Certain Changes. Since December 31, 2011, each Seller has conducted the Business solely in the ordinary course of business consistent with past practices, and each Seller has used its commercially reasonable efforts to preserve the Business and its assets and properties. Without limiting the foregoing, except as specifically listed in the relevant subsection of Section 4.12 of the Disclosure Letter, since December 31, 2011, there has not been in respect of the Business or the Purchased Assets any: (a) event or circumstance that has had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; (b) damage, destruction or loss (whether or not covered by insurance) that resulted in or could reasonably be expected to result in losses with respect to the Business or the Purchased Assets, in the aggregate, of more than Twenty-Five Thousand Dollars ($25,000); (c) revaluation or write-down of any of the Purchased Assets; (d) amendment or termination of any Material Contract other than in the ordinary course of business, consistent with past practices; (e) change in any accounting principles, methods or practices with respect to the Business or the Purchased Assets, or in the manner any Seller keeps its books and records relating thereto, or any change by a Seller of its current practices with regard to sales, Inventory, or Inventory valuation in the Business; (f) (i) grant of any severance, continuation or termination pay to any Covered Employee; (ii) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any Covered Employee or any associate of the foregoing; (iii) increase in benefits payable or potentially payable under any severance, continuation or termination pay policies or employment agreements with any Covered Employee or any associate of any of the foregoing; (iv) increase in compensation, bonus or other benefits payable or potentially payable to any Covered Employee or any associate of any of the foregoing; (v) change in the terms of any bonus, pension, insurance, health or other benefit plan of a Seller applicable to Covered Employees; or (vi) representation by any Seller to any employee or former employee that a Seller or Buyer would continue to maintain or implement any benefit plan or would continue to employ such employee after the Closing Date; (g) acquisition or disposal of assets (except sales of Inventory in bona fide, arms length transactions entered into in the ordinary course of business consistent with past practice); (h) capital expenditures exceeding, individually or in the aggregate, Twenty-Five Thousand Dollars ($25,000); (i) any change in any pricing practices (other than in the ordinary course of business consistent with past practices); (j) any settlement or compromise of any claim, suit or cause of action involving more than Twenty-Five Thousand Dollars ($25,000); or (k) agreement by a Seller to do, either directly or indirectly, any of the things described in the preceding clauses (c) through (j).
Appears in 2 contracts
Sources: Asset Purchase Agreement, Asset Purchase Agreement (Us Concrete Inc)
Certain Changes. Since December 31January 1, 20112004, each Seller has conducted and through the Business solely date of this Agreement except as set forth in Schedule 4.3(f) (and provided that no representation or warranty is made with respect to the Transferred Assets or the Excluded Liabilities), neither Company has:
(i) issued, sold or otherwise disposed of any of its capital stock or equivalent equity interest, or granted any options, warrants, or other rights to purchase or obtain (including upon conversion, exchange, or exercise) any of its capital stock or equivalent equity interest;
(ii) made any sale, purchase, assignment, lease, license, abandonment, transfer or other disposition of any material portion of its respective assets or properties, including any Company Intellectual Property, other than sales of Inventory in the ordinary course of business consistent with past practices, and each Seller has used its commercially reasonable efforts to preserve practice or as required by the Business and its assets and properties. Without limiting the foregoing, except as specifically listed in the relevant subsection of Section 4.12 Rebuild of the Disclosure LetterSan ▇▇▇▇ System, since December 31, 2011, there has not been in respect of the Business or the Purchased Assets any:
(a) event or circumstance taken any action that has had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) damage, destruction or loss (whether or not covered by insurance) that resulted in or could would reasonably be expected to result in losses with respect to the Business loss, lapse or the Purchased Assets, in the aggregate, of more than Twenty-Five Thousand Dollars ($25,000);
(c) revaluation or write-down abandonment of any of the Purchased Assets;
(d) amendment or termination of any Material Contract other than in the ordinary course of business, consistent with past practices;
(e) change in any accounting principles, methods or practices with respect to the Business or the Purchased Assets, or in the manner any Seller keeps its books and records relating thereto, or any change by a Seller of its current practices with regard to sales, Inventory, or Inventory valuation in the Business;
(f) (i) grant of any severance, continuation or termination pay to any Covered Employee; (ii) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any Covered Employee or any associate of the foregoing; (iii) increase in benefits payable or potentially payable under any severance, continuation or termination pay policies or employment agreements with any Covered Employee or any associate of any of the foregoing; (iv) increase in compensation, bonus or other benefits payable or potentially payable to any Covered Employee or any associate of any of the foregoing; (v) change in the terms of any bonus, pension, insurance, health or other benefit plan of a Seller applicable to Covered Employees; or (vi) representation by any Seller to any employee or former employee that a Seller or Buyer would continue to maintain or implement any benefit plan or would continue to employ such employee after the Closing Date;
(g) acquisition or disposal of assets (except sales of Inventory in bona fide, arms length transactions entered into in the ordinary course of business consistent with past practice);
(h) capital expenditures exceeding, individually or in the aggregate, Twenty-Five Thousand Dollars ($25,000);
(i) any change in any pricing practices (Company Intellectual Property other than in the ordinary course of business consistent with past practicespractice (unless, in either case, such assets were unnecessary or obsolete or comparable replacements were made therefor), or permitted any of such assets or properties to be subjected to any Lien of any kind other than Permitted Liens;
(iii) made or promised any bonus or material increase in the salary or other compensation payable or to become payable to any manager, director, officer, employee or consultant of the Companies, other than annual salary increases and annual bonuses made in the ordinary course consistent with past practice or required by the terms of a Material Contract (and, if committed to prior to the Closing Date (by contract or otherwise) and then payable but not paid, fully accrued on the Closing Date Balance Sheet and included as part of the Closing Date Current Liabilities);
(jiv) accelerated the receipt or recognition of any item of income or offered any discount for sales of advertising or services, other than in the ordinary course of business consistent with past practice;
(v) written down the value of any work in progress, or written off as uncollectible any notes or accounts receivable, except in the ordinary course of business consistent with past practice;
(vi) other than cash dividends, distributions and payments to ML Media or Century or their respective Affiliates, made any dividend, distribution or other payment to any Seller or their respective Affiliates;
(vii) received any notice of any new labor union organizing activity, any actual or threatened employee strikes, work stoppages, slowdowns or lockouts, or any material adverse change in the aggregate in its relations with its employees, agents, customers, suppliers or consultants;
(viii) entered into, amended in any material respect or terminated any employment agreement that (initially or as amended) is a Material Contract or Collective Bargaining Agreement, whether written or oral, other than in the ordinary course of business consistent with past practice;
(ix) implemented any layoff of employees that could implicate the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar foreign, state, Commonwealth or local law, regulation or ordinance (jointly, the “WARN Act”);
(x) made or suffered any change in or amendment to its organizational documents;
(xi) cancelled, compromised, waived or released any material right or claim (or series of related rights and claims) other than by order of the Bankruptcy Court;
(xii) entered into, terminated, modified, amended, renewed or made any other change in any Material Contract (including, without limitation, any contract for the purchase of goods, equipment or services of amounts in excess of $100,000 or any contract for the merger or consolidation with, or the acquisition of any material assets of, any other Person) other than in the ordinary course of business consistent with past practice;
(xiii) discharged or satisfied any obligation or Liability or made any settlement or compromise of any claimlitigation, suit other than in the ordinary course of business consistent with past practice, by order of the Bankruptcy Court or pursuant to the Plan;
(xiv) incurred any indebtedness or issued, assumed or guaranteed any debt or other Liability of any third party other than indebtedness incurred, or debt or Liabilities guaranteed, in an amount (individually or in the aggregate) less than $100,000;
(xv) engaged in any transaction that, individually or in the aggregate, has caused or would reasonably be expected to cause a Material Adverse Effect;
(xvi) since January 1, 2005, committed to make any capital expenditure (or series of action involving related capital expenditures), other than any capital expenditure to be made in connection with the Rebuild of the San ▇▇▇▇ System, that will not be fully paid prior to the Closing Date and either involves more than Twenty-Five Thousand Dollars $100,000 in any single case or $250,000 in the aggregate or is outside the ordinary course of business unless such commitment is reflected in the 2005 Budget;
($25,000)xvii) 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 in the ordinary course of business consistent with past practice; or
(kxviii) agreement by made a Seller commitment, whether or not in writing, to do, either directly or indirectly, do any of the things described in the preceding clauses (c) through (j)foregoing.
Appears in 2 contracts
Sources: Interest Acquisition Agreement (Arahova Communications Inc), Interest Acquisition Agreement (Adelphia Communications Corp)
Certain Changes. Since December 31June 30, 20112007, Seller and each Seller has Entity have conducted the Business Businesses solely in the ordinary course of business consistent with past practices, and each Seller has have used its commercially reasonable efforts to preserve the Business Businesses, and its assets and properties. Without limiting the foregoing, except as specifically listed in the relevant subsection of Section 4.12 of the Disclosure Letteron Schedule 4.9, since December 31June 30, 20112007, there has not been in been, with respect of to the Business or the Purchased Assets Businesses, any:
(a) material adverse change of any nature whatsoever in the business, operations, cash flows, affairs, prospects, liabilities (contingent or otherwise), results of operation, properties or assets or the condition (financial or otherwise) of the Businesses, or any event or circumstance that has had or could reasonably be expected to havewould, individually or in the aggregate, reasonably be expected to result in such a Material Adverse Effectmaterial adverse change;
(b) damage, destruction or loss (whether or not covered by insurance) that resulted in or could reasonably be expected to result in losses with respect to the Business Purchased Assets or the Purchased Assets, in the aggregate, Businesses of more than Twenty-Five Ten Thousand Dollars ($25,00010,000);
(c) revaluation or write-down of any of the Purchased AssetsAssets or any other assets or properties associated with the Businesses;
(d) amendment or termination of any Material Contract Agreement other than in the ordinary course of business, consistent with past practicesbusiness or as contemplated in this Agreement;
(e) change by Seller or any Seller Entity in any its accounting principles, methods or practices with respect to the Business or the Purchased Assets, or in the manner any Seller it keeps its books and records relating thereto, or any change by a Seller or any Seller Entity of its current practices with regard respect to sales, Inventoryreceivables, payables or Inventory valuation in accrued expenses related to the BusinessBusinesses;
(f) (i) grant of any severance, continuation or termination pay to any Covered Employeedirector, officer, shareholder or employee of Seller or any Seller Entity engaged in the Businesses; (ii) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any Covered Employee director, officer, shareholder or employee of Seller or any associate of Seller Entity engaged in the foregoingBusinesses; (iii) increase in benefits payable or potentially payable under any severance, continuation or termination pay policies or employment agreements with any Covered Employee director, officer, shareholder or employee of Seller or any associate of any of Seller Entity engaged in the foregoingBusinesses; (iv) increase in compensation, bonus or other benefits payable or potentially payable to any Covered Employee directors, officers, shareholders or employees of Seller or any associate Seller Entity engaged in the Businesses, except for customary increases in non-executive employee compensation made in the ordinary course of any of the foregoingbusiness and consistent with past practices; (v) change in the terms of any bonus, pension, insurance, health or other benefit plan of a Seller applicable or any Seller Entity related to Covered Employeesthe Businesses; or (vi) representation by of Seller or any Seller Entity to any employee or former employee that a of Seller or any Seller Entity engaged in the Businesses that Buyer would assume, continue to maintain or implement any benefit plan or would continue to employ such employee employees after the Closing Date;
(g) acquisition or disposal of assets (except sales used or held for use in the Businesses outside of Inventory in bona fide, arms length transactions entered into in the ordinary course of business consistent with past practice);business, including any transfer to any affiliate or other division of or within Seller or any Seller Entity; or
(h) capital expenditures exceeding, individually or in the aggregate, Twenty-Five Thousand Dollars ($25,000);
(i) any change in any pricing practices (other than in the ordinary course of business consistent with past practices);
(j) any settlement or compromise of any claim, suit or cause of action involving more than Twenty-Five Thousand Dollars ($25,000); or
(k) agreement by a Seller or any Seller Entity to do, either directly or indirectly, any of the things described in the preceding clauses (ca) through (jg).
Appears in 2 contracts
Sources: Asset Purchase Agreement (Challenger Powerboats, Inc.), Asset Purchase Agreement (Execute Sports Inc)
Certain Changes. Since December 31The Sellers will not cause or take any Board of --------------- Directors action to authorize the Company to:
(a) Borrow or agree to borrow any funds or incur, 2011or assume or become subject to, each Seller has conducted the Business solely whether directly or by way of guarantee or otherwise, any obligation or liability (absolute or contingent), except obligations and liabilities incurred in the ordinary course of business and consistent with past practices, and each Seller has used its commercially reasonable efforts to preserve the Business and its assets and properties. Without limiting the foregoing, except as specifically listed in the relevant subsection of Section 4.12 of the Disclosure Letter, since December 31, 2011, there has not been in respect of the Business or the Purchased Assets any:
(a) event or circumstance that has had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effectpractice;
(b) damagePay, destruction discharge or loss satisfy any claim, liability or obligation (whether absolute, accrued, contingent or not covered by insurance) that resulted in or could reasonably be expected to result in losses with respect to the Business or the Purchased Assetsotherwise), in the aggregate, of more than Twenty-Five Thousand Dollars ($25,000);
(c) revaluation or write-down of any of the Purchased Assets;
(d) amendment or termination of any Material Contract other than in the ordinary course of businesspayment, consistent with past practices;
(e) change in any accounting principles, methods discharge or practices with respect to the Business or the Purchased Assets, or in the manner any Seller keeps its books and records relating thereto, or any change by a Seller of its current practices with regard to sales, Inventory, or Inventory valuation in the Business;
(f) (i) grant of any severance, continuation or termination pay to any Covered Employee; (ii) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any Covered Employee or any associate of the foregoing; (iii) increase in benefits payable or potentially payable under any severance, continuation or termination pay policies or employment agreements with any Covered Employee or any associate of any of the foregoing; (iv) increase in compensation, bonus or other benefits payable or potentially payable to any Covered Employee or any associate of any of the foregoing; (v) change in the terms of any bonus, pension, insurance, health or other benefit plan of a Seller applicable to Covered Employees; or (vi) representation by any Seller to any employee or former employee that a Seller or Buyer would continue to maintain or implement any benefit plan or would continue to employ such employee after the Closing Date;
(g) acquisition or disposal of assets (except sales of Inventory in bona fide, arms length transactions entered into satisfaction in the ordinary course of business and consistent with past practice);
(h) capital expenditures exceeding, individually practice of liabilities or obligations reflected or reserved against in the aggregate, Twenty-Five Thousand Dollars ($25,000);
(i) any change in any pricing practices (other than Balance Sheet or incurred in the ordinary course of business and consistent with past practices)practice since the date of the Balance Sheet;
(jc) Prepay any settlement obligation having a fixed maturity of more than 90 days from the date such obligation was issued or compromise incurred;
(d) Permit or allow any of its property or assets (real, personal or mixed, tangible or intangible) to be subjected to any mortgage, pledge, lien or encumbrance;
(e) Write down the value of any claiminventory or write off as uncollectible any notes or accounts receivable, suit or cause except for write-downs and write-offs in the ordinary course of action involving more than Twenty-Five Thousand Dollars ($25,000); orbusiness and consistent with past practice;
(kf) agreement by a Seller to doExcept as set forth in the DISCLOSURE SCHEDULE, either directly cancel any debts or indirectlywaive any claims or rights of substantial value or sell, transfer, or otherwise dispose of any of the things described its properties or assets, except in the preceding clauses (c) through (j).ordinary course of business and consistent with past practice;
Appears in 1 contract
Sources: Agreement of Purchase and Sale (Knickerbocker L L Co Inc)
Certain Changes. Since December 31Except as set forth on Schedule 3.2(b)(i) and in connection with the Loan and Security Agreement, 2011dated February 17, each Seller has conducted 2016, by and between Bank of America, N.A. and the Business solely Company (which agreement is being amended and restated as of the Closing), from the date of the Most Recent Balance Sheet to the date hereof, and other than in the ordinary course of business consistent with past practices, and each Seller has used its commercially reasonable efforts to preserve the Business and its assets and properties. Without limiting the foregoing, except as specifically listed in the relevant subsection of Section 4.12 of the Disclosure Letter, since December 31, 2011practice, there has not been in been, with respect to the Company or any of the Business or the Purchased Assets its Subsidiaries, any:
(ai) event event, occurrence or circumstance development that has had had, or could would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(bii) amendment of the charter, by-laws or other organizational documents of the Company or its Subsidiaries;
(iii) split, combination or reclassification of any shares of its capital stock;
(iv) issuance, sale or other disposition of any of its capital stock, or grant of any options, warrants or other rights to purchase or obtain (including upon conversion, exchange or exercise) any of its capital stock;
(v) material change in any method of accounting or any material accounting practice of the Company or any of its Subsidiaries, except as required by GAAP or as disclosed in the notes to the Company Financial Statements;
(vi) material change in the Company’s or any of its Subsidiaries cash management practices and its policies and practices and procedures with respect to collection of accounts receivable, establishment of reserves for uncollectible accounts, accrual of accounts receivable inventory control, prepayment of expenses, payment of trade accounts payable, accrual of expenses, deferral of revenue and acceptance of customer deposits;
(vii) incurrence, assumption or guarantee of any Indebtedness except unsecured current obligations, Liabilities incurred in the ordinary course of business consistent with past practice and Indebtedness to be paid off prior to or concurrently with Closing;
(viii) transfer, assignment, sale or other disposition of any assets outside of the ordinary course of business consistent with past practices;
(ix) transfer, assignment or grant of any license or sublicense of any material rights under or with respect to any Company Intellectual Property or Company IP Agreements;
(x) damage, destruction or loss (whether or not covered by insurance) that resulted to its property with a value in or could reasonably be expected to result in losses with respect to the Business or the Purchased Assets, in the aggregate, excess of more than Twenty-Five Thousand Dollars ($25,000)125,000;
(cxi) revaluation any material or write-down unbudgeted (i.e., not provided for in the budget attached hereto as Schedule 3.2(b)(xi)) capital investment or lease of assets or any of the Purchased Assetsmaterial loan to any Person;
(dxii) amendment acceleration, termination, material modification to or termination cancellation of any material Contract (including, but not limited to, any Material Contract other than in Contract) to which the ordinary course Company or its Subsidiaries is a party or by which any of business, consistent with past practicesthem is bound;
(e) change in any accounting principles, methods or practices with respect to the Business or the Purchased Assets, or in the manner any Seller keeps its books and records relating thereto, or any change by a Seller of its current practices with regard to sales, Inventory, or Inventory valuation in the Business;
(fxiii) (i) grant of any material or unbudgeted (i.e., not provided for in the budget attached here to as Schedule 3.2(b)(xiii)) bonuses or material increase in any wages, salary, severance, continuation pension or termination pay to other compensation or benefits in respect of its current or former employees, officers, directors, independent contractors or consultants, other than as provided for in any Covered Employee; written agreements or policies, as required by applicable Law or in the ordinary course consistent with past practice, (ii) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any Covered Employee or any associate of the foregoing; (iii) increase in benefits payable or potentially payable under any severance, continuation or termination pay policies or employment agreements with any Covered Employee or any associate of any of the foregoing; (iv) increase in compensation, bonus or other benefits payable or potentially payable to any Covered Employee or any associate of any of the foregoing; (v) change in the terms of any bonus, pension, insurance, health or other benefit plan of a Seller applicable to Covered Employees; or (vi) representation by any Seller to employment for any employee or any termination of any employees for which the aggregate costs and expenses exceed $125,000, or (iii) action to accelerate the vesting or payment of any compensation or benefit for any current or former employee that a Seller employee, officer, director, independent contractor or Buyer would continue to maintain consultant, other than as required by applicable Law or implement any benefit plan or would continue to employ such employee after in the Closing Dateordinary course consistent with past practice;
(gxiv) acquisition hiring or disposal promoting any person outside the ordinary course of assets (business except sales of Inventory in bona fide, arms length transactions entered into to fill a vacancy in the ordinary course of business consistent with past practice)business;
(hxv) capital expenditures exceedingadoption, individually modification or in the aggregatetermination of any: (x) employment, Twentyseverance, retention or other agreement with any current or former employee, officer, director, independent contractor or consultant, (y) Employee Plan or Non-Five Thousand Dollars US Plan or ($25,000)z) collective bargaining or other agreement with a union;
(ixvi) any change in any pricing practices (other than in the ordinary course entry into a new line of business consistent with past practices)or abandonment or discontinuance of existing lines of business;
(jxvii) any settlement or compromise adoption of any claimplan of merger, suit consolidation, reorganization, liquidation or cause dissolution or filing of a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(xviii) acquisition by merger or consolidation with, or by purchase of all or substantially all of the assets or stock of any business of an unrelated Person or any division thereof;
(xix) action involving more by the Company or its Subsidiaries to make, change or rescind any material Tax election or materially amend any Tax Return or take any position on any Tax Return that would have the effect of increasing the Tax liability or reducing any Tax asset of Buyer in respect of any Post-Closing Tax Period, in each case, other than Twenty-Five Thousand Dollars ($25,000)as required by applicable Law; or
(kxx) agreement by a Seller any Contract to do, either directly or indirectly, do any of the things described foregoing, or any commitment or action that would result in any of the preceding clauses (c) through (j)foregoing.
Appears in 1 contract
Sources: Stock Purchase Agreement (Volt Information Sciences, Inc.)
Certain Changes. Since December 31The Company and the Shareholders agree that the --------------- Company will not:
(a) Borrow or agree to borrow any funds or incur, 2011or assume or become subject to, each Seller has conducted the Business solely whether directly or by way of guarantee or otherwise, any obligation or liability (absolute or contingent), except obligations and liabilities incurred in the ordinary course of business and consistent with past practices, and each Seller has used its commercially reasonable efforts to preserve the Business and its assets and properties. Without limiting the foregoing, except as specifically listed in the relevant subsection of Section 4.12 of the Disclosure Letter, since December 31, 2011, there has not been in respect of the Business or the Purchased Assets any:
(a) event or circumstance that has had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effectpractice;
(b) damagePay, destruction discharge or loss satisfy any claim, liability or obligation (whether absolute, accrued, contingent or not covered by insurance) that resulted in or could reasonably be expected to result in losses with respect to the Business or the Purchased Assetsotherwise), in the aggregate, of more than Twenty-Five Thousand Dollars ($25,000);
(c) revaluation or write-down of any of the Purchased Assets;
(d) amendment or termination of any Material Contract other than in the ordinary course of businesspayment, consistent with past practices;
(e) change in any accounting principles, methods discharge or practices with respect to the Business or the Purchased Assets, or in the manner any Seller keeps its books and records relating thereto, or any change by a Seller of its current practices with regard to sales, Inventory, or Inventory valuation in the Business;
(f) (i) grant of any severance, continuation or termination pay to any Covered Employee; (ii) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any Covered Employee or any associate of the foregoing; (iii) increase in benefits payable or potentially payable under any severance, continuation or termination pay policies or employment agreements with any Covered Employee or any associate of any of the foregoing; (iv) increase in compensation, bonus or other benefits payable or potentially payable to any Covered Employee or any associate of any of the foregoing; (v) change in the terms of any bonus, pension, insurance, health or other benefit plan of a Seller applicable to Covered Employees; or (vi) representation by any Seller to any employee or former employee that a Seller or Buyer would continue to maintain or implement any benefit plan or would continue to employ such employee after the Closing Date;
(g) acquisition or disposal of assets (except sales of Inventory in bona fide, arms length transactions entered into satisfaction in the ordinary course of business and consistent with past practice);
(h) capital expenditures exceeding, individually practice of liabilities or obligations reflected or reserved against in the aggregate, Twenty-Five Thousand Dollars ($25,000);
(i) any change Balance Sheet or specifically set forth in any pricing practices (other than Section 8.08 or incurred in the ordinary course of business and consistent with past practices)practice since the date of the Balance Sheet;
(c) Prepay any obligation having a fixed maturity of more than 90 days from the date such obligation was issued or incurred;
(d) Permit or allow any of its property or assets (real, personal or mixed, tangible or intangible) to be subjected to any mortgage, pledge, lien or encumbrance;
(e) Write down the value of any inventory or write off as uncollectible any notes or accounts receivable except for immaterial write-downs and write-offs in the ordinary course of business and consistent with past practice;
(f) Cancel any debts or waive any claims or rights of substantial value or sell, transfer, or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practice;
(g) Dispose of or permit to lapse any rights to the use of any patent, trademark, trade name or copyright, or dispose of or disclose to any person any trade secret, formula, process or know-how not theretofore a matter of public knowledge;
(h) Grant any general increase in the compensation of officers or employees (including any such increase pursuant to any bonus, pension, profit sharing or other plan or commitment) or any increase in the compensation payable or to become payable to any officer or employee;
(i) Make any single capital expenditure or commitment in excess of $10,000 for additions to property, plant or equipment or make aggregate capital expenditures and commitments in excess of $10,000 (on a consolidated basis) for additions to property, plant or equipment;
(j) Pay, loan or advance any settlement amount to, or compromise sell transfer or lease any properties or assets to, or enter into any agreement or arrangement with, any of its officers or directors or any affiliate or Associate of any claimof its officers or directors, suit or cause except for directors' fees and compensation to officers at rates not exceeding the rates of action involving more than Twenty-Five Thousand Dollars ($25,000); orcompensation paid during the fiscal year ended;
(k) agreement by a Seller to do, either directly or indirectly, Change any of the things banking or safe deposit arrangements described in Section 3.14 of the preceding clauses Disclosure Schedule;
(c1) through (j).Grant or extend any power of attorney or act as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the obligation of any person, corporation, partnership, joint venture, association, organization or other entity; or
Appears in 1 contract
Certain Changes. Since December 31April 30, 20112010, each Seller has conducted the Business solely in the ordinary course of business consistent with past practices, and each Seller has used its commercially reasonable efforts to preserve the Business and its assets and propertiesthe Business Assets. Without limiting the foregoingforegoing sentence, except as specifically listed in the relevant subsection of Section 4.12 of the Disclosure LetterSchedule 4.10 or as expressly permitted by this Agreement, since December 31April 30, 20112010, with respect to the Business and the Business Assets, there has not been in respect of the Business or the Purchased Assets any:
(a) event or circumstance that has had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(b) damage, destruction or loss (whether or not covered by insurance) that resulted in or could reasonably be expected to result in losses with respect to the Business or the Purchased Business Assets, in the aggregate, of more than Twenty-Five Thousand Dollars ($25,000)200,000;
(c) material revaluation or write-down of any of the Purchased Business Assets;
(d) entry into any Material Contract, amendment or termination of any Material Contract other than in the ordinary course of business, consistent with past practicesor termination of any Material Contract (other than by its terms);
(e) material change in any accounting principles, methods or practices with respect to the Business of Seller or the Purchased Assetsany Acquired Subsidiary, or in the manner Seller or any Seller Acquired Subsidiary keeps its books and records relating theretorecords, or any material change by a Seller or any Acquired Subsidiary of its current practices with regard to sales, Inventorybacklog, customer ▇▇▇▇▇▇▇▇, receivables, payables or Inventory valuation in the Businessaccrued expenses;
(f) (i) grant of any severance, continuation or termination pay to any Covered Employee; (ii) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any Covered Employee or any associate of the foregoing; (iii) increase in benefits payable or potentially payable under any severance, continuation or termination pay policies or employment agreements with any Covered Employee or any associate of any of the foregoing; (iv) increase in compensation, bonus or other benefits payable or potentially payable to any Covered Employee or any associate of any of the foregoing; (v) change in the terms of any bonus, pension, insurance, health or other benefit plan of a Seller applicable to Covered Employees; or (vi) representation by any Seller to any employee or former employee that a Seller or Buyer would continue to maintain or implement any benefit plan or would continue to employ such employee after the Closing Date;
(g) acquisition or disposal of material assets or material property used or held for use in the Business (except sales of Inventory in bona fide, arms length transactions entered into in the ordinary course of business consistent with past practice);
(g) incurrence by Seller or any Acquired Subsidiary of any Debt or refinancing by Seller or any Acquired Subsidiary of any existing Debt;
(h) capital expenditures exceeding, individually or in the aggregate, Twenty-Five Thousand Dollars ($25,000)200,000;
(i) any material change in any pricing practices (other than in the ordinary course of business consistent with past practices);
(j) any settlement or material compromise of in any claim, suit or cause of action Proceeding involving more than Twenty-Five Thousand Dollars $100,000;
($25,000)k) payment of any material Liability or discharge or satisfaction of any material Lien (other than in the ordinary course of business consistent with past practices) or cancellation of any Debts owed to the Seller or any Acquired Subsidiary or claims of the Seller or any Acquired Subsidiary or waiver of rights, in each case, of any material value;
(l) action that, if taken during the period from the date of this Agreement through the Closing Date, would constitute a Breach of Section 6.01; or
(km) agreement agreement, undertaking or understanding by a Seller or any Acquired Subsidiary to do, either directly or indirectly, any of the things described in the preceding clauses (ca) through (jl).
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Certain Changes. Since December 31, 2011, each Seller has conducted the Business solely in the ordinary course of business consistent with past practices, and each Seller has used its commercially reasonable efforts to preserve the Business and its assets and properties. Without limiting the foregoing, except Except as specifically listed in the relevant subsection of Section 4.12 of the Disclosure Letterset forth on Schedule 3.2(e)(2), since December 31, 2011, the Fiscal Year-End Balance Sheet there has not been been, occurred or arisen any change in respect or event affecting the assets, business, results of the Business operations or the Purchased Assets any:
(a) event or circumstance financial condition of AdvanceMed that has had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;. Without limiting the generality of the foregoing, since the Fiscal Year-End Balance Sheet, except as set forth on Schedule 3.2(e)(2), AdvanceMed has not:
(bi) damagebecome subject to any material liabilities, destruction or loss (whether or not covered by insurance) that resulted in or could reasonably be expected to result in losses with respect to the Business or the Purchased Assets, in the aggregate, of more than Twenty-Five Thousand Dollars ($25,000);
(c) revaluation or write-down of any of the Purchased Assets;
(d) amendment or termination of any Material Contract other than except liabilities incurred in the ordinary course of business, business of AdvanceMed consistent with past practicespractice;
(eii) change in any accounting principles, methods or practices with respect to the Business or the Purchased Assets, or in the manner any Seller keeps its books and records relating thereto, or adopted any change by a Seller of its current practices with regard to sales, Inventory, or Inventory valuation in the BusinessAdvanceMed’s Organizational Documents;
(fiii) (i) grant merged or consolidated AdvanceMed with any other Person or acquired a material amount of stock or assets of any severanceother Person or effected any business combination, continuation recapitalization or termination pay to any Covered Employee; (ii) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any Covered Employee or any associate of the foregoing; (iii) increase in benefits payable or potentially payable under any severance, continuation or termination pay policies or employment agreements with any Covered Employee or any associate of any of the foregoing; transaction;
(iv) increase in compensationsold, bonus leased or other benefits payable disposed of or potentially payable made any contract for the sale, lease or disposition of, or made subject to any Covered Employee a security interest or any associate of other Encumbrance, any of the foregoing; (v) change in the terms of any bonus, pension, insurance, health AdvanceMed’s material properties or assets other benefit plan of a Seller applicable to Covered Employees; or (vi) representation by any Seller to any employee or former employee that a Seller or Buyer would continue to maintain or implement any benefit plan or would continue to employ such employee after the Closing Date;
(g) acquisition or disposal of assets (except than sales of Inventory in bona fide, arms length transactions entered into in the ordinary course of business consistent with past practice);
(hv) capital expenditures exceedinggranted any salary increase to, individually or increased the draw of, any of the officers, employees or agents of AdvanceMed, except for increases in salary, wages or the aggregate, Twenty-Five Thousand Dollars ($25,000);
(i) any change in any pricing practices (other than accrual for payment of bonuses payable to employees in the ordinary course of business consistent with past practices)practice;
(jvi) incurred any bank indebtedness or borrowings;
(vii) entered into any lease of real property;
(viii) entered into any lease of equipment and machinery except in the ordinary course of business;
(ix) authorized for issuance, issued, sold, delivered or agreed or committed to issue, sell or deliver (whether through the issuance or granting of options, warrants, convertible or exchangeable securities, commitments, subscriptions, rights to purchase or otherwise) any settlement of AdvanceMed’s ownership interests or compromise of any claim, suit or cause of action involving more than Twenty-Five Thousand Dollars ($25,000); orother securities issued by AdvanceMed;
(kx) agreement by a Seller to doredeemed, either purchased or otherwise acquired, directly or indirectly, any of AdvanceMed’s ownership interests or debt securities or any option, warrant or other right to purchase or acquire any such ownership interests or securities;
(xi) commenced or settled any material Action;
(xii) made, amended or revoked any election with respect to Taxes, amended any Tax Return, adopted or changed any accounting method relating to Taxes, changed any annual Tax accounting period, consented to any waiver or extension of any statute of limitations with respect to Taxes or Tax Returns, or settled or compromised any Tax claim, assessment or liability, in each case, where any such action would have the things described effect of increasing the Tax liability of AdvanceMed, or reducing its Tax deductions, Tax credits or Tax basis, for any Post-Effective Date Tax Period; or
(xiii) declared any dividend or distribution with respect to AdvanceMed’s capital stock (other than dividends or distributions that will be paid prior to Closing); or
(xiv) entered into any Material Contract outside the ordinary course of business or in the preceding clauses (c) through (j)which any Related Party is a party or has a beneficial interest.
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Certain Changes. Since December 31The Company and the Shareholders agree that the --------------- Company will not:
(a) Borrow or agree to borrow any funds or incur, 2011or assume or become subject to, each Seller has conducted the Business solely whether directly or by way of guarantee or otherwise, any obligation or liability (absolute or contingent), except obligations and liabilities incurred in the ordinary course of business and consistent with past practices, and each Seller has used its commercially reasonable efforts to preserve the Business and its assets and properties. Without limiting the foregoing, except as specifically listed in the relevant subsection of Section 4.12 of the Disclosure Letter, since December 31, 2011, there has not been in respect of the Business or the Purchased Assets any:
(a) event or circumstance that has had or could reasonably be expected to have, individually or in the aggregate, a Material Adverse Effectpractice;
(b) damagePay, destruction discharge or loss satisfy any claim, liability or obligation (whether absolute, accrued, contingent or not covered by insurance) that resulted in or could reasonably be expected to result in losses with respect to the Business or the Purchased Assetsotherwise), in the aggregate, of more than Twenty-Five Thousand Dollars ($25,000);
(c) revaluation or write-down of any of the Purchased Assets;
(d) amendment or termination of any Material Contract other than in the ordinary course of businesspayment, consistent with past practices;
(e) change in any accounting principles, methods discharge or practices with respect to the Business or the Purchased Assets, or in the manner any Seller keeps its books and records relating thereto, or any change by a Seller of its current practices with regard to sales, Inventory, or Inventory valuation in the Business;
(f) (i) grant of any severance, continuation or termination pay to any Covered Employee; (ii) entering into of any employment, deferred compensation or other similar agreement (or any amendment to any such existing agreement) with any Covered Employee or any associate of the foregoing; (iii) increase in benefits payable or potentially payable under any severance, continuation or termination pay policies or employment agreements with any Covered Employee or any associate of any of the foregoing; (iv) increase in compensation, bonus or other benefits payable or potentially payable to any Covered Employee or any associate of any of the foregoing; (v) change in the terms of any bonus, pension, insurance, health or other benefit plan of a Seller applicable to Covered Employees; or (vi) representation by any Seller to any employee or former employee that a Seller or Buyer would continue to maintain or implement any benefit plan or would continue to employ such employee after the Closing Date;
(g) acquisition or disposal of assets (except sales of Inventory in bona fide, arms length transactions entered into satisfaction in the ordinary course of business and consistent with past practice);
(h) capital expenditures exceeding, individually practice of liabilities or obligations reflected or reserved against in the aggregate, Twenty-Five Thousand Dollars ($25,000);
(i) any change in any pricing practices (other than Balance Sheet or incurred in the ordinary course of business and consistent with past practices)practice since the date of the Balance Sheet;
(c) Prepay any obligation having a fixed maturity of more than 90 days from the date such obligation was issued or incurred;
(d) Permit or allow any of its property or assets (real, personal or mixed, tangible or intangible) to be subjected to any mortgage, pledge, lien or encumbrance;
(e) Write down the value of any inventory or write off as uncollectible any notes or accounts receivable except for immaterial write-downs and write-offs in the ordinary course of business and consistent with past practice;
(f) Cancel any debts or waive any claims or rights of substantial value or sell, transfer, or otherwise dispose of any of its properties or assets, except in the ordinary course of business and consistent with past practice;
(g) Dispose of or permit to lapse any rights to the use of any patent, trademark, trade name or copyright, or dispose of or disclose to any person any trade secret, formula, process or know-how not theretofore a matter of public knowledge;
(h) Grant any general increase in the compensation of officers or employees (including any such increase pursuant to any bonus, pension, profit sharing or other plan or commitment) or any increase in the compensation payable or to become payable to any officer or employee;
(i) Make any single capital expenditure or commitment in excess of $10,000 for additions to property, plant or equipment or make aggregate capital expenditures and commitments in excess of $10,000 (on a consolidated basis) for additions to property, plant or equipment;
(j) Pay, loan or advance any settlement amount to, or compromise sell transfer or lease any properties or assets to, or enter into any agreement or arrangement with, any of its officers or directors or any affiliate or Associate of any claimof its officers or directors, suit or cause except for directors' fees and compensation to officers at rates not exceeding the rates of action involving more than Twenty-Five Thousand Dollars ($25,000); orcompensation paid during the fiscal year ended
(k) agreement by a Seller to do, either directly or indirectly, Change any of the things banking or safe deposit arrangements described in Section 3.14 of the preceding clauses Disclosure Schedule;
(c1) through (j).Grant or extend any power of attorney or act as guarantor, surety, co-signer, endorser, co-maker, indemnitor or otherwise in respect of the obligation of any person, corporation, partnership, joint venture, association, organization or other entity; or
Appears in 1 contract
Sources: Stock Purchase Agreement (Enviro Clean of America Inc)