including with respect to reserves);
(xxi) none of Target and its Subsidiaries has made, changed or revoked any material Tax election, elected or changed any method of accounting for Tax purposes, changed its fiscal year, settled or compromised any action in respect of Taxes, entered into any contract or agreement in respect of Taxes with any governmental authority, or amended any Tax Return that would result in any material increase in the liability for Taxes of Buyer, its Affiliates or Target and its Subsidiaries not indemnified by Sellers hereunder; and
(xxii) none of Target and its Subsidiaries has committed to any o f the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the Most ------------------------------------------------- Recent Fiscal Year End, there has not been any Material Adverse Change. Since material adverse change in the Most Recent Fiscal Year Endbusiness, except as set forth in SCHEDULE 5.6 financial condition, operations or as provided in this Agreement, each results of operations of the Acquired Companies has operated in the Ordinary Course of BusinessSubsidiary. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(ai) the Acquired Companies have Subsidiary has not sold, leased, transferred transferred, or assigned any of their its assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in outside the Ordinary Course of Business; ;
(bii) the Acquired Companies have Subsidiary has not entered into any Applicable Contractmaterial agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) outside the terms Ordinary Course of Business;
(iii) no party (including the Subsidiary) has accelerated, terminated, modified, or canceled any material agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) to which cause payments in excess the Subsidiary is a party or by which it is bound;
(iv) the Subsidiary has not imposed any Security Interest upon any of $10,000 in respect its assets, tangible or intangible outside the Ordinary Course of Business;
(v) the Subsidiary has not made any individual Applicable Contract and $50,000 in material capital expenditures outside the aggregate in respect Ordinary Course of all such individual Applicable ContractsBusiness;
(vi) the Subsidiary has not made any material capital investment in, any loan to, or any acquisition of the securities or assets of, any other Person outside the Ordinary Course of Business;
(vii) the Subsidiary has not accelerated the collection of outstanding accounts receivable, through the offer of discounts or otherwise, outside the Ordinary Course of Business Business;
(viii) the Subsidiary has not created, incurred, assumed, or capital expenditures identified guaranteed any indebtedness for borrowed money or capitalized lease obligation either involving more than $200,000 singly or $1.5 million in the capital expenditures budget set forth on SCHEDULE 5.13.3; aggregate;
(cix) the Acquired Companies have Subsidiary has not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; ;
(dx) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have Subsidiary has not canceled, compromised, waived waived, or released any material right or claim (or series of related rights and claims) outside the Ordinary Course of Business; ;
(gxi) the Acquired Companies have Subsidiary has not granted any license or sublicense of any rights under or with respect to any Intellectual Property outside the Ordinary Course of Business;
(xii) the Subsidiary has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xiii) there has been no change made or authorized in the charter or bylaws of the Subsidiary;
(xiv) the Subsidiary has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xv) the Subsidiary has not experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to the Assets; its property;
(hxvi) the Acquired Companies have Subsidiary has not made any loan to, or entered into any other transaction with, any of its directors, officers, and employees outside the Ordinary Course of Business;
(xvii) the Subsidiary has not entered into any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement outside the Ordinary Course of Business; ;
(ixviii) the Acquired Companies have Subsidiary has not granted any increase in the base compensation of any of its directors, officers or employees outside the Ordinary Course of Business;
(xix) the Subsidiary has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan);
(xx) the Subsidiary has not made any other material change in employment terms for any of their respective its directors, officers officers, or Management Employees or any class or group of other employees, in each case employees outside the Ordinary Course of Business; ;
(jxxi) the Acquired Companies have there has not madebeen any other material occurrence, event, incident, action, failure to act, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in transaction outside the Ordinary Course of Business or paid any bonus involving the Subsidiary; and
(xxii) the Subsidiary has not committed to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year EndMarch 31, 2008, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of Business. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(ai) the Acquired Companies have not neither VBV nor either VBV Subsidiary has sold, leased, transferred or assigned any of their assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in outside the Ordinary Course of Business; ;
(bii) the Acquired Companies have not neither VBV nor either VBV Subsidiary has entered into any Applicable Contractagreement, contract, lease or license outside the terms Ordinary Course of Business;
(iii) no party (including VBV or either VBV Subsidiary) has accelerated, terminated, made modifications to or canceled any agreement, contract, lease or license to which cause payments in excess VBV or either VBV Subsidiary is a party or by which any of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contractsthem is bound, outside the Ordinary Course of Business Business;
(iv) neither VBV nor either VBV Subsidiary has imposed any Lien upon any of its assets, tangible or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilitiesintangible, outside the Ordinary Course of Business or the collection of notes or accounts receivable Business;
(v) neither VBV nor either VBV Subsidiary has made any capital expenditures outside the Ordinary Course of Business; ;
(dvi) the Acquired Companies have maintained inventory (including work-neither VBV nor either VBV Subsidiary has made any capital investment in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisitionany material loan to, repair or replacement of machinery, equipment and any other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) Person outside the Ordinary Course of Business; ;
(gvii) VBV and the Acquired Companies VBV Subsidiaries have not created, incurred, assumed, or guaranteed more than $50,000 in aggregate indebtedness for borrowed money and capitalized lease obligations outside the Ordinary Course of Business;
(viii) neither VBV nor either VBV Subsidiary has transferred, assigned or granted any license or sublicense of any rights under or with respect to any Intellectual Property outside the Ordinary Course of Business;
(ix) there has been no change made or authorized in the certificate of formation or operating agreement of VBV or either VBV Subsidiary;
(x) neither VBV nor either VBV Subsidiary has issued, sold or otherwise disposed of any of its limited liability company interests, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its limited liability company interests outside the Ordinary Course of Business;
(xi) neither VBV nor either VBV Subsidiary has declared, set aside or paid any dividend or made any distribution with respect to its limited liability company interests (whether in cash or in kind) or redeemed, purchased or otherwise acquired any of its limited liability company interests outside the Ordinary Course of Business;
(xii) neither VBV nor either VBV Subsidiary has experienced any material damage, destruction or loss (whether or not covered by insurance) to its property outside the Assets; Ordinary Course of Business;
(hxiii) the Acquired Companies have not neither VBV nor either VBV Subsidiary (a) has made any loan to, or entered into any other transaction with, any of its managers, officers, and employees outside the Ordinary Course of Business, (b) has outstanding or arranged to have outstanding any “extensions of credit” to directors or executive officers within the meaning of Section 402 of SOX or (c) has entered into any transactions or relationships with any present or former manager or officer thereof, or any member of such manager’s or officer’s family or any Person controlled by such officer or manager or his or her family, or that would be required to be disclosed pursuant to Item 404 of SEC Regulation S-K ;
(xiv) neither VBV nor either VBV Subsidiary has entered into or terminated any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement outside the Ordinary Course of Business; ;
(ixv) neither VBV nor either VBV Subsidiary has granted any increase in the Acquired Companies have not base compensation of any of its managers, officers, and employees outside the Ordinary Course of Business;
(xvi) neither VBV nor either VBV Subsidiary has adopted, amended, modified or terminated any bonus, profit sharing, incentive, severance, or other plan, contract or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan) outside the Ordinary Course of Business;
(xvii) neither VBV nor either VBV Subsidiary has made any other change in employment terms for any of their respective directorsits managers, officers officers, and employees outside the Ordinary Course of Business;
(xviii) neither VBV nor either VBV Subsidiary has made any loans or Management Employees or any class or group advances of other employees, in each case money outside the Ordinary Course of Business; and
(jxix) the Acquired Companies have not made, or agreed neither VBV nor either VBV Subsidiary has committed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Samples: Merger Agreement (Green Plains Renewable Energy, Inc.)
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated Change in the Ordinary Course business, financial condition, operations, results of Businessoperations, or future prospects of Chameleon. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(ai) the Acquired Companies have Chameleon has not sold, leased, transferred transferred, or assigned any of their material assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in outside the Ordinary Course of Business Business;
(ii) Chameleon has not entered into any material agreement, contract, lease, or license outside the Ordinary Course of Business;
(iii) no party (including Chameleon) has accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license to which Chameleon is a party or by which it is bound;
(iv) Chameleon has not imposed any Security Interest upon any of its assets, tangible or intangible;
(v) Chameleon has not made any material capital expenditures outside the Ordinary Course of Business;
(vi) Chameleon has not made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(vii) Chameleon has not created, incurred, assumed, or guaranteed more than $25,000 in aggregate indebtedness for borrowed money and have capitalized lease obligations;
(viii) Chameleon has not incurred granted any Liability other than license or sublicense of any material rights under or with respect to any Intellectual Property, except licenses in the Ordinary Course of Business; ;
(bix) there has been no change made or authorized in the Acquired Companies have charter or bylaws of Chameleon;
(x) Chameleon has not entered into any Applicable Contractissued, the terms of which cause payments in excess of $10,000 in respect sold, or otherwise disposed of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contractsits capital stock, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not acceleratedgranted any options, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable warrants, or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable rights to purchase or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; (d) the Acquired Companies have maintained inventory obtain (including work-in-processupon conversion, exchange, or exercise) at levels consistent with their past practices any of its capital stock except for issuances to service providers in the Ordinary Course of Business; ;
(exi) the Acquired Companies have Chameleon has not accelerateddeclared, delayed set aside, or postponed the acquisitionpaid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, repair purchased, or replacement otherwise acquired any of machineryits capital stock, equipment and other assets used in connection with the business except pursuant to Chameleon repurchase rights arising upon termination of the Acquired Companies in the Ordinary Course of Business; an individual's status as an employee, director or consultant;
(fxii) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business; (g) the Acquired Companies have Chameleon has not experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to its property;
(xiii) Chameleon has not made any loan to, or entered into any other transaction with, any of its directors, officers, and employees, except in the Assets; Ordinary Course of Business;
(hxiv) the Acquired Companies have Chameleon has not entered into any employment Contract contract (other than as may be implied by lawoffer letters and option agreements with service providers in the Ordinary Course of Business) or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement outside the Ordinary Course of Business; (i) the Acquired Companies have not made any other change in employment terms for any of their respective directorsagreement, officers or Management Employees or any class or group of other employees, in each case outside the Ordinary Course of Business; (j) the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than except in the Ordinary Course of Business;
(xv) Chameleon has not granted any increase in the base compensation of any of its directors, officers, and employees, except in the Ordinary Course of Business;
(xvi) Chameleon has not adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan), except as required by applicable law;
(xvii) Chameleon has not committed to any of the foregoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since material adverse change in the Most Recent Fiscal Year Endbusiness, except as set forth in SCHEDULE 5.6 condition (financial or as provided in this Agreementotherwise), each operations, results of operations, or future prospects of the Acquired Companies has operated in Seller or the Ordinary Course of Business. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, that date and except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: on the Disclosure Schedule:
(ai) the Acquired Companies have Seller has not sold, leased, transferred transferred, or assigned any of their its assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business Business;
(ii) except as set forth in Section 4(g)(ii) of the Disclosure Schedule, the Seller has not entered into any Contract, lease, or license (or series of related Contracts, leases, and have not incurred any Liability other licenses) either involving more than in $5,000 or outside the Ordinary Course of Business; ;
(biii) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have Seller has not accelerated, terminated, modified, or cancelled any Contract, lease, or license (or series of related Contracts, leases, and licenses) involving more than $5,000 to which the Seller is a party or by which the Seller is bound;
(iv) except as set forth in Section 4(g)(iv) of the Disclosure Schedule, the Seller has not issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any Indebtedness for borrowed money or capitalized lease obligation;
(v) the Seller has not delayed or postponed the payment of accounts payable and or other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or Business, has not accelerated the collection of notes or accounts receivable outside the Ordinary Course of Business; (d) the Acquired Companies have Business and has maintained its inventory (including work-in-process) at levels consistent with their past practices in within the Ordinary Course of Business; ;
(evi) except as set forth in Section 4(g)(vi) of the Disclosure Schedule, the Seller has not made any loan to, or received any loan from, or entered into any other transaction with, any of its stockholders, directors, officers, and employees;
(vii) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business; (g) the Acquired Companies have not experienced any material damage, destruction or loss (whether or not covered by insurance) to the Assets; (h) the Acquired Companies have Seller has not entered into any employment Contract (other than as may be implied by law) or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment such Contract or collective bargaining agreement outside the Ordinary Course of Business; agreement;
(iviii) the Acquired Companies have Seller has not made any other change in employment terms for any of their respective its directors, officers or Management Employees or any class or group of other employeesofficers, in each case and employees outside the Ordinary Course of Business; ;
(jix) no material supplier or customer has cancelled, materially modified or terminated or given notice of its intent to terminate either a particular Contract or its relationship with the Acquired Companies have Seller or decreased materially its supply, usage or purchase of the service or products of the Seller, nor does it have, to its Knowledge, any plan or intention to do any of the foregoing;
(x) there has not madebeen any other material occurrence, event, incident, action, failure to act, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in transaction outside the Ordinary Course of Business or paid any bonus involving the Seller; and
(xi) the Seller has not committed to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in do any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since Except as reflected in the Most Recent Financial Statements, since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since material change in the Most Recent Fiscal Year Endbusiness, except as set forth in SCHEDULE 5.6 financial condition, operations or as provided in this Agreement, each results of operations of the Acquired Companies has operated in the Ordinary Course of BusinessTarget taken as a whole. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(ai) the Acquired Companies have Target has not sold, leased, transferred transferred, or assigned any of their material assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; (b) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; ;
(dii) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have Target has not acceleratedentered into any material agreement, delayed contract, lease, or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) license outside the Ordinary Course of Business; ;
(giii) no party (including the Target) has accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license to which the Target is a party or by which the Target is bound;
(iv) the Acquired Companies have Target has not imposed any Security Interest upon any of its assets, tangible or intangible;
(v) the Target has not made any material capital expenditures outside the Ordinary Course of Business;
(vi) the Target has not made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(vii) the Target has not created, incurred, assumed, or guaranteed any indebtedness for borrowed money and capitalized lease obligations;
(viii) the Target has not granted any license or sublicense of any material rights under or with respect to any Intellectual Property;
(ix) there has been no change made or authorized in the charter or bylaws of the Target;
(x) the Target has not issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xi) the Target has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xii) the Target has not experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to the Assets; its property;
(hxiii) the Acquired Companies have Target has not made any loan to, or entered into any other transaction with, any of its directors, officers, and employees outside the Ordinary Course of Business;
(xiv) the Target has not entered into any employment Contract (other than as may be implied by law) or contract outside the Ordinary Course of Business, nor has the Target entered into any collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement outside the Ordinary Course of Business;
(xv) the Target has not granted any increase in the base compensation of any of its directors, officers, and employees outside the Ordinary Course of Business;
(xvi) the Target has not adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan); (ixvii) the Acquired Companies have Target has not made any other material change in employment terms for any of their respective its directors, officers or Management Employees or any class or group of other employeesofficers, in each case and employees outside the Ordinary Course of Business; and (jxviii) the Acquired Companies have Target has not made, or agreed committed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Samples: Merger Agreement (Aris Corp/)
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Changeoccurrence that has had or reasonably would be expected to have a material adverse effect on the business, financial condition, operations or results of operations of the Company and its Subsidiaries taken as a whole. Since APAC acknowledges that there may be a disruption to the Most Recent Fiscal Year End, except Business as set forth in SCHEDULE 5.6 or as provided in a result of the execution of this Agreement, each the announcement by APAC of its intention to purchase the Company or the announcement by the Principal Stockholders or the Company of such intended sale, and the consummation of the Acquired Companies has operated in the Ordinary Course transactions contemplated hereby, and APAC agrees that such disruptions do not and shall not constitute a breach of Businessthis Section 3(i) or of Section 3(y) hereof. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 on Section 3(i) of the Disclosure Schedule or as otherwise provided would not, individually or in this Agreement: the aggregate, have a material adverse effect upon the business, financial condition, operations and results of operations of the Company and its Subsidiaries taken as a whole which results in at least $500,000 of Adverse Consequences:
(ai) none of the Acquired Companies have not Company and its Subsidiaries has sold, leased, transferred transferred, or assigned any of their its assets, tangible or intangible, with a fair market value outside the ordinary course of business;
(ii) none of the Company and its Subsidiaries has entered into any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) outside the ordinary course of business;
(iii) no party (including any of the Company and its Subsidiaries) has accelerated, terminated, modified, or canceled any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) which is set forth on Section 3(m)(ii) or Section 3(p) of the Disclosure Schedule and which involves in excess of $10,000 in respect 100,000 per annum to which any of the Company and its Subsidiaries is a party or by which any individual asset of them is bound;
(iv) none of the Company and $50,000 in the aggregate in respect its Subsidiaries has imposed any Security Interest upon any of all such individual its assets, tangible or intangible;
(v) [intentionally omitted];
(vi) none of the Company and its Subsidiaries has made any capital investment in, any loan to, or any acquisition of the securities or assets of, any other than Person (or series of related capital investments, loans, and acquisitions);
(vii) none of the Company and its Subsidiaries has issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any indebtedness for a fair consideration in borrowed money or capitalized lease obligation;
(viii) none of the Ordinary Course of Business Company and have not incurred any Liability other than in the Ordinary Course of Business; (b) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, its Subsidiaries has delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course ordinary course of Business business or accelerated the collection of accounts, notes or accounts receivable other receivables outside the Ordinary Course ordinary course of Business; business;
(dix) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business none of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not Company and its Subsidiaries has canceled, compromised, waived waived, or released any right or claim (or series of related rights and claims) outside the Ordinary Course ordinary course of Business; business;
(gx) none of the Acquired Companies have not Company and its Subsidiaries has granted any license or sublicense of any rights under or with respect to any Intellectual Property outside the ordinary course of business;
(xi) there has been no change made or authorized in the charter or bylaws of any of the Company and its Subsidiaries;
(xii) none of Company and its Subsidiaries has issued, sold, or otherwise disposed of any of its capital stock, or granted any options (including options granted to employees), warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(xiii) none of the Company and its Subsidiaries has declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(xiv) none of the Company and its Subsidiaries has experienced any material single occurrence of damage, destruction destruction, or loss in an amount in excess of $100,000 (whether or not covered by insurance) to its property;
(xv) none of the Assets; Company and its Subsidiaries has made any loan to, or entered into any other transaction with, any of its directors, officers, and employees outside the ordinary course of business.
(hxvi) none of the Acquired Companies have not Company and its Subsidiaries has entered into any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement agreement;
(xvii) none of the Company and its Subsidiaries has granted any increase in the base compensation of any of its directors, officers, and employees outside the Ordinary Course ordinary course of Business; business;
(ixviii) none of the Acquired Companies have not Company and its Subsidiaries has adopted, amended, modified, or terminated any bonus, profit-sharing, incentive, severance, or other plan, contract, or commitment for the benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan);
(xix) none of the Company and its Subsidiaries has made any other change in employment terms for any of their respective its directors, officers or Management Employees or officers, and key employees or, outside the ordinary course of business, for any class or group of its other employees, in each case ; and
(xx) none of the Company and its Subsidiaries had made or pledged to make any charitable or other capital contribution outside the Ordinary Course ordinary course of Business; (j) the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessbusiness.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each Section 6(i) of the Acquired Companies Disclosure Schedule, there has operated in not been any transaction entered into by Seller outside of the Ordinary Course of BusinessBusiness and Seller has not suffered any Material Adverse Effect. Without limiting the generality of the foregoing, except as set forth in Section 6(i) of the Disclosure Schedule, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: :
(ai) the Acquired Companies have Seller has not sold, leased, transferred transferred, or assigned any of their assets, tangible or intangible, with a fair market value in excess of $10,000 5,000 or more, outside the Ordinary Course of Business, and Seller has disclosed in respect writing to Buyer any sale, lease, transfer or assignment of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration tangible or intangible, of Seller made in the Ordinary Course of Business and where such assets have not incurred any Liability other than in the Ordinary Course a fair market value of Business; $5,000 or more;
(bii) the Acquired Companies have Seller has not entered into any Applicable Contractagreement, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contractscontract, outside the Ordinary Course of Business lease, or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable license outside the Ordinary Course of Business; ;
(diii) the Acquired Companies have maintained inventory no Lien has been imposed upon any of Seller’s assets, tangible or intangible;
(including work-in-processiv) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have Seller has not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceledcancelled, compromised, waived waived, or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business; , with the exception of certain waivers and releases in favor of Silicon Valley Bank, Gold Hill and the Series I Investors;
(gv) Seller has not transferred, assigned, or granted any license or sublicense of any rights under or with respect to any of the Acquired Companies have Business IP;
(vi) there has been no change made or authorized in the certificate of incorporation, bylaws or other charter documents of Seller;
(vii) Seller has not experienced issued, sold, or otherwise disposed of any material damageof its capital stock, destruction or loss granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(viii) Seller has not declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or not covered by insurance) to the Assets; (h) the Acquired Companies have not entered into any employment Contract (other than as may be implied by lawin kind) or collective bargaining agreement redeemed, purchased, or modified the terms otherwise acquired any of its capital stock;
(ix) Seller has not made any existing employment Contract loans or collective bargaining agreement advances of money outside of the Ordinary Course of Business; and
(ix) the Acquired Companies have Seller has not made any other change in employment terms for any of their respective directors, officers or Management Employees or any class or group of other employees, in each case outside the Ordinary Course of Business; (j) the Acquired Companies have not made, or agreed committed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since Except as set forth in §3(g) of the Disclosure Schedule, since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since Change with respect to the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 Business or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of BusinessAssets. Without limiting the generality of the foregoing, since that date, with respect to the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: (a) Business and the Acquired Companies have Assets:
(i) Seller has not sold, leased, transferred transferred, or assigned any asset or group of their assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; ;
(bii) the Acquired Companies have Seller has not entered into any Applicable Contractagreement, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contractscontract, outside the Ordinary Course of Business lease, or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; (d) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim license (or series of related rights and claimsagreements, contracts, leases or licenses which in the aggregate are) outside the Ordinary Course of Business; ;
(giii) no Person (including Seller) has accelerated, terminated, made modifications to, or cancelled any material agreement, contract, lease, or license to which Seller is a party or by which it is bound;
(iv) Seller has not imposed any Lien other than Permitted Liens upon any of its assets, tangible or intangible;
(v) Seller has not made any capital expenditures outside the Acquired Companies have Ordinary Course of Business;
(vi) Seller has not made any capital investment in, or any loan to, any other Person outside the Ordinary Course of Business;
(vii) Seller has not created, incurred, assumed, or guaranteed more than US$50,000 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(viii) Seller has not transferred, assigned, or granted any license or sublicense of any material rights under or with respect to any Intellectual Property;
(ix) Seller has not experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to its property;
(x) Seller has not (a) made any loan to any of the Assets; directors, officers, and employees of Seller or any of its Affiliates other than loans made in connection with payroll advances, initiation of employment or as permitted by employee benefit plans, or (hb) entered into any other transaction outside the Acquired Companies have Ordinary Course of Business with any of the directors, officers, and employees of Seller or any of its Affiliates;
(xi) Seller has not entered into any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of (i) any such existing contract or agreement or (ii) any employment Contract policy;
(xii) Seller has not granted any increase in the base compensation of any of the directors, officers, and employees of Seller or collective bargaining agreement any of its Affiliates outside the Ordinary Course of Business; ;
(ixiii) Seller has not adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the Acquired Companies have benefit of any employees of Seller involved with the Business, or taken any such action with respect to any other Employee Benefit Plan;
(xiv) Seller has not made any other material change in employment terms terms, including without limitation compensation and benefits for any of their respective directors, officers or Management Employees or any class or group of other employees, in each case the employees involved with the Business outside the Ordinary Course of Business; ;
(jxv) the Acquired Companies have Seller has not made, changed its normal business practices or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in action outside the Ordinary Course of Business;
(xvi) Seller has not made any loans or advances of money; and
(xvii) Seller has not agreed, consented to or committed to do any of the foregoing.
Appears in 1 contract
Samples: Asset Purchase Agreement (Napro Biotherapeutics Inc)
Events Subsequent to Most Recent Fiscal Year End. Since Except as set forth in Section 3.9 of the Parent Disclosure Schedule, since the Parent Most Recent Fiscal Year End, there has not been any Parent Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of Business. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(a) the Acquired Companies have not neither Parent nor its Subsidiaries has sold, leased, transferred transferred, or assigned any of their material assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; (b) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; ;
(db) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have not acceleratedneither Parent nor its Subsidiaries has entered into any material agreement, delayed contract, lease, or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) license outside the Ordinary Course of Business; ;
(c) no party (including Parent or any of its Subsidiaries) has accelerated, terminated, made material modifications to, or canceled any material agreement, contract, lease, or license to which Parent or any of its Subsidiaries is a party or by which any of them is bound;
(d) neither Parent nor its Subsidiaries has imposed any Lien upon any of its assets, tangible or intangible;
(e) neither Parent nor its Subsidiaries has made any material capital expenditures outside the Ordinary Course of Business;
(f) neither Parent nor its Subsidiaries has made any material capital investment in, or any material loan to, any other Person outside the Ordinary Course of Business;
(g) Except in the Acquired Companies ordinary course of business and/or as disclosed in the Parent Disclosure Schedule Parent and its Subsidiaries have not created, incurred, assumed, or guaranteed any indebtedness for borrowed money and capitalized lease obligations;
(h) neither Parent nor its Subsidiaries has transferred, assigned, or granted any license, sublicense, agreement, covenant not to sxx, or permission with respect to any material Intellectual Property;
(i) there has been no change made or authorized in the charter or bylaws of Parent or any of its Subsidiaries;
(j) neither Parent nor its Subsidiaries has issued, sold, or otherwise disposed of any of its capital stock, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock;
(k) neither Parent nor its Subsidiaries has declared, set aside, or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased, or otherwise acquired any of its capital stock;
(l) neither Parent nor its Subsidiaries has experienced any material damage, destruction destruction, or loss (whether or not covered by insurance) to the Assets; its property;
(hm) the Acquired Companies have not neither Parent nor its Subsidiaries has made any loan to, or entered into any other transaction with, any of its directors, officers, and employees outside the Ordinary Course of Business;
(n) neither Parent nor its Subsidiaries has entered into or terminated any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or agreement, or become bound by any collective bargaining agreement relationship;
(o) neither Parent nor its Subsidiaries has granted any increase in the base compensation of any of its directors, officers, and employees outside the Ordinary Course of Business; ;
(ip) neither Parent nor its Subsidiaries has adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance, or other plan, contract, or commitment for the Acquired Companies have not benefit of any of its directors, officers, and employees (or taken any such action with respect to any other Employee Benefit Plan);
(q) neither Parent nor its Subsidiaries has made any other material change in employment terms for any of their respective its directors, officers or Management Employees or any class or group of other employeesofficers, in each case and employees outside the Ordinary Course of Business; ;
(jr) neither Parent nor its Subsidiaries has implemented any employee layoffs requiring notice under the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller WARN Act;
(other than an Acquired Company); (ks) the Acquired Companies have not neither Parent nor its Subsidiaries has made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation loans or advances of the Financial Statementsmoney; and
(lt) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income neither Parent nor its Subsidiaries has committed to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Samples: Merger Agreement (Bio-Matrix Scientific Group, Inc.)
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of BusinessEffect. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: that date:
(ai) the Acquired Companies have Seller has not sold, leased, transferred transferred, or assigned any of their its assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business Business;
(ii) the Seller has not entered into any Contract, lease, or license (or series of related Contracts, leases, and have not incurred any Liability other licenses) either involving more than in $10,000 or outside the Ordinary Course of Business; ;
(biii) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have Seller has not accelerated, terminated, modified, or cancelled any Contract, lease, or license (or series of related Contracts, leases, and licenses) involving more than $10,000 to which the Seller is a party or by which the Seller is bound;
(iv) the Seller has not issued any note, bond, or other debt security or created, incurred, assumed, or guaranteed any Indebtedness for borrowed money or capitalized lease obligation;
(v) the Seller has not delayed or postponed the payment of accounts payable and or other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or Business, has not accelerated the collection of notes or accounts receivable outside the Ordinary Course of Business; (d) the Acquired Companies have Business and has maintained its inventory (including work-in-process) at levels consistent with their past practices in within the Ordinary Course of Business; ;
(evi) the Acquired Companies have Seller has not acceleratedmade any loan to, delayed or postponed the acquisitionreceived any loan from, repair or replacement entered into any other transaction with, any of machineryits stockholders, equipment directors, officers, and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; employees;
(fvii) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) outside the Ordinary Course of Business; (g) the Acquired Companies have not experienced any material damage, destruction or loss (whether or not covered by insurance) to the Assets; (h) the Acquired Companies have Seller has not entered into any employment Contract (other than as may be implied by law) or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment such Contract or collective bargaining agreement outside the Ordinary Course of Business; agreement;
(iviii) the Acquired Companies have Seller has not made any other change in employment terms for any of their respective its directors, officers or Management Employees or any class or group of other employeesofficers, in each case and employees outside the Ordinary Course of Business; ;
(jix) no material supplier or customer has cancelled, materially modified or terminated or given notice of its intent to terminate either a particular Contract or its relationship with the Acquired Companies Seller or decreased materially its supply, usage or purchase of the service or products of the Seller, nor does it have, to its or Xx. Xxxxxxxxx’x Knowledge, have any plan or intention to do any of the foregoing;
(x) there has not madebeen any other material occurrence, event, incident, action, failure to act, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in transaction outside the Ordinary Course of Business or paid any bonus involving the Seller; and
(xi) the Seller has not committed to any employees other than in the Ordinary Course of Business or granted any increase in compensation to any employee other than in the Ordinary Course of Business or made any increase or enhancement of benefits in do any of the Applicable Plans other than in the Ordinary Course of Businessforegoing.
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 on Schedule 7.7 or as provided in this Agreement, each 7.8 or with respect to the proposed transfer of the Acquired Companies Excluded Assets contemplated by Section 3.2, there has operated not been any material adverse change in the Ordinary Course business, financial condition, operations, results of Businessoperations, or future prospects of Enviroq and its Subsidiaries taken as a whole. Without limiting the generality of the foregoing, since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: on Schedule 7.8, since that date:
(a) the Acquired Companies have not none of Enviroq or any of its Subsidiaries has sold, leased, transferred transferred, or assigned any of their material assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have not incurred any Liability other than in the Ordinary Course of Business; (b) the Acquired Companies have not entered into any Applicable Contract, the terms of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and $50,000 in the aggregate in respect of all such individual Applicable Contracts, outside the Ordinary Course of Business or capital expenditures identified in the capital expenditures budget set forth on SCHEDULE 5.13.3; (c) the Acquired Companies have not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; ;
(db) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course none of Business; (e) the Acquired Companies have not acceleratedEnviroq or any of its Subsidiaries has entered into any material agreement, delayed contract, lease, or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceled, compromised, waived or released any right or claim (or series of related rights and claims) license outside the Ordinary Course of Business; ;
(gc) the Acquired Companies have not experienced no party (including any of Enviroq and its Subsidiaries) has accelerated, terminated, made material modifications to, or canceled any material damageagreement, destruction contract, lease, or loss license to which any of Enviroq or any of its Subsidiaries is a party or by which any of them is bound;
(whether d) none of Enviroq or not covered by insuranceany of its Subsidiaries has imposed any Security Interest upon any of its assets, tangible or intangible;
(e) to the Assets; (h) the Acquired Companies have not entered into none of Enviroq or any employment Contract (other than as may be implied by law) or collective bargaining agreement or modified the terms of its Subsidiaries has made any existing employment Contract or collective bargaining agreement material capital expenditures outside the Ordinary Course of Business; ;
(if) the Acquired Companies have not none of Enviroq or any of its Subsidiaries has made any other change in employment terms for any of their respective directorsmaterial capital investment in, officers or Management Employees or any class or group of material loan to, any other employees, in each case Person outside the Ordinary Course of Business;
(g) Enviroq and its Subsidiaries have not created, incurred, assumed, or guaranteed more than $20,000 in aggregate indebtedness for borrowed money and capitalized lease obligations;
(h) none of Enviroq or any of its Subsidiaries has granted any license or sublicense of any material rights under or with respect to any Intellectual Property;
(i) there has been no change made or authorized in the charter or bylaws of any of Enviroq or any of its Subsidiaries; (j) the Acquired Companies have not madenone of Enviroq or any of its Subsidiaries has issued, sold, or agreed to make, any payment of cash or distribution of assets or property otherwise disposed of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have not made any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared or filed any Tax Return inconsistent with past practice orits capital stock, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any contribution to any Applicable Plan other than in the Ordinary Course of Business or paid any bonus to any employees other than in the Ordinary Course of Business or granted any increase in compensation options, warrants, or other rights to any employee other than in the Ordinary Course of Business purchase or made any increase obtain (including upon conversion, exchange, or enhancement of benefits in exercise) any of the Applicable Plans other than in the Ordinary Course of Business.its capital stock;
Appears in 1 contract
Events Subsequent to Most Recent Fiscal Year End. Since the Most Recent Fiscal Year End, there has not been any Material Adverse Change. Since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as provided in this Agreement, each of the Acquired Companies has operated in the Ordinary Course of BusinessEffect. Without limiting the generality of the foregoing, foregoing (and except as disclosed in Schedule 4.9) since the Most Recent Fiscal Year End, except as set forth in SCHEDULE 5.6 or as otherwise provided in this Agreement: :
(a) the Acquired Companies have Brookwood has not sold, leased, transferred or assigned any of their its assets, tangible or intangible, with a fair market value in excess of $10,000 in respect of any individual asset and $50,000 in the aggregate in respect of all such individual assets, other than for a fair consideration in the Ordinary Course of Business and have Business;
(b) Brookwood has not incurred entered into any Liability Contract (or series of related Contracts) either involving more than $50,000 or outside the Ordinary Course of Business;
(c) no party (including Brookwood) has accelerated, terminated, modified or cancelled any Contract (or series of related Contracts) involving more than $50,000 to which Brookwood is a party or by which it is bound, other than in connection with the completion or expiration of any such Contract in the Ordinary Course of Business; ;
(bd) the Acquired Companies have Brookwood has not entered into imposed any Applicable ContractLiens upon any of its assets, the terms tangible or intangible;
(e) Brookwood has not made any capital expenditure (or series of which cause payments in excess of $10,000 in respect of any individual Applicable Contract and related capital expenditures) either involving more than $50,000 in the aggregate in respect of all such individual Applicable Contracts, or outside the Ordinary Course of Business Business;
(f) Brookwood has not made any capital investment in, any loan to or any acquisition of the securities or assets of, any other Person (or series of related capital expenditures identified investments, loans, and acquisitions) either involving more than $50,000 or outside the Ordinary Course of Business;
(g) Brookwood has not issued any note, bond or other debt security or created, incurred, assumed or guaranteed any indebtedness for borrowed money or capitalized lease obligation either involving more than $50,000 singly or $100,000 in the capital expenditures budget set forth on SCHEDULE 5.13.3; aggregate;
(ch) the Acquired Companies have Brookwood has not accelerated, delayed or postponed the payment of accounts payable and other Liabilities with a fair market value in excess of $10,000 in respect of any individual account payable or other Liability and $50,000 in the aggregate in respect of all such individual accounts payable or other Liabilities, outside the Ordinary Course of Business or the collection of notes or accounts receivable outside the Ordinary Course of Business; ;
(di) the Acquired Companies have maintained inventory (including work-in-process) at levels consistent with their past practices in the Ordinary Course of Business; (e) the Acquired Companies have Brookwood has not accelerated, delayed or postponed the acquisition, repair or replacement of machinery, equipment and other assets used in connection with the business of the Acquired Companies in the Ordinary Course of Business; (f) the Acquired Companies have not canceledcancelled, compromised, waived or released any right or claim (or series of related rights and claims) either involving more than $50,000 or outside the Ordinary Course of Business; ;
(gj) Brookwood has not transferred, assigned or granted any license or sublicense of any rights under or with respect to any Intellectual Property, except pursuant to any of the Acquired Companies have Contracts set forth on Schedule 4.15(a);
(k) there has been no change made or authorized in the certificate of incorporation or bylaws of Brookwood;
(l) Brookwood has not issued, sold or otherwise disposed of any of its capital stock or granted any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(m) Brookwood has not declared, set aside or paid any dividend or made any distribution with respect to its capital stock (whether in cash or in kind) or redeemed, purchased or otherwise acquired any of its capital stock;
(n) Brookwood has not experienced any material damage, destruction or loss (whether or not covered by insurance) to its property;
(o) Brookwood has not made any loan to, or entered into any other transaction with, any of its directors, officers, and employees outside the Assets; Ordinary Course of Business;
(hp) the Acquired Companies have Brookwood has not entered into any employment Contract (other than as may be implied by law) contract or collective bargaining agreement agreement, written or oral, or modified the terms of any existing employment Contract such contract or collective bargaining agreement agreement;
(q) Brookwood has not granted any increase in the base compensation of any of its directors, officers or employees outside the Ordinary Course of Business; ;
(ir) Brookwood has not adopted, amended, modified, or terminated any bonus, profit sharing, incentive, severance or other plan, Contract or commitment for the Acquired Companies have benefit of any of its directors, officers or employees (or taken any such action with respect to any other Employee Benefit Plan);
(s) Brookwood has not made any other change in employment terms for any of their respective its directors, officers officers, or Management Employees or any class or group of other employees, in each case employees outside the Ordinary Course of Business; ;
(jt) the Acquired Companies have not made, or agreed to make, any payment of cash or distribution of assets or property of any kind to Seller or any Affiliate of Seller (other than an Acquired Company); (k) the Acquired Companies have Brookwood has not made or pledged to make any change in the accounting principles and practices used by the Acquired Companies from those applied in the preparation of the Financial Statements; (l) the Acquired Companies have not prepared charitable or filed any Tax Return inconsistent with past practice or, on any such Tax Return, taken any position, made any election or adopted any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar Tax Returns in prior periods (including, without limitation, positions, elections or methods which would have the effect of deferring income to periods for which Buyer is liable or accelerating deductions to periods for which Seller is liable); and (m) the Acquired Companies have not paid, agreed to pay or incurred any Liability for any payment for any other capital contribution to any Applicable Plan other than in outside the Ordinary Course of Business Business;
(u) Brookwood has not discharged a material Liability or paid any bonus to any employees other than in Lien outside the Ordinary Course of Business Business;
(v) Brookwood has not made any loans or granted any increase in compensation to any employee advances of money, other than in the Ordinary Course of Business or travel advances made any increase or enhancement of benefits in any of the Applicable Plans other than in the Ordinary Course of Business;
(w) Brookwood has not disclosed any material Confidential Information, except pursuant to non-disclosure agreements or in the Ordinary Course of Business;
(x) there has not been any other material occurrence, event, incident, action, failure to act or transaction outside the Ordinary Course of Business involving Brookwood; and
(y) Brookwood has not committed to any of the foregoing.
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