Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18: (a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement; (b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities; (c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices; (d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements; (e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices; (f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable; (g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6; (h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement; (i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens; (j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or (k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoing.
Appears in 2 contracts
Samples: Branch Purchase and Assumption Agreement (Green Bancorp, Inc.), Branch Purchase and Assumption Agreement (Green Bancorp, Inc.)
Absence of Certain Changes and Events. Except (a) with respect to as set forth in Section 3.9 of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementDOCP Disclosure Schedule, since March December 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.181996:
(a) suffered DOCP and the DOCP Subsidiaries have conducted their businesses only in the ordinary course consistent with past practice, (b) there have not been any change events or changes in circumstances which has had resulted in or is could, individually or in the aggregate, reasonably likely be expected to have result in, a DOCP Material Adverse Effect Effect, (c) there has not been (i) except as disclosed in DOCP SEC Reports filed prior to the date hereof, any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the Branch Officesany DOCP capital stock, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect except as disclosed in DOCP SEC Reports filed prior to the Transferred Assets date hereof, any split, combination or Assumed Liabilities;
(c) made reclassification of any DOCP capital stock or permitted any amendment, termination, lapse issuance or the authorization of any issuance of any other securities in respect of, in lieu of or waiver in substitution for DOCP capital stock, except for issuances of DOCP Shares upon the exercise of DOCP Stock Options or consent to, any Assumed Contract, lease, agreement, consent, license the Warrants or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation conversion of the Branch Offices not Convertible Debt, in each case in accordance with the Ordinary Course of Business terms thereof, (iii) (A) any granting by DOCP or any accounting changeDOCP Subsidiary to any current or former employee, except as may be required by GAAP officer, director or generally applicable regulatory requirements;
(e) granted consultant of DOCP of any options to purchase DOCP Shares or any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing bonuses or other plan or commitmentcommissions), except for periodic normal increases in the Ordinary Course ordinary course of Business made pursuant to established compensation policies applied on a basis business consistent with that past practice or as required under employment or consulting agreements in effect as of the prior year, other than increases and payments necessary, date of the most recent audited financial statements included in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer DOCP SEC Reports filed prior to the Branch Offices date hereof, (B) any deposits granting by DOCP or loansany DOCP Subsidiary to any current or former employee, except in the Ordinary Course officer, director or consultant of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction severance or conducted its affairstermination pay, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to required under any Lien any portion employment, consulting, severance or termination agreements in effect as of the Transferred Assets or date of the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property most recent audited financial statements included in the Transferred AssetsDOCP SEC Reports filed prior to the date hereof or (C) any entry by DOCP or any DOCP Subsidiary into any employment, whether consulting, severance, termination or not covered indemnification agreements, arrangements, or understandings with any such current or former employee, officer, director or consultant, (iv) except as disclosed in DOCP SEC Reports filed prior to the date hereof, any change in accounting methods, principles or practices by insuranceDOCP materially affecting its assets, liabilities or business, except insofar as may have been required by a change in each case generally accepted accounting principles, or (v) any action which would have been prohibited without Buyer's approval under Section 5.1 if taken between the date of this Agreement and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingEffective Time.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Delaware Otsego Corp), Merger Agreement (Norfolk Southern Corp)
Absence of Certain Changes and Events. Except (a) with respect to as set forth in Section 3.16 of the Excluded Assets and the Excluded Liabilities, Seller Disclosure Letter or (b) as otherwise contemplated permitted by this Agreement, since March January 31, 20112005, each Seller has operated conducted the Branch Offices Business only in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality ordinary course of the foregoing, since March 31, 2011, Seller Business consistent with past practices or reasonable future expectations and there has not, except as disclosed in Schedule 3.18not been any:
(a) suffered payment (except in the ordinary course of the Business consistent with past practices) or increase by any change which has had Seller of any bonuses, salaries or is reasonably likely other compensation to have a Material Adverse Effect any employee of the Business or entry into any employment, severance or similar Seller Contract with respect to any employee of the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementBusiness;
(b) material damage, destruction, theft or loss affecting the Assets, except in to the Ordinary Course extent that any Asset damaged, destroyed, stolen or lost has been replaced or repaired;
(c) entry into, termination of Business, or receipt of notice of termination of (i) soldany license, transferreddistributorship, leaseddealer, pledgedsales representative, mortgagedjoint venture, credit or otherwise encumbered or agreed similar Seller Contract to sell, transfer, lease, pledge, mortgage or otherwise encumber, which any Seller is a party used in the operation of the Transferred Business or Assets or other than in the Assumed Liabilities or rights with respect theretoordinary course of business, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to Seller Contract described in Section 3.17(a) other than in the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Officesordinary course of business;
(d) made sale, lease or other disposition of any change Asset or property of any Seller (including the Business Intellectual Property Assets) or the creation of any Encumbrance (other than a Permitted Encumbrance) on any Asset, in any method of management or operation of the Branch Offices not each case other than in the Ordinary Course ordinary course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsbusiness;
(e) granted cancellation or waiver of any increase claims or rights relating to the Business or the Assets having an aggregate value in the compensation excess of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices$100,000;
(f) except for notification by any significant customer or supplier of the Inter-Bank Transfer, caused Business of an intention to discontinue or materially change the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in terms of its relationship with the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableBusiness;
(g) made material change in the accounting methods used by any change to its customary policies for setting rates on deposits offered at the Branch OfficesSeller, including any increase in interest rates paid unless (and only which relates to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed Business or the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;Assets; or
(h) Contract entered into by any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) Seller to do any of the foregoing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Stewart & Stevenson LLC), Asset Purchase Agreement (Stewart & Stevenson Services Inc)
Absence of Certain Changes and Events. Except (aas set forth on Schedule 3.02(q) with respect to of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementDisclosure Package, since March December 31, 20112002, Seller the Business has operated the Branch Offices been conducted only in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis ordinary course consistent with that of the prior year, other than increases past practice and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;the transactions described herein there has not been any:
(i) subjected payment, grant or increase of any bonuses, salaries or other compensation to any Lien stockholder, director, officer, consultant or (except in the ordinary course of business consistent with past practice) Employee or UK Employee or entry into any portion of employment, severance or similar contract or arrangement with any director, officer, consultant, Employee or UK Employee with respect or relating to the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted LiensBusiness;
(jii) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any realadoption of, or personal or mixed property included increase in the Transferred Assetspayments to or benefits under, any profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement or other employee benefit plan for or with any Employees or UK Employees;
(iii) damage to or destruction or loss of any Purchased Asset or asset used by the UK Company, whether or not covered by insurance, materially and adversely affecting the properties, assets, business, financial condition or prospects of the Business, taken as a whole;
(iv) entry into, termination of or receipt of notice of termination of any license, distributorship, dealer, sales representative, joint venture, credit or similar agreement;
(v) sale (other than sales of inventory in each case and the aggregateordinary course of Business consistent with past practice), lease or other disposition of any Purchased Asset or asset used by the UK Company or mortgage, pledge or imposition of any lien or other encumbrance on any Purchased Asset or asset used by the UK Company, including the sale, lease or other disposition of any Intellectual Property;
(vi) cancellation or waiver of any claims or rights, other than as relates to the Excluded Assets or Excluded Liabilities, with a value to the Business in excess of One Hundred Fifty Thousand Dollars ($25,000150,000);
(vii) material change in the accounting practices used by the UK Company or the Business;
(viii) guarantee of any debt for borrowed money, borrowing of money or increase of any debt for borrowed money, except borrowings and intercompany transfers for working capital from Seller made in the ordinary course of business consistent with past practice; or
(kix) committed agreement, whether oral or written, by Seller or the UK Company with respect or relating to or entered into any understanding, arrangement or agreement (written or unwritten) the Business to do any of the foregoing. Schedule 3.02(q) of the Disclosure Package describes each material pending dispute with any customer or vendor of Seller or the UK Company with respect to the Business where the amount in dispute is in excess of Fifty Thousand Dollars ($50,000) or where the customer or vendor has threatened in writing to terminate the relationship. Since December 31, 2002, as applicable, neither Seller nor the UK Company has received written notice that any material customer or vendor plans to discontinue or materially limit its relationship with respect to the Business.
Appears in 2 contracts
Samples: Purchase Agreement (Sequa Corp /De/), Purchase Agreement (Gencorp Inc)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March Since December 31, 20112004, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
, GeoMet and the GeoMet Subsidiaries have conducted their business only in the ordinary and usual course, and there has not been (i) subjected any Material Adverse Effect pertaining to GeoMet, or any condition, event or development that reasonably may be expected to result in any such Material Adverse Effect; (ii) any material change by GeoMet or the GeoMet Subsidiaries in their accounting methods, principles or practices; (iii) any revaluation by GeoMet or the GeoMet Subsidiaries of any of their assets, including, without limitation, writing down the value of properties or assets or writing off notes or accounts receivable other than in the ordinary course of business; (iv) any entry by GeoMet or the GeoMet Subsidiaries into any commitment or transaction material to GeoMet or the GeoMet Subsidiaries; (v) any declaration, setting aside or payment of any dividends or distributions in respect of the GeoMet Common Stock or any redemption, purchase or other acquisition of any of its securities; (vi) any increase in indebtedness for borrowed money other than advances under the Credit Agreement in the ordinary course; (vii) any granting of a security interest or lien on any material property or assets of GeoMet or the GeoMet Subsidiaries, other than Permitted Encumbrances; or (viii) any increase in or establishment of any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards or restricted stock awards), stock purchase or other employee benefit plan or any other increase in the compensation payable or to become payable to any Lien any portion officers or key employees of the Transferred Assets GeoMet or the Assumed Liabilities GeoMet Subsidiaries other than any increase or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking establishment approved by eminent domain the Compensation Committee of GeoMet and disclosed in writing to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingParent.
Appears in 2 contracts
Samples: Merger Agreement (GeoMet, Inc.), Merger Agreement (GeoMet, Inc.)
Absence of Certain Changes and Events. Except (aas contemplated or expressly permitted by this Agreement and except as set forth on Schedule 3.1(f) or disclosed in any filing with respect the Securities Exchange and Commission prior to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementdate hereof, since March 31, 20112001, Seller there has operated the Branch Offices in the Ordinary Course not been (i) any material damage, destruction or loss of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality any kind with respect to any of the foregoingAssigned Assets, since March 31, 2011, Seller nor has not, except as disclosed in Schedule 3.18:
(a) suffered there been any change event or circumstance which has had or is reasonably likely could be expected to have a Material Adverse Effect material adverse effect on the financial condition or business operations of such Assignor; (ii) any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or Assignors' outstanding capital stock; (iiiii) canceled, waived, compromised or agreed to cancel, waive any cancellation or compromise of any debts, claims debt or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse ofclaim, or waiver or consent to, release of any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loansright, except in the Ordinary Course ordinary course of Business at the unsolicited request business consistent with past practices; (iv) any sale, assignment, lease or disposition of depositors, or caused assets of any of Seller’s other operations the Assignors (or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) commitment to do any of the foregoing), except in the case of obsolete equipment or in connection with the acquisition of replacement property that has substantially the same value and utility; (v) any Lien created or assumed upon the Assigned Assets (other than Permitted Liens); (vi) any capital expenditures, or commitments to make such capital expenditures, in excess of $100,000 (in the aggregate); (vii) the execution of any agreement with any director, officer, employee or independent contractor of any of the Assignors providing for his/her employment, or any increase in compensation or severance or termination of benefits payable or to become payable by an Assignor to such director, officer, employee, or independent contractor, or any increase in benefits under any collective bargaining agreement or other Employee Benefit Plan of any of the Assignors, except in the ordinary course of business consistent with past practices; (viii) any distributions to its stockholders in respect of its Capital Stock or loans to any Person; or (ix) any transaction with any Affiliate required to be disclosed under Item 404 of Regulation S-K promulgated under the Securities Act of 1933, as amended. Since March 31. 2001 such Assignor has not conducted the Business other than in the ordinary course, consistent with such Assignor's past practice. Since March 31, 2001, there has not been any material adverse change in the Business or the financial condition or results of operations of the Business. Since December 31, 2000, there has not been any change by any of the Company or any of its Subsidiaries in their financial or tax accounting principles or methods, except insofar as required by GAAP, applicable law or circumstances which did not exist as of the date of the December 31, 2000 audited financial statements.
Appears in 2 contracts
Samples: Master Settlement Agreement (Greenbriar Corp), Master Settlement Agreement (Greenbriar Corp)
Absence of Certain Changes and Events. Except (a) with respect to as set forth on Schedule 3.01(g), since the Excluded Assets Most Recent Year-End Financials Date, the Seller’s business, including the Business and the Excluded LiabilitiesShared Business, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously been conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except only in the Ordinary Course of Business, and there has not been or occurred any of the following:
(i) soldany event, transferredoccurrence, leased, pledged, mortgagedcircumstance or development which has had, or otherwise encumbered is reasonably likely to have, with or agreed to sellwithout the giving of notice or lapse of time or both, transfera Material Adverse Effect on Seller, leasethe Business, pledgethe Shared Business or any of the Acquired Assets;
(ii) any damage, mortgage destruction, eminent domain taking or otherwise encumberother casualty loss (whether or not covered by insurance) affecting the Business, the Shared Business or any of the Acquired Assets in any material respect;
(iii) any sale, lease or other disposition of, or creation or other incurrence of any Encumbrance on, any of the Transferred Assets or the Assumed Liabilities or rights with respect theretoAcquired Assets, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method other than dispositions of management or operation of the Branch Offices not Inventory in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsof Seller;
(eiv) granted any increase in the compensation amendment, modification, or termination of its officers any Acquired Contract, or Employees located at the Branch Offices (including entry into any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in Contract outside of the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch OfficesSeller;
(fv) except for any cancellation or waiver of any claim or rights related to the Inter-Bank TransferBusiness, caused the Branch Offices Shared Business, or the Acquired Assets with a value to transfer to Seller’s other operations any deposits other than deposits securing any loans, except Seller in excess of Ten Thousand Dollars ($10,000) in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableaggregate;
(gvi) made any written, or to the Knowledge of Seller oral, notice from any customer or supplier of the Business or the Shared Business of an intention to discontinue or change the terms or nature of its relationship with Seller;
(vii) any material change in any method of accounting (for Tax purposes or otherwise) or accounting practice (including with respect to reserves) with respect to Seller, except for any such change required by reason of a concurrent change in GAAP;
(viii) any failure by Seller to pay or perform any of its customary policies for setting rates on deposits offered at the Branch Offices, material obligations (including obligations under any increase in interest rates paid unless (Seller Contract) when and only to the extent that) Seller has effected such a rate increase in its due other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized than pursuant to 12 C.F.R.§337.6a good faith defense;
(hix) entered into any other transaction increase or conducted its affairs, in either case related material alteration to the Transferred Assets compensation payable or Assumed Liabilitiespaid by Seller, or alteration in the timing or method of such payments, whether conditionally or otherwise, to any Hired Employee, other than in the Ordinary Course of Business Business, any receipt by Seller of a notice of resignation by any Hired Employee or other adverse change in the relationship between Seller and consistent with prudent banking practices except as contemplated by this Agreementany Hired Employee;
(ix) subjected to any Lien change in any portion of the Transferred Assets Seller’s credit policies or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000practices; or
(kxi) committed to or entered entry into any understanding, arrangement or agreement (written or unwritten) Contract by Seller to do any of the foregoing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Six15 Technologies Holding Corp.), Asset Purchase Agreement (Vuzix Corp)
Absence of Certain Changes and Events. Except (a) with respect to Except as set forth in Schedule 3.7 of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementDisclosure Schedule, since March 31September 30, 20111999, Seller there has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoingnot occurred any matter, since March 31circumstance, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change event or effect which has had or is reasonably likely to have a Seller Material Adverse Effect Effect.
(b) Except as set forth in Schedule 3.7 of the Disclosure Schedule, since December 31, 1998:
(1) each of Asset Seller (but solely with respect to the Branch OfficesDivision) and each Company has conducted its business only in the ordinary course of business, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementconsistent with past practice;
(b2) except neither Asset Seller nor any Company has sold, leased or otherwise disposed of, or incurred any Lien on, any Intellectual Property or any other asset material to the Business other than sales in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(3) neither Seller nor any Company has settled, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceledcompromised, waived, compromised released or agreed assigned any material rights or claims it has under or in respect of any Action, Applicable Contract, Tax matter or insurance policy relating to cancelthe Business or the Companies or made any material modification or material amendment with respect to any Applicable Contract;
(4) there has not been any change in the accounting practices, waive methods or compromise any debts, claims or rights principles used by Asset Seller (but solely with respect to the Transferred Assets Division) or Assumed Liabilitiesany Company;
(c5) made there has not been any material increase in the benefits under, or permitted any amendmentthe establishment, termination, lapse amendment or termination of, any bonus, insurance, severance, deferred compensation, pension, retirement, profit sharing, stock option (including, without limitation, the granting of stock options, stock appreciation rights, performance awards or waiver restricted stock awards), stock purchase or consent other employee benefit plan covering any of the employees of the Division or any of the Companies, or any other material increase in the compensation payable or to become payable to, or any Assumed Contract, lease, agreement, consent, license other material change in the employment terms for any officer of the Division or Permit any Company or any other employee of the Division or any of the Companies earning in excess of $100,000 per year;
(6) there has not been any entry by Asset Seller (with respect to the Branch OfficesDivision) or any Company into an employment, consulting, severance, termination or indemnification agreement with any officer of Asset Seller with respect to the Business or the Division or any Company or any other employee of Asset Seller with respect to the Business or the Division or any of the Companies earning in excess of $100,000 per year;
(d7) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
neither Asset Seller (e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer respect to the Branch Offices Division) nor any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made Company has incurred any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed material Liabilities, other than Liabilities incurred in the Ordinary Course ordinary course of Business and business consistent with prudent banking practices except as contemplated by this Agreementpast practice;
(i8) neither Asset Seller (with respect to the Division) subjected to nor any Lien Company has entered into any portion Contract or engaged in any transaction requiring the performance of the Transferred Assets services or the Assumed Liabilities delivery of goods or materials by or to Asset Seller or any interest thereon, except Permitted Liens;
(j) suffered Company for consideration exceeding $1,000,000 in any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain one year or which is likely to any real, or personal or mixed property included result in the Transferred Assets, whether incurrence of Liabilities by Asset Seller (but only with respect to the Division) or not covered by insurance, in each case and the aggregate, any Company in excess of $25,0001,000,000; orand
(k9) committed neither Asset Seller (with respect to or the Division) nor any Company has entered into any understanding, arrangement Contract or agreement (written or unwritten) commitment with respect to do any of the foregoing.
Appears in 2 contracts
Samples: Purchase Agreement (Ziff Davis Inc), Purchase Agreement (Etesting Labs Inc)
Absence of Certain Changes and Events. Except (a) Since the date of the Audited Buyer Balance Sheet, the Buyer has conducted its business in the ordinary course consistent with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementpast practice and, since March 31such date, 2011there has not occurred: any event, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted damage, destruction or loss, whether covered by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has insurance or not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or reasonably is reasonably likely expected to have a Material Adverse Effect on the Buyer or its assets; any entry by the Buyer into a commitment or transaction material to the Buyer, which is not in the ordinary course of business consistent with past practice; any change by the Buyer in accounting principles, methods or practices, except insofar as may have been required by a change in GAAP; any declaration, payment or setting aside for payment of any dividends or distributions in respect to shares of Buyer Common Stock, or any redemption, purchase or other acquisition of any shares of Buyer Common Stock; any cancellation of any debts or waiver or release of any right or claim of the Branch OfficesBuyer individually or in the aggregate material to the Buyer, whether or not in the Transferred Assets ordinary course of business; any revaluations by the Buyer of any of its assets or Assumed Liabilities liabilities, including without limitation, writing-off notes or Seller’s ability accounts receivable; any material increase in the rate or terms of compensation payable or to consummate become payable by the Buyer to any of its personnel or consultants; any bonus, incentive compensation, service award or other benefit granted, made or accrued, contingently or otherwise, for or to the credit of any Buyer personnel; employee welfare, pension, retirement, profit-sharing or similar payment or arrangement made or agreed to by the Buyer for any Buyer personnel except for contributions in accordance with prior practice made to, and payments made to employees under, plans and arrangements existing on the date of the Audited Buyer Balance Sheet; any adoption of a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or other reorganization of the Buyer, other than in connection with the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Businesshereby; any purchase, (i) sold, transferred, leased, pledged, mortgaged, acquisition or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served sale by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into Buyer of any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilitiesassets, other than in the Ordinary Course ordinary course of Business business; any amendment, cancellation or termination of any Material Contract, including, without limitation, license or sublicense, or other instrument to which the Buyer is a party or to which the Buyer or any of the assets of the Buyer is bound; any failure to pay when due any material obligation of the Buyer; any failure to operate the business of the Buyer in the ordinary course with an effort to preserve the business intact, to keep available to the Buyer the services of its personnel, and to preserve for the Buyer the goodwill of its customers and others having business relations with the Buyer except for such failures that would not have a Material Adverse Effect on the Buyer; any commitment to borrow money entered into by the Buyer, or any loans made or agreed to be made by the Buyer, involving more than $100,000 individually or $500,000 in the aggregate (other than credit provided by suppliers or manufacturers in the ordinary course of the Buyer's business consistent with prudent banking practices except as contemplated past practices); any liabilities incurred by this Agreement;
the Buyer involving $10,000 or more individually and $25,000 or more in the aggregate, other than liabilities incurred in the ordinary course of business consistent with past practices; any payment, discharge or satisfaction of any material liabilities of the Buyer or any material capital expenditure of the Buyer, other than (i) subjected to any Lien any portion the payment, discharge or satisfaction in the ordinary course of business consistent with prior practice of liabilities reflected or reserved against in the Audited Financial Statements or incurred in the ordinary course of business consistent with prior practice since the date of the Transferred Assets Audited Buyer Balance Sheet, and (ii) any capital expenditures involving $10,000 or less individually and $25,000 or less in the Assumed Liabilities aggregate; any amendment of the Buyer's Articles of Incorporation or Buyer Bylaws; or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking agreement by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) Buyer to do any of the foregoingthings described in the preceding clauses (a) through (p) of this section other than as expressly contemplated or provided for in this Agreement.
Appears in 2 contracts
Samples: Railcar Purchase Agreement (Las Vegas Railway Express, Inc.), Railcar Purchase Agreement (Las Vegas Railway Express, Inc.)
Absence of Certain Changes and Events. Except as set forth in Schedule 6.14, since December 31, 1997 Seller has conducted the Merchant Acquiring Business only in the ordinary course, and has not:
(a) incurred, assumed or guaranteed any liability or obligation (absolute, accrued, contingent or otherwise) with respect to the Excluded Transferred Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices used in the Ordinary Course Merchant Acquiring Business, other than in the ordinary course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect business consistent with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementpast practice;
(b) except paid, discharged, satisfied or renewed any claim, liability or obligation with respect to the Transferred Assets used in the Ordinary Course of Merchant Acquiring Business, other than payment in the ordinary course of business and consistent with past practice;
(ic) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, permitted any of the Transferred Assets to be subjected to any mortgage, lien, security interest, restriction, charge or the Assumed Liabilities or rights with respect thereto, or other encumbrance of any kind;
(iid) canceled, waived, compromised or agreed to cancel, waive or compromise waived any debts, material claims or rights with respect to the Transferred Assets or Assumed Liabilitiesused in the Merchant Acquiring Business;
(ce) made sold, transferred or permitted otherwise disposed of any amendmentof the Transferred Assets used in the Merchant Acquiring Business, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit except in the ordinary course of business consistent with respect to the Branch Officespast practice;
(df) made any change in any method method, practice or principle of management financial or operation of the Branch Offices not Tax accounting or otherwise made any changes in the Ordinary Course of manner in which Seller operates the Merchant Acquiring Business that could have a Material Adverse Effect or have an adverse material affect on any accounting change, except as may be required by GAAP financial information relating to or generally applicable regulatory requirements;
(e) granted any increase derived from the Transferred Assets used in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableMerchant Acquiring Business;
(g) made any change managed working capital components relating to its customary policies for setting rates on deposits offered at the Branch OfficesTransferred Assets used in the Merchant Acquiring Business, including any increase cash, receivables, other current assets, trade payables and other current liabilities in interest rates paid unless (a fashion inconsistent with past practice, including failing to sell inventory and only other property in an orderly and prudent manner or failing to the extent that) Seller has effected such a rate increase in its make all budgeted and other branch offices normal capital expenditures, repairs, improvements and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6dispositions;
(h) paid, loaned, advanced, sold, transferred or leased any Transferred Asset used in the Merchant Acquiring Business to any employee, except for normal compensation involving salary and benefits;
(i) entered into any other transaction material commitment or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilitiestransaction, other than in the Ordinary Course ordinary course of Business and business consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of past practice, affecting the Transferred Assets or used in the Assumed Liabilities or any interest thereon, except Permitted Liens;Merchant Acquiring Business; or
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any realagreed in writing, or personal or mixed property included otherwise, to take any action described in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingthis Section.
Appears in 2 contracts
Samples: Merchant Asset Purchase Agreement (Paymentech Inc), Merchant Asset Purchase Agreement (Paymentech Inc)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded LiabilitiesSince October 1, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, 2009 Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to would have a Seller Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementEffect;
(b) except in the Ordinary Course of BusinessBusiness and consistent with prudent banking practices, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or (except for this Agreement) agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Acquired Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Acquired Assets or the Assumed Liabilities, or (iii) amended, modified or supplemented any of the terms or conditions governing the Loans;
(c) made or permitted any amendment, termination, termination or lapse of, or waiver or consent to, of any Assumed Contractcontract, lease, agreement, consent, license or Permit with respect permit, if such amendment, termination or lapse (individually or in the aggregate) would reasonably be expected to the Branch Officeshave a Seller Material Adverse Effect;
(d) made any change in any method of management or operation of the Branch Offices Branches not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP generally accepted accounting principles or generally applicable general regulatory requirements;
(e) except as set forth in Schedule 4.14(e) hereof, granted any general increase in the compensation (including bonuses) of its officers or Employees employees located at the Branch Offices Branches or the Select Remote Employees (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for, to the extent permitted by Section 6.1(b)(i) hereof for the period between the date hereof and the Closing Date, normal periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than and increases and payments necessary, in the employerSeller’s reasonable discretion, to maintain and preserve the operation of the Branch OfficesBranches, all of which increases that relate to employees located at the Branches or the Select Remote Employees shall be promptly disclosed in writing to Buyer by Seller within forty-five (45) days prior to the Closing Date;
(f) except for the Inter-Bank Transfer, caused the Branch Offices Branches to transfer to Seller’s other operations any deposits other than deposits securing any loansthat are not Deposits for purposes of this Agreement, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices Branches any deposits or loansdeposits, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicabledepositors;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch OfficesBranches, including any increase in interest rates paid unless (and only to the extent thatexcept as otherwise contemplated by Section 6.1(b)(v) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;hereof; or
(h) entered into any other transaction or agreement, incurred any capital expenditures, or conducted its affairs, in either each case as related to the Transferred Acquired Assets or the Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoing.
Appears in 2 contracts
Samples: Purchase and Assumption Agreement (First Banks, Inc), Purchase and Assumption Agreement (Firstmerit Corp /Oh/)
Absence of Certain Changes and Events. Except (a) with respect to Since the Excluded Assets and the Excluded LiabilitiesReference Balance Sheet Date, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller there has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered not been any change which has had or is reasonably likely to have a Company Material Adverse Effect with respect to Effect. Since the Branch OfficesReference Balance Sheet Date, (i) the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except Company and its Subsidiaries have conducted their business in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or and (ii) canceledexcept as set forth in Section 3.18 of the Company Disclosure Schedule, waived, compromised or agreed to cancel, waive or compromise neither the Company nor any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;of its Subsidiaries has:
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(ea) granted any increase in the base compensation of, or paid any bonuses or other compensation to, any of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in and employees outside the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that Business;
(b) adopted, amended, or increased the payments or benefits under, any Employee Benefit Plan outside of the prior yearOrdinary Course of Business;
(c) acquired assets outside of the Ordinary Course of Business, other than increases including acquired any business, whether by merger, consolidation, the purchase of a substantial portion of the assets or equity interests of such business or otherwise;
(d) sold, leased, or otherwise disposed of any assets outside of the Ordinary Course of Business;
(e) made, or made any commitment with respect to, any capital expenditures outside the scope of the most recent budget of the Company and payments necessary, its Subsidiaries previously made available to the Emdeon Entities in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch OfficesData Room;
(f) except for incurred, assumed, or guaranteed any Indebtedness (excluding any Indebtedness incurred pursuant to the Inter-Bank TransferCompany Credit Facility as in effect on the date hereof), caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing or made any loans, except in the Ordinary Course of Business at the unsolicited request of depositorsadvances or capital contributions to, or caused investments in, any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicablePerson;
(g) made cancelled, compromised, waived or released any change to its customary policies for setting rates on deposits offered at right or claim (or series of related rights and claims) either involving more than $30,000 or outside the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6Ordinary Course of Business;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered experienced any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, destruction or personal or mixed property included in the Transferred Assets, loss (whether or not covered by insurance, in each case ) to any of the assets of the Company and the aggregate, its Subsidiaries in excess of $25,00030,000;
(i) made any material change in connection with its accounts payable or accounts receivable terms, systems, policies or procedures, or distributed any accounts receivable to any Company Members;
(j) made any material change in its accounting or tax methods; or
(k) committed to or entered into any understandingagreement, arrangement whether oral or agreement (written or unwritten) written, to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Emdeon Inc.), Merger Agreement (Emdeon Inc.)
Absence of Certain Changes and Events. Except (a) with respect to Since the Excluded Assets and date of the Excluded LiabilitiesBalance Sheet, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices Acquired Companies have conducted their businesses only in the Ordinary Course of Business Business, there has not been any Company Material Adverse Effect, no event has occurred or circumstance exists that may result in a Company Material Adverse Effect and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller there has not, except as disclosed in Schedule 3.18not been:
(a) suffered any change which material loss, damage or destruction to, or any material interruption in the use of, any of the assets of any of the Acquired Companies (whether or not covered by insurance) that has had or is could reasonably likely be expected to have a Company Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementEffect;
(bi) any declaration, accrual, set aside or payment of any dividend or any other distribution in respect of any shares of capital stock of any Acquired Company, or (ii) any repurchase, redemption or other acquisition by any Acquired Company of any shares of capital stock or other securities;
(c) any sale, issuance or grant, or authorization of the issuance of, (i) any capital stock or other security of any Acquired Company (except for Company Common Stock issued upon the valid exercise of outstanding Company Stock Options), (ii) any option, warrant or right to acquire any capital stock or other security of any Acquired Company (except for Company Stock Options) or (iii) any instrument convertible into or exchangeable for any capital stock or other security of any Acquired Company;
(d) any amendment or waiver of any of the rights of any Acquired Company under, or acceleration of vesting under, (i) any provision of any of Company's employee stock option plans, (ii) any provision of any Contract evidencing any outstanding Company Stock Option, (iii) any provision on any Company warrant or (iv) any restricted stock purchase agreement;
(e) any amendment to any Governing Document of any of the Acquired Companies or any merger, consolidation, share exchange, business combination, recapitalization, reclassification of shares, stock split, reverse stock split or similar transaction involving any Acquired Company;
(f) any receipt by the Acquired Companies of any Acquisition Proposal;
(g) any creation of any Subsidiary of an Acquired Company or acquisition by any Acquired Company of any equity or other interest in any other Person;
(h) except in the Ordinary Course of Business, any capital expenditure by any Acquired Company which, when added to all other capital expenditures made by or on behalf of the Acquired Companies since the date of the Balance Sheet, exceeds $50,000 in the aggregate;
(i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at Business, any action by the unsolicited request of depositorsAcquired Companies to (i) enter into, or caused suffer any of Seller’s other operations the assets owned or customers used by it to transfer to the Branch Offices become bound by, any deposits material Contract, or loans(ii) amend or terminate, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customerswaive any material right or remedy under, as applicableany material Contract;
(gj) made any change to its customary policies for setting rates on deposits offered at the Branch Offices(i) acquisition, including lease or license by any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its Acquired Company of any material right or other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into material asset from any other transaction Person, (ii) sale or conducted its affairsother disposal or lease or license by any Acquired Company of any material right or other material asset to any other Person or (iii) waiver or relinquishment by any Acquired Company of any right, in either case related to the Transferred Assets except for rights or Assumed Liabilitiesother assets acquired, other than leased, licensed or disposed of in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreementpast practices;
(ik) subjected to any Lien write-off as uncollectible of, or establishment of any portion extraordinary reserve with respect to, any account receivable or other indebtedness of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liensan Acquired Company;
(jl) suffered any damagepledge of any assets of, destructionor sufferance of any of the assets of, impairment, casualty loss, condemnation, taking by eminent domain an Acquired Company to become subject to any realEncumbrance, except for pledges or sufferances of immaterial assets made in the Ordinary Course of Business and consistent with past practices;
(m) other than loans and/or guarantees made between one or more of the Acquired Companies for the benefit of another Acquired Company, any (i) loan by an Acquired Company to any Person, or personal (ii) incurrence or mixed property included guarantee by an Acquired Company of any indebtedness for borrowed money;
(n) any (i) adoption, establishment, entry into or amendment by an Acquired Company of any stock option plan or (ii) payment of any bonus or any profit sharing or similar payment to, or material increase in the Transferred Assetsamount of the wages, whether salary, commissions, fringe benefits or not covered other compensation or remuneration payable to, any of the directors, officers or employees of any Acquired Company;
(o) any change of the methods of accounting or accounting practices of any Acquired Company in any material respect;
(p) any material Tax election by insurance, in each case and the aggregate, in excess any Acquired Company;
(q) any commencement or settlement of $25,000any Proceeding by any Acquired Company that would have a Company Material Adverse Effect; or
(kr) committed any agreement or commitment to or entered into any understanding, arrangement or agreement (written or unwritten) to do take any of the foregoingactions referred to in clauses (c) through (q) above.
Appears in 2 contracts
Samples: Merger Agreement (Greka Energy Corp), Merger Agreement (Greka Energy Corp)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets Since September 29, 2007, Parent and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices its Subsidiaries have conducted their business only in the Ordinary Course of Business and there has not been any Material Adverse Effect on Parent and its Subsidiaries, taken as a whole, and no event has occurred or circumstance exists that would reasonably be expected to result in substantially the same manner a Material Adverse Effect on Parent and its Subsidiaries, taken as previously conducted by Seller. Without limiting the generality of the foregoinga whole, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18or:
(a) suffered any change which material loss, damage or destruction to, or any material interruption in the use of, any of the assets of Parent or any of its Subsidiaries (whether or not covered by insurance) that has had or is would reasonably likely be expected to have a Material Adverse Effect with respect to the Branch Officeson Parent and its Subsidiaries, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementtaken as a whole;
(b) except in the Ordinary Course of Business, (i) soldany declaration, transferredaccrual, leased, pledged, mortgaged, set aside or otherwise encumbered payment of any dividend or agreed to sell, transfer, lease, pledge, mortgage any other distribution in respect of any shares of capital stock of Parent or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect theretoits Subsidiaries, or (ii) canceledany repurchase, waived, compromised redemption or agreed to cancel, waive other acquisition by Parent or compromise its Subsidiaries of any debts, claims shares of capital stock or rights with respect to the Transferred Assets or Assumed Liabilitiesother securities;
(c) made any sale, issuance or permitted any amendmentgrant, termination, lapse or authorization of the issuance of, or waiver or consent to, (i) any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing capital stock or other plan or commitment)security of Parent, except for periodic increases Parent Common Stock issued upon the valid exercise of each option granted (or previously assumed) by Parent to purchase shares of Parent Common Stock (each, a “Parent Option”) or exercise, settlement or conversion of each restricted stock unit award granted (or previously assumed) by Parent representing a right to receive upon a future date or dates shares of Parent Common Stock (each a “Parent RSU Award”) or other equity-based awards under governing share-based plan documents, including plan documents governing options that have previously been assumed by Parent as a result of corporate acquisition transactions by the Company, as applicable (collectively, and in each case, the Ordinary Course “Parent Stock Plans”), (ii) any option, warrant or right to acquire any capital stock or any other security of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases Parent and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
its Subsidiaries (f) except for the InterParent Options, Parent RSU Awards or other equity-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except based awards described in the Ordinary Course of Business at the unsolicited request of depositorsSection 2.3), or caused (iii) any instrument convertible into or exchangeable for any capital stock or other security of Parent or any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableits Subsidiaries;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (On Semiconductor Corp), Merger Agreement (Amis Holdings Inc)
Absence of Certain Changes and Events. Except (a) with respect to as set forth in Section 3.16 of the Excluded Assets and the Excluded Liabilities, Seller Disclosure Letter or (b) as otherwise contemplated permitted by this Agreement, since March January 31, 20112005, each Seller and Purchased Subsidiary has operated conducted the Branch Offices Business only in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality ordinary course of the foregoing, since March 31, 2011, Seller Business consistent with past practices or reasonable future expectations and there has not, except as disclosed in Schedule 3.18not been any:
(a) suffered payment (except in the ordinary course of the Business consistent with past practices) or increase by any change which has had Seller or is reasonably likely Purchased Subsidiary of any bonuses, salaries or other compensation to have a Material Adverse Effect any employee of the Business or entry into any employment, severance or similar Seller Contract with respect to any employee of the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementBusiness;
(b) damage, destruction, theft or loss affecting the Assets, except in the Ordinary Course ordinary course of Businessbusiness and except to the extent that any Asset damaged, destroyed, stolen or lost has been replaced or repaired;
(c) entry into, termination of or receipt of notice of termination of (i) soldany license, transferreddistributorship, leaseddealer, pledgedsales representative, mortgagedjoint venture, credit or otherwise encumbered or agreed similar Seller Contract to sell, transfer, lease, pledge, mortgage or otherwise encumber, which any Seller is a party used in the operation of the Transferred Business or Assets or other than in the Assumed Liabilities or rights with respect theretoordinary course of business, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to Seller Contract described in Section 3.17(a) other than in the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Officesordinary course of business;
(d) made sale, lease or other disposition of any change Asset or property of any Seller or Purchased Subsidiary (including the Business Intellectual Property Assets) or the creation of any Encumbrance (other than a Permitted Encumbrance) on any Asset in any method excess of management or operation of the Branch Offices not $50,000 in the Ordinary Course aggregate, in each case other than in the ordinary course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsbusiness;
(e) granted cancellation or waiver of any increase claims or rights relating to the Business or the Assets having an aggregate value in the compensation excess of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices$100,000;
(f) except for notification by any significant customer or supplier of the Inter-Bank Transfer, caused Business whose business with the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except Business in the Ordinary Course last twelve (12) months exceeds $100,000 of Business at an intention to discontinue or materially change the unsolicited request terms of depositors, or caused any of Seller’s other operations or customers to transfer to its overall relationship with the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableBusiness;
(g) made material change in the accounting methods used by any change to its customary policies for setting rates on deposits offered at the Branch OfficesSeller or Purchased Subsidiary, including any increase in interest rates paid unless (and only which relates to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed Business or the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;Assets; or
(h) Contract entered into by any other transaction Seller or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) Purchased Subsidiary to do any of the foregoing.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Stewart & Stevenson LLC), Asset Purchase Agreement (Stewart & Stevenson Services Inc)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner Balance Sheet Date (as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;defined below):
(i) subjected to any Lien any portion the business of Ninthone has been conducted only in the Transferred Assets or ordinary course and substantially in the Assumed Liabilities or any interest thereon, except Permitted Liensmanner that such business was heretofore conducted;
(jii) suffered Ninthone has not entered into any damagecontract, destructionagreement or other instrument, impairmentwritten or oral, casualty loss, condemnation, taking by eminent domain to any real, which has resulted or personal or mixed property included will result in a transfer of assets;
(iii) there has been no material adverse change in the Transferred Assetsassets, financial condition, operating results, customer, supplier or employee relations or liabilities of Ninthone including any material casualty loss or damage to the assets of Ninthone, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or;
(kiv) committed there has been no split, combination or reclassification of capital stock or any securities of Ninthone, or any redemption or other acquisition by Ninthone of any shares of capital stock or any securities of Ninthone;
(v) there has not been any damage, destruction or casualty loss materially adversely affecting the business, results of operations or financial condition of Ninthone;
(vi) there has not been (i) any increase in the rate or terms of compensation payable or to become payable by Ninthone to its directors, officers, managers, employees or commission sales personnel or (ii) any entering by Ninthone into any new employment agreement or any modification of the terms of any existing employment agreement;
(vii) except with respect to the agreements set forth on Schedules I and II, there has not been any entry into of any material contract (including, without limitation, any relating to borrowing, capital expenditures or capital financing) by Ninthone;
(viii) there has not been any change by Ninthone in accounting methods, principles or practices;
(ix) there has not been any issuance, sale, encumbrance, or gift of any capital stock or any other security of Ninthone or of any option, security convertible into or right to purchase any such capital stock or security of Ninthone;
(x) except with respect to the agreements set forth on Schedules I and II, Ninthone has not made any material capital expenditures or commitments to make capital expenditures;
(xi) Ninthone has not made any disposition or sale of any asset of Ninthone;
(xii) except with respect to the agreements set forth on Schedules I and II, Ninthone has not mortgaged, granted a security interest in, pledged or subjected to Liens any assets of Ninthone;
(xiii) except with respect to the agreements set forth on Schedules I and II, Ninthone has not incurred or assumed any indebtedness for borrowed money having a repayment term of greater than one year, including the current portion of any such indebtedness, and any other instruments treated as long term debt in accordance with U.S. GAAP;
(xiv) Ninthone has not waived, cancelled or released any material right, interest, claim, demand, assessment, judgment, order, decree, action, cause of action, litigation, suit, investigation or other proceeding (collectively, “Claim”) or suffered the lapse or other loss of any such Claim;
(xv) Ninthone has not instituted, settled or agreed to settle any action, suit, litigation, claim, investigation, legal, administrative or arbitration proceeding; and
(xvi) Ninthone has not authorized, agreed or entered into any understandingcontract, arrangement agreement or agreement (other instrument, written or unwritten) oral, to do take any of the foregoingtypes of action described in subsections (i) through (xv) above.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Pyxis Tankers Inc.), Stock Purchase Agreement (Maritime Investors Corp.)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementAgreement or as set forth on Section 4.07 of the Sellers Disclosure Schedule, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.182012:
(a) suffered the Business has been conducted in the ordinary course, substantially in the manner that such Business was heretofore conducted and in material compliance with applicable Law;
(b) no circumstance, condition, event or change has occurred that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(c) none of the Constitutional Documents of any member of the Company Group has been amended;
(d) the Company Group has not (i) hired or terminated any employee, consultant or manager (other than any such hire or termination that occurred prior to the date of this Agreement); (ii) increased or established, or committed to increase or establish, whether orally or in writing, any form of compensation or benefits payable or to become payable by the Company Group to its officers, directors, consultants, employees or other service providers, including, without limitation, pursuant to any Employee Plan; (iii) adopted, entered into, established, amended, modified, or terminated any Employee Plan (other than any such adoption, entrance into, establishment, amendment, modification or termination that occurred prior to the date of this Agreement); (iv) accelerated the vesting or payment of any compensation or benefits under any Employee Plan (other than as required under any Employee Plan pursuant to terms of such Employee Plan in existence as of the date hereof); or (v) granted any cash bonus, incentive, performance or other incentive compensation;
(e) the Company Group has not taken any action which could reasonably be expected to cause, or fail to take any reasonable action to prevent, any change in employee relations which has had or is reasonably likely to have a Material Adverse Effect with respect to material effect on the Branch Officesproductivity, the Transferred Assets financial condition, results of operations of the Company Group or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementrelationships between the employees of the Company Group and the management of the Company Group;
(bf) except there has not been any change by the Company Group in accounting methods, principles or practices;
(g) there has not been any issuance, transfer, sale, Encumbrance, redemption, repurchase or gift of any Common Stock, Preferred Stock or other Capital Stock of the Ordinary Course Company Group or of Businessany phantom stock, option, security convertible into or right to purchase any such Common Stock, Preferred Stock or other Capital Stock;
(h) there has not been any dividend or distribution by the Company Group (whether in cash, equity interests or other property);
(i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sellthe Company Group has not made any acquisition, transfer, leasedisposition or sale of, pledgeor licensed, mortgage sub-licensed, abandoned, failed to maintain or otherwise encumberpermitted to lapse, any material asset of the Transferred Assets Company Group other than in the ordinary course of business consistent with past practices of the Company Group;
(j) the Company Group has not (i) acquired by merger or consolidation with, or purchased substantially all of the Assumed Liabilities equity interests or rights assets of, any business or Person, (ii) made any investment in the securities (including debt instruments) of any Person or (iii) merged or consolidated with respect theretoany Person;
(k) other than the Encumbrances listed on Section 4.15(a) of the Sellers Disclosure Schedule, the Company Group has not mortgaged, granted a security interest in, pledged or subjected to Encumbrance (other than Permitted Encumbrances) any assets of the Company Group;
(l) the Company Group has not (i) incurred or assumed any indebtedness for borrowed money other than advances drawn by the Company Group in the ordinary course of its business from its lines of credit and credit facilities existing on the date of this Agreement, or (ii) canceledmade any loans or advances to any Person;
(m) the Company Group has not created any Subsidiary;
(n) the Company Group has not instituted, waived, compromised settled or agreed to cancelsettle any Proceedings;
(o) the Company Group has not made any commitment for any capital expenditure in excess of Two Hundred Thousand Dollars ($200,000) in the aggregate;
(p) other than any Material Contracts entered into prior to the date of this Agreement, waive the Company Group has not entered into any Material Contract other than those entered into in the ordinary course of business consistent with past practices of the Company Group, and the Company Group has not amended, modified, renewed or compromise terminated any debtsMaterial Contract (other than any such amendment, claims modification, renewal or rights termination that occurred prior to the date of this Agreement);
(q) the Company Group has not renewed or entered into any non-compete, exclusivity, non-solicitation or other agreement that restricts or limits, in any material respect, the operations of the Company Group (or Buyer or any of its Affiliates) after consummation of the Closing;
(r) the Company Group has not disclosed any trade secrets or other proprietary and confidential information to any Person that is not subject to a written confidentiality and non-disclosure agreement;
(s) with respect to the Transferred Assets Company Group, there has been no new, change in or Assumed Liabilities;
(c) made revocation of any Tax election; settlement or permitted compromise of any amendmentclaim, terminationnotice, lapse ofaudit report or assessment in respect of Taxes; change in any annual Tax accounting period, adoption or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management Tax accounting; filing of any amended Tax Return; entrance into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or operation closing agreement relating to any Tax; surrender of any right to claim a material Tax refund; or consent to any extension or waiver of the Branch Offices not in the Ordinary Course statute of Business limitations period applicable to any Tax claim or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsassessment;
(et) granted any increase the Company Group has operated, maintained, insured, repaired and otherwise preserved the Real Property substantially in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent accordance with that past practice of the prior yearCompany Group, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation performed all obligations of the Branch Offices;Company Group as tenant under the Real Property Leases; and
(fu) except for the Inter-Bank TransferCompany Group has not authorized, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to agreed or entered into any understanding, arrangement Contract or agreement (written or unwritten) commitment to do take any of the foregoingtypes of action described in subsections (a) through (u) above.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Rentech Inc /Co/)
Absence of Certain Changes and Events. Except (a) with respect to as set forth on Section 3.8 of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementCompany Disclosure Schedule, since March 31, 20112000, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller Company has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementChange;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty destruction or loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case an amount in excess of $50,000;
(c) granted or agreed to make any increase in the compensation payable or to become payable by the Company to any of its officers or employees, except for normal raises for nonexecutive personnel made in the ordinary course of business that are usual and normal in amount;
(d) declared, set aside or paid any dividend or made any other distribution on or in respect of the shares of capital stock of the Company or declared or agreed to any direct or indirect redemption, retirement, purchase or other acquisition by the Company of such shares;
(e) issued any shares of capital stock of the Company or any warrants, rights, options or entered into any commitment relating to the shares of capital stock of the Company;
(f) made any change in the accounting methods or practices it follows, whether for general financial or tax purposes, or any change in depreciation or amortization policies or rates adopted therein;
(g) sold, leased, abandoned or otherwise disposed of any real property or any machinery, equipment or other operating property other than in the ordinary course of its business;
(h) sold, assigned, transferred, licensed or otherwise disposed of any patent, trademark, trade name, brand name, copyright (or pending application for any patent, trademark or copyright), invention, work of authorship, process, know-how, formula or trade secret or interest thereunder or other Proprietary Asset except in the ordinary course of its business;
(i) been involved in any dispute involving any employee which may result in a Material Adverse Change;
(j) engaged in any activity or entered into any material commitment or transaction (including without limitation any borrowing or capital expenditure);
(k) incurred any material liabilities, contingent or otherwise, either matured or unmatured (whether or not required to be reflected in financial statements in accordance with GAAP, and whether due or to become due), except for accounts payable or accrued salaries that have been incurred by the Company since March 31, 2000, in the ordinary course of its business and consistent with the Company's past practices;
(l) permitted or allowed any of its material property or assets to be subjected to any mortgage, deed of trust, pledge, lien, security interest or other encumbrance of any kind, except those permitted under Section 3.9 hereof, other than any purchase money security interests incurred in the ordinary course of its business;
(m) made any capital expenditure or commitment for additions to property, plant or equipment individually in excess of $50,000, or in the aggregate, in excess of $25,000100,000;
(n) paid, loaned or advanced any amount to, or sold, transferred or leased any properties or assets to, or entered into any agreement or arrangement with any of its affiliates within the meaning of the rules and regulations promulgated under the Securities Act of 1933 ("AFFILIATES"), officers, directors or stockholders or, to the Company's knowledge, any Affiliate or associate of any of the foregoing;
(o) made any amendment to or terminated any agreement that, if not so amended or terminated, would be material to the business, assets, liabilities, operations or financial performance of the Company;
(p) other than the Bridge Note and Warrant Agreement, entered into any agreement in contemplation of the transactions specified herein other than this Agreement and the Related Agreements; or
(kq) committed agreed to take any action described in this Section 3.8, outside of the ordinary course of its business or entered into any understanding, arrangement or agreement (written or unwritten) to do that would constitute a breach of any of the foregoingrepresentations or warranties contained in this Agreement.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Satcon Technology Corp), Securities Purchase Agreement (Beacon Power Corp)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) Except as otherwise contemplated by this Agreementset forth on Schedule 4.8, since March December 31, 20112016, Seller each of the Amtrol Companies has operated conducted its business in the Branch Offices Ordinary Course of Business, and at all times has:
(i) made capital expenditures and expenditures for sales and marketing costs in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect consistent with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementpast practice;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not maintained in the Ordinary Course of Business its assets, properties and equipment in such general state of repair as is reasonably necessary for the conduct of its business consistent with its then-present needs and past practices; and
(iii) maintained its books, accounts and records in accordance with past custom and practice as used in the preparation of the Financial Statements.
(b) Except as set forth on Schedule 4.8, since December 31, 2016, none of the Amtrol Companies has:
(i) declared, accrued or paid, or made any accounting changecommitment to make or pay, except as may be required by GAAP a dividend or generally applicable regulatory requirementsdistribution on any outstanding capital stock;
(eii) granted effected any increase recapitalization, reclassification or like change in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officescapital structure;
(fiii) except for the Inter-Bank Transferadopted a plan of complete or partial liquidation or authorized or took steps to implement a dissolution, caused the Branch Offices to transfer to Seller’s consolidation, merger, sale of assets, restructuring or other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicablereorganization;
(giv) made any change to amended its customary policies for setting rates on deposits offered at the Branch Officescertificate of incorporation, including any increase in interest rates paid unless (by-laws or equivalent organizational and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6governing documents;
(hv) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent for fair value, acquired any material properties or assets or sold, assigned, licensed, transferred, conveyed, leased or otherwise disposed of any material properties or assets (except for the purpose of disposing of obsolete or worthless assets or to the extent such properties and assets are replaced with prudent banking practices except as contemplated by this Agreementlike properties and assets of equivalent fair value);
(ivi) subjected to other than in the Ordinary Course of Business, canceled or compromised any Lien material Liability or claim or waived or released any portion of the Transferred Assets material right or the Assumed Liabilities waived, released, compromised or settled any interest thereon, except Permitted Lienspending or threatened Legal Proceeding;
(jvii) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, entered into commitments for capital expenditures totaling in excess of $25,000500,000, other than as contemplated by the Budget attached hereto as Exhibit G;
(viii) entered into, modified or terminated any organized labor agreement or collective bargaining agreement or, through negotiations or otherwise, made any commitment or incurred any Liability to any labor organization;
(A) granted any bonuses to or increased the base wage or salary payable to, or any other components of compensation and employee benefits of, any director, executive officer, manager, employee or consultant of such Amtrol Company, other than grants or increases in the Ordinary Course of Business (including increases given for promotions consistent with past practice); (B) except for amounts included in Company Transaction Expenses or in a written employment agreement set forth in the Disclosure Schedule, granted or agreed to provide any retention, severance or termination pay to, or entered into any offer letter, employment, bonus, change of control, severance, consulting or agreement with, or paid any amount not otherwise due to, any director, executive officer, manager, employee or consultant of such Amtrol Company; or (C) established, adopted, entered into, or amended in any material respect any Company Benefit Plan, except renewals of Company Benefit Plans made in the Ordinary Course of Business or amendments required by applicable Law that have no material impact on the applicable Company Benefit Plan(s);
(A) hired or offered to hire any new employee with an annual base salary or wage in excess of $100,000 or terminated or encouraged any key employee to resign (other than a termination in the Ordinary Course of Business with a sound business purpose) or (B) instituted any general layoff of employees or implemented any early retirement plan or announced the planning of any such action;
(xi) loaned any money (which loan remains outstanding) to any director, executive officer, manager or employee of such Amtrol Company;
(xii) entered into or agreed to enter into any merger or consolidation with any corporation or other entity, or acquired the securities, business or material assets (other than in the Ordinary Course of Business) of any other Person;
(xiii) other than in the Ordinary Course of Business, entered into or modified any Contract with any Company Securityholder or any Affiliate of any Company Securityholder;
(xiv) (A) made or rescinded any election relating to Taxes; (B) settled or compromised any material claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to Taxes; (C) except as required by GAAP, made any change to any of its methods of accounting or methods of reporting income or deductions for Tax or accounting practice or policy; (D) consented to any extension or waiver of the limitation period applicable to any Tax claim or assessment; (E) changed any annual Tax accounting period; (F) obtained any Tax ruling, entered into any closing agreement, or took any affirmative action to surrender any right to claim a Tax refund, offset or other reduction in Tax Liability; or (G) filed any amended Tax Return or filed claims for any Tax refund;
(xv) purchased, licensed, sold, leased, abandoned, cancelled, let lapse, failed to renew, failed to continue to prosecute, protect or defend or otherwise disposed of, or granted rights to, any other Person with respect to any material Intellectual Property of such Amtrol Company or any Registered Intellectual Property, other than in the Ordinary Course of Business;
(xvi) made or forgiven any loans or advances, or made any capital contributions to or investments in, any other Person, except in each case for intercompany loans or transfers among the Amtrol Companies;
(xvii) issued additional Letters of Credit outside of the Ordinary Course of Business; or
(kxviii) committed to or entered into any understanding, arrangement or agreement (written or unwritten) agreed to do anything prohibited by this Section 4.8.
(c) Since December 31, 2016, there has not been any event, change, development, occurrence, effect or circumstance that has had or, to the Knowledge of the foregoingCompany, would be reasonably expected to result in a Material Adverse Effect. Solely for the purposes of this Section 4.8(c), “Knowledge of the Company” means the actual knowledge of Xxxxx X. Xxxxxxxxxxx, Xxxxxxxxxxx X. Xxxx, Xxxxxxx Xxxxxx or Xxxxxx X. XxXxxxx, without any requirement of due inquiry.
Appears in 2 contracts
Samples: Merger Agreement, Merger Agreement (Worthington Industries Inc)
Absence of Certain Changes and Events. Except (a) as set forth in SCHEDULE 3.8, since December 31, 1995, there has not been, with respect to the Excluded Assets and the Excluded Liabilities, LPC or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of BusinessSubsidiary, (i) sold, transferred, leased, pledged, mortgaged, any change or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or event that has caused an LPC Material Adverse Effect; (ii) canceledany strike, waivedpicketing, compromised work slowdown or agreed to cancel, waive or compromise labor disturbance; (iii) any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any material damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, destruction or personal or mixed property included in the Transferred Assets, loss (whether or not covered by insurance) with respect to any assets or properties; (iv) any redemption or other acquisition by it of LPC Common Stock or any declaration or payment of any dividend or other distribution in cash, in each case and the aggregate, in excess of $25,000stock or property with respect thereto; or
(kv) committed to or entered any entry into any understandingmaterial commitment or transaction (including, arrangement without limitation, any borrowing or agreement capital expenditure) other than in the ordinary course of business or as contemplated by this Agreement; (written vi) any transfer, assignment or unwrittensale of, or rights granted under, any material leases, licenses, agreements, patents, trademarks, trade names, copyrights or other assets other than those transferred, assigned, sold or granted in the ordinary course of business and consistent with past practice; (vii) any mortgage, pledge, security interest or imposition of any other encumbrance on any assets or properties except in the ordinary course of business; any payment of any debts, liabilities or obligations ("Liabilities") of any kind other than Liabilities currently due; (viii) any cancellation of any debts or claims or forgiveness of amounts owed to do LPC; or (ix) any change in accounting principles or methods (except insofar as may have been required by a change in U.S. GAAP). Except as set forth in SCHEDULE 3.8, since December 31, 1995, LPC has conducted its business only in the ordinary course and in a manner consistent with past practice and has not made any material change in the conduct of its business or operations except as agreed to in writing by the foregoingParent or otherwise disclosed herein.
Appears in 1 contract
Samples: Merger Agreement (Hospitality Worldwide Services Inc)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementset forth in ----------------------------------------- SCHEDULE 4.25, since March 31the Interim Balance Sheet Date, 2011, Seller has the Cotton Group Companies ------------- have operated the Branch Offices only in the Ordinary Course of Business Business, and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has have not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had material damage or is reasonably likely to have a Material Adverse Effect with respect to destruction adversely affecting any asset of the Branch Offices, Cotton Group Companies or the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementCotton Group Business;
(b) made any declaration, setting aside or payment of any dividend or other distribution of assets (whether in cash, stock or property) with respect to the Cotton Equity Interests, or any direct or indirect redemption, purchase or other acquisition of stock or equity interests, or otherwise made any payment of cash or any transfer of other assets, to the Sellers or any Cotton Group Company;
(c) suffered any Material Adverse Change in their working capital, assets, liabilities, financial condition, business prospects, or relationships with any suppliers or customers listed on SCHEDULE 4.22; -------------
(d) except for customary increases based on term of service or regular promotion of non-officer employees, increased (or announced any increase in) the compensation payable or to become payable to any employee, or increased (or announced any increase in) any bonus, insurance, pension or other employee benefit plan, payment or arrangement for such employees, or entered into or amended any employment, consulting, severance or similar agreement;
(e) incurred, assumed or guaranteed any liability or obligation (absolute, accrued, contingent or otherwise) other than in the Ordinary Course of Business;
(f) paid, discharged, satisfied or renewed any claim, liability or obligation other than payment in the Ordinary Course of Business;
(g) permitted any of their assets to be subjected to any mortgage, lien, security interest, restriction, charge or other encumbrance of any kind except for Permitted Liens;
(h) cancelled or forgiven any indebtedness or otherwise waived any material claims or rights;
(i) sold, transferred or otherwise disposed of any of their assets, except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(cj) made any single capital expenditure or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Officesinvestment in excess of $100,000.00;
(dk) made any change in any method method, practice or principle of management financial or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementstax accounting;
(el) granted managed working capital components, including cash, receivables, other current assets, trade payables and other current liabilities in a fashion inconsistent with past practice, including failing to sell inventory and other property in an orderly and prudent manner or failing to make all budgeted and other normal capital expenditures, repairs, improvements and dispositions;
(m) paid, loaned, advanced, sold, transferred or leased any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant asset to any bonus, pension, profit sharing or other plan or commitment)employee, except for periodic increases in the Ordinary Course of Business made pursuant to established normal compensation policies applied on a basis consistent with that of the prior year, other than increases involving salary and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officesbenefits;
(fn) except for the Inter-Bank Transferissued or sold any of their equity interests or issued any warrant, caused the Branch Offices option or other right to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositorspurchase equity interests, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicablesecurity convertible into equity interests;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(ho) entered into any other transaction material commitment or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilitiestransaction, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of Business, affecting the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000Cotton Group Business; or
(kp) committed agreed in writing, or otherwise, to or entered into take any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingaction described in this Section.
Appears in 1 contract
Samples: Stock and Limited Partnership Interest Purchase Agreement (Charys Holding Co Inc)
Absence of Certain Changes and Events. Except (a) with respect to To the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality knowledge of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18Contributors:
(ai) suffered Except as described in Section 4.2(i) of the Contributor Disclosure Letter and except as contemplated or disclosed herein, since December 31, 1996, the Project Partnership has conducted its business and activities only in the usual and ordinary course consistent with past practice and there has not been any:
(A) declaration or payment of any change which has had distribution or is reasonably likely payment in respect of any interest in the Project Partnership that relates to have a Material Adverse Effect with respect an obligation or liability of the Project Partnership after Closing or any issuance, repurchase or redemption of any such interest;
(B) amendment to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Project Partnership Agreement;
(bC) except in the Ordinary Course of Businessdamage, (i) sold, transferred, leased, pledged, mortgaged, destruction or otherwise encumbered loss to any material asset or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any property of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred AssetsProject Partnership, whether or not covered by insurance, that has not been fully repaired, restored or replaced;
(D) except for current trade debt incurred in each case and the aggregateordinary course of business consistent with past practice, borrowing or incurring of any indebtedness, obligation or liability, contingent or otherwise, by the Project Partnership;
(E) endorsement, assumption or guarantee of payment or performance by the Project Partnership of any loan or obligation of any other Person;
(F) loan or advance made by the Project Partnership to any Person except for advances not material in excess amount made in the ordinary course of $25,000business;
(G) sale (other than sales of inventory in the ordinary course of business), assignment, conveyance, lease, or other disposition of any asset or property of the Project Partnership, or mortgage, pledge, or imposition of any lien or other Encumbrance on any asset or property of the Project Partnership;
(H) cancellation or waiver of any material claims or rights of the Project Partnership that requires the consent of RO, Inc.;
(I) change in the accounting methods, principles or practices followed by the Project Partnership or any change in any of the assumptions underlying, or methods of calculating, any bad debt, contingency or other reserve; or
(kJ) committed to binding agreement, whether or entered into any understandingnot in writing, arrangement or agreement (written or unwritten) to do any of the foregoing.
(ii) Since December 31, 1996, there has been no event, circumstance, condition or contingency that has resulted in a material adverse effect on the business, assets, financial condition or results of operations of the Project Partnership or that is reasonably likely to result in such a material adverse effect.
Appears in 1 contract
Samples: Contribution Agreement (Pennsylvania Real Estate Investment Trust)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementset forth on Schedule 6.21, since March December 31, 20112004, Seller the Bank has operated conducted the Branch Offices Merchant Bankcard Business only in the Ordinary Course of Business ordinary course, and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had damage or is reasonably likely to have a Material Adverse Effect with respect to destruction adversely affecting the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementMerchant Bankcard Business;
(b) except suffered any adverse change in the Ordinary Course of working capital, assets, liabilities, financial condition, or business prospects relating to the Merchant Bankcard Business, or relationships with any suppliers listed on Schedule 6.20;
(ic) soldexcept for customary increases based on term of service or regular promotion of non-officer employees, transferred, leased, pledged, mortgagedincreased (or announced any increase in) the compensation payable or to become payable to any Merchant Bankcard Business Employee, or otherwise encumbered increased (or agreed announced any increase in) any bonus, insurance, pension or other employee benefit plan, payment or arrangement for Merchant Bankcard Business Employees, or entered into or amended any employment, consulting, severance or similar agreement with any Merchant Bankcard Business Employee;
(d) incurred, assumed or guaranteed any liability or obligation (absolute, accrued, contingent or otherwise) with respect to sellthe Merchant Bankcard Business, transferother than a non-material amount in the ordinary course of business consistent with past practice;
(e) paid, leasedischarged, pledgesatisfied or renewed any claim, mortgage liability or otherwise encumberobligation with respect to the Merchant Bankcard Business, other than payment of a non-material amount in the ordinary course of business consistent with past practice;
(f) permitted any of the Transferred Assets Sold to be subjected to any mortgage, lien, security interest, restriction, charge or the Assumed Liabilities or rights with respect thereto, or other encumbrance of any kind;
(iig) canceled, waived, compromised or agreed to cancel, waive or compromise waived any debts, material claims or rights with respect to the Transferred Assets or Assumed LiabilitiesMerchant Bankcard Business;
(ch) sold, transferred or otherwise disposed of any of the assets used in the Merchant Bankcard Business, except non-material assets in the ordinary course of business consistent with past practice;
(i) made any single capital expenditure or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit investment with respect to the Branch OfficesMerchant Bankcard Business in excess of $10,000;
(dj) made any change in any method method, practice or principle of management financial or operation of tax accounting that in any manner affected the Branch Offices not in the Ordinary Course of Merchant Bankcard Business or any accounting change, except as may be required by GAAP financial information relating to or generally applicable regulatory requirementsderived from the Merchant Bankcard Business;
(ek) granted managed working capital components relating to the Merchant Bankcard Business, including cash, receivables, other current assets, trade payables and other current liabilities in a fashion inconsistent with past practice, including failing to sell inventory and other property in an orderly and prudent manner or failing to make all budgeted and other normal capital expenditures, repairs, improvements and dispositions;
(l) paid, loaned, advanced, sold, transferred or leased any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant Asset Sold to any bonus, pension, profit sharing or other plan or commitment)employee, except for periodic increases in the Ordinary Course of Business made pursuant to established normal compensation policies applied on a basis consistent with that of the prior year, other than increases involving salary and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officesbenefits;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(hm) entered into any other transaction commitment or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilitiestransaction, other than a non-material commitment or transaction entered into in the Ordinary Course ordinary course of Business and business consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of past practice, affecting the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000Merchant Bankcard Business; or
(kn) committed agreed in writing, or otherwise, to or entered into take any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingaction described in this Section 6.20.
Appears in 1 contract
Samples: Merchant Asset Purchase Agreement (Tib Financial Corp.)
Absence of Certain Changes and Events. Except Since the date of the Parent Interim Balance Sheet, (ai) there has not been through the date hereof any adverse change in the business, operations or financial position of Purchaser, except for any adverse change which would not have a Material Adverse Effect on Parent; (ii) Parent has conducted its business in the ordinary course consistent with respect to the Excluded Assets and the Excluded Liabilitiespast practices; (iii) Parent has not incurred any material liabilities (direct, contingent, or otherwise) or engaged in any material transaction or entered into any material agreement which has or would be reasonably expected to have a Material Adverse Effect on Parent; (biv) as otherwise contemplated by this AgreementParent has not increased the compensation of any employee or granted any salary or benefits increase to any of its employees except for increases in compensation, since March 31, 2011, Seller has operated the Branch Offices salary or benefits to employees in the Ordinary Course ordinary course consistent with past practice or merit increases in salaries of Business and employees at regularly scheduled times in substantially customary amounts in the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller ordinary course consistent with past practice; (v) Parent has notnot taken any action referred to in Section 3.4 hereof, except as disclosed for any action which would not have a Material Adverse Effect; (vi) Parent or Purchaser has not declared, paid or set aside for payment any dividend or other distribution (payable in Schedule 3.18:
cash, or other property) to any person or repurchased, redeemed or otherwise acquired any amount of outstanding shares of capital stock or other equity securities of, or other ownership interests in, Parent or Purchaser; (avii) Parent has not made any amendment of any term of any outstanding security of Parent or any of its Subsidiaries that would materially increase the obligations of Parent or such Subsidiary under such security; (viii) Parent has not made any material change in any method of accounting or accounting principles or practice, except for any such change required by reason of a change in GAAP and (ix) Parent has not permitted or suffered any change Encumbrance on any assets (tangible or intangible) or properties of Parent or any of its Subsidiaries other than Permitted Encumbrances and except those Encumbrances which has had or is reasonably are not likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingEffect.
Appears in 1 contract
Samples: Asset Purchase and Stock Sale Agreement (Geoworks /Ca/)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementset forth in Schedule 4.25, since March 31, 2011, Seller the Interim Balance Sheet Date the Company has operated the Branch Offices only in the Ordinary Course of Business Business, and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had damage or is reasonably likely to have a Material Adverse Effect with respect to destruction adversely affecting the Branch Offices, properties or business of the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementCompany;
(b) made any declaration, setting aside or payment of any dividend or other distribution of assets (whether in cash, stock or property) with respect to the capital stock of the Company, or any direct or indirect redemption, purchase or other acquisition of such stock, or otherwise made any payment of cash or any transfer of other assets, to any Shareholder or the Company; or transferred any assets from any subsidiary to the Company, any other subsidiary or any Related Company; or transferred any assets from any Related Company to the Company;
(c) suffered any material adverse change in its working capital, assets, liabilities, financial condition, business prospects, or relationships with any suppliers or customers material to its business;
(d) omitted
(e) incurred, assumed or guaranteed any liability or obligation (absolute, accrued, contingent or otherwise) other than in the Ordinary Course of Business;
(f) paid, discharged, satisfied or renewed any claim, liability or obligation other than payment in the Ordinary Course of Business;
(g) permitted any of its assets to be subjected to any mortgage, lien, security interest, restriction, charge or other encumbrance of any kind except for Permitted Liens;
(h) cancelled or forgiven any indebtedness or otherwise waived any material claims or rights;
(i) sold, transferred or otherwise disposed of any of its assets, except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(cj) made any single capital expenditure or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Officesinvestment in excess of $10,000.00;
(dk) made any change in any method method, practice or principle of management financial or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementstax accounting;
(el) granted managed working capital components, including cash, receivables, other current assets, trade payables and other current liabilities in a fashion inconsistent with past practice, including failing to sell inventory and other property in an orderly and prudent manner or failing to make all budgeted and other normal capital expenditures, repairs, improvements and dispositions;
(m) paid, loaned, advanced, sold, transferred or leased any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant asset to any bonus, pension, profit sharing or other plan or commitment)employee, except for periodic increases in the Ordinary Course of Business made pursuant to established normal compensation policies applied on a basis consistent with that of the prior year, other than increases involving salary and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officesbenefits;
(fn) except for the Inter-Bank Transferissued or sold any of its capital stock or issued any warrant, caused the Branch Offices option or other right to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course purchase shares of Business at the unsolicited request of depositorsits capital stock, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicablesecurity convertible into its capital stock;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(ho) entered into any other transaction material commitment or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilitiestransaction, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of Business, affecting the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000Business; or
(kp) committed agreed in writing, or otherwise, to or entered into take any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingaction described in this Section.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) Since the date of the Interim Balance Sheet, except in connection with respect to the Excluded Assets Reorganization or the Cash Sweep, (i) each Acquired Company has conducted its business only in the ordinary course of business and the Excluded Liabilities, or (ii) there has not been any Material Adverse Effect.
(b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has notthe date of the Balance Sheet, except as disclosed in Schedule 3.18connection with the Reorganization or the Cash Sweep, there has not been with respect to any Acquired Company any:
(ai) suffered amendment or authorization of any change which has had amendment to its articles of incorporation or is reasonably likely to have a Material Adverse Effect with respect to the Branch Officesbylaws or other applicable charter, the Transferred Assets constating or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementorganizational documents;
(bii) except in the Ordinary Course issuance, sale, grant, repurchase, redemption, pledge or other disposition of Businessor Encumbrance on any shares of its capital stock or other voting securities or any securities convertible, (i) sold, transferred, leased, pledged, mortgagedexchangeable or redeemable for, or otherwise encumbered any options, warrants or agreed other rights to sell, transfer, lease, pledge, mortgage or otherwise encumberacquire, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiessuch securities;
(ciii) made (A) issuance, incurrence, assumption, guarantee or permitted amendment of any amendmentIndebtedness, termination(B) material loans, lapse ofadvances (other than routine advances to its employees in the ordinary course of business) or capital contributions to, or waiver or consent toinvestment in, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed LiabilitiesPerson, other than in accordance with the Ordinary Course Seller’s cash investment policy as described in Section 3.9(b)(iii) of Business and consistent with prudent banking practices except as contemplated by this Agreementthe Seller Disclosure Schedule or (C) entry into any hedging Contract or other financial agreement or arrangement designed to protect any Acquired Company against fluctuations in commodities prices or exchange rates;
(iiv) subjected to sale, lease, license, pledge or other disposition of, or Encumbrance on, any Lien any of its material properties or assets (other than sales of inventory for fair consideration, other actions taken in the ordinary course of business or in connection with financing arrangements);
(v) acquisition (A) by merger or consolidation with, or by purchase of all or a substantial portion of the Transferred Assets or the Assumed Liabilities assets or any interest thereonstock of, or by any other manner, any business or Person or (B) of any properties or assets that are material to the Acquired Companies individually or in the aggregate, except Permitted Lienspurchases of inventory for fair consideration and in the ordinary course of business;
(jvi) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any realdamage to, or personal destruction or mixed property included in the Transferred Assetsloss of, any of its material properties or material assets, whether or not covered by insurance;
(vii) entry into, modification, acceleration, cancellation or termination of, or receipt of notice of cancellation or termination of, any Contract (or series of related Contracts), in each case other than in the ordinary course of business, which involves a total remaining commitment by or to any Acquired Company of at least $100,000;
(viii) except as required by Law and except as would not result in Liability to an Acquired Company or Purchaser after the aggregateClosing Date, (A) adoption, entry into, or termination or material amendment of any Company Plan or collective bargaining agreement, (B) increase in the compensation or fringe benefits of, or payment of any bonus to, any director, officer or employee or consultant or other independent contractor, other than in the ordinary course of business, (C) amendment or acceleration of the payment, right to payment or vesting of any compensation or benefits or (D) grant of any awards under any bonus, incentive, performance or other compensation plan or arrangement or benefit plan, including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in any Company Plans or awards made thereunder;
(ix) capital expenditure or other expenditure with respect to property, plant or equipment in excess of $25,000100,000 in the aggregate;
(x) material change in accounting principles, methods or practices or investment practices, except as required by GAAP or applicable Law;
(xi) material acceleration or delay in the payment of accounts payable or other Liabilities or in the collection of notes or accounts receivable;
(xii) making or rescission of any material Tax election, settlement or compromise of any material Tax Liability or amendment of any Tax Return;
(xiii) cancellation, compromise, release or waiver of any claims or rights (or series of related claims or rights) with a value to any Acquired Company exceeding $50,000 or otherwise outside the ordinary course of business;
(xiv) settlement or compromise in connection with any Proceeding involving any Acquired Company; or
(kxv) committed to agreement by any Acquired Company, whether in writing or entered into any understandingotherwise, arrangement or agreement (written or unwritten) to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Volt Information Sciences, Inc.)
Absence of Certain Changes and Events. Except (a) with respect to as set forth in Section 4.10 of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementDisclosure Schedule, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality date of the foregoingBalance Sheet, since March 31, 2011, Seller (i) the Company has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except conducted its business only in the Ordinary Course of Business, (iii) soldthere has not occurred any event, transferredtransaction, leasedcondition or change which (individually or in the aggregate with all other such events, pledgedtransactions, mortgagedconditions or changes) has had or could reasonably be expected to have a Material Adverse Change, and (iii) there has not been any:
(a) change in, or otherwise encumbered or agreed to sellissuance, transfersale, leasedisposal, pledge, mortgage Encumbrance or otherwise encumbertransfer of any Membership Interests, other equity securities or other bonds or debt securities; grant of any option or right to purchase any units of membership interest in the Company; issuance of any security convertible into or exchangeable for any unit of membership interest in the Company; grant of any registration rights; or purchase, redemption, retirement, or other acquisition by the Company of any units of membership interests in the Company;
(b) amendment to the Organizational Documents of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed LiabilitiesCompany;
(c) made acquisition (by merger, consolidation or permitted acquisition of stock or assets) any amendment, termination, lapse of, Person or waiver division or consent to, business unit thereof or any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Officesequity interest therein;
(d) made payment or increase by the Company of any change bonus, salary, severance, termination pay or other compensation to any Member, Manager, officer, consultant or employee, or entering into or amending any existing employment, consultancy, severance, retirement or other similar agreement with any officer, Manager, employee or consultant (in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementseither event excluding compensation to employees earning less than $50,000 per year);
(e) granted any adoption of, or material increase in the compensation of its officers payments to or Employees located at the Branch Offices (including benefits under, any increase pursuant to any bonusCompany Plan, pension, profit sharing or other plan or commitment)or, except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officesas may have been required by Legal Requirement;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s entry into or adoption of any collective bargaining or other operations agreement or arrangement with any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicablelabor organization;
(g) made compromise or settlement of any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase Proceeding in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6excess of $50,000;
(h) entered into plant closing or layoff of employees that could implicate the Worker Adjustment and Retraining Notification Act of 1988, as amended, or any similar foreign, state, or local law, regulation or ordinance (collectively the “WARN Act”);
(i) entry into, adoption of, amending in any manner or terminating any pension, retirement, deferred compensation, employment, health, life, or disability insurance, dependent care, severance or other employee benefit plan agreement, trust, fund or other arrangement for the benefit or welfare of any director, officer, employee or consultant in any manner;
(j) entry into, termination of, or receipt of notice of termination of any Contract or transaction involving a total remaining commitment by or conducted its affairs, in either case related to the Transferred Assets Company of at least $50,000 per annum;
(k) making of or Assumed Liabilitiesfailure to make any material capital expenditures or commitments therefore of at least $50,000;
(l) loan, advance or capital contribution or investment in any Person other than loans, advances or capital contributions to or investments made in a subsidiary and advances to employees, each of at least $50,000;
(m) transaction, commitment, contract or agreement relating to the Company’s assets or business (including the acquisition or disposition of any assets) material to the Company, taken as a whole, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this AgreementBusiness, or materially changed any business practice;
(in) subjected cancellation without fair consideration of any material debt or claims owing to or held by it, except for cancellations of or credits to accounts receivable from customers in the Ordinary Course of Business, discharge or satisfaction of any Encumbrance or payment of any obligation or liability (other than in the Ordinary Course of Business), borrowing of any amount or incurred or become subject to any Lien any portion of the Transferred Assets indebtedness or the Assumed Liabilities or any interest thereonother liabilities, except Permitted Liensindebtedness or liabilities incurred in the Ordinary Course of Business;
(jo) suffered any damagesale, destructionassignment, impairmenttransfer, casualty losslicense, condemnationsublicense, taking by eminent domain lease, abandonment, permission to any reallapse of, or personal other disposition of, any tangible or mixed intangible asset or property included of the Company or its Subsidiaries, other than in the Transferred AssetsOrdinary Course of Business, whether or not covered mortgage, pledge, or imposition of any Encumbrance on any tangible or intangible asset or property of the Company or its Subsidiaries or disclosure of any Confidential Information (other than pursuant to agreements requiring the Person to which such disclosure is made to maintain the confidentiality of, and preserving all rights of the Company and its Subsidiaries in, such Confidential Information);
(p) material change in the accounting methods used by insurancethe Company, in each case and the aggregate, in excess of $25,000except for changes required by applicable Legal Requirements or GAAP; or
(kq) committed to agreement or entered into any understandingcommitment, arrangement whether oral or agreement (written or unwritten) written, by the Company to do any of the foregoing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Healthextras Inc)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementdisclosed in Section 2.08 of the Disclosure Letter, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18Financial Statement Date:
(a) suffered Seller has not incurred any change which has had material obligation or is reasonably likely to have a Material Adverse Effect with respect to liability except for normal trade obligations incurred in the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementordinary course of business;
(b) except in the Ordinary Course of Businessno casualty, (i) sold, transferred, leased, pledged, mortgaged, loss or otherwise encumbered or agreed damage has occurred with respect to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or;
(kc) committed to Seller has not sold, transferred, leased, licensed, pledged, mortgaged or entered into otherwise disposed of any understandingof its properties or assets or any interest therein, arrangement or agreement (written or unwritten) agreed to do any of the foregoing;
(d) Seller has not written off as uncollectible any of the Receivables, or written down the value of any of the Assets, except in each case in the ordinary course of business and at a rate no greater than during the 12-month period ending on the Financial Statement Date;
(e) Seller has not waived or released any of its rights with respect to the Business or the Assets or permitted any of such rights to lapse;
(f) no executive officer, employee or independent contractor of Seller has left, or to Seller Parties' knowledge intends to leave, his or her employment or service with Seller;
(g) Seller has not granted, and is not committed to grant, any salary, wage or employee benefits increases to any of its employees or independent contractors;
(h) Seller has not made, or committed to make, any capital expenditures;
(i) Seller has not introduced any material change with respect to the Business, including without limitation with respect to the products or services it sells, the areas in which such products or services are sold, its methods of providing such products or services, its marketing techniques or its accounting methods;
(j) there has been no payment, discharge or other satisfaction of any liabilities of Seller, whether direct or indirect, fixed or contingent or otherwise, other than the satisfaction, in the ordinary course of business, of liabilities reflected on the Current Financial Statements or incurred in the ordinary course of business since the Financial Statement Date;
(k) no event has occurred and no condition exists which, individually or in the aggregate, has had, or is likely to have, a Material Adverse Effect; and
(l) none of the Seller Parties has entered into any agreement (in writing or otherwise) to take any actions referred to in subsections (a) through (k) above.
Appears in 1 contract
Samples: Asset Purchase Agreement (World Health Alternatives Inc)
Absence of Certain Changes and Events. Except (a) with respect to Except for incurring the Excluded Assets expenses, making the payments and the Excluded Liabilitiesdistributions, or (b) as otherwise the other transactions contemplated in or by this Agreement, since March 31the Interim Financial Statements Date, 2011and except as set forth on Section 4.17(a) of the Disclosure Schedule, Seller (i) each of the Acquired Companies has operated the Branch Offices conducted its business in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoinghas not incurred any material Liability, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Business; (ii) there has not been any change in the business, financial condition, Liabilities, assets, technology, Intellectual Property rights, employee relations, customer relations, supplier relations, manufacturer relations or distributor relations, or results of operations of the Acquired Companies that has had, or would reasonably be expected to have, a Material Adverse Effect on any such party, (iii) there has not been any declaration, setting aside or payment of any dividend, other distribution (whether in cash, stock or property), redemption or repurchase with respect to any shares or membership interests of any of the Acquired Companies; (iv) there has not been any split, combination or reclassification of any common stock of any of the Acquired Companies or any issuance or commitment to issue or the authorization of any issuance of any capital stock or other equity interests of any of the Acquired Companies or other securities convertible into, in exchange or in substitution for any shares of capital stock or other equity interests of any of the Acquired Companies; (v) there has not been (A) any granting by any of the Acquired Companies to any employee of any of the Acquired Companies of any increase in compensation, other than in the Ordinary Course of Business, (B) any granting by any of the Acquired Companies to any such employee of any increase in severance or termination pay, (C) any entry by any of the Acquired Companies into any employment, severance or termination agreement, policy or arrangement with any employee other than in the Ordinary Course of Business, or (D) any transaction with Seller, or a director or employee of any of the Acquired Companies, other than in the Ordinary Course of Business; (vi) there has not been any change in accounting methods, principles or practices by any of the Acquired Companies affecting its assets, Liabilities or business, except insofar as may have been required by a change in GAAP, and (vii) the Acquired Companies have paid all of their liabilities and other obligations on a timely basis in accordance with past practices.
(b) Except for the transactions contemplated in this Agreement and except as set forth on Section 4.17(b) of the Disclosure Schedule, since the Interim Financial Statements Date, none of the Acquired Companies has (i) sold, transferred, leased, pledgedlicensed, mortgaged, pledged or otherwise encumbered mortgaged or agreed to sell, transfer, lease, license, pledge, or mortgage or otherwise encumberany assets, any of the Transferred Assets or the Assumed Liabilities property or rights with respect thereto(including without limitation Intellectual Property) in excess of $100,000 individually or $500,000 in the aggregate, other than sales or disposition of inventories in the Ordinary Course of Business, or (ii) canceledcancelled, waived, waived or compromised or agreed to cancel, waive or compromise compromise, any debts, claims or rights with respect to in excess of $100,000 in the Transferred Assets or Assumed Liabilities;
aggregate; (c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(dii) made any material change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
operation; (eiii) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(gA) made any new, or made a change to its customary policies for setting rates on deposits offered at the Branch Officesin any, including material Tax election, settlement or compromise of any increase claim, notice, audit report or assessment in interest rates paid unless respect of Taxes, (and only to the extent thatB) Seller has effected such made a rate increase material change in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
any annual Tax accounting period, (hC) adopted or changed any material method of Tax accounting, (D) filed any amended material Tax Return, (E) entered into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any material Tax, (F) surrendered any right to claim a material Tax refund or credit, or (G) consented to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment; (iv) transferred, exchanged or exclusively licensed any of its Intellectual Property, or had any other transaction material developments related to its Intellectual Property; (v) issued or conducted its affairscommitted to issue any capital stock or any securities convertible into capital stock; (vi) made any capital expenditure(s) in excess of, or purchased or acquired capital assets costing in excess of, approximately $150,000, in either case related to the Transferred Assets aggregate; (vii) incurred or Assumed Liabilities, assumed any indebtedness for borrowed money other than in the Ordinary Course through its established bank line of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to credit or guaranteed any Lien any portion of the Transferred Assets obligation or the Assumed Liabilities or net worth of any interest thereon, except Permitted Liens;
other Person; (jviii) suffered any damagedamage or destruction to, destructionloss of, impairment, casualty loss, condemnation, taking by or condemnation or eminent domain proceeding relating to any real, of its tangible properties or personal or mixed property included in the Transferred Assets, assets (whether or not covered by insurance) which has had or would reasonably be likely to have a Material Adverse Effect; (ix) lost the employment services of any employee whose annual salary exceeded $150,000; (x) made any loan or advance to any Person, other than travel and other similar routine advances to employees in each case and the aggregate, in excess Ordinary Course of $25,000Business; or
(kxi) committed to or entered into any understandingagreements, arrangement commitments or contracts, except those made in the Ordinary Course of Business; or (xii) entered into any agreement (written or unwritten) commitment to do any of the foregoing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Primoris Services CORP)
Absence of Certain Changes and Events. Except (a) as described in Section 4.10 of the Disclosure Schedule, since the date of the Balance Sheet, the Company and its Subsidiaries have in all material respects conducted their businesses only in the usual and ordinary course consistent with respect to the Excluded Assets and the Excluded Liabilitiespast practice and, or (b) except as otherwise expressly contemplated by this AgreementAgreement or any other Transaction Document, since March 31, 2011, Seller there has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18not been any:
(ai) suffered any change which event, condition, occurrence, contingency or development that has had or is would reasonably likely be expected to have a Material Adverse Effect Effect;
(ii) declaration, setting aside or payment of any dividends or other distributions or payments in respect of any shares of capital stock of the Company or any Subsidiary, or any repurchase, redemption or other acquisition by the Company or any Subsidiary of any of such shares of capital stock or other securities of the Company or any Subsidiary, other than the declaration by the Company of the Accrued Dividend Amount, which shall be paid at Closing;
(iii) amendment of any term of any outstanding security of the Company or any Subsidiary;
(iv) incurrence, assumption or guarantee by the Company or any Subsidiary of any indebtedness for borrowed money, other than in the ordinary course of business consistent with past practice;
(v) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Subsidiary, other than loans, advances or capital contributions to a Subsidiary, travel and similar advances to employees, and advances and extended payment terms to suppliers, in each case in the ordinary course of business consistent with past practice;
(vi) change in the independent accountants of the Company or its Subsidiaries or in the accounting methods, principles or practices followed by the Company or any Subsidiary (except for any such change required by reason of a change in GAAP);
(A) adoption, amendment or modification of an Employee Benefit Plan with any director, officer, consultant or employee of the Company or any Subsidiary (or any amendment to any such existing agreement), (B) grant of severance or termination pay to any director, officer, employee, or consultant of the Company or any Subsidiary, (C) increase in the compensation of, or payment of any bonus to, any director, officer, employee, or consultant of the Company or any Subsidiary, or (D) change with respect to the Branch Officescompensation or other benefits payable to any director, officer, employee or consultant of the Transferred Assets Company or Assumed Liabilities any Subsidiary except, in the case of clauses (C) and (D), in the ordinary course of business consistent with past practice with respect to any employee (excluding any officers) of the Company or Seller’s ability any Subsidiary, and except, in the case of clause (C), for the determination of the board of directors and stockholders of the Company to consummate grant the transactions contemplated by this AgreementSpecified Employees Bonus Payments in the amounts set forth in Section 1.1(a) of the Disclosure Schedule;
(bviii) except material damage, destruction or loss to any material asset or property of the Company or any Subsidiary, other than damage that has been repaired, damaged assets that have been replaced or damage for the repair of which insurance proceeds have been received;
(ix) sale (other than sales of inventory and customer list rentals and exchanges in the Ordinary Course ordinary course of Businessbusiness consistent with past practice), (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sellassignment, transfer, hypothecation, conveyance, lease, or other disposition of any material asset or property of the Company or any Subsidiary or mortgage, pledge, mortgage or otherwise encumberimposition of any Encumbrance on any material asset or property of the Company or any Subsidiary (except for Permitted Encumbrances);
(x) incurrence or repayment of any liability or obligation (whether absolute, accrued, contingent or otherwise) to any Related Controlling Party or any Related Party or, other than in respect of current liabilities incurred in the ordinary course of business, any incurrence or repayment of any material liability or material obligation to any other Person or any discharge or satisfaction of any material Encumbrance other than in the Transferred Assets or the Assumed Liabilities or rights ordinary course of business consistent with respect theretopast practice;
(xi) failure to pay when due any material liabilities, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights except with respect to any such liabilities being contested in good faith by the Transferred Assets Company or Assumed Liabilitiesany Subsidiary and which are identified in Section 4.10 of the Disclosure Schedule;
(cxii) made cancellation, discharge or permitted satisfaction of any material debts or material claims to the Company or any Subsidiary or any amendment, termination, lapse of, or waiver or consent to, of any Assumed Contract, lease, agreement, consent, license or Permit with respect material rights of value to the Branch OfficesCompany or any Subsidiary;
(dxiii) made any change in any method of management write down or operation write off of the Branch Offices not value of any material asset of the Company or any Subsidiary, except for write downs and write offs of accounts receivable and inventory in the Ordinary Course ordinary course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsbusiness consistent with past practice;
(exiv) granted any increase failure to pay accounts payable or collect accounts receivable other than in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis ordinary course consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officespast practice;
(fxv) except for entry into, amendment, termination or receipt of notice of termination of any agreement or other document that is required to be disclosed in Sections 4.12 or 4.14 of the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableDisclosure Schedule;
(gxvi) made any material change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served business or operations of the Company or any Subsidiary or in the manner of conducting the same or entry by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered Company or any Subsidiary into any material transaction (other transaction or conducted its affairs, in either case related to than the Transferred Assets or Assumed Liabilitiestransactions contemplated hereby), other than in the Ordinary Course ordinary course of Business and business consistent with prudent banking practices except as contemplated by this Agreement;past practice; or
(ixvii) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assetsagreement, whether or not covered by insurancein writing, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingforegoing by the Company or any Subsidiary.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to as set forth in Section 4.8 of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementDisclosure Schedule, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18Balance Sheet Date:
(a) suffered any there has been no Material Adverse Change or event, change which has had or is circumstance that would reasonably likely be expected to have constitute or result in a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementChange;
(b) except the Business has been conducted only in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;ordinary course; and
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices there has not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;been any:
(i) subjected amendment to any Lien any portion the Governing Documents of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted LiensTEI Med;
(jii) suffered damage to or destruction or loss of any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assetsmaterial Asset, whether or not covered by insurance;
(iii) sale, lease, license or other disposition of any material Asset (other than sale or use of Inventory in the ordinary course of the Business) or creation or imposition of any Encumbrance, other than Permitted Encumbrances on Assets, on any material Asset;
(iv) change in the financial or Tax accounting methods used; change in any annual Tax accounting period; making of or change in any material Tax election; settlement or compromise of any material claim, notice, audit report or assessment in respect of Taxes; filing of any amended income or other material Tax Return; entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax (with the exception of customary commercial leases or contracts that are not primarily related to Taxes entered into in the ordinary course of business); or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; in each case and by or with respect to TEI Med;
(v) change in the aggregateauthorized or issued capital stock of TEI Med; grant of option or right to purchase shares of capital stock of TEI Med; issuance of any security convertible into such capital stock; grant of any registration rights with respect to such capital stock; purchase, redemption, retirement or other acquisition by TEI Med of any shares of any such capital stock; or declaration or payment of any dividend or other distribution or payment in respect of shares of such capital stock;
(vi) payment or increase by TEI Med of any bonuses, salaries, or other compensation to any stockholder, director, officer or employee (except, in excess the case of $25,000officers and employees, in the ordinary course of the Business); entry into any employment severance, change in control or similar Contract with any director or officer; or adoption or termination of, or increase in payments or benefits under, any Employee Plan;
(vii) termination of, or receipt of notice of termination of any Specified Contract;
(viii) waiver of any claim or right having a material value to TEI Med; or
(kix) committed to or entered into any understanding, arrangement or agreement (written or unwritten) Contract by TEI Med to do any of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Integra Lifesciences Holdings Corp)
Absence of Certain Changes and Events. Except (a) Since the date of the Audited Company Balance Sheet, the Company has conducted its business in the ordinary course consistent with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementpast practice and, since March 31such date, 2011, Seller there has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18not occurred:
(a) suffered any change event, damage, destruction or loss, whether covered by insurance or not, which has had or reasonably is reasonably likely expected to have a Material Adverse Effect with respect to on the Branch Offices, the Transferred Assets Company or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementits assets;
(b) except any entry by the Company into a commitment or transaction material to the Company, which is not in the Ordinary Course ordinary course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights business consistent with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiespast practice;
(c) made any change by the Company in accounting principles, methods or permitted any amendmentpractices, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Officesexcept insofar as may have been required by a change in GAAP;
(d) made any change declaration, payment or setting aside for payment of any dividends or distributions in any method respect to shares of management or operation of the Branch Offices not in the Ordinary Course of Business Company Common Stock, or any accounting changeredemption, except as may be required by GAAP purchase or generally applicable regulatory requirementsother acquisition of any shares of Company Common Stock;
(e) granted any increase cancellation of any debts or waiver or release of any right or claim of the Company individually or in the compensation of its officers aggregate material to the Company, whether or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases not in the Ordinary Course ordinary course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officesbusiness;
(f) except for any revaluations by the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course Company of Business at the unsolicited request of depositors, or caused any of Seller’s other operations its assets or customers to transfer to the Branch Offices any deposits liabilities, including without limitation, writing-off notes or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableaccounts receivable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any material increase in interest rates paid unless (and only the rate or terms of compensation payable or to become payable by the Company or any of its personnel or consultants; any bonus, incentive compensation, service award or other benefit granted, made or accrued, contingently or otherwise, for or to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for credit of any Company personnel; employee welfare, pension, retirement, profit-sharing or similar deposits at similarly situated financial institutions in the respective market areas served payment or arrangement made or agreed to by the Branch Offices Company for any Company personnel except for contributions in accordance with prior practice made to, and which further do not exceed interest rates allowed payments made to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6employees under, plans and arrangements existing on the date of the Audited Company Balance Sheet;
(h) entered into any adoption of a plan of liquidation or resolutions providing for the liquidation, dissolution, merger, consolidation or other transaction reorganization of the Company, other than in connection with the transactions contemplated hereby;
(i) any purchase, acquisition or conducted its affairs, in either case related to sale by the Transferred Assets or Assumed LiabilitiesCompany of any assets, other than in the Ordinary Course ordinary course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liensbusiness;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any realmaterial addition to, or personal material modification of, the Employee Plans, arrangements or mixed property included practices existing on the date of the Audited Company Balance Sheet which affect any Company personnel;
(k) any amendment, cancellation or termination of any Material Contract, including, without limitation, license or sublicense, or other instrument to which the Company is a party or to which the Company or any of the assets of the Company is bound;
(l) any failure to pay when due any material obligation of the Company;
(m) any failure to operate the business of the Company in the Transferred Assetsordinary course with an effort to preserve the business intact, whether to keep available to the Company the services of their personnel, and to preserve for the Company the goodwill of their customers and others having business relations with the Company except for such failures that would not have a Material Adverse Effect on the Company;
(n) any commitment to borrow money entered into by the Company, or not covered any loans made or agreed to be made by insurancethe Company, involving more than $10,000 individually or $25,000 in each case the aggregate (other than credit provided by suppliers or manufacturers in the ordinary course of the Company’s business consistent with past practices);
(o) any liabilities incurred by the Company involving $10,000 or more individually and $25,000 or more in the aggregate, other than liabilities incurred in excess the ordinary course of business consistent with past practices;
(p) any payment, discharge or satisfaction of any material liabilities of the Company or any material capital expenditure of the Company, other than (i) the payment, discharge or satisfaction in the ordinary course of business consistent with prior practice of liabilities reflected or reserved against in the Audited Financial Statements or incurred in the ordinary course of business consistent with prior practice since the date of the Audited Company Balance Sheet, and (ii) any capital expenditures involving $25,00010,000 or less individually and $25,000 or less in the aggregate;
(q) any amendment of the Company’s Certificate of Incorporation or Company Bylaws; or
(kr) committed to or entered into any understanding, arrangement or agreement (written or unwritten) by the Company to do any of the foregoingthings described in the preceding clauses (a) through (q) of this Section 4.13, other than as expressly contemplated or provided for in this Agreement.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementset forth on Schedule 4.8, since March 31June 30, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:1996.
(a) suffered any change which each of EnSys and its Subsidiaries has had or is reasonably likely to have a Material Adverse Effect conducted its business in the ordinary course and consistent with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementits past practice;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, there has not been any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed LiabilitiesEnSys Material Adverse Effect;
(c) neither EnSys nor any Subsidiary has made any material increase in compensation to officers or permitted key employees or any amendmentmaterial increase in any or created any new bonus, terminationinsurance, lapse ofpension or other employee benefit plan, payment or waiver or consent arrangement (including, but not limited to, any Assumed Contract, lease, agreement, consent, license or Permit the granting of stock options) other than in the ordinary course of business and consistent with respect to the Branch OfficesEnSys' past practice;
(d) neither EnSys nor any of its Subsidiaries has made any change in loans or advances to any method officer, director, shareholder or Affiliate of management EnSys or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, Subsidiary (except as may be required by GAAP or generally applicable regulatory requirementsfor travel and business expenses payments);
(e) granted neither EnSys nor any increase of its Subsidiaries has incurred any debt. obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due, except liabilities or obligations incurred in the compensation ordinary course of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis business and consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officespractice;
(f) neither EnSys nor any of its Subsidiaries has mortgaged, pledged or subjected to lien, restriction or any other encumbrance any of their property, businesses or assets, tangible or intangible, except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except purchase money liens arising in the Ordinary Course ordinary course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicablebusiness consistent with prior practice;
(g) made neither EnSys nor any change of its Subsidiaries has transferred, leased or loaned to others or otherwise disposed of any of its customary policies for setting rates on deposits offered at assets (or committed to do any of the Branch Officesforegoing), including or canceled, waived, released or otherwise compromised any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions debt or claim, or any right of significant value, except in the respective market areas served by the Branch Offices ordinary course of business and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6consistent with prior practice;
(h) entered into neither EnSys nor any other transaction of its Subsidiaries has made or conducted its affairs, committed to make any capital expenditures or capital additions or betterments in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course excess of Business and consistent with prudent banking practices except as contemplated by this Agreementan aggregate of $25,000;
(i) subjected neither EnSys nor any of its Subsidiaries has encountered any labor union organizing activity, had any actual or threatened employee strikes, or any work stoppages, slow-downs or lock-outs related to any Lien any portion of the Transferred Assets or the Assumed Liabilities labor union organizing activity or any interest thereon, except Permitted Liensactual or threatened employee strikes;
(j) suffered neither EnSys nor any damageof its Subsidiaries has (A) declared or paid any dividend or made any other payment or distribution in respect of its capital stock, destruction(B) issued or sold (I) any of its capital stock, impairment(II) any warrant, casualty lossoption or other right to purchase or receive any of its capital stock, condemnation, taking by eminent domain to (III) any realsecurity convertible into, or personal exchangeable for, its capital stock, or mixed property included in (IV) any stock appreciation right or other security or other right or contractual obligation, the Transferred Assetsvalue of which is related to, whether or not covered determined or determinable by insurancereference to, in each case and the aggregateprice or value of its capital stock, in excess or (C) directly or indirectly redeemed, purchased or otherwise acquired any of $25,000; orits capital stock;
(k) committed neither EnSys nor any of its Subsidiaries has acquired, or agreed to acquire, any business or any corporation, partnership or other business organization or division thereof, or otherwise acquired, or agreed to acquire, any assets which are material, individually or in the aggregate, to EnSys and its Subsidiaries taken as a whole, or entered into any joint venture or partnership agreement or made any other similar arrangement;
(l) neither EnSys nor any of its Subsidiaries has made or changed any election concerning taxes or tax returns, filed any amended tax return, extended the applicable statute of limitations for any taxable period, received notification of an examination, audit or pending assessment with respect to taxes, entered into any closing agreement with respect to taxes, settled or compromised any tax claim or assessment or surrendered any right to claim a refund of taxes or obtained or entered into any tax ruling, agreement, contract, understanding, arrangement or plan;
(m) there has not been any change in the accounting methods or practices followed by EnSys or any of its Subsidiaries, except as required by GAAP; and
(n) neither EnSys nor any of its Subsidiaries has entered into any commitment or other agreement (written or unwritten) to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Ensys Environmental Products Inc /De/)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
------------------------------------- Agreement and as set forth on Schedule 4.16, since October 31, 1999, LCG and the ------------- LCG Subsidiaries have conducted the businesses of the Radio Stations and the Newspapers only in the ordinary course of business and there has not been any: (i) subjected change in the authorized or issued capital stock of LCG or any of the LCG Subsidiaries (other than issuances pursuant to the exercise of Options), grant of any stock option or right to purchase shares of capital stock of LCG or any of the LCG Subsidiaries, issuance of any security convertible into such capital stock, grant of any registration rights, purchase, redemption, retirement or other acquisition by LCG or any of the LCG Subsidiaries of any shares of any such capital stock or declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock; (ii) payment or increase by LCG or any of the LCG Subsidiaries of any bonuses, salaries or other compensation to any Lien employee (except in the ordinary course of business) or entry into any portion employment, severance or similar Contract with any employee; (iii) adoption of, or increase in the payments to or benefits under, any Employee Benefit Plan for or with any employees except in the ordinary course of business; (iv) damage to or destruction or loss of any of the Transferred Assets assets of LCG or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred AssetsLCG Subsidiaries, whether or not covered by insurance, which would have an LCG Material Adverse Effect; (v) entry into, termination of or written receipt of notice of termination of any material Contract, other than the expiration of Contracts pursuant to their terms; (vi) except as set forth on Schedule 4.16, ------------- sale (other than sales of inventory in each case and the aggregateordinary course of business), lease or other disposition of any material assets or material properties or mortgage, pledge or imposition of any Encumbrance on any material asset or material property; (vii) material change in excess of $25,000the accounting methods used by LCG or the LCG Subsidiaries, except as required by changes in GAAP; or
or (kviii) committed to any agreement, whether oral or entered into any understandingwritten, arrangement or agreement (written or unwritten) to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementAgreement or as set forth on SCHEDULE 4.9 hereto, since March 31September 30, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.181998:
(a) suffered any change which the business of the Company has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except been operated only in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices usual and ordinary course and there has not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;been:
(i) subjected to any Lien any portion material adverse change in the financial condition, business, results of operations or prospects of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted LiensCompany;
(jii) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, destruction or personal or mixed property included in the Transferred Assets, loss (whether or not covered by insurance) materially and adversely affecting the properties, business or business prospects of the Company;
(iii) any distribution, declaration, setting aside or payment of any dividend, or any other distribution with respect to the capital stock of the Company or any direct or indirect redemption, purchase or other acquisition of any such stock or sale of any such stock by the Company;
(iv) any material or unusual increase in each case the fixed compensation payable to or to become payable by the Company to any officer, key employee or agent of the Company, or in any insurance, pension or other benefit plan, payment, or arrangement made to, for or with any such officers, key employees or agents of the Company;
(v) any commission or bonus paid to any such officers, key employees or agents, other than commissions and bonuses paid in the aggregateordinary course of business;
(vi) any material change in the operation of the business of the Company or any material transactions entered into, except such changes and transactions occurring in excess the ordinary course of $25,000business and not otherwise required to be disclosed pursuant to this Section 4.9; or
(kvii) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoing; and
(b) the Company has not:
(i) purchased, sold or transferred any asset except in the ordinary course of its business;
(ii) canceled any debts or waived any claims or rights of substantial value, or sold, transferred or otherwise disposed of, any properties or assets (real, personal or mixed, tangible or intangible) of substantial value, except, in each such case, in transactions in the ordinary course of business and consistent with past practice and which in any event, do not exceed $25,000 individually;
(iii) made any capital expenditures or commitments in the ordinary course of business in excess of $50,000 individually, or $100,000 in the aggregate; or
(iv) been the subject of or experienced any strike or other work stoppage or concerted slow down or threat thereof, union election or attempted collective bargaining of employees.
Appears in 1 contract
Absence of Certain Changes and Events. Except as disclosed in Exhibit 30 hereto, since September 30, 1996 there has not been any change in the business, operations, properties, assets or condition of the In Vitro Business of Sorin Biomedica or any of the Selling Parties or NewCos which has resulted in a Material Adverse Effect (a) with respect except to the Excluded Assets and extent the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementIn Vitro Business will become a business operated on a stand alone basis). Furthermore, since March 31September 30, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not1996, except as disclosed in Schedule 3.18:Exhibit 30 hereto, none of the following have occurred with respect to the In Vitro Business;
(a) suffered Any damage, destruction or loss by reason of fire, flood, accident or other casualty of such character as would interfere in any change which has had material way with the operations of Sorin Biomedica, regardless of whether or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated not such loss was covered by this Agreementinsurance;
(b) except Other than in the Ordinary Course ordinary course of Businessbusiness or other than as contemplated by the terms of this Agreement, (i) sold, transferred, leased, pledged, mortgaged, any sale or otherwise encumbered disposition of or agreed undertaking to sell, transfer, lease, pledge, mortgage sell or otherwise encumber, dispose of any of the Transferred Stated Assets and Liabilities; (ii) any purchase or undertaking to purchase any real property, machinery, equipment or other fixed assets related to the Assumed Liabilities or rights with respect theretoIn Vitro Business, or (iiiii) canceled, waived, compromised any change in the nature or agreed to cancel, waive method of business or compromise any debts, claims or rights with respect operation related to the Transferred Assets or Assumed LiabilitiesIn Vitro Business;
(c) made Any material increase in the compensation payable or permitted any amendmentto become payable by Sorin Biomedica or the Selling Parties to their managers, termination, lapse of, employees or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect agents except to the Branch Officesextent imposed by operation of law or existing contract delivered to Buyer;
(d) made Any labor disputes or other labor controversies;
(e) Any entry into, termination of, or receipt of notice of termination of any change license, distributorship, dealer, sales representative, or similar agreement which is material to the In Vitro Business, other than in any method the ordinary course of management business;
(f) Any conditions or operation circumstances that to Sorin Biomedica's knowledge had a Material Adverse Effect on the ability of the Branch Offices not Selling Parties to maintain their respective relationships with their customers, suppliers and distributors on substantially the same terms as such Selling Parties did during the 12 (twelve) month period ending September 30, 1996, except for changes arising in the Ordinary Course ordinary course of Business business;
(g) Any change by Sorin Biomedica or any the Selling Parties or the NewCos in accounting changeprinciples or methods, except in so far as may be required by a change in the Italian GAAP or generally applicable regulatory requirements;
(e) granted any increase a change in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that GAAP of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officesapplicable country;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to as set forth in Section 3.9 of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementSeller Disclosure Schedule, since March 31the date of the Balance Sheet, 2011, Seller each Acquired Company has operated the Branch Offices conducted its business only in the Ordinary Course ordinary course of Business business and in substantially the same manner as previously conducted by Sellerthere has not been any Material Adverse Effect. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed set forth in Schedule 3.18Section 3.9 of the Seller Disclosure Schedule, since the date of the Balance Sheet, there has not been with respect to any Acquired Company any:
(a) suffered any change which has had amendment to its articles of incorporation or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets bylaws or Assumed Liabilities other comparable charter or Seller’s ability to consummate the transactions contemplated by this Agreementorganizational documents;
(b) except change in the Ordinary Course of Business, its authorized (ior equivalent) sold, transferred, leased, pledged, mortgagedor issued capital stock, or otherwise encumbered issuance, sale, grant, repurchase, redemption, pledge or agreed other disposition of or Encumbrance on any shares of its capital stock or other voting securities or any securities convertible, exchangeable or redeemable for, or any options, warrants or other rights to sell, transfer, lease, pledge, mortgage or otherwise encumberacquire, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiessuch securities;
(c) made split, combination or permitted reclassification of any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Officesof its capital stock;
(d) made declaration, setting aside or payment of any change dividend or other distribution (whether in any method cash, securities or other property) in respect of management or operation of its capital stock (other than dividends and distributions by a Subsidiary to the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsCompany);
(e) granted (i) incurrence of any increase Indebtedness, (ii) issuance, sale or amendment of any of its debt securities or warrants or other rights to acquire any of its debt securities, guarantee of any debt securities of another Person, entry into any “keep well” or other Contract to maintain any financial statement condition of another Person or entry into any arrangement having the economic effect of any of the foregoing, (iii) loans, advances (other than routine advances to its employees in the compensation ordinary course of its officers business) or Employees located at the Branch Offices (including capital contributions to, or investment in, any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior yearPerson, other than increases the Company or any Subsidiary and payments necessary, other than in accordance with the employerCompany’s reasonable discretion, to maintain and preserve the operation cash investment policy as described in Section 3.9(e) of the Branch OfficesSeller Disclosure Schedule or (iv) entry into any hedging Contract or other financial agreement or arrangement designed to protect any Acquired Company against fluctuations in commodities prices or exchange rates;
(f) except for the Inter-Bank Transfersale, caused the Branch Offices to transfer to Seller’s lease, license, pledge or other operations disposition of or Encumbrance on any deposits other than deposits securing any loansof its properties or assets, except in the Ordinary Course ordinary course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicablebusiness consistent with past practice;
(g) made acquisition (i) by merger or consolidation with, or by purchase of all or a substantial portion of the assets or any change stock of, or by any other manner, any business or Person or (ii) any assets that are material to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions Acquired Company individually or in the respective market areas served by aggregate, except purchases of inventory and raw materials in the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;ordinary course of business; [***] = Confidential Treatment requested for redacted portion; redacted portion has been filed separately with the Commission.
(h) entered into damage to, or destruction or loss of, any other transaction of its assets or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent properties with prudent banking practices except as contemplated by this Agreement;
(i) subjected an aggregate value to any Lien any portion Acquired Company in excess of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets[***], whether or not covered by insurance;
(i) entry into, modification, acceleration, cancellation or termination of, or receipt of notice of termination of, any Contract (or series of related Contracts) which involves a total remaining commitment by or to any Acquired Company of at least [***] or otherwise outside the ordinary course of business;
(i) except as required by Law, adoption, entry into, termination or amendment of any (A) collective bargaining agreement, (B) Company Plan applicable to (1) any of its directors, officers or [***] highest paid employees (collectively, the “Key Employees”) or (2) all or substantially all of its other employees generally, (C) employment, severance or similar Contract applicable to (1) any Key Employee or (2) any other employee or consultant that represents an annual expenditure by the Acquired Companies equal to or greater than [***] per applicable individual, (ii) increase (A) in the compensation or fringe benefits of, or payment of any bonus to any Key Employee or (B) greater than [***] (based on total compensation for each case and applicable individual) in the aggregatecompensation or fringe benefits of, or payment of any bonus to, any other employee or consultant or other independent contractor, (iii) amendment or acceleration of the payment, right to payment or vesting of any compensation or benefits, (iv) payment of any benefit not provided for as of the date of this Agreement under any Company Plan, (v) grant of any awards under any bonus, incentive, performance or other compensation plan or arrangement or benefit plan, including the grant of stock options, stock appreciation rights, stock based or stock related awards, performance units or restricted stock, or the removal of existing restrictions in excess any Company Plans or Contracts or awards made thereunder or (vi) any action other than in the ordinary course of $25,000; orbusiness to fund or in any other way secure the payment of compensation or benefits under any Company Plan;
(k) committed cancellation, compromise, release or waiver of any claims or rights (or series of related claims or rights) with a value exceeding [***] or otherwise outside the ordinary course of business;
(l) settlement or compromise in connection with any Proceeding;
(m) capital expenditure or other expenditure with respect to property, plant or entered into equipment in excess of [***] in the aggregate for the Acquired Companies taken as a whole;
(n) change in accounting principles, methods or practices or investment practices, including any understandingchanges as were necessary to conform with GAAP;
(o) change in payment or processing practices or policies regarding intercompany transactions;
(p) other than in the ordinary course of business consistent with past practice, arrangement acceleration or agreement delay in the payment of accounts payable or other Liabilities or in the collection of notes or accounts receivable;
(written q) making or unwrittenrescission of any Tax election, settlement or compromise of any Tax Liability or amendment of any Tax Return; or [***] = Confidential Treatment requested for redacted portion; redacted portion has been filed separately with the Commission.
(r) authorization of or Contract by any Acquired Company to do take any of the foregoingactions described in this Section 3.9.
Appears in 1 contract
Absence of Certain Changes and Events. Except for the Distribution, since the date of the Audited Combined Balance Sheet, the Company and the Retained Subsidiaries have in all material respects conducted their businesses only in the usual and ordinary course of business consistent with past practice and, except as expressly contemplated by this Agreement or any other Transaction Document, there has not been any:
(ai) event, condition, occurrence, contingency or development that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;
(ii) declaration, setting aside or payment of any dividends or other distributions or payments in respect of any shares of capital stock of the Company or any Retained Subsidiary, or any repurchase, redemption or other acquisition by the Company or any Retained Subsidiary of any of such shares of capital stock or other securities of the Company or any Retained Subsidiary;
(iii) amendment of any term of any outstanding security of the Company or any Retained Subsidiary;
(iv) incurrence, assumption or guarantee by the Company or any Retained Subsidiary of any indebtedness for borrowed money, other than the incurrence of indebtedness under the Line of Credit in the ordinary course of business consistent with past practice;
(v) making of any material loan, advance or capital contribution to or investment in any Person by the Company or any Retained Subsidiary, other than (A) loans, advances or capital contributions between or among the Company and its Subsidiaries, (B) travel and similar advances to employees, (C) advances and extended payment terms to suppliers, and (D) extended payment terms to customers, in each case in the ordinary course of business consistent with past practice;
(vi) change in the independent accountants of the Company, any KDM Subsidiary or any Retained Subsidiary or in any material financial or Tax accounting methods, principles or practices followed by the Company, any KDM Subsidiary or any Retained Subsidiary (except for any such change required by reason of a change in GAAP or applicable Tax law);
(vii) (A) adoption, amendment or modification of an Employee Benefit Plan with any director, officer, employee or independent contractor of the Company or any Retained Subsidiary (or any amendment to any such existing agreement), (B) grant of any material severance or termination pay to any director, officer, employee or independent contractor of the Company or any Retained Subsidiary, (C) increase in the compensation of, or payment of any bonus to, any director, officer, employee or independent contractor of the Company or any Retained Subsidiary, or (D) change with respect to the Excluded Assets and compensation or other benefits payable to any director, officer, employee or independent contractor of the Excluded LiabilitiesCompany or any Retained Subsidiary except, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course case of Business clauses (C) and (D), in substantially the same manner as previously conducted by Seller. Without limiting the generality ordinary course of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect business consistent with past practice with respect to any employee (excluding any officers) of the Branch Offices, the Transferred Assets Company or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementany Retained Subsidiary;
(bviii) except material damage, destruction or loss to any material asset or property of the Company or any Retained Subsidiary, other than damage that has been repaired, damaged assets that have been replaced or damage for the repair of which insurance proceeds have been received;
(ix) sale (other than sales of inventory and customer list rentals and exchanges in the Ordinary Course ordinary course of Businessbusiness consistent with past practice), (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sellassignment, transfer, hypothecation, conveyance, lease, or other disposition of any material asset or property of the Company or any Retained Subsidiary or mortgage, pledge, mortgage or otherwise encumberimposition of any Encumbrance on any material asset or property of the Company or any Retained Subsidiary (except for Permitted Encumbrances);
(x) incurrence or repayment of any liability or obligation (whether absolute, accrued, contingent or otherwise) to any Related Party or, other than in respect of current liabilities incurred in the ordinary course of business, any incurrence or repayment of any material liability or material obligation to any other Person or any discharge or satisfaction of any material Encumbrance other than in the Transferred Assets or the Assumed Liabilities or rights ordinary course of business consistent with respect theretopast practice;
(xi) failure to pay when due any material liabilities, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights except with respect to any such liabilities being contested in good faith by the Transferred Assets Company or Assumed Liabilitiesany Retained Subsidiary and which are identified in Section 4.10 of the Disclosure Schedule;
(cxii) made cancellation, discharge or permitted satisfaction of any material debts or material claims to the Company or any Retained Subsidiary or any amendment, termination, lapse of, or waiver or consent to, of any Assumed Contract, lease, agreement, consent, license or Permit with respect material rights of value to the Branch OfficesCompany or any Retained Subsidiary;
(dxiii) made any change in any method of management write down or operation write off of the Branch Offices not value of any material asset of the Company or any Retained Subsidiary, except for write downs and write offs of accounts receivable and inventory in the Ordinary Course ordinary course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsbusiness consistent with past practice;
(exiv) granted failure to pay any increase material amount of accounts payable or collect any material amount of accounts receivable other than in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis ordinary course consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officespast practice;
(fxv) except for material change in the Inter-Bank Transfer, caused business or operations of the Branch Offices to transfer to Seller’s other operations Company or any deposits Retained Subsidiary or in the manner of conducting the same or entry by the Company or any Retained Subsidiary into any material transaction (other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilitiestransactions contemplated hereby), other than in the Ordinary Course ordinary course of Business and business consistent with prudent banking practices except as contemplated by this Agreement;past practice; or
(ixvi) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assetsagreement, whether or not covered by insurancein writing, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingforegoing by the Company or any Subsidiary.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to as set forth on Schedule ------------------------------------- 3.5, from the Excluded Assets Balance Sheet Date each of the Company and its Subsidiaries has conducted its business only in the Excluded Liabilitiesordinary and usual course and has not undergone or suffered or become aware of any event, occurrence, development, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller state of circumstances or fact which has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Sellerhad or would reasonably be expected to have a Company Material Adverse Effect. Without limiting the generality of the foregoingfirst sentence of this Section 3.5 (and except as set forth on Schedule 3.5 or as otherwise disclosed in or permitted or required by this Agreement or Schedules hereto), since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18the Balance Sheet Date neither the Company nor any of its Subsidiaries has:
(a) suffered Authorized for issuance, issued, delivered or sold any change which has had debt or is reasonably likely to have a Material Adverse Effect with respect to equity securities, or altered the Branch Officesterms of any outstanding securities issued by it, or increased its indebtedness for borrowed money other than in the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementordinary and usual course of business;
(b) except Made or set aside for making any distribution (whether in the Ordinary Course cash, interests or property or otherwise) in respect of Business, (i) sold, transferred, leased, pledged, mortgagedany partnership or other interest, or otherwise encumbered or agreed to sellredeemed, transfer, lease, pledge, mortgage purchased or otherwise encumberacquired any such partnership or other interests, any securities convertible into or exchangeable for such partnership or other interests or any options, warrants or other rights to purchase or subscribe to any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiesforegoing;
(c) made Paid, discharged or permitted satisfied any amendmentLiability or obligation (whether accrued, terminationabsolute, lapse ofcontingent or otherwise) other than the payment, discharge or waiver satisfaction, in the ordinary and usual course of business, of Liabilities or consent to, any Assumed Contract, lease, agreement, consent, license obligations shown or Permit with respect to reflected on the Branch Officesfinancial statements included in the SEC Reports or incurred in the ordinary and usual course of business;
(d) made any change in any method of management or operation of the Branch Offices not Except in the Ordinary Course ordinary and usual course of Business business, permitted or allowed any accounting changeassets (whether real, personal or mixed, tangible or intangible) to be subjected to any Lien except (i) Liens disclosed on the Schedules hereto and (ii) (A) mechanics', carriers', workmen's, repairmen's, and other like liens arising or incurred in the ordinary course of business, (B) liens for Taxes, assessments and other governmental charges that are not yet due and payable or that may thereafter be paid without penalty, or that are being contested in good faith by appropriate proceedings (which liens are set forth in Schedule 3.5) and (C) imperfections of title and other encumbrances that, individually or in the aggregate, are not substantial in character or amount and do not, except in immaterial respects, detract from, or interfere with the Company's business as may be required by GAAP or generally applicable regulatory requirements;presently conducted (the Liens described in clauses (i) and (ii) being herein referred to as "Permitted Liens"); ---------------
(e) granted Written off as uncollectible any notes or accounts receivable other than in immaterial amounts or in the ordinary and usual course of business;
(f) Cancelled or waived any claims or rights of value or sold, transferred, distributed or otherwise disposed of any assets except in the ordinary and usual course of business;
(g) Granted any increase in the compensation of any member of the Board of Control, management committee member, officer or employee, whether now or hereafter payable (other than increases in compensation in the ordinary and usual course of business and consistent in timing and amount with past practice) or granted any severance or termination pay (other than for severance pay in amounts consistent with its officers established severance pay practices), or Employees located entered into or varied the terms of any employment agreement (other than employment agreements terminable at will without any liability other than severance consistent with its established severance policies) with any such person or adopted, amended in any material respect or terminated (except in the Branch Offices ordinary and usual course of business and consistent with past practice) any Schedule 3.12 Plan (including any increase pursuant to any as defined in Section 3.12 hereof), non-ERISA arrangement, bonus, pension, profit sharing or other plan employee benefit plan, agreement or commitment), except arrangement of general applicability for periodic increases in the Ordinary Course benefit of Business made pursuant to established compensation policies applied on a basis consistent with that its members of the prior yearBoard of Control, other than increases and payments necessarymanagement committee members, in officers or employees or for the employer’s reasonable discretion, to maintain and preserve the operation benefit of members of the Branch Offices;
(f) except for the Inter-Bank TransferBoard of Control, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loansmanagement committee members, except in the Ordinary Course officers or employees of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6affiliates;
(h) entered into any other transaction or conducted its affairs, Other than as provided in either case related the Company's 1996 capital expenditure plan previously provided to the Transferred Assets Purchaser, made any capital expenditure or Assumed Liabilitiescommitment for additions to property or equipment, or leased or agreed to lease any assets in excess of $250,000 individually or in the aggregate, or made any advance or capital contributions to, or investment in, any Person (other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreementto wholly-owned subsidiaries);
(i) subjected to Made any Lien material change in any portion method of the Transferred Assets accounting or the Assumed Liabilities keeping its books of account or any interest thereonaccounting practices, except Permitted Liensas required as a result of changes in GAAP;
(j) suffered Incurred any material obligation or Liability, except Liabilities incurred in the ordinary and usual course of business; or
(k) Prior to the date hereof, experienced any damage, destruction, impairment, or other casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, loss (whether or not covered by insurance, in each case and ) detrimental to the aggregate, in excess of $25,000; or
(k) committed to business or entered into any understanding, arrangement or agreement (written or unwritten) to do any assets of the foregoingCompany or any facility.
Appears in 1 contract
Samples: Interest Purchase Agreement (Petro Stopping Centers L P)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementset forth in Schedule 4.8, since March 31the Balance Sheet Date, 2011, Seller the Company has operated the Branch Offices conducted its business in all material respects only in the Ordinary Course of Business ordinary course and in substantially the same manner as previously conducted by Seller. Without conformity with past practice and, without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered declared or paid any change which has had dividend or is reasonably likely to have a Material Adverse Effect with other distribution or payment in respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementof shares of capital stock other than distributions for Taxes;
(b) except in amended the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed LiabilitiesCompany’s Organizational Documents;
(c) made sold, leased (as lessor), transferred or permitted otherwise disposed of (including any amendment, termination, lapse oftransfers from the Company to Seller or any of its Affiliates), or waiver mortgaged or consent topledged, or imposed or suffered to be imposed any Encumbrance (other than a Permitted Encumbrance) on, any Assumed Contractof the assets reflected on the Balance Sheet or any assets acquired by the Company after the Balance Sheet Date, lease, agreement, consent, license except for inventory and minor amounts of personal property sold or Permit otherwise disposed of for fair value in the ordinary course of business consistent with respect to the Branch Officespast practice;
(d) made canceled any change in debts owed to or claims held by the Company (including the settlement of any method of management claims or operation of litigation) or waived any other rights held by the Branch Offices not Company other than in the Ordinary Course ordinary course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsbusiness consistent with past practice;
(e) granted paid any increase in claims against the compensation of its officers or Employees located at the Branch Offices Company (including the settlement of any increase pursuant to claims and litigation against the Company or the payment or settlement of any bonus, pension, profit sharing obligations or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that liabilities of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch OfficesCompany);
(f) except for the Inter-Bank Transfer(1) created, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositorsincurred or assumed, or caused agreed to create, incur or assume, any of Seller’s other operations Indebtedness or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers(2) entered into, as applicablelessee, any capitalized lease obligations (as defined in Statement of Financial Accounting Standards No. 13) or operating lease obligation;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Officesaccelerated or delayed collection of notes or accounts receivable, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions exceeding $5,000 in the respective market areas served by aggregate, in advance of or beyond their regular due dates or the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6dates when the same would have been collected in the ordinary course of business consistent with past practice;
(h) entered into delayed or accelerated payment of any account payable or other transaction or conducted its affairsliability, in either case related to the Transferred Assets or Assumed Liabilities, other than exceeding $5,000 in the Ordinary Course aggregate, of Business and the Company beyond or in advance of its due date or the date when such liability would have been paid in the ordinary course of business consistent with prudent banking practices except as contemplated by this Agreementpast practice;
(i) subjected acquired any real property or undertaken or committed to any Lien any portion of undertake capital expenditures exceeding $5,000 per instance or $10,000 in the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liensaggregate;
(j) suffered made any damagechanges in the Company’s employment practices or procedures;
(k) made, destructionor agreed to make, impairmentany payment of cash or distribution of assets to Seller or any of his family members;
(l) made, casualty lossor agreed to make, condemnation, taking by eminent domain any payment of cash or distribution of assets to any realdirector, officer or personal or mixed property included in employee of the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, Company in excess of the base compensation payable thereto as set forth in Schedule 4.16;
(m) made, or agreed to make, any payment of cash or distribution of assets outside the ordinary course of business consistent with past practice;
(n) instituted any increase in any compensation payable to any director, officer or employee of the Company, or in any profit-sharing, bonus, incentive, deferred compensation, insurance, pension, retirement, medical, hospital, disability, welfare or other benefits made available to directors, officers or employees of the Company;
(o) made any material change in the accounting principles and practices used by the Company from those applied in the preparation of the Balance Sheet and the related statements of income and cash flow for the period ended on the Balance Sheet Date;
(p) entered into, terminated, or received notice of termination of, any Contract or transaction involving a total remaining commitment by or to the Company of at least $25,000;
(q) made any material election with respect to Taxes or adopted any method in the preparation of any Tax Return that is inconsistent with methods used in preparing or filing similar Tax Returns; or
(kr) committed to or entered into any understandingagreement, arrangement whether oral or agreement (written or unwritten) written, to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to as set forth in Part 3.14 of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementDisclosure Letter, since March 31the Balance Sheet Date, 2011, Seller each of the Sellers has operated the Branch Offices conducted its business only in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller there has not, except as disclosed in Schedule 3.18not been any:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Business, (i) soldpayment or increase by any Seller of any bonuses, transferredsalaries, leasedcommissions or other compensation to any stockholder, pledgeddirector, mortgagedofficer, or otherwise encumbered employee or agreed entry into any employment, severance, or similar Contract with any stockholder, director, officer, or employee;
(b) adoption of, or increase in the payments to sell, transfer, lease, pledge, mortgage or otherwise encumberbenefits under, any of the Transferred Assets or the Assumed Liabilities or rights with respect theretoprofit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or (ii) canceled, waived, compromised other employee benefit plan for or agreed to cancel, waive or compromise with any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiesemployees of any Seller;
(c) made damage to or permitted destruction or loss of any amendment, termination, lapse of, asset or waiver or consent to, property of any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, having a Material Adverse Effect;
(d) except in each case and the aggregateOrdinary Course of Business, sale (other than sales of inventory in the Ordinary Course of Business), lease, or other disposition of any asset or property of any Seller or mortgage, pledge, or imposition of any Encumbrance on any asset or property of any Seller;
(e) cancellation or waiver of any claims or rights with a value to any Seller in excess of $25,000;
(f) material change in the accounting methods used by any Seller;
(g) material adverse change in the financial condition, assets, liabilities, earnings, business or prospects of the Sellers, taken as a whole;
(h) indebtedness or other liability or obligation (whether absolute, accrued, contingent or otherwise) incurred, or other transaction (except that reflected in this Agreement) engaged in, by any Seller, except those in the Ordinary Course of Business which are, individually and in the aggregate, less than $25,000 in amount;
(i) acquisition of any assets other than in the Ordinary Course of Business;
(j) material reduction in the rate of, or gross margins associated with, bookings or orders for the products or services of any Seller; or
(k) committed to agreement, whether oral or entered into written, by any understanding, arrangement or agreement (written or unwritten) Seller to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to Except for incurring the Excluded Assets and expenses, making the Excluded Liabilitiespayments, or (b) as otherwise the other transactions contemplated in or by this Agreement, since March December 31, 20112005, Seller and except as set forth on Section 4.17(a) of the Disclosure Letter, (as to Seller’s representation and warranty only, to Seller’s Knowledge) (i) each of the Acquired Companies has operated the Branch Offices conducted its business in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoinghas not incurred any material Liability, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Business; (ii) there has not been any change in the business, financial condition, Liabilities, assets, technology, Intellectual Property rights, employee relations, customer relations, supplier relations, manufacturer relations or distributor relations, or results of operations of the Acquired Companies that has had, or would reasonably be expected to have, a Material Adverse Effect on any such party, (iii) there has not been any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to any shares or membership interests of any of the Acquired Companies; (iv) there has not been any split, combination or reclassification of any common stock of any of the Acquired Companies or any issuance or commitment to issue or the authorization of any issuance of any capital stock or other equity interests of any of the Acquired Companies or other securities convertible into, in exchange or in substitution for any shares of capital stock or other equity interests of any of the Acquired Companies; (v) there has not been (A) any granting by any of the Acquired Companies to any employee of any of the Acquired Companies of any increase in compensation, other than in the Ordinary Course of Business, (B) any granting by any of the Acquired Companies to any such employee of any increase in severance or termination pay, (C) any entry by any of the Acquired Companies into any employment, severance or termination agreement, policy or arrangement with any employee other than in the Ordinary Course of Business, or (D) any transaction with Seller, or a director or employee of any of the Acquired Companies, other than in the Ordinary Course of Business; and (vi) there has not been any change in accounting methods, principles or practices by any of the Acquired Companies affecting its assets, Liabilities or business, except insofar as may have been required by a change in GAAP.
(b) Except for the transactions contemplated in this Agreement and except as set forth on Section 4.17(b) of the Disclosure Letter, since December 31, 2005, (as to Seller’s representation and warranty only, to Seller’s Knowledge) none of the Acquired Companies has (i) sold, transferred, leased, pledgedlicensed, mortgaged, pledged or otherwise encumbered mortgaged or agreed to sell, transfer, lease, license, pledge, or mortgage or otherwise encumberany assets, any of the Transferred Assets or the Assumed Liabilities property or rights with respect thereto(including without limitation Intellectual Property) in excess of $25,000 individually or $150,000 in the aggregate, other than sales or disposition of inventories, in the Ordinary Course of Business, or (ii) canceledcancelled, waived, waived or compromised or agreed to cancel, waive or compromise compromise, any debts, claims or rights with respect to in excess of $25,000 in the Transferred Assets or Assumed Liabilities;
aggregate; (c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(dii) made any material change in any method of management management, operation or operation accounting; (iii) made any new or change in any material Tax election, settlement or compromise of any claim, notice, audit report or assessment in respect of Taxes, change in any annual Tax accounting period, adoption or change in any method of Tax accounting, filing of any amended material Tax Return, entrance into any tax allocation agreement, tax sharing agreement, tax indemnity agreement or closing agreement relating to any material Tax, surrender Table of Contents of any right to claim a material Tax refund, or consent to any extension or waiver of the Branch Offices not in the Ordinary Course statute of Business limitations period applicable to any material Tax claim or assessment; (iv) transferred, exchanged or exclusively licensed any of its Intellectual Property, or had any other material developments related to its Intellectual Property; (v) issued or committed to issue any capital stock or any accounting changesecurities convertible into capital stock; (vi) made any capital expenditure(s) in excess of, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase purchased or acquired capital assets costing in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonusexcess of, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessaryapproximately $620,000, in the employer’s reasonable discretionaggregate, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
a budget previously provided to Buyer; (hvii) entered into incurred or assumed any other transaction indebtedness for borrowed money or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to guaranteed any Lien any portion of the Transferred Assets obligation or the Assumed Liabilities or net worth of any interest thereon, except Permitted Liens;
Person; (jviii) suffered any damagedamage or destruction to, destructionloss of, impairment, casualty loss, condemnation, taking by or condemnation or eminent domain proceeding relating to any real, of its tangible properties or personal or mixed property included in the Transferred Assets, assets (whether or not covered by insurance) which has had or would reasonably be likely to have a Material Adverse Effect; (ix) lost the employment services of any employee whose annual salary exceeded $75,000; (x) made any loan or advance to any Person, other than travel and other similar routine advances to employees in each case and the aggregate, in excess ordinary course of $25,000business consistent with past practice; or
(kxi) committed to or entered into any understandingagreements, arrangement commitments or contracts, except those made in the Ordinary Course of Business; or (xii) entered into any agreement (written or unwritten) commitment to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ambassadors International Inc)
Absence of Certain Changes and Events. 1. Except (a) with respect to as set forth on Section 3.8 of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementTransferred Company Disclosure Schedule, since March 31February 28, 20112019, Seller the Transferred Company has operated the Branch Offices conducted its Business in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has notall material respects and, except as disclosed in Schedule 3.18expressly contemplated by this Agreement or any other Transaction Document, as of the date of this Agreement, there has not been any:
3.8.1 event, condition, occurrence, contingency or development that has had, or would reasonably be expected to have, a Material Adverse Effect;
3.8.2 new appointment or change of the independent accountants of the Transferred Company or any material change in the accounting methods, principles or practices followed by the Transferred Company (except for any such change required by a change in the Accounting Principles or applicable Law);
3.8.3 with respect to any director or executive officer of the Transferred Company, (a) suffered adoption, material amendment or material modification of an Employee Benefit Plan, (b) grant of severance or termination pay, (c) material increase in compensation or payment of any bonus or (d) material change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Officescompensation or other benefits except, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
in each of (ba) except through (d), in the Ordinary Course of Businessor as required by any existing Contract;
3.8.4 sale, (i) soldassignment, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sellexclusive license, transfer, hypothecation, conveyance, lease, pledge, mortgage or otherwise encumber, other disposition of any material asset or property of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loansCompany, except in the Ordinary Course of Business at the unsolicited request of depositorsCourse, pursuant to an existing Contract, or caused in disposition of obsolete equipment;
3.8.5 mortgage, pledge, or imposition of any material Lien on any material asset or property of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loansTransferred Company, except for Permitted Liens, as required by applicable Law, or in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableCourse;
3.8.6 failure to pay when due any material liabilities arising out of the operation of the Transferred Company, except with respect to any such liabilities (ga) made any change to its customary policies for setting rates on deposits offered at being contested by the Branch Offices, including any increase in interest rates paid unless Transferred Company or (and only to the extent thatb) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions arising in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6Ordinary Course;
(h) entered into 3.8.7 any other transaction capital expenditures or conducted its affairs, in either case commitments for capital expenditures or any series of related to the Transferred Assets capital expenditures or Assumed Liabilitiescommitments for capital expenditures, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property those included in the Transferred Assets, whether Company’s current capital expenditures plan;
3.8.8 (i) increase of the compensation or not covered by insurance, in each case and the aggregate, benefits of any Employee who receives annual base salary in excess of $25,000150,000, (ii) amendment of any Transferred Company Plan, or (iii) grant of any bonus, incentive, retention, severance or termination pay; or
(k) committed to or entered into any understanding, arrangement or 3.8.9 agreement (written or unwritten) by the Transferred Company to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to as set forth in the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementDriveoff Disclosure Schedule, since March May 31, 20112000, Seller there has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18not been:
(a) suffered Any transaction involving more than $25,000 entered into by Driveoff other than in the ordinary course of business; any change which has had material adverse effect on Driveoff's Business Condition or any development or combination of developments that is reasonably likely to have result in such a Material Adverse Effect with respect material adverse effect; or, without limiting the foregoing, any destruction or loss of or damage to any of the Branch Officesproperties of Driveoff due to fire or other casualty, the Transferred Assets or Assumed Liabilities any other loss, whether or Seller’s ability to consummate the transactions contemplated by this Agreementnot insured, having a material adverse effect on Driveoff's Business Condition;
(b) Any increase or change in the compensation or benefits payable or to become payable by Driveoff, Navidec, or any affiliates of Driveoff or Navidec to any employees, consultants, or former employees of Driveoff, except in the Ordinary Course ordinary course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights business consistent with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiespast practices;
(c) made Any increase or permitted modification in any amendmentbonus, terminationpension, lapse ofinsurance, or waiver other employee benefit plan or consent arrangement made to, for, or with any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Officesof Driveoff's employees;
(d) made The granting of stock options, restricted stock awards, stock bonuses, stock appreciation rights and similar equity based awards, nor the issuance, contribution, sale, or other transfer of Driveoff stock, stock options, or similar equity rights to any change in any method of management Benefit Plan sponsored by Driveoff or operation of the Branch Offices not in the Ordinary Course of Business Navidec or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsaffiliate thereof;
(e) granted any increase in the compensation Any amendments to Driveoff's Certificate of its officers Incorporation or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch OfficesBylaws;
(f) Any resignation or termination of any officer or key employee of Driveoff (and, to the knowledge of Driveoff and Navidec, there is no impending resignation or termination of employment of any such officer or key employee except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except terminations that may be requested by CPI in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableconnection with this Agreement);
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served Except as contemplated by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6Navidec Transfer Agreement, any sale, assignment, transfer, or license of any material patents, trademarks, copyrights, trade secrets or other intangible assets;
(h) entered into any other transaction or conducted its affairsAny material change in Driveoff's accounting policies or, in either case related with respect to the Transferred Assets operation of the business, any material change in the business carried out by Driveoff;
(i) Any disposal or Assumed Liabilitieslapse of any material rights to use any Driveoff Intellectual Property;
(j) Any waiver, compromise, or cancellation of any right, or cancellation or compromise of any material claim or liability, other than in the Ordinary Course ordinary course of Business business and in a manner and amount consistent with prudent banking practices except as contemplated by this Agreementthe past practice of Driveoff;
(ik) subjected Any declaration, payment, or setting aside of any dividend or other distribution to or for the holders of any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted LiensDriveoff Shares;
(jl) suffered any damageAny termination, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any realmodification, or personal rescission of, or mixed property included waiver by Driveoff of rights under, any existing contract having or likely to have a material adverse effect on Driveoff's Business Condition;
(m) Any discharge or satisfaction by Driveoff of any material lien or encumbrance, or any payment of any material obligation or liability (absolute or contingent) other than liabilities shown on the Unaudited Balance Sheet and liabilities incurred since May 31, 2000 in the Transferred Assetsordinary course of business;
(n) Any acquisition or sale of a material amount of property, whether or not covered by insuranceany mortgage, pledge, imposition of any security interest, claim, encumbrance, or other restriction on any of the material assets, tangible or intangible, of Driveoff, other than in each case and the aggregate, in excess ordinary course of $25,000business; or
(ko) committed Any agreement or arrangement to or entered into any understanding, arrangement or agreement (written or unwritten) to do take any of the foregoingactions referred to in this Section 2.2.9.
Appears in 1 contract
Samples: Agreement and Plan of Contribution and Reorganization (Navidec Inc)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March Since December 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not1998, except as disclosed set forth in Schedule 3.18SCHEDULE 3.8 there has not been:
(a) suffered Any change (or any change which has had development or combination of developments of which, to the Company's Knowledge, is reasonably likely to result in such a change) in Company's Business Condition, other than changes in the ordinary course of business which in the aggregate have not been and will not have a Material Adverse Effect with respect material adverse effect on Company's Business Condition; or, without limiting the foregoing, any disposition, loss of or damage to any of the Branch Officesproperties of Company, whether or not insured, amounting to more than US$25,000 in the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementaggregate;
(b) except in the Ordinary Course of BusinessAny declaration, (i) sold, transferred, leased, pledged, mortgagedpayment, or otherwise encumbered setting aside of any dividend or agreed other distribution (including tax distributions) to sell, transfer, lease, pledge, mortgage or otherwise encumber, for any of the Transferred Assets shareholders of Company of any Company Shares or the Assumed Liabilities cash or rights with respect theretopayment obligations or any payment of fees or costs to any third party, including management fees, administrative fees, royalties or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitieslicense fees;
(c) made or permitted any amendment, Any termination, lapse modification, or rescission of, or waiver or consent toby Company of rights under, any Assumed Contract, lease, agreement, consent, license existing contract having or Permit with respect likely to the Branch Officeshave a material adverse effect on Company's Business Condition;
(d) made any change in any method of management Capital expenditure or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required transaction by GAAP or generally applicable regulatory requirementsCompany exceeding US$50,000;
(e) granted Entering into or assumption of any increase material contract or obligation by Company, except in the compensation ordinary course of its officers or Employees located at business (none of which to the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitmentKnowledge of Company would have a material adverse effect on the Business Condition of Company), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course Revaluation by Company of Business at the unsolicited request of depositors, or caused any of Seller’s other operations its assets or customers to transfer to the Branch Offices any deposits change in accounting methods or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicablepractices;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch OfficesGranting of stock options, including any increase in interest rates paid unless (restricted stock awards, stock bonuses, stock appreciation rights and only similar equity based awards relating to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed capital stock of the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6Company;
(h) entered into any other transaction or conducted its affairsExcept for annual adjustments and increases pursuant to existing collective bargaining agreements, in either case related to the Transferred Assets or Assumed Liabilitiesnone of which exceed five percent (5%) per year, other than increase in the Ordinary Course salary or other compensation payable or to become payable by Company to any of Business and consistent with prudent banking practices except as contemplated by this Agreementits officers, directors or employees, or the declaration, payment or commitment or obligation of any kind for the payment of a bonus or other additional salary or compensation to any such individual;
(i) subjected Labor dispute with respect to any Lien any portion the officers or employees of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;Company; or
(j) suffered Any mortgage, pledge, imposition of any damagesecurity interest, destructionclaim, impairment, casualty loss, condemnation, taking by eminent domain to any realencumbrance, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do other restriction on any of the foregoingassets, tangible or intangible, of Company having or likely to have a material adverse effect on Company's Business Condition.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) Since December 31, 2020, the Company and each Company Subsidiary have conducted their respective Business in the Ordinary Course in all material respects and, except as expressly contemplated by this Agreement or any other Transaction Document, including, without limitation, with respect to the Excluded Assets transfer of the Transferred Projects and the Excluded LiabilitiesLandbank Transaction, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller there has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18not been any:
(a) suffered any change which 3.10.1 event, condition, occurrence, contingency or development that has had or is would reasonably likely be expected to have a Material Adverse Effect with on the Company;
3.10.2 change in the independent accountants of the Company or any material change in the accounting methods, principles or practices followed by any the Company (except for any such change required by reason of a concurrent change in GAAP);
3.10.3 issuance, sale, pledge, disposal of, encumbrance of or transfer or commitment to issue, sell, pledge, dispose of, encumber or transfer, any Interests, Subsidiary Equity Interests, or, any other equity interests of the Company or any Company Subsidiary or any other rights related to or other interests convertible into Interests, Subsidiary Equity Interests, or, any other equity interests of the Company or any Company Subsidiary (including preemptive rights, rights of first refusal, redemption rights, repurchase rights, or “tag along” or “drag along” rights in respect to of such interests);
3.10.4 declaration, payment of any distribution (whether payable in cash, equity, property or a combination thereof) in respect of the Branch OfficesInterests, the Transferred Assets Subsidiary Equity Interests or Assumed Liabilities any other equity interests of the Company or Seller’s ability to consummate the transactions contemplated by this AgreementSubsidiary equity investments, except, in each case, as disclosed in the Financial Statements;
3.10.5 change or revocation any Tax election; settlement or compromise of any claim, notice, audit report or assessment in respect of Taxes; change to any annual Tax accounting period; adoption of or change to any method of Tax accounting; the filing of any Tax Return (except as permitted under Section 5.5); entrance into any Tax Agreement; surrender of any right to claim a Tax refund; or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment;
3.10.6 (a) adoption, material amendment or material modification of an Employee Benefit Plan for the benefit of any executive officer of the Company or any Company Subsidiary, except for the Company’s 401(k) plan adopted in 2021, (b) except in the Ordinary Course grant of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed severance pay to sell, transfer, lease, pledge, mortgage or otherwise encumber, any executive officer of the Transferred Assets Company or the Assumed Liabilities or rights with respect theretoany Company Subsidiary, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any material increase in the compensation of its officers any executive officer of the Company or Employees located at the Branch Offices any Company Subsidiary except, in each of (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitmenta) through (c), except for periodic increases in the Ordinary Course or as required by any existing Contract;
3.10.7 sale, assignment, transfer, hypothecation, conveyance or lease of Business made pursuant to established compensation policies applied on a basis consistent with that any material asset or property of the prior yearCompany or any Company Subsidiary, other than increases except (a) the transfer of the Company’s 51.01% membership interest in Cloud Development Partners, LLC, a Florida limited liability, to SXX Xxxx Cloud Member, LLC, a Florida limited liability company, which entity is not a Company Subsidiary, (b) the sale by HFB Celery Avenue, LLC of fifty-eight (58) lots to SXX Xxxx LB Fund I, LLC, which shall be included as part of the Landbank Transaction and payments necessarysubject to a Landbank Option Agreement, (c) in the employer’s reasonable discretionOrdinary Course, to maintain and preserve the operation or (d) mortgage, pledge, or imposition of any material Lien on any material asset or property of the Branch Offices;
(f) Company or any Company Subsidiary, except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, Permitted Liens and except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000Course; or
(k) committed to 3.10.8 agreement by the Company or entered into any understanding, arrangement or agreement (written or unwritten) Company Subsidiary to do any of the foregoing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Landsea Homes Corp)
Absence of Certain Changes and Events. Except as ------------------------------------- contemplated herein, since October 31, 1998, there has not been:
(ai) Any material adverse change in the financial condition, results of operation, assets, liabilities, or prospects of the Huntington Business, or, to the knowledge of the Seller and the Members any occurrence, circumstance, or combination thereof which reasonably could be expected to result in any such material adverse change;
(ii) Any material transaction relating to or involving the Huntington Business or the Seller (other than the transactions contemplated herein) which was entered into or carried out by the Seller other than in the ordinary and usual course of business;
(iii) Any material change made by the Seller in its method of operating the Huntington Business or its accounting practices relating thereto;
(iv) Any mortgage, pledge, lien, security interest, hypothecation, charge, or other encumbrance imposed or agreed to be imposed on or with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets Huntington Business or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementAssets;
(bv) except in the Ordinary Course of BusinessAny sale, (i) sold, transferred, leased, pledged, mortgagedlease, or otherwise encumbered disposition of, or agreed any agreement to sell, transfer, lease, pledge, mortgage lease or otherwise encumber, dispose of any of the Transferred Assets or the Assumed Liabilities or rights with respect theretoAssets, other than sales, leases, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights dispositions in the usual and ordinary course of business and consistent with respect to the Transferred Assets or Assumed Liabilitiesprior practice;
(cvi) made Any increase in or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation modification of the Branch Offices not in compensation or benefits payable or to become payable by the Ordinary Course Seller to any director or officer of Business the Seller or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that employee of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000Huntington Business; or
(kvii) committed Any other event or condition of any character which, to or entered into any understanding, arrangement or agreement (written or unwritten) to do any the knowledge of the foregoingSeller and the Members, materially adversely affects, or may reasonably be expected to so affect, the Assets taken as a whole or the results of operations, financial condition or prospects of the Seller or the Huntington Business.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hall Kinion & Associates Inc)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets as set forth in Schedule 4.23 and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March December 31, 20111998, Seller each of the Company and its Subsidiaries has operated the Branch Offices conducted its businesses only in the Ordinary Course ordinary and usual course of Business business consistent with past practice, and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had damage or is reasonably likely to have a Material Adverse Effect with respect to destruction adversely affecting the Branch Officesproperties, business or prospects of the Transferred Assets Company or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementsuch Subsidiary;
(b) except for customary dividends consistent with past practice (the amount and distribution dates of which are set forth in Schedule 4.23), made any declaration, setting aside or payment of any dividend or other distribution of assets (whether in cash, stock or property) with respect to the capital stock of the Company or such Subsidiary or any direct or indirect redemption, purchase or other acquisition of such stock;
(c) suffered any material adverse change in its working capital, assets, liabilities, financial condition, business prospects, or relationships with any suppliers or customers listed on Schedule 4.21;
(d) except for customary increases based on term of service or regular promotion of non-officer employees, increased the compensation payable or to become payable to any employee or increased any bonus, insurance, pension or other employee benefit plan, payment or arrangement for such employees or entered into or amended any employment, consulting, severance or similar agreement;
(e) incurred any liability or obligation (absolute, accrued, contingent or otherwise) not incurred in the Ordinary Course ordinary and usual course of Businessbusiness consistent with past practice;
(f) paid, discharged or satisfied any claim, liability or obligation other than payment in the ordinary course of business and consistent with past practice;
(g) permitted any of its assets to be subjected to any mortgage, lien, security interest, restriction or charge of any kind;
(h) waived any material claims or rights;
(i) sold, transferred, leased, pledged, mortgaged, transferred or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, disposed of any of its assets or canceled any debts or claims, except in the Transferred Assets or the Assumed Liabilities or rights ordinary and usual course of business consistent with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiespast practice;
(cj) made any single capital expenditure or permitted any amendment, termination, lapse ofinvestment in excess of $5,000, or waiver aggregate capital expenditures in excess of $20,000, or consent toadditions to property, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Officesplant and equipment other than ordinary repairs and maintenance;
(dk) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business accounting, or any accounting change, except as may be required by GAAP material practice or generally applicable regulatory requirementsprinciple of accounting;
(e1) granted paid, loaned or advanced any increase in the compensation of its officers amount or Employees located at the Branch Offices (including asset to or sold, transferred or leased any increase pursuant asset to any bonus, pension, profit sharing or other plan or commitment), employee except for periodic increases in the Ordinary Course of Business made pursuant to established normal compensation policies applied on a basis consistent with involving salary and benefits and ordinary course employee loans that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either individual case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, a principal amount in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoing.10,000;
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementset forth on Schedule 6.20, since March August 31, 20112010, Seller the Bank has operated conducted the Branch Offices Merchant Business only in the Ordinary Course of Business ordinary course, and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had damage or is reasonably likely to have a Material Adverse Effect with respect to destruction adversely affecting the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementMerchant Business;
(b) except suffered any adverse change in the Ordinary Course of working capital, assets, liabilities, financial condition, or business prospects relating to the Merchant Business, or relationships with any suppliers listed on Schedule 6.19;
(ic) soldgained Knowledge of any possibility that the State of California Department of Financial Institutions (“CDFI”), transferredFederal Deposit Insurance Corporation (“FDIC”) or any other governmental entity will be appointed as conservator or receiver of the Bank or suffered any material adverse change or event that could reasonably be anticipated to result in action by the CDFI, leasedFDIC or any other governmental entity, pledgedincluding without limitation, mortgagedthe appointment of the CDFI, FDIC or any other governmental entity as conservator or receiver of the Bank;
(d) except for customary increases based on term of service or regular promotion of non-officer employees, increased (or announced any increase in) the compensation payable or to become payable to any Merchant Business Employee, or otherwise encumbered increased (or agreed announced any increase in) any bonus, insurance, pension or other employee benefit plan, payment or arrangement for Merchant Business Employees, or entered into or amended any employment, consulting, severance or similar agreement with any Merchant Business Employee;
(e) incurred, assumed or guaranteed any liability or obligation (absolute, accrued, contingent or otherwise) with respect to sellthe Merchant Business, transferother than a non-material amount in the ordinary course of business consistent with past practice;
(f) paid, leasedischarged, pledgesatisfied or renewed any claim, mortgage liability or otherwise encumberobligation with respect to the Merchant Business, other than payment of a non-material amount in the ordinary course of business consistent with past practice;
(g) permitted any of the Transferred Assets Sold to be subjected to any mortgage, lien, security interest, restriction, charge or the Assumed Liabilities or rights with respect thereto, or other encumbrance of any kind;
(iih) canceled, waived, compromised or agreed to cancel, waive or compromise waived any debts, material claims or rights with respect to the Transferred Assets or Assumed LiabilitiesMerchant Business;
(ci) sold, transferred or otherwise disposed of any of the assets used in the Merchant Business, except non-material assets in the ordinary course of business consistent with past practice;
(j) made any single capital expenditure or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit investment with respect to the Branch OfficesMerchant Business in excess of $10,000;
(dk) made any change in any method method, practice or principle of management financial or operation of tax accounting that adversely affected the Branch Offices not in the Ordinary Course of Merchant Business or any accounting change, except as may be required by GAAP financial information relating to or generally applicable regulatory requirementsderived from the Merchant Business;
(el) granted managed working capital components relating to the Merchant Business, including cash, receivables, other current assets, trade payables and other current liabilities in a fashion inconsistent with past practice, including failing to sell inventory and other property in an orderly and prudent manner or failing to make all budgeted and other normal capital expenditures, repairs, improvements and dispositions;
(m) paid, loaned, advanced, sold, transferred or leased any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant Asset Sold to any bonus, pension, profit sharing or other plan or commitment)employee, except for periodic increases in the Ordinary Course of Business made pursuant to established normal compensation policies applied on a basis consistent with that of the prior year, other than increases involving salary and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officesbenefits;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(hn) entered into any other transaction commitment or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilitiestransaction, other than a non-material commitment or transaction entered into in the Ordinary Course ordinary course of Business and business consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of past practice, affecting the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000Merchant Business; or
(ko) committed agreed in writing, or otherwise, to or entered into take any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingaction described in this Section 6.20.
Appears in 1 contract
Samples: Merchant Asset Purchase Agreement (Northern California Bancorp Inc)
Absence of Certain Changes and Events. Except (a) with respect to Since the Excluded Assets and Most Recent Fiscal Year End, the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller Company has operated conducted the Branch Offices Business in the Ordinary Course and, except as expressly contemplated by this Agreement or any other Transaction Document, there has not occurred any event or group of Business and in substantially the same manner as previously conducted by Sellerrelated events, condition, occurrence, contingency or development that has had, or would reasonably be expected to have, a Material Adverse Effect. Without limiting the generality of the foregoing, since March 31the Most Recent Fiscal Year End, 2011there has not been any, Seller and/or the Company has not, except as disclosed in Schedule 3.18:
3.8.1 change in the independent accountants of the Company or any change in the accounting methods, principles or practices followed by the Company (except for any such change required by reason of a concurrent change in GAAP or applicable Law);
3.8.2 with respect to any executive, manager, officer, employee, consultant or contractor of the Company, (a) suffered adoption or termination in any change which has had respect, amendment or is reasonably likely to have a Material Adverse Effect with respect to increase of the Branch Officespayments or benefits of any Employee Benefit Plan, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course grant of Businessseverance or termination pay, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation or payment of its officers any bonus or Employees located at the Branch Offices (including any increase pursuant d) change with respect to any bonus, pension, profit sharing compensation or other plan or commitmentbenefits payable, except, in each of clauses (a) through (d), except for periodic increases in the Ordinary Course Course, as required by Law or as required by any existing Contract;
3.8.3 sale, assignment, transfer, hypothecation, conveyance, lease, or other disposition of Business made pursuant to established compensation policies applied on a basis consistent with that any asset or property of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loansCompany, except in the Ordinary Course of Business at the unsolicited request of depositorsCourse, or caused mortgage, pledge, or imposition of any Lien on any asset or property of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loansCompany, except for Permitted Liens and except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableCourse;
(g) made 3.8.4 split, combined, classified, re-classified, varied the Rights attaching to, or taken similar action with respect to any change of the Transferred Interests or other Equity Interests or proposed the issuance of any other securities in respect of, in lieu of or in substitution for its authorized or issued equity or other Equity Interests; granted any Rights to purchase its customary policies Equity Interests; issued any Equity Interests; granted any registration rights; purchased, redeemed, retired, or otherwise acquired any of its Equity Interests; or adopted a plan of complete or partial liquidation or passed any resolutions providing for setting rates on deposits offered at or authorizing such liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Branch Offices, including Company or declared or paid any increase dividend or other distribution or payment in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in respect of its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6Equity Interests;
(h) entered into any other transaction or conducted 3.8.5 amended its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this AgreementGoverning Documents;
(i) subjected to 3.8.6 damaged, destroyed or lost any Lien any material portion of the Transferred Assets tangible assets or properties of the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred AssetsCompany, whether or not covered by insurance, in each case and an amount in excess of five thousand dollars ($5,000);
3.8.7 except in the Ordinary Course, amended, renewed, failed to renew, terminated (other than due to any scheduled expiration) or received written notice of termination (other than due to any scheduled expiration) with respect to any Material Contract or entered into any new Material Contract or taken any action that would reasonably be expected to jeopardize the continuance of any of its relationships with any of its Top Customers and/or Top Suppliers;
3.8.8 (i) incurred or assumed any Indebtedness in excess of fifty thousand dollars ($50,000) in the aggregate, (ii) assumed, guaranteed, endorsed or otherwise became liable or responsible (whether directly, contingently or otherwise) for the Liabilities of any other Person (other than the endorsements of checks in the Ordinary Course) in excess of fifty thousand dollars ($50,000) in the aggregate, or (iii) made any loans, advances or capital contributions to, or investment in, any Person, in excess of fifty thousand dollars ($25,000; or50,000) in the aggregate, other than employee travel and expense advances in the Ordinary Course;
(k) committed 3.8.9 paid, discharged or satisfied any Liabilities, other than the payment, discharge or satisfaction in the Ordinary Course Liabilities reflected or reserved against in the Latest Balance Sheet or incurred in the Ordinary Course since the Latest Balance Sheet Date;
3.8.10 sold, disposed of or surrendered or disaggregated any material license or any portion thereof;
3.8.11 accelerated or delayed collection of notes or accounts receivable in advance of or beyond their regular due dates or the dates when the same would have been collected in the Ordinary Course;
3.8.12 delayed or accelerated payments of any accounts payable or other liability beyond or in advance of its due date or the date when such liability would have been paid in the Ordinary Course;
3.8.13 failed to replenish inventories and supplies of the Company in the Ordinary Course or entered into any understandingpurchase commitment not in the Ordinary Course;
3.8.14 made any acquisition of all or any significant part of the assets, arrangement capital stock, other Equity Interests, properties, securities or business of any other Person;
3.8.15 made any revaluation of any assets of the Business of the Company or write down or write off of the value of any assets of the Business of the Company, except in the Ordinary Course;
3.8.16 entered into any collective bargaining Contract or any other Contract with any labor union or association representing any group of employees, or been subject to any strike, picket, work stoppage, work slowdown or labor dispute or been subject to any application for certification or union organizing drive;
3.8.17 made any capital expenditure or any other investment (or series of related investments), or entered into any Contract or commitment therefor, excluding any purchase of inventory in the Ordinary Course, in excess of fifty thousand dollars ($50,000) in respect of any such individual investment or Contract or seventy-five thousand dollars ($75,000) in the aggregate;
3.8.18 written down the value of any inventory (including write downs by reason of shrinkage or mxxx down) or written off as uncollectible any notes or accounts receivable, except in the Ordinary Course;
3.8.19 allowed any insurance policy naming the Company as beneficiary or loss payee to be cancelled or terminated, or instructed any of the Company’s insurance carriers to decrease any current policy coverage limits or materially change the terms of such coverage; or
3.8.20 agreement (written or unwritten) by the Company to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. Except Since December 31, 1997, except as set forth on Schedule 3.7 hereto, there has not been with respect to ICON:
(ai) any Material Adverse Effect;
(ii) any strike, picketing, work slowdown or labor disturbance;
(iii) any damage, destruction or loss (whether or not covered by insurance) with respect to any material assets or properties;
(iv) any redemption or other acquisition by it of ICON Stock or any declaration or payment of any dividend or other distribution in cash, stock or property with respect thereto other than cash distributions to the Excluded Assets and Shareholders in an amount (not to exceed $150,000) equal to taxable income of the Excluded LiabilitiesShareholders based on earnings of ICON during the period beginning January 1, 1998 to the Closing Date multiplied by the highest maximum Federal income tax rate applicable to each such Shareholder, all as accurately reflected on Schedule 3.7 hereto;
(v) any entry into any material commitment or transaction (bincluding, without limitation, any borrowing or capital expenditure) other than in the ordinary course of business or as otherwise contemplated by this Agreement;
(vi) any transfer of, since March or rights granted under, any material leases or ICON Right (as hereinafter defined) other than those transferred or granted in the ordinary course of business and consistent with past practice;
(vii) any Lien on any assets or properties except in the ordinary course of business; any payment of any debts, liabilities or obligations (the "Liabilities") of any kind other than Liabilities currently due; any cancellation of any debts or claims or forgiveness of amounts owed to ICON;
(viii) any change in accounting principles or methods (except insofar as may have been required by a change in GAAP); or
(ix) other than in the usual and ordinary course of business, any increase in amounts payable by ICON to or for the benefit of or committed to be paid by ICON to or for the benefit of any officer, director, Shareholder, consultant, agent or employee of ICON, in any capacity, or in any benefits granted under any bonus, stock option, profit sharing, pension, retirement, deferred compensation, insurance, or other direct or indirect benefit plan with respect to any such person, except for (A) severance payments to employees of ICON who are parties to agreements with ICON in existence at or prior to the date hereof and which agreements require such payments to be made, which payments shall aggregate no greater than $900,000 and (B) such reasonable employee bonuses which the Board of Directors of ICON shall, in its reasonable judgment, elect to pay, in the case of (A) and (B) as set forth on Schedule 3.7 hereto showing the use and allocation of such funds. Since December 31, 20111997, Seller ICON has operated the Branch Offices conducted its business only in the Ordinary Course of Business ordinary course and in substantially a manner consistent with past practice and has not made any material change in the same manner as previously conducted by Sellerconduct of its business or operations. Without limiting the generality of the foregoing, since March December 31, 20111997, Seller ICON has not, except as disclosed in Schedule 3.18:
not made any payments (a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course ordinary course of Business, business and in amounts and in a manner consistent with past practice and the terms of such Plans) under any Employee Benefit Plan (ias hereinafter defined) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonusemployee, pensionindependent contractor or consultant, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction new Employee Benefit Plan or conducted its affairsany new consulting agreement, granted or established any awards under any such Employee Benefit Plan or agreement, in either any such case related to the Transferred Assets providing for payments of more than $5,000 or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets adopted or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do otherwise amended any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. Except Since the date of the Interim Balance Sheet, the Acquired Companies have conducted their businesses in the ordinary course in all material respects and, except as expressly contemplated by this Agreement or any other Transaction Document, there has not been any:
(ai) event, condition, occurrence, contingency or development that individually, or in the aggregate, has had or would reasonably be expected to have a Company Material Adverse Effect;
(ii) (A) adoption, material amendment or material modification of an Employee Benefit Plan, (B) grant of severance or termination pay to any director or employee of the Acquired Companies, (C) material increase in the compensation of, or payment of any bonus to, any director or employee of the Acquired Companies or (D) material change with respect to the Excluded Assets and the Excluded Liabilities, compensation or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality other benefits payable to any director or employee of the foregoingAcquired Companies except, since March 31in each of (A) through (D), 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had required by the terms of such plan or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets agreement or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementapplicable Law;
(biii) except in the Ordinary Course of Businesssale, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sellassignment, transfer, leasehypothecation, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contractconveyance, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made other disposition or acquisition of any change in any method of management material asset or operation property of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loansAcquired Companies, except in the Ordinary Course ordinary course of Business at business (including the unsolicited request sale of depositorsloans, lease receivables and other assets pursuant to sale agreements between Parent and the Acquired Companies in connection with its financing arrangements), or caused mortgage, pledge, or imposition of any material Encumbrance on any material asset or property of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loansAcquired Companies, except for Permitted Encumbrances in the Ordinary Course ordinary course of Business at business (including the unsolicited request pledge of depositors or loan customers, as applicableassets pursuant to its debt financing arrangements);
(giv) made failure to pay when due any change to its customary policies for setting rates on deposits offered at material liabilities arising out of the Branch Offices, including any increase in interest rates paid unless (and only to operations of the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed businesses of the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6Acquired Companies;
(hv) entered into any other transaction no material loss, destruction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected damage to any Lien property or assets of any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred AssetsAcquired Company, whether or not covered insured;
(vi) no waiver of any valuable right of any Acquired Company or cancellation of any debt or claim held by insuranceany Acquired Company;
(vii) loan made by any Acquired Company to any officer, in each case and the aggregatedirector, in excess employee or member of $25,000any Acquired Company; or
(kviii) committed to or entered into any understanding, arrangement or agreement (written or unwritten) by the Acquired Companies to do any of the foregoing.
Appears in 1 contract
Samples: Interest Purchase Agreement (NewStar Financial, Inc.)
Absence of Certain Changes and Events. Except (a) with respect to as set forth in Section 3.9 of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementDOCP Disclosure Schedule, since March December 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.181996:
(a) suffered DOCP and the DOCP Subsidiaries have conducted their businesses only in the ordinary course consistent with past practice, (b) there have not been any change events or changes in circumstances which has had resulted in or is could, individually or in the aggregate, reasonably likely be expected to have result in, a DOCP Material Adverse Effect Effect, (c) there has not been (i) except as disclosed in DOCP SEC Reports filed prior to the date hereof, any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the Branch Officesany DOCP capital stock, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect except as disclosed in DOCP SEC Reports filed prior to the Transferred Assets date hereof, any split, combination or Assumed Liabilities;
(c) made reclassification of any DOCP capital stock or permitted any amendment, termination, lapse issuance or the authorization of any issuance of any other securities in respect of, in lieu of or waiver in substitution for DOCP capital stock, except for issuances of DOCP Shares upon the exercise of DOCP Stock Options or consent to, any Assumed Contract, lease, agreement, consent, license the Warrants or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation conversion of the Branch Offices not Convertible Debt, in each case in accordance with the Ordinary Course of Business terms thereof, (iii) (A) any granting by DOCP or any accounting changeDOCP Subsidiary to any current or former employee, except as may be required by GAAP officer, director or generally applicable regulatory requirements;
(e) granted consultant of DOCP of any options to purchase DOCP Shares or any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing bonuses or other plan or commitmentcommissions), except for periodic normal increases in the Ordinary Course ordinary course of Business made pursuant to established compensation policies applied on a basis business consistent with that past practice or as required under employment or consulting agreements in effect as of the prior year, other than increases and payments necessary, date of the most recent audited financial statements included in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer DOCP SEC Reports filed prior to the Branch Offices date hereof, (B) any deposits granting by DOCP or loansany DOCP Subsidiary to any current or former employee, except in the Ordinary Course officer, director or consultant of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction severance or conducted its affairstermination pay, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to required under any Lien any portion employment, consulting, severance or termination agreements in effect as of the Transferred Assets or date of the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property most recent audited financial statements included in the Transferred AssetsDOCP SEC Reports filed prior to the date hereof or (C) any entry by DOCP or any DOCP Subsidiary into any employment, whether consulting, severance, termination or not covered indemnification agreements, arrangements, or understandings with any such current or former employee, officer, director or consultant, (iv) except as disclosed in DOCP SEC Reports filed prior to the date hereof, any change in accounting methods, principles or practices by insuranceDOCP materially affecting its assets, liabilities or business, except insofar as may have been required by a change -13- in each case generally accepted accounting principles, or (v) any action which would have been prohibited without Buyer's approval under Section 5.1 if taken between the date of this Agreement and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingEffective Time.
Appears in 1 contract
Samples: Merger Agreement (CSX Corp)
Absence of Certain Changes and Events. Except (aas set forth in Schedule 2.1(e) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementhereto, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality date of the foregoing, since March 31, 2011, Seller Audited Annual Financial Statements there has not, except as disclosed in Schedule 3.18not been:
(ai) suffered Any material adverse change in the financial condition, results of operation, assets, liabilities or prospects of Seller or the Crabby Bob's Business, or any change occurrence, circumstance, or combination thereof which has had or is reasonably likely could be expected to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementresult in any such material adverse change;
(bii) except Any transaction relating to or involving Seller, the Crabby Bob's Business, the assets of Seller which was entered into or carried out by Seller other than for fair consideration in the Ordinary Course of Business;
(iii) Any change by Seller in its accounting or tax practices or procedures;
(iv) Any sale, (i) sold, transferred, leased, pledged, mortgagedlease, or otherwise encumbered disposition of, or agreed any agreement to sell, transfer, lease, pledge, mortgage or otherwise encumber, dispose of any of the Transferred Assets its properties (whether leased or owned), or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method assets of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior yearSeller, other than increases and payments necessarysales, leases, or dispositions of goods, materials, or equipment in the employer’s reasonable discretion, to maintain and preserve the operation ordinary course of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, business or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(iv) Any event permitting any of the assets or the properties of Seller (whether leased or owned) to be subjected to any Lien pledge, encumbrance, security interest, lien, charge, or claim of any portion of the Transferred Assets kind whatsoever (direct or the Assumed Liabilities or any interest thereonindirect) (collectively, except Permitted "Liens");
(jvi) suffered Any increase in compensation or any damageadoption of, destructionor increase in, impairmentany bonus, casualty lossincentive compensation, condemnationpension, taking profit sharing, retirement, insurance, medical reimbursement or other employee benefit plan, payment or arrangement to, for, or with any employee of Seller, other than certain bonuses paid to Seller's employees and disclosed in writing to Purchaser, and other than any such increases previously agreed to by eminent domain seller and disclosed to Purchaser in writing;
(vii) Any payment or distribution of any bonus to, or cancellation of indebtedness owing from, or incurring of any liability relating to any realemployees, consultants, directors, officers, or personal agents, or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; orany persons related thereto;
(kviii) committed to or entered into any understanding, arrangement or agreement Any notice (written or unwritten) from any employee of Seller that such employee has terminated, or intends to do terminate, such employee's employment with Seller;
(ix) Any adverse relationship or condition with suppliers, vendors, or customers of Seller that may have an adverse effect on Seller, the Crabby Bob's Business, or the Acquired Assets;
(x) Any event, including, without limitation, shortage of materials or supplies, fire, explosion, accident, requisition or taking of property by any governmental agency, flood, drought, earthquake, or other natural event, riot, act of God or a public enemy, or damage, destruction, or other casualty, whether covered by insurance or not, which has had an adverse effect on Seller, the properties (whether leased or owned), the Crabby Bob's Business, or the Acquired Assets or any such event which could be expected to have an adverse effect on Seller, the Crabby Bob's Business, or the Acquired Assets;
(xi) Any modification, waiver, change, amendment, release, rescission, accord and satisfaction, or termination of, or with respect to, any term, condition, or provision of any contract, agreement, license, or other instrument to which Seller is a party and relating to or affecting the Crabby Bob's Business or the Acquired Assets other than any satisfaction by performance in accordance with the terms thereof in the ordinary course of business;
(xii) Any discharge or satisfaction of any lien or payment of any liabilities, other than in the ordinary course of business related to the Crabby Bob's Business or the Acquired Assets;
(xiii) Any waiver of any rights of substantial value by Seller, other than waivers having no material adverse effect on Seller;
(xiv) Any work interruptions, labor grievances or claims filed, proposed law or regulation or any event of any character, materially adversely affecting the Crabby Bob's Business or future prospects of Seller;
(xv) Any revaluation by Seller of any of the foregoingAcquired Assets; or
(xvi) To the best knowledge of Seller, any other event or condition of any character which materially adversely affects, or reasonably may be expected to so affect, the Acquired Assets or the Crabby Bob's Business.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Tanners Restaurant Group Inc)
Absence of Certain Changes and Events. Except as set forth in Part 2.16 of the Company Disclosure Schedule, from the date of the Balance Sheet (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March December 31, 20112002, Seller has operated where indicated), (1) the Branch Offices Acquired Corporations have conducted their businesses only in the Ordinary Course ordinary course of Business business consistent with past practice and there has not been any Material Adverse Effect on the Acquired Corporations, and (2) no event has occurred or circumstance exists that would be reasonably likely, individually or in substantially the same manner as previously conducted by Seller. Without limiting aggregate, to result in a Material Adverse Effect on the generality of the foregoingAcquired Corporations, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18or:
(a) suffered any change which material loss, damage or destruction to, or any material interruption in the use of, any of the assets of any of the Acquired Corporations (whether or not covered by insurance) that has had or is would reasonably be likely to have a Material Adverse Effect with respect to on the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementAcquired Corporations;
(b) except in the Ordinary Course of Business, (i) soldany declaration, transferredaccrual, leased, pledged, mortgaged, set aside or otherwise encumbered payment of any dividend or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any other distribution in respect of any shares of capital stock of any Acquired Corporation other than dividends on the Transferred Assets or Series A Preferred and Series B Preferred and the Assumed Liabilities or rights with respect theretoOptional Make Whole Payment on the Series B Preferred as required by the Preferred Governing Documents, or (ii) canceledany repurchase, waived, compromised redemption or agreed to cancel, waive other acquisition by any Acquired Corporation of any shares of capital stock or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiesother securities;
(c) made any sale, issuance or permitted any amendmentgrant, termination, lapse or authorization of the issuance of, (i) any capital stock or waiver other security of any Acquired Corporation (except for Company Common Stock issued upon the valid exercise of outstanding Options, in satisfaction of the Optional Make Whole Payment on the Series B Preferred, in payment of dividends on the Series A Preferred or consent toSeries B Preferred, any Assumed Contractupon conversion of Series A Preferred or Series B Preferred, lease, agreement, consent, license or Permit with respect pursuant to the Branch Offices2000 Employee Stock Purchase Plan of the Company, as amended (the “ESPP”)), (ii) any option, warrant or right to acquire any capital stock or any other security of any Acquired Corporation (except for Company Stock Options ) or (iii) any instrument convertible into or exchangeable for any capital stock or other security of any Acquired Corporation;
(d) made any change in amendment or waiver of any method of management or operation of the Branch Offices not in rights of any Acquired Corporation under, or acceleration of vesting under, (i) any provision of any of the Ordinary Course Company’s stock option plans, (ii) any provision of Business any Contract evidencing any outstanding Company Stock Option, or (iii) any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsrestricted stock purchase agreement;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant amendment to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course Organizational Document of Business made pursuant to established compensation policies applied on a basis consistent with that any of the prior yearAcquired Corporations, other than increases and payments necessaryany merger, in the employer’s reasonable discretionconsolidation, to maintain and preserve the operation share exchange, business combination, recapitalization, reclassification of the Branch Officesshares, stock split, reverse stock split or similar transaction involving any Acquired Corporation;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s any creation of any Subsidiary of an Acquired Corporation or acquisition by any Acquired Corporation of any equity interest or other operations interest in any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicablePerson;
(g) since December 31, 2002, any capital expenditure by any Acquired Corporation which, when added to all other capital expenditures made any change to its customary policies for setting rates on deposits offered at behalf of the Branch OfficesAcquired Corporations since the date of the Balance Sheet (other than those permitted by Section 4.2(b)(vi) of this Agreement), including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions exceeds $12,000,000 in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6aggregate;
(h) entered into any waiver of any material right or remedy under, any Contract with any Material Customer or any New Material Customer;
(i) any (i) acquisition, lease or license by any Acquired Corporation of any material right or other material asset from any other transaction Person, (ii) sale or conducted its affairsother disposal or lease or license by any Acquired Corporation of any material right or other material asset to any other Person, or (iii) waiver or relinquishment by any Acquired Corporation of any material claim, except for rights or other assets acquired, leased, licensed or disposed of in either case related the ordinary course of business and consistent with past practices;
(j) since December 31, 2002, except as disclosed in the Filed Company SEC Reports, any write-off, prior to the Transferred Assets date of this Agreement, of any accounts receivable as uncollectible, or Assumed Liabilitiesestablishment of any extraordinary reserve with respect to any account receivable or other indebtedness of an Acquired Corporation;
(k) any pledge of any assets of, or sufferance of any of the assets of, an Acquired Corporation to become subject to any Encumbrance, except for pledges of immaterial assets made in the ordinary course of business and consistent with past practices;
(l) any (i) loan by an Acquired Corporation to any Person other than another Acquired Corporation, or (ii) incurrence or guarantee by an Acquired Corporation of any indebtedness for borrowed money on behalf of any Person other than an Acquired Corporation;
(m) since December 31, 2002, any (i) adoption, establishment, entry into or amendment by an Acquired Corporation of any Plan or (ii) payment of any bonus or any profit sharing or similar payment to, or material increase in the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of the directors or executive officers of the Company, or, other than in the Ordinary Course ordinary course of Business and business consistent with prudent banking practices except as contemplated by this Agreementpast practice, any other employees of any Acquired Corporation;
(in) subjected to any Lien any portion material change of the Transferred Assets methods of accounting or the Assumed Liabilities or accounting policies of any interest thereon, except Permitted LiensAcquired Corporation;
(jo) suffered any damage, destruction, impairment, casualty loss, condemnation, taking material Tax election by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered Acquired Corporation;
(p) any settlement of any material Legal Proceeding by insurance, in each case and the aggregate, in excess of $25,000any Acquired Corporation; or
(kq) committed any agreement or commitment to or entered into any understanding, arrangement or agreement (written or unwritten) to do take any of the foregoingactions referred to in clauses (c) through (p) above.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) as contemplated herein, since December 31, 1997, there has not been with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18Business:
(ai) suffered Any change resulting or that could result in a Material Adverse Effect on the financial condition, results of operation, assets, liabilities, business, or prospects of the Business or any change occurrence, circumstance, or combination thereof which reasonably could be expected to result in a Material Adverse Effect on the Business;
(ii) Any event, including, without limitation, shortage of materials or supplies, fire, explosion, accident, requisition or taking of property by any governmental agency, flood, drought, earthquake, or other natural event, riot, act of God or a public enemy, or damage, destruction, or other casualty, whether covered by insurance or not, which has had a Material Adverse Effect on the Business or the Assets or any such event which reasonably could be expected to have such an effect on the Business or the Assets;
(iii) Any material transaction relating to the Business (other than the transactions contemplated herein) which was entered into or carried out by Seller other than in the ordinary and usual course of business;
(iv) Any change made by Seller in its method of operating the Business or its accounting practices relating thereto;
(v) Any mortgage, pledge, lien, security interest, hypothecation, charge or other encumbrance imposed or agreed to be imposed on or with respect to the Assets other than liens arising with respect to taxes not yet due and payable, and such minor liens and encumbrances, if any, which arise in the ordinary course of business and are not material in nature or amount either individually or in the aggregate, and which do not detract from the value of the Assets or impair the operations conducted thereon or any discharge or satisfaction thereof;
(vi) Any sale, lease, or disposition of, or any agreement to sell, lease, or dispose of any of the Assets, other than sales, leases, or dispositions in the usual and ordinary course of business and consistent with prior practice;
(vii) Any material modification, waiver, change, amendment, release, rescission, accord and satisfaction, or termination of, or with respect to, any term, condition, or provision of any contract, agreement, license, or other instrument to which Seller is a party and relating to or affecting the Business or the Assets, other than any satisfaction by performance in accordance with the terms thereof in the usual and ordinary course of business and consistent with prior practice;
(viii) Any labor disputes or disturbances that have had or could reasonably likely be expected to have a Material Adverse Effect with respect to on the Branch OfficesBusiness, including, without limitation, the Transferred Assets filing of any petition or Assumed Liabilities or Seller’s ability to consummate charge of unfair labor practices with the transactions contemplated by this AgreementNational Labor Relations Board;
(bix) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement Any notice (written or unwritten) from any employee of Seller who provides any services to do the Business that such employee has terminated, or intends to terminate, such employee's employment with Seller where such termination would or could have a Material Adverse Effect on the Business;
(x) Any notice (written or unwritten) from any suppliers of goods and services to the foregoingBusiness (the "Suppliers") that any such Supplier will not continue to supply the current level and type of goods currently being provided by such Supplier to Seller on similar terms and conditions;
(xi) Any adverse relationships or conditions with vendors or customers that may have a Material Adverse Effect on the Business or the Assets;
(xii) Any waivers of any rights relating to the Business of substantial value by Seller;
(xiii) Any other event or condition of any character which would or could have a Material Adverse Affect, or may reasonably be expected to have such an Effect, on the Assets or the results of operations, prospects or financial condition of Seller; or
(xiv) Any purchase or lease of or any agreements to purchase or lease capital assets relating to the Business by Seller in excess of $50,000 individually, or in excess of $150,000 in the aggregate.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded LiabilitiesSince September 30, or (b) as otherwise contemplated by this Agreement2014, since March 31, 2011, Seller there has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered not been any change which has had or is reasonably likely to have a Company Material Adverse Effect with respect to Effect. Since September 30, 2014, (i) the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except Company and its Subsidiaries have conducted its business in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or and (ii) canceledexcept as set forth in Section 2.18 of the Company Disclosure Schedule, waived, compromised or agreed to cancel, waive or compromise neither the Company nor any debts, claims or rights with respect to Subsidiary of the Transferred Assets or Assumed Liabilities;Company has:
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(ea) granted any increase in the base compensation of, or paid any bonuses or other compensation to, any of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in employees outside the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that Business;
(b) adopted, amended, or increased the payments or benefits under, any Employee Benefit Plan outside of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation Ordinary Course of Business;
(c) acquired assets outside of the Branch OfficesOrdinary Course of Business, including acquired any business, whether by merger, consolidation, the purchase of all or a substantial portion of the assets or equity interests of such business or otherwise;
(d) sold, leased, or otherwise disposed of any assets outside of the Ordinary Course of Business;
(e) incurred, assumed, or guaranteed any Indebtedness, or made any loans, advances or capital contributions to, or investments in, any other Person;
(f) except for the Inter-Bank Transfercancelled, caused the Branch Offices to transfer to Seller’s other operations compromised, waived or released any deposits other right or claim (or series of related rights and claims) either involving more than deposits securing any loans, except in $30,000 or outside the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableBusiness;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered experienced any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, destruction or personal or mixed property included in the Transferred Assets, loss (whether or not covered by insurance, in each case and ) to any of the aggregate, assets of the Company or its Subsidiaries in excess of $25,00030,000;
(h) made any material change in connection with its accounts payable or accounts receivable terms, systems, policies or procedures;
(i) declared, set aside or paid any dividend (whether in cash, securities or property or other combination thereof) in respect of the Shares or any capital stock or other securities of any Subsidiary of the Company;
(j) made any material change in its accounting or Tax methods; or
(k) committed to or entered into any understandingagreement, arrangement whether oral or agreement (written or unwritten) written, to do any of the foregoing.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Healthstream Inc)
Absence of Certain Changes and Events. Except (a) with respect to Since the Excluded Assets and the Excluded LiabilitiesPro Forma Balance Sheet Date, or (b) except as otherwise contemplated by this AgreementAgreement (including the Restructuring Plan) or the Ancillary Agreements, since March 31, 2011, Seller has operated (i) the Branch Offices Emcore Companies have conducted the Business only in the Ordinary Course of Business and in substantially (ii) there has not been any Company Material Adverse Effect.
(a) the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed and none of the Acquired Companies have (i) issued, sold, pledged, granted, transferred or otherwise disposed of (or authorized the issuance, sale, pledge, grant transfer or other disposition) or (ii) created, permitted, allowed or suffered to exist any Encumbrance in Schedule 3.18:
respect of, any notes, bonds or other debt securities of an Acquired Company, any equity securities of an Acquired Company or any other securities exchangeable for, convertible into or exercisable for any equity securities (aor derivative securities thereof) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementof an Acquired Company;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any none of the Transferred Assets Acquired Companies has acquired (including by merger, consolidation or the Assumed Liabilities acquisition of stock or rights with respect theretoassets) any interest in any corporation, partnership, other business organization or (ii) canceled, waived, compromised Person or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiesdivision thereof;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation none of the Branch Offices not in the Ordinary Course of Business Acquired Companies has incurred or assumed any accounting changeliabilities, except as may be required by GAAP obligations or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices indebtedness for borrowed money (including any increase pursuant amounts owed to Seller or any bonus, pension, profit sharing or other plan or commitmentEmcore Companies), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositorsor guaranteed any such liabilities, obligations or indebtedness, or caused issued any other debt securities;
(d) none of Seller’s the Emcore Companies has sold (other operations or customers to transfer to the Branch Offices any deposits or loans, except than sales of Inventory in the Ordinary Course of Business), transferred, leased, licensed or otherwise disposed of any material asset or any real or material personal property of the Business at or mortgaged, pledged or imposed any Encumbrance on any material asset or any real or material personal property of the unsolicited request Business, tangible or intangible, including the sale, transfer, lease, license or other disposition of depositors any of the Intellectual Property Assets (other than in the Ordinary Course of Business);
(e) none of the Emcore Companies has cancelled, paid, discharged, compromised, waived, or loan released any debt, liability, claim or obligation (whether absolute, accrued, asserted or unasserted, contingent or otherwise) of the Business, except for debts, liabilities, claims or obligations cancelled, paid, discharged, compromised, waived or released with creditors, customers, as applicablecontractors or subcontractors of the Business in the Ordinary Course of Business;
(f) none of the Emcore Companies has suffered any damage to or destruction or loss of any material asset or property of the Business;
(g) made none of the Emcore Companies has intentionally waived, cancelled or released any change to its customary policies material right, claim or amount receivable of the Business except for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions rights waived in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6Ordinary Course of Business;
(h) entered into none of the Emcore Companies has made any other transaction material change in its accounting principles, methods, practices, procedures or conducted its affairspolicies, including revenue recognition procedures, with respect to the Business;
(i) none of the Emcore Companies has made any capital expenditures with respect to the Business that are, in either case related the aggregate, in excess of $250,000;
(j) none of the Acquired Companies has assumed, guaranteed or endorsed, or otherwise as an accommodation become responsible for, any obligations or liabilities of any Person, or otherwise made any loans or advances in connection with the Business;
(k) none of the Emcore Companies has entered into, terminated, or received notice of termination of, any Contract or transaction with respect to the Transferred Assets Business involving a total remaining commitment by or Assumed Liabilitiesto any Emcore Company of at least $250,000, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this AgreementBusiness;
(il) subjected none of the Acquired Companies or any Tax group of which any such Acquired Company is a member has made any material Tax election or settlement or compromise of any material Tax Liability or refund by or affecting any Acquired Company or change in any annual Tax accounting period or method of Tax accounting, filing of any material amendment to a Tax Return, entry into any closing agreement relating to any Lien material Tax, surrender of any portion right to claim a material Tax refund, or consent to any extension or waiver of the Transferred Assets statute of limitations period applicable to any material Tax claim or the Assumed Liabilities or any interest thereon, except Permitted Liensassessment;
(jm) suffered none of the Emcore Companies has accelerated, terminated, modified or cancelled any damageContract (or series of related Contracts) of the Business to which any of the Emcore Companies is a party or by which any of them is bound outside the Ordinary Course of Business;
(n) none of the Acquired Companies has made any capital investment in, destructionany loan to, impairmentor any acquisition of the securities or assets of, casualty lossany other Person (or series of related capital investments, condemnationloans, taking by eminent domain and acquisitions) either involving more than $250,000 or outside the Ordinary Course of Business;
(o) none of the Emcore Companies has granted any license or sublicense of any rights under or with respect to any realIntellectual Property Assets outside the Ordinary Course of Business;
(p) none of the Acquired Companies has amended or otherwise modified the Organizational Documents of any Acquired Company;
(q) none of the Acquired Companies has declared, set aside or paid any dividend or distribution payable in cash, stock, property or otherwise to any stockholder or member of the Acquired Companies with respect to its equity or debt securities;
(r) none of the Acquired Companies has reclassified, combined, split, subdivided or otherwise amended the terms of, or personal purchased, redeemed or mixed otherwise acquired, directly or indirectly, any of its equity or debt securities (or securities convertible into, or exercisable or exchangeable for equity or debt securities) or issued or redeemed any warrants, options or other rights of any kind to acquire its equity securities;
(s) none of the Acquired Companies 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;
(t) none of the Emcore Companies has entered into, modified, amended, terminated, permitted the lapse of or renewed any lease or reciprocal easement agreement, operating agreement or other material agreement relating to, real property included of the Business;
(u) with respect to the Business, none of the Emcore Companies has entered into, adopted, extended, renewed or amended any collective bargaining agreement or other Contract with any labor organization, union or association, except in each case as required by Legal Requirements;
(v) with respect to the Business, other than in the Transferred AssetsOrdinary Course of Business, whether none of the Emcore Companies has (i) granted or not covered by insuranceannounced any increase in or acceleration of the compensation, bonus or benefits, or otherwise increased the compensation, bonus or benefits payable, or to become payable, to any employee, director, officer, manager, or consultant of, any Emcore Company, (ii) granted any rights to retention, severance or termination pay to, or entered into any new (or amended any existing) employment, consulting, retention, severance or other Contract with, any such employee, director, officer, agent or consultant, in each case and except as may be required by Legal Requirements or (iii) adopted or established any new employee benefit plans for employees, or taken any action to accelerate the aggregatevesting, payment or funding of compensation or benefits under any Plan, to the extent not already provided in excess of $25,000any such Plan; orand
(kw) committed to or none of the Emcore Companies has entered into any understanding, arrangement or agreement (written or unwritten) Contract to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. Except as set forth in ------------------------------------- Schedule 2.9 hereto, since November 30, 1997, the Company has conducted business ------------ in the ordinary course of and there has not been:
(a) Any material change in the assets, Liabilities, business, condition (financial or otherwise) or operating results from that reflected in the Company Financial Statements at, and for the eleven (11) months ended November 30, 1997;
(b) Any amendments or changes in the Company Charter or the Company Bylaws;
(c) Any material damage, destruction or loss, whether covered by insurance or not, to its property (other than ordinary wear and tear);
(d) Any issuance, sale, redemption, repurchase or other acquisition of shares of the Company Capital Stock, or any declaration, setting aside or payment of any dividend or other distribution (whether in cash, stock or property) with respect to the Excluded Assets and Company Capital Stock or any securities convertible into or exchangeable into any the Excluded LiabilitiesCompany Capital Stock, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices any change in the Ordinary Course capital structure or stock ownership of Business and the Company;
(e) Any increase in substantially or modification of the same manner as previously conducted compensation or benefits payable or to become payable by Seller. Without limiting the generality Company to any of its employee, contractor, consultant, temporary employee or former employee, former contractor, former consultant or former temporary employee (or any other service provider or former service provider) (any of the foregoing, since March 31a "Service Provider") or changes pursuant to employment agreements or arrangements currently in effect or changes in position;
(f) Any increase in or modification of any bonus, 2011pension, Seller insurance or other employee benefit plan, payment or arrangement (including, without limitation, the granting of stock options, restricted stock awards or stock appreciation rights) made to, for or with any of the Company's Service Providers;
(g) Except as set forth on Schedule 2.9(g), any notice (written or --------------- unwritten) from any Service Provider, who earns more than $40,000 on an annualized basis as of the date hereof in base pay and commissions (a "Key Employee"), that such Key Employee has notterminated, or intends to terminate, such Key Employee's service with the Company;
(h) Except as set forth on Schedule 2.9(h), any (i) sale of the ---------------- property or assets of the Company individually in excess of $10,000 or in the aggregate in excess of $25,000 or (ii) any mortgage, pledge, transfer of a security interest in, or lien created by the Company with respect to any of the Company's properties or assets, except as disclosed in Schedule 3.18:liens for taxes not yet due or payable;
(ai) suffered Except as set forth on Schedule 2.9(i), any material adverse --------------- change which has had in the Business' relationship with any vendor or contractor, or the occurrence of any condition or event with respect to any vendor, contractor or customer, that is reasonably likely to have a Material Adverse Effect with respect to material adverse effect on the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any Business Condition of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted LiensCompany;
(j) suffered Any alteration in any damageterm of any outstanding security of the Company;
(k) Any (i) incurrence, destructionassumption or guarantee by the Company of any debt for borrowed money other than trade indebtedness incurred in the ordinary course of business consistent with past practice; (ii) any cancellation, impairmentwaiver or compromise by the Company of a valuable right or of a debt owed to the Company or release of any material right or instituted, casualty losssettled or agreed to settle any litigation, condemnationaction, taking proceeding or arbitration; (iii) any satisfaction or discharge of any Lien, except that which is not material and adverse to the Business Condition of the Company; (iv) issuance or sale of any securities convertible into or exchangeable for debt securities of the Company; or (v) issuance or sale of options or other rights to acquire from the Company, directly or indirectly, debt securities of the Company or any securities convertible into or exchangeable for any such debt securities;
(l) Any creation or assumption by eminent domain the Company of any mortgage, pledge, security interest or lien or other encumbrance on any asset;
(m) Except as set forth on Schedule 2.9(m), any making of any loan, --------------- advance or capital contribution to, or investment in, any person or entity;
(n) Any entry into, amendment of, relinquishment, termination or nonrenewal by the Company of any contract, lease, commitment or other right or obligation other than in the ordinary course of business consistent with past practice;
(o) Any transfer or grant of a right under the Company's Intellectual Property Rights (as defined in Section 2.19);
(p) Any labor dispute any activity or proceeding by a labor union or representative thereof to organize any employees;
(q) Except as set forth on Schedule 2.9(q), any entry into financial --------------- arrangements for the benefit of the shareholders of the Company;
(r) Any entry into an employment agreement or collective bargaining agreement or increased compensation to any realof shareholder, director or personal officer or mixed property included in any other employee or Service Provider of the Transferred Assets, whether Company;
(s) Any making or not covered by insurance, in each case and commitment to make capital expenditures or other material transactions outside the aggregate, ordinary course of business or involving aggregate expenditures in excess of $25,0005,000; or
(kt) committed to Any commitment (orally or entered into any understanding, arrangement or agreement (written or unwrittenin writing) to do any of the foregoing. There is no event or condition (other than activities of competitors in the ordinary course of their business or the adoption, proposal or promulgation by any government authority of any laws, rules or regulations applicable to the staffing industry generally) the existence of which could have a material and adverse effect on the Company, the Company's Business Condition or the Company's business as it was operated prior to the Closing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Hall Kinion & Associates Inc)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement------------------------------------- disclosed on Schedule 2.07, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:Financial Statement Date: -------------
(a) suffered the Company has not incurred any change which material obligation or liability except for normal trade obligations incurred in the ordinary course of business; (b) no casualty, loss or damage has had or is reasonably likely to have a Material Adverse Effect occurred with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets Company's assets, whether or not the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiessame is covered by insurance;
(c) made the Company has not sold, transferred or permitted otherwise disposed of any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities assets or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any realtherein, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) agreed to do any of the foregoing, except for sales of inventory in the ordinary course of business;
(d) the Company has not written off as uncollectible any of its accounts receivable or written down the value of any of its assets, except in each case in the ordinary course of business and at a rate no greater than during the 12-month period ending on the Financial Statement Date;
(e) the Company has not waived or released any of its rights with respect to its business or assets or permitted any of such rights to lapse;
(f) no executive officer or other key employee of the Company has left his or her employment with the Company;
(g) the Company has not granted, and is not committed to grant, any salary or wage increases to any of its employees;
(h) the Company has not made, or committed to make, any capital expenditures in excess of US$150,000 in the aggregate, exclusive of the Tele8 Transaction;
(i) there has been no payment, discharge or other satisfaction of any liabilities of the Company, whether direct or indirect, fixed or contingent or otherwise, other than the satisfaction, in the ordinary course of business, of liabilities reflected on the Current Financial Statements or incurred in the ordinary course of business since the Financial Statement Date;
(j) the Company has not declared or paid any dividend or other distribution in respect of any of its capital stock or agreed to any of the foregoing;
(k) the Company has not introduced any material change with respect to its business, including without limitation with respect to the products or services it sells, the areas in which such products or services are sold, its methods of distributing its products, its marketing techniques or its accounting methods; and
(l) no Material Adverse Change (as defined below), and no event which is likely to result in a Material Adverse Change, has occurred. For the purposes of this Agreement, the term "Material Adverse Change" shall mean a ----------------------- material adverse change in the business, operations, financial condition or prospects of the Company or in the value or utility of the Governmental Permits (as defined below) between the date hereof and the Closing Date.
Appears in 1 contract
Samples: Stock Purchase Agreement (Facilicom International Inc)
Absence of Certain Changes and Events. Except (a) with respect to as set forth in Section C.17 of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementCompany Disclosure Schedule, since March December 31, 20112003, Seller the Company has operated the Branch Offices conducted its business only in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller there has not, except as disclosed in Schedule 3.18not been any:
(a) suffered any change event, occurrence, development or state of circumstances or facts which has had or is reasonably likely expected to have a Material Adverse Effect with respect material adverse effect, other than those resulting from changes in general conditions (including laws and regulations) applicable to the Branch Officesindustry, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementgeneral economic conditions;
(b) except in payment or increase by the Ordinary Course Company of Businessany bonuses, (i) sold, transferred, leased, pledged, mortgagedsalaries, or otherwise encumbered other compensation or agreed benefits to sellany stockholder, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect theretodirector, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositorsofficer or employee;
(c) entry into any employment, severance, or caused similar Contract with any director, officer, or employee (other than in the case of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except an employee in the Ordinary Course of Business at Business), or debt issued or advances made to any stockholder, director, officer, or employee (other than in the unsolicited request case of depositors an employee in the Ordinary Course of Business);
(d) damage to or loan customersdestruction or loss of any asset or property of the Company, whether or not covered by insurance, which damage, destruction or loss has materially and adversely affected the properties, assets, business, financial condition, or prospects of the Company, taken as applicablea whole;
(e) sale, lease, transfer or other disposition (other than in the Ordinary Course of Business) of any asset or property of the Company in excess of NT$10,000,000;
(f) repayment of any debt other than debt disclosed in the Financial Statements or incurred in the Ordinary Course of Business;
(g) made any material change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served accounting methods used by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6Company;
(h) entered into any occurrence, assumption or guarantee by the Company of any Indebtedness (other transaction than in the Ordinary Course of Business) in excess of NT$20,000,000 or conducted its affairs, increase in either case related to the Transferred Assets or Assumed Liabilities, aggregate Indebtedness (other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreementincluding capital expenditures) of the Company in excess of NT$20,000,000;
(i) subjected to any Lien any portion failure on the part of the Transferred Assets Company to make accruals in amounts sufficient to cover the Company's obligations under its pension plan and performance pay or the Assumed Liabilities or any interest thereon, except Permitted Liens;other incentive plans; or
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or other agreement (written or unwritten) to do any of the foregoing, whether oral or written, or event or condition of any nature that might materially and adversely affect the assets properties, financial condition, operating results or business of the Company.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to From the Excluded Assets and Balance Sheet Date until the Excluded Liabilities, or (b) as otherwise contemplated by date of this Agreement, since March 31there has not been any Material Adverse Effect. Except as set forth on Schedule 3.7, 2011from the Balance Sheet Date until the date of this Agreement, Seller there has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18been no:
(a) suffered any change which has had mortgage, pledge or is reasonably likely to have other Encumbrance of (i) the Purchased Stock or (ii) a Material Adverse Effect with respect to material portion of the Branch OfficesPurchased Assets, assets of the Transferred Assets Purchased Entities and their Subsidiaries or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementParent IP Assets, taken as a whole, in each case other than Permitted Encumbrances;
(b) except in the Ordinary Course sale, assignment, exclusive license or transfer of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any a material portion of the Transferred Assets or tangible assets of the Assumed Liabilities or rights with respect thereto, or Sellers (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets Purchased Assets), the Purchased Entities or Assumed Liabilitiesthe Subsidiaries of the Purchased Entities primarily related to the Business, taken as a whole, except in the ordinary course of business;
(c) made or permitted any amendmentsale, terminationassignment, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, exclusive license or Permit transfer of any material Intellectual Property Assets, except in the ordinary course of business consistent with respect to the Branch Officespast practices;
(d) made waiver or release of any change in right or claim of material value by any method Seller, Purchased Entity or Subsidiary of management or operation of a Purchased Entity primarily related to the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsBusiness;
(e) granted redemption or repurchase, directly or indirectly, of any increase shares of capital stock of any Purchased Entity or Subsidiary of a Purchased Entity or declaration, set aside or payment of any dividends or any other distributions (except for dividends in Cash and dividends by such Subsidiaries to other Subsidiaries of the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant Purchased Entities) with respect to any bonus, pension, profit sharing shares of capital stock of any Purchased Entity or other plan or commitment), except for periodic increases in the Ordinary Course Subsidiary of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch OfficesPurchased Entity;
(f) except for the Inter-Bank Transferissuance, caused the Branch Offices sale or transfer of any capital stock, securities convertible into capital stock or warrants, options or other rights to transfer to Seller’s other operations acquire capital stock of any deposits other than deposits securing any loans, except in the Ordinary Course Purchased Entity or Subsidiary of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicablea Purchased Entity;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only material capital expenditures or commitments therefor related to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions Business, except in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6ordinary course of business;
(h) entered into any other transaction amendment or conducted its affairs, in either case related modification to the Transferred Assets Organizational Documents of the Purchased Entities or Assumed Liabilities, other than in Subsidiaries of the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this AgreementPurchased Entities;
(i) subjected amendment or modification to any Lien Employee Plan, or other material change to the compensation or benefits of any portion Business Employee except in the ordinary course of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;business; or
(j) suffered revocation, amendment or filing of any damagematerial Tax election, destruction, impairment, casualty loss, condemnation, taking by eminent domain change of any method of Tax accounting or settlement or compromise of any Tax Contest (i) with respect to any realPurchased Entity or any Subsidiary of a Purchased Entity or (ii) if any such action shall be binding on Buyer or its Affiliates after the Closing Date, create any Encumbrance on, or personal other impact on the Tax position of Buyer or mixed property included in its Affiliates with respect to the Transferred Purchased Assets or the Parent IP Assets, whether or not covered by insurance, in each case the Purchased Assets and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingParent IP Assets.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to as set forth in Schedule 4.22 or in the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementordinary course of business, since March 31September 30, 20111995, Seller has operated the Branch Offices in the Ordinary Course of Business CBG and in substantially the same manner Commercial Bank, taken as previously conducted by Seller. Without limiting the generality of the foregoinga whole, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18have not :
(a) suffered any change which has had damage or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementdestruction adversely and materially affecting CBG;
(b) except made any declaration, setting aside or payment of any dividend or other distribution of assets (whether in the Ordinary Course cash, stock or property) with respect to its capital stock, or any direct or indirect redemption, purchase or other acquisition of Business, (i) sold, transferred, leased, pledged, mortgagedsuch stock, or otherwise encumbered made any payment of cash or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any transfer of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiesother assets;
(c) made suffered any material adverse change in its working capital, assets, liabilities, financial condition or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to business prospects other than as a result of this Agreement and the Branch Officestransactions contemplated hereby;
(d) suffered any material adverse change in the collectibility of its loan portfolio not subject to loan loss reserves;
(e) except for customary increases based on term of service, performance or regular promotion of employees, increased (or announced any increase in) the compensation payable or to become payable to any employee, or increased (or announced any increase in) any bonus, insurance, pension or other employee benefit plan, payment or arrangement for such employees, or entered into or amended any employment, consulting, severance or similar agreement; 14
(f) incurred, assumed or guaranteed any liability or obligation (absolute, accrued, contingent or otherwise) other than in the ordinary course of business consistent with past practice or in connection with this transaction;
(g) paid, discharged, satisfied or renewed any claim, liability or obligation other than payment in the ordinary course of business consistent with past practice;
(h) permitted any of its assets to be subjected to any Lien;
(i) waived any material claims or rights;
(j) sold, transferred or otherwise disposed of any of its material Assets, except in the ordinary course of business consistent with past practice;
(k) made any material capital expenditure or investment except in the ordinary course of business consistent with past practice;
(l) made any change in any method material method, practice or principle of management financial or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementstax accounting;
(em) granted managed working capital components, including cash, loans, deposits and other current liabilities in a fashion inconsistent in any increase in the compensation of its officers material respect with past practice, including failing to make all budgeted and other normal capital expenditures, repairs, improvements and dispositions;
(n) paid, loaned, advanced, sold, transferred or Employees located at the Branch Offices (including leased any increase pursuant asset to any bonus, pension, profit sharing or other plan or commitment)employee, except for periodic increases in the Ordinary Course of Business made pursuant normal compensation involving salary and benefits and except for loans to established compensation policies applied on a basis consistent with that of the prior year, other than increases officers and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officesdirectors;
(fo) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations issued or sold any deposits of its capital stock (other than deposits securing pursuant to the exercise of any loansCBG Options) or issued any warrant, except in the Ordinary Course option or other right to purchase shares of Business at the unsolicited request of depositorsits capital stock, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicablesecurity convertible into its capital stock;
(gp) made received notice that any change of its substantial customers has terminated or intends to terminate its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction deposit or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, lending relationship with Commercial Bank other than in the Ordinary Course ordinary course of Business and consistent with prudent banking practices except as contemplated by this Agreementbusiness, which termination would have a Material Adverse Effect on CBG;
(iq) subjected failed to any Lien any portion of operate its business in the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liensordinary course in all material respects;
(jr) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included except in the Transferred Assetsordinary course of business, whether made or not covered by insurancepermitted any amendment or termination of any material contract, in each case and the aggregate, in excess of $25,000agreement or license to which it is a party if such amendment or termination would have a Material Adverse Effect on CBG; or
(ks) committed agreed in writing, or otherwise, to or entered into take any understanding, arrangement or agreement (written or unwritten) to do any of the foregoing.action described in this Section. 15
Appears in 1 contract
Absence of Certain Changes and Events. Since December 31, 2005, there has not been any Material Adverse Effect, and no event has occurred or circumstance exists that may result in such a Material Adverse Effect. Except for (ai) liabilities incurred in connection with respect to this Agreement, the Excluded Assets and ClubCorp Merger Agreement or the Excluded Liabilitiestransactions contemplated hereby or thereby, or (bii) as otherwise contemplated by this Agreementset forth in Section 4.8 of the Disclosure Schedule, since March December 31, 20112005, Seller has operated the Branch Offices Pinehurst Entities have conducted their respective businesses only in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller there has not, except as disclosed in Schedule 3.18not been any:
(a) suffered change in any change which has had of the Pinehurst Entities’ authorized or is reasonably likely issued capital stock, grant of any stock option or right to have a Material Adverse Effect with respect to purchase shares of capital stock of the Branch Offices, the Transferred Assets Pinehurst Entities or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementissuance of any security convertible into such capital stock;
(b) amendment to the organizational documents of the Pinehurst Entities;
(c) payment or increase by the Pinehurst Entities of any bonuses, salaries or other compensation to any director, officer or Employee or entry into any employment, severance or similar Contract with any director, officer or Employee, except as required by pre-existing Contracts or in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management adoption of, amendment to or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers payments to or Employees located at the Branch Offices (including benefits under any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loansEmployee Plan, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicablerequired by applicable Law;
(ge) made damage to or destruction or loss of any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion asset of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred AssetsBusiness, whether or not covered by insurance, in each case which the amount with respect to the damage or destruction of such asset exceeded $50,000 individually;
(f) entry into, termination of or receipt of notice of termination of (i) any material Permit, distributorship, dealer, sales representative, joint venture, credit or similar Contract to which any of the Pinehurst Entities is a party, or (ii) any Contract or transaction involving a total remaining commitment by any of the Pinehurst Entities of at least $75,000;
(g) sale (other than in the Ordinary Course of Business), lease or other disposition of any of the Pinehurst Entities’ Assets (including tangible assets and the aggregate, in excess Intellectual Property) or the creation of any Lien on any Asset of the Pinehurst Entities with an aggregate value of at least $25,000;
(h) cancellation or waiver of any claims or rights with a material value to any of the Pinehurst Entities;
(i) indication by any material supplier to any of the Pinehurst Entities of an intention to discontinue or change the terms of its relationship with the Pinehurst Entities;
(j) material change in the accounting methods used by the Pinehurst Entities; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) by the Pinehurst Entities to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. From December 31, 2016 until the date of this Agreement, no fact, event or circumstance has occurred or arisen that, individually or in combination with any other fact, event or circumstance, has had or would reasonably be expected to have a Material Adverse Effect. Except as set forth on Schedule 3.7, from the Balance Sheet Date until the date of this Agreement, neither the Company nor the Subsidiary has taken any of the following actions:
(a) made changes in any method of accounting or accounting practice of the Company or Subsidiary, except as required by a change in GAAP or applicable Law or as disclosed in the notes to the Financial Statements;
(b) made, revoked or changed any Tax election, changed any annual Tax accounting period, adopted or changed any method of Tax accounting, filed any amended Tax Return, entered into any closing agreement with respect to Taxes, waived any claim for refund or credit of Taxes, settled any audit, examination or Legal Proceeding related to Taxes, surrendered any right to claim a Tax refund, or consented to the extension or waiver of the limitations period applicable to any Tax Proceeding;
(c) entered into any Contract (or series of related Contracts) outside the ordinary course of business;
(d) entered into any Contract (or series of related Contracts) with any Affiliate of the Company or the Subsidiary;
(e) accelerated, terminated, modified or cancelled any Contract (or series of related Contracts) involving more than $500,000 (individually or in the aggregate) to which the Company or the Subsidiary is a party or by which it is bound;
(f) permitted, allowed or suffered any Lien upon any of its assets, tangible or intangible, or incurred, assumed or guaranteed any Indebtedness other than borrowings under the Credit Facility in the ordinary course of business;
(g) sold, leased, licensed, transferred, assigned or otherwise disposed of any of their assets, except in the ordinary course of business and except for any assets having an aggregate value of less than $250,000;
(h) issued, sold or delivered any Units or issued or sold any securities convertible into, or options with respect to, or warrants to purchase or rights to subscribe for, any Units;
(i) other than as required by applicable Law, (A) materially increased the compensation of any officer, manager, employee, contractor or director of the Company or the Subsidiary, other than as provided for in any Employee Plan, (B) hired or terminated any officer, or manager of the Company or the Subsidiary, or employees or contractors with expected annual compensation or remuneration in excess of $200,000 or (C) entered into, amended or terminated any employment, severance, retention or change in control Contract with any Employee that is not terminable at will;
(j) failed to pay any wages or compensation due to any employee or contractor, changed the exempt or nonexempt status of any employee for purposes of the Fair Labor Standards Act and/or any comparable Law, or changed the employment or contractor classification of any employee or contractor;
(k) adopted, amended, modified or terminated any Employee Plan or any Employee Plan or arrangement that would constitute an Employee Plan if it were in existence on the date hereof;
(l) implemented any layoff of employees that would reasonably be expected to implicate the WARN Act;
(m) acquired by merger or consolidation with, or by purchase of a substantial portion of the assets, stock or other equity of, or by any other manner, any business or any Person or any division thereof;
(n) adopted any plan of merger, consolidation, reorganization, liquidation or dissolution or filed a petition in bankruptcy under any provisions of federal or state bankruptcy Law or consented to the filing of any bankruptcy petition against it under any similar Law;
(o) made any investment (by contribution to capital, property transfers, purchase of securities or otherwise) in, or made any loan or advance (other than travel and similar advances to its employees) in excess of $250,000 to any Person other than in the ordinary course of business;
(p) entered into, modified or terminated any labor or collective bargaining agreement of the Company or the Subsidiary;
(q) failed to maintain in full force and effect any insurance policy in effect, except for any policy replaced by a new or successor policy of substantially similar coverage;
(r) terminated, amended, failed to renew or preserve or failed to maintain in full force and effect any material permit, except for amendments completed in the ordinary course of business, or any registration or application for any Intellectual Property Rights;
(s) declared, set aside or paid any dividend or made any distribution (other than tax distributions) with respect to the Excluded Assets and the Excluded LiabilitiesUnits (whether in cash or in kind) or redeemed, purchased or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality acquired any of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementUnits;
(bt) except in the Ordinary Course of Businesseffected any recapitalization, (i) soldreclassification, transferred, leased, pledged, mortgaged, unit split or otherwise encumbered or agreed like change to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiesits classification;
(cu) made paid, discharged, settled or permitted satisfied any amendment, termination, lapse of, material claims or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed material Liabilities, other than in the Ordinary Course ordinary course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000business; or
(kv) committed to or entered into any understandingagreement, arrangement in writing or agreement (written or unwritten) otherwise, to do take any of the foregoingforegoing actions.
Appears in 1 contract
Samples: Securities Purchase Agreement (Diplomat Pharmacy, Inc.)
Absence of Certain Changes and Events. Except (a) Since December 31, 2005, except as set forth in the Seller Disclosure Schedule, the Seller has conducted the Business in the ordinary course thereof consistent with past practice and from such date through the date of this Agreement, with respect to Seller, there has not been any:
(i) change in the Excluded Assets and business, assets, liabilities, results of operations or financial condition of the Excluded LiabilitiesSeller, or any event, condition or contingency (either individually or taken together) that constitutes a Material Adverse Effect;
(A) incurrence, payment or discharge of any Liability, (B) sale or transfer of any property, or (bC) as otherwise contemplated by this Agreementacquisition or sale, since March 31lease, 2011grant of interest in, Seller has operated the Branch Offices or other disposition of, any assets or businesses, in each of clauses (A), (B) and (C), other than in the Ordinary Course ordinary course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality business, consistent with past practice;
(A) guarantee or any other assumption of the foregoingobligations of any Person, since March 31or (B) making of any loan or advance to any Person (other than vacation payments made to hourly factory employees at the L.A. Facility in the ordinary course of business, 2011, Seller has notconsistent with past practice);
(iv) settlement or compromise of any Action if the amount of such settlement will either not be paid in full prior to the Closing or which settlement or compromise would reasonably be expected to have a continuing adverse impact on the Business after the Closing;
(v) Tax election or change in a Tax election or the filing for any change in any material respect of any method of accounting with the Internal Revenue Service, except as disclosed in Schedule 3.18:
(a) suffered required by any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementin Law;
(bvi) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation accounting applied in the preparation of the Branch Offices not in the Ordinary Course of Business or any accounting changeFinancial Statements, except as may be other than a change which is required by GAAP reason of a concurrent change in Law or generally applicable regulatory requirementsGAAP;
(eA) granted adoption or amendment in any material respect to any benefit plan or bonus, profit sharing, deferred compensation, incentive, stock option or stock purchase plan, program or commitment, paid time off for sickness or other plan, program or arrangement for the benefit of its employees, consultants or directors, or (B) grant of any increase (other than increases required under any Contact) in the compensation of its officers or Employees located at the Branch Offices employees (including any such increase pursuant to any bonus, pension, profit sharing or other plan compensation or incentive plan, program or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, ) or any increase (other than increases and payments necessaryrequired under any Contract) in the compensation payable or to become payable to any officer or director;
(viii) material change or modification in any of the Contracts required to be listed in any Schedule to this Agreement (other than an Exempt Purchase Order), nor has the Seller entered into any Contract (other than an Exempt Purchase Order), except, in each case, in the employer’s reasonable discretion, to maintain ordinary and preserve the operation regular course of the Branch Offices;
(f) except its business and in no event calling for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositorsannual payments by, or caused any of Seller’s other operations or customers to transfer to to, the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or;
(kix) committed the making of any capital expenditures in excess of $25,000;
(x) declaration, distribution or the setting aside for distribution of any property, other than cash, or directly or indirectly, the redemption, purchase or otherwise acquisition of any shares of capital stock for property, other than cash, as the case may be; and
(xi) agreement, whether in writing or otherwise, to or entered into take any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingaction described in this Section 3.15.
Appears in 1 contract
Samples: Asset Purchase Agreement (Phillips Van Heusen Corp /De/)
Absence of Certain Changes and Events. Except (a) with respect to Since the Excluded Assets and the Excluded LiabilitiesReference Balance Sheet Date, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller there has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered not been any change which has had or is reasonably likely to have a Company Material Adverse Effect with respect to Effect. Since the Branch OfficesReference Balance Sheet Date, (i) the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except Company and its Subsidiaries have conducted their business in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or and (ii) canceledexcept as set forth in Section 3.18 of the Disclosure Schedule, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;Company and its Subsidiaries have not:
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(ea) granted any increase in the base compensation of, or paid any bonuses or other compensation to, any of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in employees outside the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that Business;
(b) adopted, amended, or increased the payments or benefits under, any Employee Benefit Plan outside of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation Ordinary Course of Business;
(c) acquired assets outside of the Branch OfficesOrdinary Course of Business, including acquired any business, whether by merger, consolidation, the purchase of all or a substantial portion of the assets or equity interests of such business or otherwise;
(d) sold, leased, or otherwise disposed of any assets outside of the Ordinary Course of Business;
(e) incurred, assumed, or guaranteed any Indebtedness, or made any loans, advances or capital contributions to, or investments in, any other Person;
(f) except for the Inter-Bank Transfercancelled, caused the Branch Offices to transfer to Seller’s other operations compromised, waived or released any deposits other right or claim (or series of related rights and claims) either involving more than deposits securing any loans, except in $50,000 or outside the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableBusiness;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered experienced any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, destruction or personal or mixed property included in the Transferred Assets, loss (whether or not covered by insurance, in each case and ) to any of the aggregate, assets of the Company in excess of $25,00050,000;
(h) made any material change in connection with its accounts payable or accounts receivable terms, systems, policies or procedures;
(i) declared, set aside or paid any distribution (whether in cash, securities or property or other combination thereof) in respect of the membership interests of the Company or any Subsidiary of the Company;
(j) made any material change in its accounting or Tax methods; or
(k) committed to or entered into any understandingagreement, arrangement whether oral or agreement (written or unwritten) written, to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to as set forth in Section 3.14 of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementSeller Disclosure Letter, since March 31the Closing Book Date, 2011, Seller each Acquired Entity has operated the Branch Offices conducted its business only in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller there has not, except as disclosed in Schedule 3.18not been any:
(a) suffered change in such Acquired Entity’s authorized or issued Membership Interests; grant of any change membership interest vesting rights, option or right to purchase Membership Interests of such Acquired Entity; grant of any phantom or similar rights which has had give any Person any interest in any portion of the revenue or is reasonably likely earnings of such Acquired Entity; issuance of any security convertible into such Membership Interests; grant of any registration rights; purchase, redemption, retirement, or other acquisition by such Acquired Entity of any Membership Interests; or declaration or payment of any non-cash dividend or other non-cash distribution or payment in respect of Membership Interests or rights in respect thereof, provided that nothing herein shall limit cash distributions to have a Material Adverse Effect with respect Seller for payment of Taxes or otherwise prior to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;Closing Date.
(b) amendment to the Organizational Documents of such Acquired Entity;
(c) material damage to or destruction or loss of any Material Asset, whether or not covered by insurance;
(d) except for those Contracts that supersede prior Contracts, without materially changing the terms of such prior Contracts or materially increasing the dollar amount of any commitment by Acquired Entity thereunder, entry into, termination of, or receipt of formal or informal notice or advice of termination of any Contract or transaction involving a total remaining commitment by or to Acquired Entity of $50,000 or more;
(e) sale, lease, or other disposition of any material Asset of any Acquired Entity or mortgage, transfer, pledge, or imposition of any Encumbrance (other than the Permitted Encumbrances) on any material Asset of any Acquired Entity, in each case, other than sales, leases, dispositions or Encumbrances in the Ordinary Course of Business, ;
(f) any (i) soldcapital expenditure, transferredagreement to incur any liability or obligation whether absolute, leasedaccrued, pledgedasserted or unasserted, mortgaged, contingent or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any (other than routine maintenance in the Ordinary Course of the Transferred Assets or the Assumed Liabilities or rights with respect theretoBusiness), or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Applicable Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretioncase of either clause (i) or (ii), to maintain and preserve the operation involving payments by an Acquired Company in excess of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable$50,000;
(g) made loan, advance or capital contribution to, or investments in, any change other Person or acquisition or agreement to its customary policies for setting rates on deposits offered at acquire by merging or consolidating with, or by purchasing an equity interest in or a substantial portion of the Branch Officesassets of, including or by any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6manner, any other Person;
(h) entered intentional cancellation or waiver of any claims or rights with a value to such Acquired Entity in excess of $50,000;
(i) material change in the accounting methods used by such Acquired Entity;
(j) incurrence or guarantee of any Debt, whether or not evidenced by a note, bond, debenture or similar instrument, or entrance into any “keep well” or other transaction or conducted its affairs, in either case related agreement to maintain the Transferred Assets or Assumed Liabilities, financial condition of another Person other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,00050,000;
(k) transfer to any Person of any material rights to the Intellectual Property Assets;
(l) payment, prepayment, discharge or satisfaction of any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), except the payment, prepayment, discharge or satisfaction of liabilities or obligations in the Ordinary Course of Business and in accordance with the terms thereof;
(m) settlement or compromise with respect to any Proceeding, other than in an aggregate amount not in excess of $50,000 (provided such settlement documents do not involve any material non-monetary obligations on the part of Acquired Entity);
(n) entry into any Contract with any Seller or Related Person of any Seller (excluding Related Persons that are themselves Acquired Entities) or Affiliate of any Seller (excluding Related Persons that are themselves Acquired Entities); or
(ko) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingMaterial Adverse Effect on Acquired Entity.
Appears in 1 contract
Samples: Membership Interest Purchase and Sale Agreement (Atlantic Tele Network Inc /De)
Absence of Certain Changes and Events. Except (a) with respect Since June 30, 2018, except for the Restructuring and the other transactions contemplated by Section 5.6, each of the Acquired Companies, and to the Excluded Assets and extent related to the Excluded LiabilitiesTransferred Business, or (b) as otherwise contemplated by this Agreementthe Restructuring Sellers, since March 31, 2011, Seller has operated the Branch Offices conducted their business only in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller there has not, except as disclosed in Schedule 3.18not been any:
(a) suffered any change which event, occurrence or development that has had had, or is could reasonably likely be expected to have have, individually or in the aggregate, a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementEffect;
(b) amendment of the charter, by-laws or other organizational documents of any Acquired Company;
(c) split, combination or reclassification of any shares of its capital stock;
(d) 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;
(e) declaration or payment of any dividends or distributions on or in respect of any of its capital stock or redemption, purchase or acquisition of its capital stock;
(f) change in any method of accounting or accounting practice of an Acquired Company, except as required by GAAP or as disclosed in the notes to the Financial Statements;
(g) change in any Acquired Company's cash management practices and its policies, 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 other expenses, deferral of revenue and acceptance of customer deposits;
(h) incurrence, assumption or guarantee of any material Indebtedness, except unsecured current obligations and Liabilities incurred in the Ordinary Course of Business consistent with past practice;
(i) transfer, assignment, sale or other disposition of any material assets shown or reflected in the Pro Forma Balance Sheet or cancellation of any debts or entitlements;
(j) transfer, assignment or grant of any license or sublicense under or with respect to any Company Intellectual Property or Company Intellectual Property Agreements, except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(ck) made abandonment or permitted lapse of or failure to maintain in full force and effect any amendment, termination, lapse ofmaterial Intellectual Property Registration, or waiver failure to take or consent to, maintain reasonable measures to protect the confidentiality or value of any Assumed Contract, lease, agreement, consent, license or Permit with respect to material trade secrets included in the Branch OfficesCompany Intellectual Property;
(dl) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any material damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, destruction or personal or mixed property included in the Transferred Assets, loss (whether or not covered by insurance) to its property;
(m) any capital investment in, in each case and the aggregateor any loan to, any other Person;
(n) acceleration, termination, material modification to or cancellation of any material Contract (including, but not limited to, any material Contract to which any Acquired Company is a party or by which it is bound);
(o) any capital expenditures in excess of $25,0001,000,000 in the aggregate;
(p) imposition of any Encumbrance upon the properties, capital stock or assets, tangible or intangible, of any Acquired Company;
(q) loan to (or forgiveness of any loan to), or entry into. any other transaction with any of its stockholders or current or former directors, officers and employees;
(r) entry into a new line of business or abandonment or discontinuance of existing lines of business;
(s) adoption of any plan of merger, consolidation, reorganization, liquidation or dissolution or filing of a petition in bankruptcy under any provisions of federal, state or provincial bankruptcy Law or consent to the filing of any bankruptcy petition against it under any similar Law;
(t) purchase, lease or other acquisition of the right to own, use or lease any property or assets for an amount in excess of $250,000, individually (in the case of a lease, per annum) or $1,000,000 in the aggregate (in the case of a lease, for the entire term of the lease, not including any option term), except for purchases of inventory or supplies in the Ordinary Course of Business;
(u) acquisition by merger or consolidation with, or by purchase of a substantial portion of the assets or stock of, or by any other manner, any business or any Person or any division thereof; or
(kv) committed to or entered into any understanding, arrangement or agreement (written or unwritten) Contract to do any of the foregoing, or any action or omission that would result in any of the foregoing.
Appears in 1 contract
Samples: Share Purchase Agreement (EnerSys)
Absence of Certain Changes and Events. Except (a) with respect to Other than as a result of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise transactions contemplated by this Agreement, since March December 31, 20111996, Seller there has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18not been:
(a) suffered any Any material adverse change which has had in the financial condition, operations, assets, liabilities or is reasonably likely to have business of NOI and the NOI Subsidiaries, taken as a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementwhole;
(b) except in the Ordinary Course of BusinessAny material damage, (i) sold, transferred, leased, pledged, mortgageddestruction, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect loss to the Transferred Assets business or Assumed Liabilitiesproperties of NOI and the NOI Subsidiaries, taken as a whole, not covered by insurance;
(c) made Any declaration, setting aside or permitted payment of any amendment, termination, lapse ofdividend or other distribution in respect of the capital stock of NOI, or waiver any direct or consent toindirect redemption, purchase or any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Officesother acquisition by NOI of any such stock;
(d) made any Any change in any method of management the capital stock or operation of the Branch Offices not in the Ordinary Course number of Business shares or any accounting changeclasses of NOI's authorized or outstanding capital stock as described in Section 3.4 (other than as a result of exercises of options to purchase NOI Common Stock and issuances under NOI's value appreciation plans of shares of NOI Common Stock outstanding as of December 31, except as may be required by GAAP or generally applicable regulatory requirements1996);
(e) granted any increase in the compensation Any material labor dispute or charge of its officers or Employees located at the Branch Offices unfair labor practice (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitmentthan routine individual grievances), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on any activity or proceeding by a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretionlabor union or, to maintain and preserve the operation knowledge of the Branch OfficesNOI, by representative thereof to organize any employees of NOI or any NOI Subsidiary or any campaign being conducted to solicit authorization from employees to be represented by such labor union;
(f) except for Any other event or condition known to NOI particularly pertaining to and adversely affecting the Inter-Bank Transferoperations, caused assets or business of NOI or any of the Branch Offices to transfer to Seller’s other operations any deposits NOI Subsidiaries (other than deposits securing any loans, except in the Ordinary Course events or conditions which are of Business at the unsolicited request a general or industry-wide nature and of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;general public knowledge) which would constitute a Material Adverse Effect on NOI; or
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller Any material cancellation of backlog that has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served been replaced by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingnew orders.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets as set forth in SCHEDULE 6.26 hereto and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31January 1, 20111997, Seller has operated the Branch Offices Albex and SABI have conducted their business only in the Ordinary Course of Business ordinary course, and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has have not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Business, : (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairmentor loss adversely affecting the properties or business of Albex or SABI; (ii) made any declaration, casualty losssetting aside or payment of any dividend or other distribution of assets (whether in cash, condemnationstock or property) with respect to the capital stock of Albex or SABI or any direct or indirectredemption, taking by eminent domain to purchase or other acquisition of such stock; (iii) suffered any real, or personal or mixed property included adverse change in the Transferred Assetsworking capital, whether assets, financial condition, business or not covered by insuranceoperations, in each case and liabilities, reserves or prospects of Albex or SABI; (iv) increased the aggregate, compensation payable or to become payable to employees of Albex or SABI having annual earnings in excess of $25,000100,000 per year, or increased any bonus, insurance, pension or other employee benefit plan, payment or arrangement for such employees; or
(kv) committed to granted options or entered warrants, subscriptions, calls, stock appreciation rights or other rights or commitments calling for the issuance of capital stock of Albex or SABI or obligations convertible into capital stock or other corporate securities of Albex or SABI or issued or sold any understandingcapital stock, arrangement bonds, notes or agreement other corporate securities of Albex or SABI; (written vi) incurred any liability or unwrittenobligation (absolute, accrued, contingent or otherwise) to do not incurred in the ordinary course of business and consistent with past practice; (vii) paid, discharged, or satisfied any claim, liability or obligation, other than payment in the ordinary course of business and consistent with past practice, of liabilities reflected or reserved against in the Balance Sheets; (viii) permitted any of the foregoing.their assets to be subject to any mortgage, lien, security interest, restriction or charge of any kind; (ix) cancelled any debts or waived any claims or rights; (x) sold, transferred or otherwise disposed of any
Appears in 1 contract
Samples: Stock Purchase Agreement (Ravens Metal Products Inc)
Absence of Certain Changes and Events. Except (a) with respect to Since the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality date of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of BusinessInterim Balance Sheet, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any the Acquired Companies have conducted their businesses only in the ordinary course of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or business (ii) canceledthere has not been any Company Material Adverse Effect, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
and (ciii) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement, none of the Acquired Companies has:
(a) issued any notes, bonds or other debt securities, any equity securities or any securities exchangeable for or convertible into any equity securities;
(b) borrowed any material amounts (except for ordinary course draws from existing borrowings) or entered into any other material liabilities which are not in the ordinary course of business;
(c) sold (other than sales of Inventory in the ordinary course of business), leased, or otherwise disposed of any material asset or property of any Acquired Company or mortgaged, pledged, or imposed any Encumbrance on any material asset or property of any Acquired Company, tangible or intangible, including the sale, lease, or other disposition of any of the Intellectual Property Assets (other than in the ordinary course of business);
(d) cancelled, compromised, waived, or released any material debt or claim, except for debts or claims cancelled, compromised, waived or released with customers, contractors, or subcontractors of the Acquired Companies in the ordinary course of business;
(e) suffered any damage to or destruction or loss of any material asset or property;
(f) other than in the ordinary course of business, paid any bonuses, or increased any salaries, or paid other compensation to any stockholder, director, officer, or employee or entered into any employment, severance, or similar Contract with any director, officer, or employee;
(g) intentionally waived, cancelled or released any material right, claim or amount receivable except for rights waived in the ordinary course of business;
(h) made any change in its accounting principles, methods, practices or policies;
(i) subjected to made any Lien any portion material capital expenditures outside the ordinary course of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liensbusiness;
(j) suffered guaranteed any damageobligations or liabilities of any Person;
(k) entered into, destructionterminated, impairment, casualty loss, condemnation, taking or received notice of termination of any Contract or transaction involving a total remaining commitment by eminent domain or to any realAcquired Company of at least $100,000, other than in the ordinary course of business;
(l) any material Tax election or settlement or compromise of any material Tax Liability or refund by any Acquired Company, other than Tax elections required by Legal Requirement, or personal change in any annual Tax accounting period or mixed property included method of Tax accounting, filing of any material amendment to a Tax Return, entry into any closing agreement relating to any material Tax, surrender of any right to claim a material Tax refund, or consent to any extension or waiver of the statute of limitations period applicable to any material Tax claim or assessment;
(m) accelerated, terminated, modified, or cancelled any agreement, contract, lease, or license (or series of related agreements, contracts, leases, and licenses) to which any of the Acquired Companies is a party or by which any of them is bound outside the ordinary course of business;
(n) 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 investments, loans, and acquisitions) either involving more than $50,000 or outside the ordinary course of business;
(o) granted any license or sublicense of any rights under or with respect to any Intellectual Property Assets outside the ordinary course of business;
(p) amended the Organizational Documents of any Acquired Company;
(q) 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;
(r) declared, set aside or paid any stock dividend or stock distribution to any stockholder or member of the Acquired Companies with respect to its equity or purchased, redeemed or otherwise acquired any of its equity or any warrants, options or other rights to acquire its equity;
(s) made any loan to, or entered into any other transaction with, any of its directors, officers, and employees outside the ordinary course of business;
(t) entered into or adopted any employment, severance or change in control agreement, or any collective bargaining agreement (other than ordinary course at-will employment arrangements), or modified in any material respect the Transferred Assetsterms of any existing such contract, whether arrangement or not covered by agreement outside the ordinary course of business;
(u) adopted, amended, modified or terminated any profit sharing, bonus, deferred compensation, savings, insurance, in each case and pension, retirement, or other benefit plan for the aggregatebenefit of any current or former employees, in excess directors or consultants of $25,000any Acquired Company, or otherwise taken any such action with respect to any Plan;
(v) made or pledged to make any charitable or capital contribution outside the ordinary course of business; or
(kw) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. Since August 31, 2018, there has not been any Material Adverse Effect. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementdisclosed on Section 2.09 of the Disclosure Letter, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18Financial Statement Date:
(a) suffered the Company has not borrowed any change which has had amount or is reasonably likely incurred or become subject to have a Material Adverse Effect with respect any material liabilities, except liabilities incurred in the ordinary course of business, liabilities under contracts entered into in the ordinary course of business and borrowings from banks (or similar financial institutions) necessary to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementmeet ordinary course working capital requirements;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, Company has not mortgaged, pledged or otherwise encumbered or agreed subjected to sell, transfer, lease, pledge, mortgage or otherwise encumberany Lien, any portion of the Transferred Assets or the Assumed Liabilities or rights with respect theretoits assets, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiesexcept Liens for current property taxes not yet due and payable;
(c) made the Company has not sold, leased, licensed, assigned or permitted transferred any amendment, termination, lapse ofportion of its properties or assets, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Officesinterest therein;
(d) made the Company has not written off as uncollectible any change in any method of management or operation of the Branch Offices not Receivables, or written down the value of any of its assets or properties, except in each case in the Ordinary Course ordinary course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsbusiness and at a rate no greater than during the 12-month period ending on the Financial Statement Date;
(e) granted the Company has not suffered any increase in the compensation material losses, waived any rights of its officers material value or Employees located at the Branch Offices (including permitted any increase pursuant such rights to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officeslapse;
(f) except for the Inter-Bank TransferCompany has not issued, caused the Branch Offices sold or transferred any of its capital stock or other equity securities, securities convertible into its capital stock or other equity securities or warrants, options or other rights to transfer to Seller’s acquire its capital stock or other operations equity securities or any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositorsRights, or caused any of Seller’s other operations bonds or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicabledebt securities;
(g) Except for the Dividends or any distributions identified on Section 2.09 of the Disclosure Letter, the Company has not declared or paid any dividends or made any change to its customary policies for setting rates distributions on deposits offered at the Branch Offices, including Company's capital stock or other equity securities or redeemed or purchased any increase in interest rates paid unless (and only to shares of the extent that) Seller has effected such a rate increase in its Company's capital stock or other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6equity securities;
(h) the Company has not made any capital expenditures or commitments exceeding $50,000 per expenditure or commitment except in the ordinary course of business;
(i) the Company has not entered into any material agreement, contract, lease, or license outside the ordinary course of business;
(j) the Company has not had accelerated, terminated, made modifications to, or cancelled any material agreement, contract, lease, or license involving more than $50,000 individually to which the Company is a party or by which any of them is bound;
(k) the Company has not made any capital investment in or any loan to any Person;
(l) the Company has not granted any license or material sublicense of any rights under or with respect to any Intellectual Property except in the ordinary course of business;
(m) the Company has not made or authorized any change in the charter or bylaws of any of the Company;
(n) the Company has not made any loan to, or entered into any other transaction or conducted with, any of its affairsdirectors, in either case related to officers, and employees outside the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course ordinary course of Business and consistent with prudent banking practices except as contemplated by this Agreementbusiness;
(io) subjected the Company has not entered into any employment contract or collective bargaining agreement, written or oral, or made any modification to the terms of any Lien any portion existing such contract or agreement except in the ordinary course of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liensbusiness;
(jp) suffered the Company has not granted any damagebonus to or increase in the base compensation of any of its directors, destructionofficers, impairmentand employees outside the ordinary course of business;
(q) the Company has not adopted, casualty lossamended, condemnationmade any modification to, taking by eminent domain 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 realother employee benefit plan) except as required under applicable law or in the ordinary course of business;
(r) the Company has not made any other material change in employment terms for any of its directors, officers, and employees outside the ordinary course of business;
(s) the Company has not cancelled, compromised, waived, or personal released any right or mixed property included claim (or series of related rights and claims) either involving more than $50,000 individually or outside the ordinary course of business;
(t) the Company has not entered into any other material transaction, except in the Transferred Assetsordinary course of business;
(u) the Company has not experienced or incurred any casualty, loss or damage with respect to any of the Company's assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or;
(kv) committed no executive officer or key employee of the Company has left his or her employment or service with the Company;
(w) the Company has not introduced any material change with respect to its business, including without limitation with respect to the products or services it sells, the areas in which such products or services are sold, its methods of providing such products or services, its marketing techniques or its accounting methods;
(x) the Company has not changed any of its accounting methods or practices (including any change in depreciation or amortization policies or rates) nor revalued any of its properties or assets other than depreciation or amortization in accordance with modfied accrual principles consistently applied and reflected in the Financial Statements; and
(y) neither the Company nor the Sellers has entered into any understanding, arrangement or agreement (written in writing or unwrittenotherwise) to do take any of the foregoingactions referred to in subsections (a) through (x) above.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to as set forth in Schedule 3.8 of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementCompany Disclosure Schedule, since March December 31, 20111999, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller Company has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementChange;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty destruction or loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, an amount in excess of $25,000;
(c) granted or agreed to make any increase in the compensation payable or to become payable by the Company to any of its officers or employees, except for normal raises for nonexecutive personnel made in the ordinary course of business that are usual and normal in amount;
(d) declared, set aside or paid any dividend or made any other distribution on or in respect of the shares of capital stock of the Company or declared or agreed to any direct or indirect redemption, retirement, purchase or other acquisition by the Company of such shares;
(e) issued any shares of capital stock of the Company or any warrants, rights, options or entered into any commitment relating to the shares of capital stock of the Company;
(f) made any material change in the accounting methods or practices it follows, whether for general financial or tax purposes, or any change in depreciation or amortization policies or rates adopted therein;
(g) sold, leased, abandoned or otherwise disposed of any real property or any machinery, equipment or other operating property other than in the ordinary course of its business;
(h) sold, assigned, transferred, licensed or otherwise disposed of any patent, trademark, trade name, brand name, copyright (or pending application for any patent, trademark or copyright), invention, work of authorship, process, know-how, formula or trade secret or interest thereunder or other intangible asset except in the ordinary course of its business;
(i) been involved in any dispute involving any employee that would reasonably be expected to result in a Material Adverse Change;
(j) entered into any commitment or transaction (including without limitation any borrowing or capital expenditure) that requires the Company to pay an aggregate amount in excess of $250,000;
(k) incurred any material liabilities, either contingent or otherwise, matured or unmatured (whether or not required to be reflected in financial statements in accordance with GAAP, and whether due or to become due), except for accounts payable or accrued salaries that have been incurred by the Company since the end of the last fiscal year, in the ordinary course of its business and consistent with the Company's past practices;
(1) permitted or allowed any of its material property or assets to be subjected to any mortgage, deed of trust, pledge, lien, security interest or other encumbrance of any kind, except those permitted under Section 3.9 hereof, other than any purchase money security interests incurred in the ordinary course of its business;
(m) made any capital expenditure or commitment for additions to property, plant or equipment individually in excess of $50,000, or in the aggregate in excess of $250,000;
(n) paid, loaned or advanced any amount to, or sold, transferred or leased any properties or assets to, or entered into any agreement or arrangement with any of its affiliates within the meaning of the rules and regulations promulgated under the Securities Act of 1933 ("Affiliates"), officers, directors or shareholders or, to the Company's knowledge, any Affiliate or associate of any of the foregoing;
(o) made any amendment to or terminated any agreement that, if not so amended or terminated, would be material to the business, assets, liabilities, operations or financial performance of the Company;
(p) entered into any agreement in contemplation of the transactions specified herein other than this Agreement and the Related Agreements; or
(kq) committed agreed to take any action described in this Section 3.8 or entered into any understanding, arrangement outside of the ordinary course of its business or agreement (written or unwritten) to do which would constitute a breach of any of the foregoingrepresentations or warranties contained in this Agreement.
Appears in 1 contract
Absence of Certain Changes and Events. Except as set forth in Part 2.16 of the Company Disclosure Schedule, from the date of the Balance Sheet (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March December 31, 20112002, Seller has operated where indicated), (1) the Branch Offices Acquired Corporations have conducted their businesses only in the Ordinary Course ordinary course of Business business consistent with past practice and there has not been any Material Adverse Effect on the Acquired Corporations, and (2) no event has occurred or circumstance exists that would be reasonably likely, individually or in substantially the same manner as previously conducted by Seller. Without limiting aggregate, to result in a Material Adverse Effect on the generality of the foregoingAcquired Corporations, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18or:
(a) suffered any change which material loss, damage or destruction to, or any material interruption in the use of, any of the assets of any of the Acquired Corporations (whether or not covered by insurance) that has had or is would reasonably be likely to have a Material Adverse Effect with respect to on the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementAcquired Corporations;
(b) except in the Ordinary Course of Business, (i) soldany declaration, transferredaccrual, leased, pledged, mortgaged, set aside or otherwise encumbered payment of any dividend or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any other distribution in respect of any shares of capital stock of any Acquired Corporation other than dividends on the Transferred Assets or Series A Preferred and Series B Preferred and the Assumed Liabilities or rights with respect theretoOptional Make Whole Payment on the Series B Preferred as required by the Preferred Governing Documents, or (ii) canceledany repurchase, waived, compromised redemption or agreed to cancel, waive other acquisition by any Acquired Corporation of any shares of capital stock or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiesother securities;
(c) made any sale, issuance or permitted any amendmentgrant, termination, lapse or authorization of the issuance of, (i) any capital stock or waiver other security of any Acquired Corporation (except for Company Common Stock issued upon the valid exercise of outstanding Options, in satisfaction of the Optional Make Whole Payment on the Series B Preferred, in payment of dividends on the Series A Preferred or consent toSeries B Preferred, any Assumed Contractupon conversion of Series A Preferred or Series B Preferred, lease, agreement, consent, license or Permit with respect pursuant to the Branch Offices2000 Employee Stock Purchase Plan of the Company, as amended (the "ESPP")), (ii) any option, warrant or right to acquire any capital stock or any other security of any Acquired Corporation (except for Company Stock Options ) or (iii) any instrument convertible into or exchangeable for any capital stock or other security of any Acquired Corporation;
(d) made any change in amendment or waiver of any method of management or operation of the Branch Offices not in rights of any Acquired Corporation under, or acceleration of vesting under, (i) any provision of any of the Ordinary Course Company's stock option plans, (ii) any provision of Business any Contract evidencing any outstanding Company Stock Option, or (iii) any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsrestricted stock purchase agreement;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant amendment to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course Organizational Document of Business made pursuant to established compensation policies applied on a basis consistent with that any of the prior yearAcquired Corporations, other than increases and payments necessaryany merger, in the employer’s reasonable discretionconsolidation, to maintain and preserve the operation share exchange, business combination, recapitalization, reclassification of the Branch Officesshares, stock split, reverse stock split or similar transaction involving any Acquired Corporation;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s any creation of any Subsidiary of an Acquired Corporation or acquisition by any Acquired Corporation of any equity interest or other operations interest in any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicablePerson;
(g) since December 31, 2002, any capital expenditure by any Acquired Corporation which, when added to all other capital expenditures made any change to its customary policies for setting rates on deposits offered at behalf of the Branch OfficesAcquired Corporations since the date of the Balance Sheet (other than those permitted by Section 4.2(b)(vi) of this Agreement), including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions exceeds $12,000,000 in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6aggregate;
(h) entered into any waiver of any material right or remedy under, any Contract with any Material Customer or any New Material Customer;
(i) any (i) acquisition, lease or license by any Acquired Corporation of any material right or other material asset from any other transaction Person, (ii) sale or conducted its affairsother disposal or lease or license by any Acquired Corporation of any material right or other material asset to any other Person, or (iii) waiver or relinquishment by any Acquired Corporation of any material claim, except for rights or other assets acquired, leased, licensed or disposed of in either case related the ordinary course of business and consistent with past practices;
(j) since December 31, 2002, except as disclosed in the Filed Company SEC Reports, any write-off, prior to the Transferred Assets date of this Agreement, of any accounts receivable as uncollectible, or Assumed Liabilitiesestablishment of any extraordinary reserve with respect to any account receivable or other indebtedness of an Acquired Corporation;
(k) any pledge of any assets of, or sufferance of any of the assets of, an Acquired Corporation to become subject to any Encumbrance, except for pledges of immaterial assets made in the ordinary course of business and consistent with past practices;
(l) any (i) loan by an Acquired Corporation to any Person other than another Acquired Corporation, or (ii) incurrence or guarantee by an Acquired Corporation of any indebtedness for borrowed money on behalf of any Person other than an Acquired Corporation;
(m) since December 31, 2002, any (i) adoption, establishment, entry into or amendment by an Acquired Corporation of any Plan or (ii) payment of any bonus or any profit sharing or similar payment to, or material increase in the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of the directors or executive officers of the Company, or, other than in the Ordinary Course ordinary course of Business and business consistent with prudent banking practices except as contemplated by this Agreementpast practice, any other employees of any Acquired Corporation;
(in) subjected to any Lien any portion material change of the Transferred Assets methods of accounting or the Assumed Liabilities or accounting policies of any interest thereon, except Permitted LiensAcquired Corporation;
(jo) suffered any damage, destruction, impairment, casualty loss, condemnation, taking material Tax election by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered Acquired Corporation;
(p) any settlement of any material Legal Proceeding by insurance, in each case and the aggregate, in excess of $25,000any Acquired Corporation; or
(kq) committed any agreement or commitment to or entered into any understanding, arrangement or agreement (written or unwritten) to do take any of the foregoingactions referred to in clauses (c) through (p) above.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementset forth herein, since March 31the date of the Interim Balance Sheet, 2011, Seller Importers has operated the Branch Offices conducted its business only in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality there has not occurred any of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18following:
(a1) suffered any acceleration, amendment, or change which has had in Importer's authorized or is reasonably likely issued capital stock; grant of any stock option or right to have a Material Adverse Effect with purchase shares of capital stock of Importers; issuance of any security convertible into shares of capital stock of Importers; grant of any registration rights; purchase, redemption, retirement, or other acquisition by Importers of any shares of capital stock of Importers; or declaration or payment of any dividend or other distribution (whether in cash, stock, or property) in respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementof shares of capital stock of Importers;
(b2) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any amendment of the Transferred Assets articles of incorporation or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiesby-laws of Importers;
(c3) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the salary, bonus, or other compensation of its officers payable by Importers to, or Employees located at the Branch Offices (including any increase pursuant to in benefits payable under any bonusImporters Plan to, pensionany director, profit sharing officer, employee, consultant or other plan or commitment)independent contractor, except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with Importer's past practice, or any entry into any employment, consulting, incentive compensation, severance, or similar Contract with any director, officer, employee, consultant or independent contractor that is not terminable without liability on notice of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices30 days or less;
(f4) any change in the period of exercisability of options granted under any Importers Plan or authorization of cash payments in exchange for options granted under any Importers Plan;
(5) any incurrence of indebtedness for borrowed money, except for borrowings and re-borrowings under Importer's existing credit facilities, any assumption or guarantee of the Inter-Bank Transferdebt of any other Person, caused the Branch Offices or any loan or advance to transfer to Seller’s other operations any deposits Person other than deposits securing any loans, except in the Ordinary Course of Business at Business;
(6) any damage to or destruction or loss of any asset or property of Importers not fully covered by insurance that is reasonably likely to have, individually or in the unsolicited request aggregate, a Material Adverse Effect on Importers;
(7) any sale (other than sales of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except inventory in the Ordinary Course of Business at Business), lease, or other disposition of, or any mortgage, pledge, or imposition of any Lien except Permitted Liens on, any property or asset that is material, individually or in the unsolicited request aggregate, to the business of depositors or loan customers, as applicableImporters;
(g8) any cancellation or waiver of any material claims or rights without adequate consideration or a reasonable business purpose;
(9) made any change to merger or consolidation with, or purchase of a substantial equity interest in or all or a substantial portion of the assets of, any Person;
(10) any material revaluation by Importers of any of its customary policies for setting rates on deposits offered at the Branch Officesassets, including any increase in interest rates paid unless (and only to writing-down of the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction value of inventory, or conducted its affairs, in either case related to the Transferred Assets writing-off of notes or Assumed Liabilities, accounts receivable other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreementpast practice;
(i11) subjected to any Lien any portion of material change in the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liensaccounting methods used by Importers;
(j12) suffered any damagechange, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, event or personal other circumstance that taken individually or mixed property included in the Transferred Assetsaggregate has had or could reasonably be expected to have a Material Adverse Effect on Importers, whether except for general changes in the industry in which Importers operates or not covered by insurance, in each case and the aggregate, in excess of $25,000economy; or
(k13) committed to or entered entry by Importers into any understanding, arrangement or agreement (written or unwritten) Contract to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. Except Since the September 30, 2000, the business of the Company and EP LLC has been conducted in the ordinary course and consistent with past practice. As amplification and not limitation of the foregoing since September 30, 2000, neither the Company nor EP LLC has:
(ai) transferred to any person or entity any rights to its intellectual property other than transfers necessary to sell products in the ordinary course of business consistent with respect past practice;
(ii) permitted or allowed any of the assets or properties (whether tangible or intangible) of the Company or EP LLC to be subjected to any encumbrance;
(iii) except in the ordinary course of business consistent with past practice, discharged or otherwise obtained the release of any or paid or otherwise discharged any liability, other than current liabilities reflected on the Reports and current liabilities incurred in the ordinary course of business consistent with past practice since September 30, 2000;
(iv) made any loan to, guaranteed any indebtedness for borrowed money of, or otherwise incurred any liability for borrowed money on behalf of any person other than payroll, travel guaranties and other advances made in the ordinary course of business;
(v) failed to pay any creditor any material amount owed to such creditor when due;
(vi) redeemed any of the capital stock or equity interests or declared, made or paid any dividends or distributions (whether in cash, securities or other property) to the Excluded Assets holders of capital stock or equity interests of the Company or EP LLC or otherwise;
(vii) made any material changes in the customary methods of operations of the Company or EP LLC, including, without limitation, practices and policies relating to software development;
(viii) made any material changes in the Excluded Liabilitiescustomary methods of operations of the Company or EP LLC, including, without limitation, practices and policies relating to software development;
(ix) merged with, entered into a consolidation with or acquired an equity interest in any person or acquired a substantial portion of the assets or business of any person or any division or line of business thereof, or otherwise acquired any material assets;
(bx) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices made any material disbursements in excess of $5,000 individually or $20,000 in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has notaggregate, except as disclosed in Schedule 3.18:
(aSCHEDULE 2.1(g)(x) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to of the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementDisclosure Schedules;
(bxi) except issued any sales orders in excess of $5,000 individually or $20,000 in the Ordinary Course of Business, aggregate;
(ixii) sold, transferred, leased, pledgedsubleased, mortgaged, licensed or otherwise encumbered disposed of any material properties or agreed to sellassets, transferreal, leasepersonal or mixed (including, pledgewithout limitation, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiesleasehold interests and intangible assets);
(cxiii) made issued or permitted sold any amendmentcapital stock, terminationnotes, lapse ofbonds or other securities, or waiver any option, warrant or consent toother right to acquire the same, of Company Common Stock, or any Assumed Contractother equity interest in, lease, agreement, consent, license the Company or Permit with respect to the Branch OfficesEP LLC;
(dxiv) entered into any agreement, arrangement or transaction with any of its directors, officers, employees or shareholders (or with any relative, beneficiary, spouse or affiliate of such person);
(xv) granted any increase, or announced any increase, in the wages, salaries, compensation, bonuses, incentives, pension or other benefits payable by the Company or EP LLC to any of their employees, including, without limitation, any increase or change pursuant to any plan or established or increased or promised to increase any benefits under any plan;
(xvi) written down or written up (or failed to write down or write up in accordance with and consistent with past practice) the value of any inventories or receivables or revalued any assets of the Company or EP LLC other than in the ordinary course of business consistent with past practice;
(xvii) amended, terminated, cancelled or compromised any material claims of the Company or EP LLC or waived any other rights of substantial value to the Company or EP LLC;
(xviii) made any change in any method of management accounting or operation accounting practice or policy used by the Company or EP LLC;
(xix) allowed any permit or environmental permit that relates to the Company or EP LLC or otherwise relates to any asset to lapse or terminate or failed to renew any such permit or environmental permit or any insurance policy that is scheduled to terminate or expire within 45 calendar days of the Branch Offices not Closing Date;
(xx) amended or modified in any material respect, or consented to the termination of, any material contract or the rights of the Company or EP LLC thereunder;
(xxi) amended or restated the organizational documents of the Company or EP LLC;
(xxii) terminated, discontinued, closed or disposed of any plant, facility or other business operation, or laid off any employees or implemented any early retirement, separation or program providing early retirement window benefits within the meaning of Section 1.401(a)-4 of the regulations promulgated under the Internal Revenue Code (the "Code") or announced or planned any such action or program for the future;
(xxiii) knowingly disclosed any secret or confidential intellectual property or permitted to lapse or go abandoned any intellectual property (or any registration or grant thereof or any application relating thereto) to which, or under which, the Company or EP LLC has any right, title, interest or license;
(xxiv) made any express or deemed election or settled or compromised any material liability, with respect to taxes of the Company or EP LLC;
(xxv) suffered any casualty loss or damage with respect to any of the assets of the Company or EP LLC which in the Ordinary Course aggregate have a replacement cost of Business more than $10,000, and which is not covered by insurance;
(xxvi) suffered any material adverse effect; or
(xxvii) agreed, whether in writing or otherwise, to take any of the actions specified in this Section 2.1(g) or granted any options to purchase, rights of first refusal, rights of first offer or any accounting changeother similar rights or commitments with respect to any of the actions specified in this Section 2.1(g), except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as expressly contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoing.
Appears in 1 contract
Samples: Stock Purchase Agreement (Embarcadero Technologies Inc)
Absence of Certain Changes and Events. Except (a) Since the date of the Balance Sheet, the Company has in all material respects conducted its businesses only in the usual and ordinary course consistent with respect to the Excluded Assets and the Excluded Liabilitiespast practice and, or (b) except as otherwise expressly contemplated by this AgreementAgreement or any other Transaction Document, since March 31, 2011, Seller there has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18not been any:
(ai) suffered any change which event, condition, occurrence, contingency or development that has had or is would reasonably likely be expected to have a Material Adverse Effect Effect;
(ii) declaration, setting aside or payment of any dividends or other distributions or payments in respect of any shares of capital stock of the Company, or any repurchase, redemption or other acquisition by the Company of any of such shares of capital stock or other securities of the Company;
(iii) amendment of any term of any outstanding security of the Company;
(iv) incurrence, assumption or guarantee by the Company of any indebtedness for borrowed money, other than in the ordinary course of business consistent with past practice;
(v) making of any loan, advance or capital contribution to or investment in any Person by the Company, other than travel and similar advances to employees, and advances and extended payment terms to suppliers, in each case in the ordinary course of business consistent with past practice;
(vi) change in the independent accountants of the Company or in the accounting methods, principles or practices followed by the Company (except for any such change required by reason of a change in Israeli GAAP);
(vii) (A) adoption, amendment or modification of an employee benefit plan with, or a manager insurance scheme in respect of, any director, officer, consultant or employee of the Company (or any amendment to any such existing agreement), (B) grant of severance or termination pay to any director, officer, employee, or consultant of the Company, (C) increase in the compensation of, or payment of any bonus to, any director, officer, employee, or consultant of the Company, or (D) change with respect to the Branch Officescompensation or other benefits payable to any director, officer, employee or consultant of the Transferred Assets or Assumed Liabilities or Seller’s ability Company except, in the case of clauses (C) and (D), in the ordinary course of business consistent with past practice with respect to consummate any employee (excluding any officers) of the transactions contemplated by this AgreementCompany;
(bviii) except material damage, destruction or loss to any material asset or property of the Company, other than damage that has been repaired, damaged assets that have been replaced or damage for the repair of which insurance proceeds have been received;
(ix) sale (other than sales of inventory and customer list rentals and exchanges in the Ordinary Course ordinary course of Businessbusiness consistent with past practice), (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sellassignment, transfer, hypothecation, conveyance, lease, or other disposition of any material asset or property of the Company or mortgage, pledge, mortgage or otherwise encumber, imposition of any Encumbrance on any material asset or property of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or Company (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiesexcept for Permitted Encumbrances);
(cx) made incurrence or permitted repayment of any liability or obligation (whether absolute, accrued, contingent or otherwise) to any Related Party or, other than in respect of current liabilities incurred in the ordinary course of business, any incurrence or repayment of any material liability or material obligation to any other Person or any discharge or satisfaction of any material Encumbrance other than in the ordinary course of business consistent with past practice;
(xi) failure to pay when due any material liabilities;
(xii) cancellation, discharge or satisfaction of any material debts or material claims to the Company or any amendment, termination, lapse of, or waiver or consent to, of any Assumed Contract, lease, agreement, consent, license or Permit with respect material rights of value to the Branch OfficesCompany;
(dxiii) made any change in any method of management write down or operation write off of the Branch Offices not value of any material asset of the Company, except for write downs and write offs of accounts receivable and inventory in the Ordinary Course ordinary course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsbusiness consistent with past practice;
(exiv) granted any increase failure to pay accounts payable or collect accounts receivable other than in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis ordinary course consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officespast practice;
(fxv) except for entry into, amendment, termination or receipt of notice of termination of any agreement or other document that is required to be disclosed in Section 4.11 or 4.13 of the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableDisclosure Schedule;
(gxvi) made any material change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served business or operations of the Company or in the manner of conducting the same or entry by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered Company into any material transaction (other transaction or conducted its affairs, in either case related to than the Transferred Assets or Assumed Liabilitiestransactions contemplated hereby), other than in the Ordinary Course ordinary course of Business and business consistent with prudent banking practices except as contemplated by this Agreement;past practice; or
(ixvii) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assetsagreement, whether or not covered by insurancein writing, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingforegoing by the Company.
Appears in 1 contract
Absence of Certain Changes and Events. Except as set forth in Part 2.16 of the Company Disclosure Schedule, from the date of the Balance Sheet (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March December 31, 20112002, Seller has operated where indicated), (1) the Branch Offices Acquired Corporations have conducted their businesses only in the Ordinary Course ordinary course of Business business consistent with past practice and there has not been any Material Adverse Effect on the Acquired Corporations, and (2) no event has occurred or circumstance exists that would be reasonably likely, individually or in substantially the same manner as previously conducted by Seller. Without limiting aggregate, to result in a Material Adverse Effect on the generality of the foregoingAcquired Corporations, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18or:
(a) suffered any change which material loss, damage or destruction to, or any material interruption in the use of, any of the assets of any of the Acquired Corporations (whether or not covered by insurance) that has had or is would reasonably be likely to have a Material Adverse Effect with respect to on the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementAcquired Corporations;
(b) except in the Ordinary Course of Business, (i) soldany declaration, transferredaccrual, leased, pledged, mortgaged, set aside or otherwise encumbered payment of any dividend or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any other distribution in respect of any shares of capital stock of any Acquired Corporation other than dividends on the Transferred Assets or Series A Preferred and Series B Preferred and the Assumed Liabilities or rights with respect theretoOptional Make Whole Payment on the Series B Preferred as required by the Preferred Governing Documents, or (ii) canceledany repurchase, waived, compromised redemption or agreed to cancel, waive other acquisition by any Acquired Corporation of any shares of capital stock or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiesother securities;
(c) made any sale, issuance or permitted any amendmentgrant, termination, lapse or authorization of the issuance of, (i) any capital stock or waiver other security of any Acquired Corporation (except for Company Common Stock issued upon the valid exercise of outstanding Options, in satisfaction of the Optional Make Whole Payment on the Series B Preferred, in payment of dividends on the Series A Preferred or consent toSeries B Preferred, any Assumed Contractupon conversion of Series A Preferred or Series B Preferred, lease, agreement, consent, license or Permit with respect pursuant to the Branch Offices2000 Employee Stock Purchase Plan of the Company, as amended (the "ESPP")), (ii) any option, warrant or right to acquire any capital stock or any other security of any Acquired Corporation (except for Company Stock Options) or (iii) any instrument convertible into or exchangeable for any capital stock or other security of any Acquired Corporation;
(d) made any change in amendment or waiver of any method of management or operation of the Branch Offices not in rights of any Acquired Corporation under, or acceleration of vesting under, (i) any provision of any of the Ordinary Course Company's stock option plans, (ii) any provision of Business any Contract evidencing any outstanding Company Stock Option, or (iii) any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsrestricted stock purchase agreement;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant amendment to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course Organizational Document of Business made pursuant to established compensation policies applied on a basis consistent with that any of the prior yearAcquired Corporations, other than increases and payments necessaryany merger, in the employer’s reasonable discretionconsolidation, to maintain and preserve the operation share exchange, business combination, recapitalization, reclassification of the Branch Officesshares, stock split, reverse stock split or similar transaction involving any Acquired Corporation;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s any creation of any Subsidiary of an Acquired Corporation or acquisition by any Acquired Corporation of any equity interest or other operations interest in any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicablePerson;
(g) since December 31, 2002, any capital expenditure by any Acquired Corporation which, when added to all other capital expenditures made any change to its customary policies for setting rates on deposits offered at behalf of the Branch OfficesAcquired Corporations since the date of the Balance Sheet (other than those permitted by Section 4.2(b)(vi) of this Agreement), including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions exceeds $12,000,000 in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6aggregate;
(h) entered into any waiver of any material right or remedy under, any Contract with any Material Customer or any New Material Customer;
(i) any (i) acquisition, lease or license by any Acquired Corporation of any material right or other material asset from any other transaction Person, (ii) sale or conducted its affairsother disposal or lease or license by any Acquired Corporation of any material right or other material asset to any other Person, or (iii) waiver or relinquishment by any Acquired Corporation of any material claim, except for rights or other assets acquired, leased, licensed or disposed of in either case related the ordinary course of business and consistent with past practices;
(j) since December 31, 2002, except as disclosed in the Filed Company SEC Reports, any write-off, prior to the Transferred Assets date of this Agreement, of any accounts receivable as uncollectible, or Assumed Liabilitiesestablishment of any extraordinary reserve with respect to any account receivable or other indebtedness of an Acquired Corporation;
(k) any pledge of any assets of, or sufferance of any of the assets of, an Acquired Corporation to become subject to any Encumbrance, except for pledges of immaterial assets made in the ordinary course of business and consistent with past practices;
(l) any (i) loan by an Acquired Corporation to any Person other than another Acquired Corporation, or (ii) incurrence or guarantee by an Acquired Corporation of any indebtedness for borrowed money on behalf of any Person other than an Acquired Corporation;
(m) since December 31, 2002, any (i) adoption, establishment, entry into or amendment by an Acquired Corporation of any Plan or (ii) payment of any bonus or any profit sharing or similar payment to, or material increase in the amount of the wages, salary, commissions, fringe benefits or other compensation or remuneration payable to, any of the directors or executive officers of the Company, or, other than in the Ordinary Course ordinary course of Business and business consistent with prudent banking practices except as contemplated by this Agreementpast practice, any other employees of any Acquired Corporation;
(in) subjected to any Lien any portion material change of the Transferred Assets methods of accounting or the Assumed Liabilities or accounting policies of any interest thereon, except Permitted LiensAcquired Corporation;
(jo) suffered any damage, destruction, impairment, casualty loss, condemnation, taking material Tax election by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered Acquired Corporation;
(p) any settlement of any material Legal Proceeding by insurance, in each case and the aggregate, in excess of $25,000any Acquired Corporation; or
(kq) committed any agreement or commitment to or entered into any understanding, arrangement or agreement (written or unwritten) to do take any of the foregoingactions referred to in clauses (c) through (p) above.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to as set forth in Section 3.10 of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementCompany Disclosure Schedule, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
2011 (a) the Company and each Subsidiary have operated the Business in the ordinary course consistent with past practice; (b) neither the Business nor the Company or any Subsidiary have suffered any change change, event or condition which has had or is could reasonably likely be expected to have a Material Adverse Effect with respect to on the Branch Officesassets and properties of the Company, any Subsidiary or the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate Business; and (c) neither the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of Business, Company nor any Subsidiary has (i) sold, transferred, leased, pledged, mortgaged, acquired or otherwise encumbered disposed of any material assets or agreed to sell, transfer, lease, pledge, mortgage engaged in any material transaction for or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect relating to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course ordinary course of Business and consistent with prudent banking practices except business or as expressly contemplated by the terms of this Agreement;
; (iii) subjected to any Lien any portion of the Transferred Assets increased benefits or the Assumed Liabilities Company Plan costs or any interest thereonchanged bonus, except Permitted Liens;
(j) suffered any damageinsurance, destructioncompensation, impairmentwages, casualty loss, condemnation, taking by eminent domain to any real, salary or personal other compensation or mixed property included other employee benefits for employees other than in the Transferred Assetsordinary course of business; (iii) waived any rights of substantial value which, whether singly or not covered by insurance, in each case and the aggregate, are material to the Business; (iv) borrowed or agreed to borrow in the conduct of the Business any funds other than through existing credit relationships; (v) pledged or mortgaged or agreed to pledge or mortgage any of the assets or properties of the Company and/or any Subsidiary; (vi) made or committed to make in connection with the Business any capital expenditures (other than in the ordinary course of business) in excess of $25,00050,000 individually, or $150,000 in the aggregate, or incur any Liability (other than in the ordinary course of business) in excess of $50,000; or
(kvii) committed made any loans to the officers or directors (except for ordinary course of business advances for out-of-pocket expenses incurred in the conduct of the Business) of the Company and/or any Subsidiary; (viii) altered its existing Real Property Leases or entered into any understandingagreement to lease, arrangement purchase, or otherwise occupy real property in the conduct of the Business; (ix) permit any of the Aviation Authorizations to lapse or to be abandoned, dedicated, or disclaimed, failed to perform or make any material filings, recordings, or similar actions or filings applicable to any of the Aviation Authorizations, or failed to pay any and all fees, fines and Taxes required to maintain and protect the Company or any such Subsidiary’s interest in each and every of the Aviation Authorizations, (x) made, rescinded or revoked any Tax election, filed any amended Tax Returns, entered into any closing agreement with respect to Taxes, settled any Tax claim or assessment or surrendered any right to claim a refund of Taxes or obtain or apply for any Tax ruling, (xi) closed any CBM Bases set forth in Section 3.14(a)(xvi) of the Company Disclosure Schedule; (xii) ceased providing Traditional-Based Services to any of the HBM Bases set forth in Section 3.14(a)(xvi) of the Company Disclosure Schedule, or received written notice of the intention of any other Person to cancel, terminate or unwrittenamend any material terms of any Traditional-Based Services with the Company or any Subsidiary; or to the actual knowledge of the executive officers of the Company and the principals of the Principal Shareholder, no person has threatened to cancel, terminate or amend any material terms of any Traditional-Based Services with the Company or any Subsidiary; terminate; or (xiii) agreed to do any of the foregoing. In addition to the foregoing, none of the creditors listed on the Indebtedness Statement have agreed to permit the Company or any of its Subsidiaries to repay the principal of any such Indebtedness for less than par value in connection with the consummation of the Transactions.
Appears in 1 contract
Samples: Merger Agreement (Air Methods Corp)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementset forth on Schedule 6.20, since March August 31, 20112010, Seller the Bank has operated conducted the Branch Offices Merchant Business only in the Ordinary Course of Business ordinary course, and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had damage or is reasonably likely to have a Material Adverse Effect with respect to destruction adversely affecting the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementMerchant Business;
(b) except suffered any adverse change in the Ordinary Course of working capital, assets, liabilities, financial condition, or business prospects relating to the Merchant Business, or relationships with any suppliers listed on Schedule 6.19;
(ic) soldgained Knowledge of any possibility that the State of California Department of Financial Institutions (“CDFI”), transferredFederal Deposit Insurance Corporation (“FDIC”) or any other governmental entity will be appointed as conservator or receiver of the Bank or suffered any material adverse change or event that could reasonably be anticipated to result in action by the CDFI, leasedFDIC or any other governmental entity, pledgedincluding without limitation, mortgagedthe appointment of the CDFI, FDIC or any other governmental entity as conservator or receiver of the Bank;
(d) except for customary increases based on term of service or regular promotion of non-officer employees, increased (or announced any increase in) the compensation payable or to become payable to any Merchant Business Employee, or otherwise encumbered increased (or agreed announced any increase in) any bonus, insurance, pension or other employee benefit plan, payment or arrangement for Merchant Business Employees, or entered into or amended any employment, consulting, severance or similar agreement with any Merchant Business Employee;
(e) incurred, assumed or guaranteed any liability or obligation (absolute, accrued, contingent or otherwise) with respect to sellthe Merchant Business, transferother than a non-material amount in the ordinary course of business consistent with past practice;
(f) paid, leasedischarged, pledgesatisfied or renewed any claim, mortgage liability or otherwise encumberobligation with respect to the Merchant Business, other than payment of a non-material amount in the ordinary course of business consistent with past practice;
(g) permitted any of the Transferred Assets Sold to be subjected to any mortgage, lien, security interest, restriction, charge or the Assumed Liabilities or rights with respect thereto, or other encumbrance of any kind;
(iih) canceled, waived, compromised or agreed to cancel, waive or compromise waived any debts, material claims or rights with respect to the Transferred Assets or Assumed LiabilitiesMerchant Business;
(ci) sold, transferred or otherwise disposed of any of the assets used in the Merchant Business, except non-material assets in the ordinary course of business consistent with past practice;
(j) made any single capital expenditure or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit investment with respect to the Branch OfficesMerchant Business in excess of $10,000;
(dk) made any change in any method method, practice or principle of management financial or operation of tax accounting that adversely affected the Branch Offices not in the Ordinary Course of Merchant Business or any accounting change, except as may be required by GAAP financial information relating to or generally applicable regulatory requirementsderived from the Merchant Business;
(el) granted managed working capital components relating to the Merchant Business, including cash, receivables, other current assets, trade payables and other current liabilities in a fashion inconsistent with past practice, including failing to sell inventory and other property in an orderly and prudent manner or failing to make all budgeted and other normal capital expenditures, repairs, improvements and dispositions;
(m) paid, loaned, advanced, sold, transferred or leased any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant Asset Sold to any bonus, pension, profit sharing or other plan or commitment)employee, except for periodic increases in the Ordinary Course of Business made pursuant to established normal compensation policies applied on a basis consistent with that of the prior year, other than increases involving salary and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officesbenefits;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(hn) entered into any other transaction commitment or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilitiestransaction, other than a non-material commitment or transaction entered into in the Ordinary Course ordinary course of Business and business consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of past practice, affecting the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000Merchant Business; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoing.
Appears in 1 contract
Samples: Merchant Asset Purchase Agreement (Northern California Bancorp Inc)
Absence of Certain Changes and Events. Except (a) as set forth in Section 6.16 of the Disclosure Schedule, since the date of the Interim Balance Sheet, or, with respect to the Excluded Assets and the Excluded Liabilities, or statement in clause (b) as otherwise contemplated by this Agreementa), since March 31the date of the Balance Sheet, 2011, Seller the Company has operated the Branch Offices conducted its businesses only in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller there has not, except as disclosed in Schedule 3.18not been any:
(a) suffered change in the Company's authorized or issued capital stock; grant of any change which has had stock option or is reasonably likely right to have purchase shares of capital stock of the Company; issuance of any security convertible into such capital stock; grant of any registration rights; purchase, redemption, retirement, or other acquisition by the Company of any shares of any such capital stock; or declaration or payment of any dividend or other distribution or payment in respect of shares of capital stock except that the Company may distribute to its Stockholders as dividends (i) all of its cash balances and short-term investments to the extent of the Company's accumulated adjustments account within the meaning of Section 368(e) of the IRC as of December 31, 1996, and (ii) an additional amount sufficient to satisfy the federal and State of Wisconsin income tax obligations of a Material Adverse Effect hypothetical Stockholder of the Company with respect to the Branch Officesperiod from January 1, 1997 through the Transferred Assets Effective Time, to the extent of the Company's accumulated adjustments account within the meaning of Section 368(e) of the IRC, assuming such Stockholder was subject to the highest federal and state marginal tax rate for such period, that such distribution constituted the sole income of such Stockholder and that the Stockholder was not entitled to any tax deductions or Assumed Liabilities or Seller’s ability offsets of any type less (iii) amounts adequate to consummate pay the transactions contemplated by this Agreementamounts recorded as accrued dividends and contributions on the Company's Balance Sheet;
(b) amendment to the Organizational Documents of the Company;
(c) payment or increase by the Company of any bonuses, salaries, or other compensation to any stockholder, director, officer, or (except in the Ordinary Course of Business) employee or entry into any employment, (i) sold, transferred, leased, pledged, mortgagedseverance, or otherwise encumbered or agreed to sellsimilar Contract with any director, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect theretoofficer, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Officesemployee;
(d) made adoption of, or increase in the payments to or benefits under, any change in profit sharing, bonus, deferred compensation, savings, insurance, pension, retirement, or other employee benefit plan for or with any method of management or operation employees of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsCompany;
(e) granted damage to or destruction or loss of any increase in the compensation of its officers asset or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that property of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred AssetsCompany, whether or not covered by insurance, materially and adversely affecting the properties, assets, business, financial condition, or prospects of the Company;
(f) entry into, termination of, or receipt of notice of termination of (i) any supply, license, distributorship, dealer, sales representative, joint venture, credit, or similar agreement, or (ii) any Contract or transaction involving a total remaining commitment by or to the Company of at least $15,000;
(g) sale (other than sales of inventory in each case and the aggregateOrdinary Course of Business), lease, or other disposition of any asset or property of the Company or mortgage, pledge, or imposition of any lien or other encumbrance on any material asset or property of the Company, including the sale, lease, or other disposition of any of the Intellectual Property Assets;
(h) cancellation or waiver of any claims or rights with a value to the Company in excess of $25,00010,000;
(i) material change in the accounting methods used by the Company;
(j) material adverse change in the customer relationship with Picker, Elscint and GE Yokogawa; or
(k) committed to agreement, whether oral or entered into any understandingwritten, arrangement or agreement (written or unwritten) by the Company to do or cause any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. Except as set forth in the Disclosure Schedule to this SECTION 4.16 (awhich Schedule may make reference to any other Disclosure Schedule hereto or to any other document(s) with respect referred to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by in this AgreementAgreement which has heretofore been delivered to Buyer), since March 31the Unaudited Balance Sheet Date, 2011, the Seller has operated conducted the Branch Offices operations of the Business only in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered incurred any change which has had damage to or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets destruction or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course loss of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Purchased Assets, whether or not covered by insurance, which would have a Material Adverse Effect;
(b) entered into, terminated or received notice of termination of any Applicable Contract;
(c) Entered into, amended, or terminated any employment agreement with any Employee, except in each case the Ordinary Course of Business; entered into, amended, or terminated any agreement with a labor union or association representing any Employee; adopted, entered into, or amended any Seller Plan or Other Benefit Obligation of the Seller which materially affects the Business; or other than in the Ordinary Course of Business, made any wage or salary increase, bonus, or increased any other direct or indirect compensation, for or to any of the Employees, or any accrual for or commitment or agreement to make or pay the same;
(d) Other than in the Ordinary Course of Business, entered into any lease (as lessor or lessee), sold, abandoned, or made any other disposition of any of the Purchased Assets except for Inventory and other assets sold in the aggregateOrdinary Course of Business; other than in the Ordinary Course of Business granted any Encumbrance on any of the Purchased Assets; incurred or assumed any debt, obligation, or liability (whether absolute or contingent or whether or not currently due and payable) affecting the Purchased Assets or the Business, except for debts, obligations or liabilities of the type described in excess clause (ii), (iii) or (iv) of $25,000SECTION 4.7; or paid, directly or indirectly, any of its material liabilities affecting the Purchased Assets or the Business other than in the Ordinary Course of Business; or
(ke) committed Transferred, granted or licensed any rights under, or permitted to or entered into lapse, any understanding, arrangement or agreement (written or unwritten) to do any Intangible Property other than in the Ordinary Course of the foregoingBusiness.
Appears in 1 contract
Absence of Certain Changes and Events. Except as set forth in Schedule 6.16, since December 31, 1996, Seller has conducted the Merchant Business only in the ordinary course, and has not:
(a) incurred, assumed or guaranteed any liability or obligation (absolute, accrued, contingent or otherwise) with respect to the Excluded Assets and the Excluded LiabilitiesMerchant Business, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices other than in the Ordinary Course ordinary course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect business consistent with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementpast practice;
(b) except paid, discharged, satisfied or renewed any claim, liability or obligation with respect to the Merchant Business, other than payment in the Ordinary Course ordinary course of Business, business and consistent with past practice;
(ic) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, permitted any of the Transferred Assets Sold to be subjected to any mortgage, lien, security interest, restriction, charge or the Assumed Liabilities or rights with respect thereto, or other encumbrance of any kind;
(iid) canceled, waived, compromised or agreed to cancel, waive or compromise waived any debts, material claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsMerchant Business;
(e) granted sold, transferred or otherwise disposed of any increase of the Assets Sold, except in the compensation ordinary course of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis business consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officespast practice;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations made any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, single capital expenditure or caused any of Seller’s other operations or customers to transfer investment with respect to the Branch Offices any deposits or loansMerchant Business, except in the Ordinary Course excess of Business at the unsolicited request of depositors or loan customers, as applicable$10,000;
(g) made any change in any method, practice or principle of financial or tax accounting that in any manner affected the Merchant Business or any financial information relating to its customary policies for setting rates on deposits offered at or derived from the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6Merchant Business;
(h) managed working capital components relating to the Merchant Business, including cash, receivables, other current assets, trade payables and other current liabilities in a fashion inconsistent with past practice, including failing to sell inventory and other property in an orderly and prudent manner or failing to make all budgeted and other normal capital expenditures, repairs, improvements and dispositions;
(i) paid, loaned, advanced, sold, transferred or leased any Asset Sold to any employee, except for normal compensation involving salary and benefits;
(j) entered into any other transaction material commitment or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilitiestransaction, other than in the Ordinary Course ordinary course of Business and business consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of past practice, affecting the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000Merchant Business; or
(k) committed agreed in writing, or otherwise, to or entered into take any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingaction described in this Section.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to Since the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has notBalance Sheet Date, except as disclosed contemplated herein, in Schedule 3.18the SLS Agreement, in any Series A Financing Transaction Document, Series B Financing Transaction Document or Series C and Series D Financing Transaction Document, or as set forth on Section 3.8 of the Disclosure Schedules, the Company and its Subsidiaries have not:
(a) to the Knowledge of the Company, suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementChange;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty destruction or loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case an amount in excess of $100,000;
(c) granted or agreed to make any increase in the compensation payable or to become payable by the Company or a Subsidiary to any officer or employee, except for normal raises for non-executive personnel made in the ordinary course of business that are usual and normal in amount;
(d) declared, set aside or paid any dividend or made any other distribution on or in respect of the shares of capital stock of the Company or a Subsidiary, or declared or agreed to any direct or indirect redemption, retirement, purchase or other acquisition by the Company or a Subsidiary of such shares;
(e) issued any shares of capital stock of the Company or a Subsidiary, or any warrants, rights or options thereof, or entered into any commitment relating to the shares of capital stock of the Company or a Subsidiary;
(f) adopted or proposed the adoption of any change in the Company’s Certificate of Incorporation or Bylaws;
(g) made any change in the accounting methods or practices they follow, whether for general financial or Tax purposes, or any change in depreciation or amortization policies or rates adopted therein, or any Tax election;
(h) sold, leased, abandoned or otherwise disposed of any real property or any machinery, equipment or other operating property other than in the ordinary course of their business;
(i) sold, assigned, transferred, licensed or otherwise disposed of any Company Intellectual Property or interest thereunder or other intangible asset except in the ordinary course of their business;
(j) been involved in any dispute involving any employee which would reasonably be expected to result in a Material Adverse Change;
(k) entered into, terminated or modified any employment, severance, termination or similar agreement or arrangement with, or granted any bonuses (or bonus opportunity) to, or otherwise increased the compensation of any executive officer or Key Employee;
(l) entered into any material commitment or transaction (including without limitation any borrowing or capital expenditure);
(m) amended or modified, or waived any default under, any Material Contract;
(n) to the Knowledge of the Company, incurred any material liabilities, contingent or otherwise, either matured or unmatured (whether or not required to be reflected in financial statements in accordance with GAAP, and whether due or to become due), except for accounts payable or accrued salaries that have been incurred by the Company since the Balance Sheet Date, in the ordinary course of its business and consistent with the Company’s past practices;
(o) permitted or allowed any of their material property or assets to be subjected to any Lien, except for Permitted Liens;
(p) settled any claim, litigation or action, whether now pending or hereafter made or brought;
(q) made any capital expenditure or commitment for additions to property, plant or equipment individually in excess of $100,000, or in the aggregate, in excess of $25,000250,000;
(r) paid, loaned or advanced any amount to, or sold, transferred or leased any properties or assets to, or entered into any agreement or arrangement with any of their Affiliates, officers, directors or stockholders or, to the Company's Knowledge, any Affiliate or associate of any of the foregoing;
(s) made any amendment to, or terminated any agreement that, if not so amended or terminated, would be material to the business, assets, liabilities, operations or financial performance of the Company or a Subsidiary;
(t) compromised or settled any claims relating to Taxes, any Tax audit or other Tax proceeding, or filed any amended Tax Returns;
(u) merged or consolidated with any other Person, or acquired a material amount of assets of any other Person;
(v) entered into any agreement in contemplation of the transactions specified herein other than this Agreement; or
(kw) committed agreed to take any action described in this Section 3.8 or entered into any understanding, arrangement or agreement (written or unwritten) which would reasonably be expected to do otherwise constitute a breach of any of the foregoingrepresentations or warranties contained in this Agreement or any other Transaction Documents.
Appears in 1 contract
Samples: Note Purchase Agreement (China New Energy Group CO)
Absence of Certain Changes and Events. Except Since December 31, 2002, there has not been, with respect to Millennium, except as disclosed in Schedule 3.9
(ai) any change in its business, operations, financial condition, assets, liabilities, or regulatory status having a Millennium Material Adverse Effect; (ii) any strike, picketing, work slowdown or labor disturbance; (iii) any material damage, destruction or loss (whether or not covered by insurance) with respect to any assets or properties; (iv) any redemption or other acquisition by it of capital stock or any declaration or payment of any dividend or other distribution in cash, stock or property with respect thereto; (v) any entry into any material commitment or transaction (including, without limitation, any borrowing or capital expenditure) other than in the Excluded Assets and the Excluded Liabilities, ordinary course of business or (b) as otherwise contemplated by this Agreement; (vi) any transfer, since March assignment or sale of, or rights granted under, any material leases, licenses, agreements, patents, trademarks, trade names, copyrights or other assets other than those transferred, assigned, sold or granted in the ordinary course of business and consistent with past practice; (vii) any mortgage, pledge, security interest or imposition of any other encumbrance on any assets or properties except in the ordinary course of business; (viii) any payment of any debts, liabilities or obligations ("Liabilities") of any kind other than Liabilities currently due; (ix) any cancellation of any debts or claims or forgiveness of amounts owed to Millennium; (x) any incurrence of any liabilities of any nature, whether accrued, contingent or otherwise, which would have, individually or in the aggregate, a Millennium Material Adverse Effect; or (xi) any change in accounting principles or methods (except insofar as may have been required by a change in Canadian GAAP). Since December 31, 20112002, Seller Millennium has operated the Branch Offices conducted its business only in the Ordinary Course of Business ordinary course and in substantially a manner consistent with past practice and has not made any material change in the same manner as previously conducted by Sellerconduct of its business or operations. Without limiting the generality of the foregoing, since March December 31, 20112002, Seller Millennium has not, except as disclosed in Schedule 3.18:
not made any payments (a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course ordinary course of Business, business and in amounts and in a manner consistent with past practice) under any Employee Plan (ias hereinafter defined) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonusemployee, pensionindependent contractor or consultant, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction new Employee Plan or conducted its affairsany new consulting agreement, granted or established any awards under any such Employee Plan or agreement, in either any such case related to the Transferred Assets providing for payments of more than $10,000 ($Cnd) or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets adopted or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do otherwise amended any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. Except as disclosed or reflected in the Call America Financial Statements or on Schedule 3.8, since June 30, 1996, through the date hereof there has not been, with respect to any of the Call America Companies, (ai) any Material Adverse Effect; (ii) any material strike, picketing, work slowdown or labor disturbance; (iii) any material damage, destruction or loss (whether or not covered by insurance) with respect to any material assets or properties; (iv) any redemption or other acquisition of Common Stock of any of the Excluded Assets and Call America Companies or any declaration or payment of any dividend or other distribution in cash, stock or property with respect thereto; (v) any entry into any material commitment or transaction (including, without limitation, any borrowing or capital expenditure) other than in the Excluded Liabilities, ordinary course of business or (b) as otherwise contemplated by this Agreement; (vi) any transfer of, or rights granted under, any material leases, licenses, agreements, patents, trademarks, trade names, or copyrights other than those transferred or granted in the ordinary course of business and consistent with past practice; (vii) any Lien on any material assets or properties except in the ordinary course of business; any payment of any Liabilities other than Liabilities currently due; any cancellation of any debts or claims or forgiveness of amounts owed to any of the Call America Companies; or (viii) any change in accounting principles or methods (except insofar as may have been required by a change in U.S. GAAP). Except as disclosed or reflected in the Call America Financial Statements or on Schedule 3.8, since March 31June 30, 20111996, Seller through the date hereof each of the Call America Companies has operated the Branch Offices conducted its business only in the Ordinary Course of Business ordinary course and in substantially a manner consistent with past practice and has not made any material change in the same manner conduct of its respective business or operations. Except as previously conducted by Seller. Without disclosed or reflected in the Call America Financial Statements or on Schedule 3.8, without limiting the generality of the foregoing, since March 31June 30, 20111996, Seller through the date hereof none of the Call America Companies has not, except as disclosed in Schedule 3.18:
made any payments (a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreement;
(b) except in the Ordinary Course ordinary course of Business, business and in amounts and in a manner consistent with past practice) under any Employee Benefit Plan (ias hereinafter defined) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonusemployee, pensionindependent contractor or consultant, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction new Employee Benefit Plan or conducted its affairsany new consulting agreement, granted or established any awards under any such Employee Benefit Plan or agreement, in either any such case related to the Transferred Assets providing for payments of more than $10,000 or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets adopted or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do otherwise amended any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, as permitted by ------------------------------------- Section 4.3 or (b) as otherwise contemplated by this Agreementset forth on Schedule 2.13, since March August 31, 20111999 through the ------------- date hereof, Seller each of the LongView Entities has operated the Branch Offices conducted its business only in the Ordinary Course of Business ordinary and in substantially the same manner as previously conducted by Sellerusual course consistent with past practice and no event or development has occurred that has had or would be reasonably expected to have a Material Adverse Effect. Without limiting the generality of the foregoing, since March 31, 2011, Seller has notfirst sentence of this Section 2.13, except as disclosed in permitted by Section 4.4 or set forth on Schedule 3.182.13, since August 31, 1999 through the date hereof, neither of the ------------- LongView Entities has:
(a) suffered Authorized for issuance, issued, delivered or sold any change which has had debt or is reasonably likely to have a Material Adverse Effect with respect to equity securities, or altered the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated terms of any outstanding securities issued by this Agreementit;
(b) except Declared, paid or set aside for payment any dividend or other distribution (whether in the Ordinary Course cash, stock or property or otherwise) in respect of Business, (i) sold, transferred, leased, pledged, mortgagedany shares of capital stock, or otherwise encumbered or agreed to sellredeemed, transfer, lease, pledge, mortgage purchased or otherwise encumberacquired such shares, any securities convertible into or exchangeable for such shares or any options, warrants or other rights to purchase or subscribe to any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiesforegoing;
(c) made Paid, discharged or permitted satisfied any amendmentliability or obligation or forgiven or otherwise cancelled any debt or claims or waived any rights (whether accrued, terminationabsolute, lapse ofcontingent or otherwise) other than the payment, discharge or waiver satisfaction in the ordinary and usual course of business and consistent with past practice, of liabilities or consent toobligations shown or reflected on the Financial Statements or incurred in the ordinary and usual course of business since August 31, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices1999;
(d) made any change in any method of management or operation of the Branch Offices not Except in the Ordinary Course ordinary and usual course of Business business and consistent with past practice, permitted or allowed any accounting changeassets (whether real, except as may personal or mixed, tangible or intangible) to be required by GAAP or generally applicable regulatory requirementssubjected to any Lien (other than purchase money security interests granted in the ordinary course of business);
(e) granted Written off as uncollectible any notes or accounts receivable other than in immaterial amounts or in the ordinary and usual course of business consistent with past practice;
(f) Cancelled or waived any claims or rights of value or sold, transferred, distributed or otherwise disposed of any assets other than in the ordinary and usual course of business and consistent with past practice;
(g) Granted any increase in the compensation of its officers any officer, director, employee or Employees located at agent, whether now or hereafter payable, or granted any severance or termination pay in respect of any such person, or entered into or varied the Branch Offices terms of any employment agreement with any such person or adopted, amended in any material respect or terminated any Benefit Plan under ERISA (including any increase pursuant to any as defined in Section 2.15), non-ERISA arrangement, bonus, pension, profit sharing or other plan employee benefit plan, agreement or commitment), except for periodic increases in the Ordinary Course arrangement of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except general applicability for the Inter-Bank Transferbenefit of its officers, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, directors or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6employees;
(h) entered into Made any material capital expenditure or material commitment for additions to property or equipment or other transaction capital expenditures, or conducted its affairs, in either case related leased or agreed to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreementlease any material assets;
(i) subjected to Made any Lien material change in any portion method of the Transferred Assets accounting or the Assumed Liabilities keeping its books of account or any interest thereonaccounting practices, except Permitted Liensas required as a result of changes in the generally accepted accounting practices applicable to such LongView Entity;
(j) suffered Incurred any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to material indebtedness for borrowed money or any real, other material obligation or personal or mixed property included liability other than liabilities incurred in the Transferred Assets, whether or not covered by insurance, in each case ordinary and the aggregate, in excess usual course of $25,000; orbusiness consistent with past practice;
(k) Amended its Articles of Incorporation, By-laws or other organizational documents;
(l) Suffered any strike or other material employment-related problem;
(m) Suffered any loss of any key employee or key customer;
(n) Commenced or terminated any line of business;
(o) Amended or given any consents under any Material Contracts;
(p) Taken any action or omitted to take any action that is reasonably likely to result in the occurrence of, or agreed or committed to or entered into any understandingdo, arrangement or agreement (written or unwritten) to do any of the foregoingforegoing (other than as expressly contemplated by this Agreement).
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets as set forth in Schedule 3.19, since December 31, 2004, there has not been any Material Adverse Effect, and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated Operating Sellers have conducted the Branch Offices Business in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has have not, except as disclosed in Schedule 3.18solely with respect to the Business:
(a) suffered Mortgaged, pledged or subjected to an Encumbrance any change which has had or of the Assets of the Operating Sellers that is reasonably likely to have a Material Adverse Effect with respect material to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementBusiness (other than Permitted Encumbrances);
(b) Sold, conveyed, transferred, leased, subleased, mortgaged, pledged, had any material liens imposed (other than Permitted Encumbrances), licensed or otherwise disposed of, to any third party or Affiliates, any material properties or assets used in the conduct of the Business other than in the Ordinary Course of Business or dissolved any Subsidiaries;
(c) Acquired any assets or any business in one or a series of related transactions, other than (i) pursuant to agreements in effect as of the date hereof that were disclosed to Buyer prior to the date hereof, (ii) capital expenditures or capital additions consistent with plans provided to Buyer and (iii) assets acquired by Operating Sellers in the Ordinary Course of Business;
(d) Failed to make capital expenditures or additions consistent (in amount) with the 2005 capital expenditure plan attached as Schedule 3.19(d) (except as expressly noted therein);
(e) Made any material changes to the formats of the Stations;
(f) Assigned, transferred or conveyed to any Affiliates of or Related Person to the Operating Sellers any material properties or assets not related to or used in the conduct of the Business;
(i) Entered into any transaction, Contract or commitment except in the Ordinary Course of Business; (ii) modified or renewed a Material Contract, other than modifications and renewals of cash time sales agreements and production agreements in the Ordinary Course of Business; or (iii) rejected, repudiated or terminated any Material Contract;
(i) Increased the compensation of any Employee, except for increases in salary or wage rates (A) in the Ordinary Course of Business, (B) as required by the terms of existing agreements or plans or (C) in connection with the renewal of contracts with on-air personnel in a manner which would not cause any 2005 budget line item for or related to personnel expenses to be exceeded; (ii) established, amended, paid, agreed to grant or increased any special bonus, sale bonus, stay bonus, retention bonus, deal bonus or change in control bonus or any similar benefit under any plan, agreement, award or arrangement, other than such as will be fully paid and satisfied at or prior to the Closing Date or other than as required pursuant to any existing plan, agreement, award or arrangement listed on Schedule 3.15(a); (iii) hired any employee for the Business with annual compensation in excess of the amount of compensation for a Person in a similar position consistent with past practice; (iv) entered into any new employment or severance agreement or amended (except as required to satisfy applicable Legal Requirements) any such existing agreement with any Employee; (v) established, adopted, entered into, amended (except as required to satisfy applicable Legal Requirements) or terminated any Employee Plan; or (vi) engaged in any hiring practices that are not in the Ordinary Course of Business;
(i) Surrendered, revoked or otherwise terminated any Governmental Authorization;
(j) Incurred any Debt or made any material loans, advances or capital contributions to, or investments in, any other Person (other than, to the extent not in violation of applicable Legal Requirements, customary loans or advances to Employees in amounts not material to the maker of such loan or advance in the Ordinary Course of Business) or incurred any other obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due, except in the Ordinary Course of Business, none of which, singly or in the aggregate, materially adversely affects the condition (i) soldfinancial or otherwise), transferredassets, leasedliabilities, pledged, mortgaged, operations or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any prospects of the Transferred Assets or the Assumed Liabilities or rights with respect theretoOperating Sellers;
(k) Disposed of, or (ii) canceledlicensed, abandoned, invalidated, waived, compromised released or agreed to cancel, waive or compromise assigned any debts, claims or rights of material value in connection with respect to the Transferred Assets or Assumed LiabilitiesBusiness;
(cl) made or permitted Made any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any material change in any method of management accounting, keeping of books of account or operation accounting practices or in any material method of Tax accounting of either of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be Operating Sellers unless required by applicable Legal Requirements or in order to comply with any GAAP requirements, FASB interpretations or generally applicable regulatory requirementsa request by the Operating Sellers’ independent auditors;
(em) granted Entered into any increase in program production or distribution arrangements, including without limitation joint venture arrangements obligating the compensation of its officers or Employees located at the Branch Offices (including Operating Sellers to pay any increase pursuant to any bonus, pension, profit sharing or other plan or commitment)consideration, except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) those entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreementa term not in excess of three years;
(in) subjected Undertaken the collection of outstanding accounts receivable or failed to any Lien any portion pay or discharge outstanding accounts payable other than in Ordinary Course of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted LiensBusiness;
(jo) suffered Had any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to material adverse change in its relations with any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000Governmental Body; or
(kp) committed to Agreed, whether in writing or entered into any understandingotherwise, arrangement or agreement (written or unwritten) to do any of the foregoing, except as expressly contemplated by this Agreement.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) Since the date of the Balance Sheet, the Company and the Subsidiaries have in all material respects conducted their businesses only in the usual and ordinary course consistent with past practice and, except as expressly contemplated by this Agreement or any other Transaction Document, there has not, with respect to the Excluded Assets and the Excluded LiabilitiesCompany or a Subsidiary, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course case of Business Sections 5.8(f) and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing(q), since March 31with respect to CTI and its Affiliates, 2011, Seller has not, except as disclosed in Schedule 3.18been any:
(a) suffered any change which event, condition, occurrence, contingency or development that has had or is would reasonably likely be expected to have a Material Adverse Effect Effect;
(b) any repurchase, redemption or other acquisition by the Company or any Subsidiary of any of shares of capital stock or other securities of the Company or any Subsidiary or any dividends or other distributions or payments in respect of any shares of capital stock of the Company or any Subsidiary other than distributions payable solely in cash and distributions of the capital stock or membership interests of the Excluded Subsidiaries;
(c) amendment of any term of any outstanding security of the Company or any Subsidiary;
(d) making of any loan, advance or capital contribution to or investment in any Person by the Company or any Subsidiary, other than loans, advances or capital contributions to a Subsidiary, travel and similar advances to employees, and advances and extended payment terms to suppliers, in each case in the ordinary course of business consistent with past practice;
(e) material change in the accounting methods, principles or practices followed by the Company or any Subsidiary (except for any such change required by reason of a change in GAAP);
(f) (i) adoption, amendment or modification in any material respect of an Employee Benefit Plan, other than an amendment or modification to comply with applicable Laws and adoptions, amendments and modifications that do not apply to any Listed Employee or officer, employee or consultant of the Branch OfficesCompany or any Subsidiary (ii) grant of severance or termination pay or any other compensation of any kind or nature payable, the Transferred Assets in whole or Assumed Liabilities or Seller’s ability to consummate in part, by reason of the transactions contemplated by this Agreement;
(b) except in the Ordinary Course of BusinessAgreement to any Listed Employee or any officer, (i) sold, transferred, leased, pledged, mortgaged, employee or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any consultant of the Transferred Assets Company or the Assumed Liabilities or rights with respect theretoany Subsidiary, or (iiiii) canceledany change in employment terms (including compensation or benefits) for any Listed Employee or any officer, waived, compromised employee or agreed to cancel, waive consultant of the Company or compromise any debts, claims Subsidiary or rights with respect to increase in the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse contingent and non-contingent compensation of, or waiver or consent payment of any bonus to, any Assumed ContractListed Employee or any officer, lease, agreement, consent, license employee or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation consultant of the Branch Offices not in the Ordinary Course of Business Company or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableSubsidiary;
(g) made material damage, destruction or loss to any change to its customary policies material asset or property of the Company and the Subsidiaries, taken as a whole, other than damage that has been repaired, damaged assets that have been replaced or damage for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (repair of which insurance proceeds have been received and only to used for the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6repair thereof;
(h) entered sale (other than sales of inventory and customer list rentals and exchanges in the ordinary course of business consistent with past practice), assignment, transfer, hypothecation, conveyance, lease or other disposition of any material asset or property of the Company or any Subsidiary other than the Excluded Assets or mortgage, pledge or imposition of any Encumbrance on any material asset or property of the Company or any Subsidiary (except for Permitted Encumbrances);
(i) failure to pay when due any material indebtedness or other material Liabilities, except with respect to any such Liabilities being contested in good faith by the Company or any Subsidiary which are identified in Section 5.8(i) of the Disclosure Schedule;
(j) cancellation, discharge or satisfaction of any debts, liabilities, obligations or claims that are material to the Company and the Subsidiaries, taken as a whole, or any amendment, termination or waiver of any material rights of value to the Company and the Subsidiaries, taken as a whole;
(k) write down or write off of the value of any assets that are material to the Company and the Subsidiaries, taken as a whole, except for write downs and write offs of accounts receivable and inventory in the ordinary course of business consistent with past practice;
(l) failure to pay accounts payable or collect accounts receivable other than in the ordinary course consistent with past practice;
(m) entry into, amendment, termination or receipt of notice of termination of any lease or sublease of real property that is (or would be) required to be disclosed in Section 5.9 of the Disclosure Schedule or of any agreement or other document that is required to be disclosed in Section 5.11 of the Disclosure Schedule;
(n) merger or consolidation with any other Person, acquisition of any equity securities of any other Person, or acquisition of assets from any other Person, other than (i) the acquisition of inventory in the ordinary course of business in accordance with past practice, and (ii) capital expenditures in an amount in the aggregate not more than those set forth in the capital expenditure budget for the current fiscal year previously provided to Buyer;
(o) material change in the business or operations of the Company and the Subsidiaries, taken as a whole, or in the manner of conducting the same or entry by the Company or any Subsidiary into any material transaction (other transaction or conducted its affairs, in either case related to than the Transferred Assets or Assumed Liabilitiestransactions contemplated hereby), other than in the Ordinary Course ordinary course of Business and business consistent with prudent banking practices except as contemplated by this Agreementpast practice;
(ip) subjected any material capital expenditure or commitments therefor, other than capital expenditures of not more than those set forth in the capital expenditure budget for the current fiscal year previously provided to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;Buyer; or
(jq) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assetsagreement, whether or not covered by insurancein writing, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingforegoing by the Company, any Subsidiary or, with respect to the Business, CTI.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementAgreement or the Plan, since March 31December 27, 20112008:
(a) there has not occurred a Company Material Adverse Effect;
(b) Sxxxxxx Company, Seller has operated the Branch Offices Company, Opco and their respective Subsidiaries have conducted their business in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementBusiness;
(bc) none of Sxxxxxx Company, the Company, Opco and their respective Subsidiaries has sold, leased or otherwise disposed of any properties, licenses or assets, except (i) for inventory in the Ordinary Course of Business, (iii) soldfor other properties, transferred, leased, pledged, mortgaged, licenses or otherwise encumbered assets having a net book value not in excess of $250,000 individually or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of $1,000,000 in the Transferred Assets or the Assumed Liabilities or rights with respect thereto, aggregate or (iiiii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to as reflected in the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch OfficesFinancial Statements;
(d) none of Sxxxxxx Company, the Company, Opco and their respective Subsidiaries has mortgaged, pledged or otherwise subjected any of their assets to any Lien, other than (i) Permitted Exceptions or (ii) any other Liens with respect to obligations not in excess of $500,000 individually or $2,000,000 in the aggregate;
(e) none of Sxxxxxx Company, the Company, Opco and their respective Subsidiaries has granted any severance payments or increased the salary, employee benefits or other compensation of any employee, officer or director or agreed or committed to pay any bonus or other additional salary, employee benefits or compensation to any employee, officer or director, except (i) for relocation reimbursements made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business and (ii) for increases or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
payments to employees less than (e1) granted any increase $25,000 per individual employee and $500,000 in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant aggregate with respect to any bonus, pension, profit sharing such severance payments and (2) $25,000 per individual employee who is an officer (Senior Vice President or higher) or $50,000 per other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant individual employee with respect to established compensation policies applied on a basis consistent with that of the prior year, any other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officessuch payments;
(f) except for none of Sxxxxxx Company, the Inter-Bank TransferCompany, caused Opco and their respective Subsidiaries has declared, set aside or paid any dividend or other distribution (whether in cash, stock or property) on any of the Branch Offices to transfer to Seller’s other operations capital stock or comparable equity interest, as the case may be, or redeemed or repurchased any deposits of its capital stock or comparable equity interest, as the case may be, other than deposits securing any loans, except in either case such capital stock or comparable equity interest held by the Ordinary Course Company or one of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableits wholly-owned Subsidiaries;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6[reserved];
(h) entered into there has not been property damage or casualty loss incurred by any other transaction of Sxxxxxx Company, the Company, Opco and their respective Subsidiaries in excess of $500,000 individually or conducted $2,000,000 in the aggregate, except any such loss reflected in the Financial Statements;
(i) none of Sxxxxxx Company, the Company, Opco and their respective Subsidiaries has incurred any capital expenditure in excess of $750,000 individually or $2,000,000 in the aggregate, except any such capital expenditure reflected in the Financial Statements or contemplated by Section 7.2(b)(G);
(j) none of Sxxxxxx Company, the Company, Opco and their respective Subsidiaries has permitted any material Company Intellectual Property that is registered or for which an application for registration is pending to expire, lapse, become abandoned or cancelled, or has failed to make any payments with respect thereto when due; provided, however, that neither the expiration of a patent on its affairsscheduled expiration date nor the abandonment of an application for registration of a trademark in connection with a third party opposition proceeding, which the applicant, in either case related its reasonable business judgment, has determined it would be unlikely to prevail, shall be deemed a breach of the Transferred Assets foregoing;
(k) none of Sxxxxxx Company, the Company, Opco and their respective Subsidiaries has revalued any of its assets, including writing down the value of inventory or Assumed Liabilitieswriting off notes or accounts receivable, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this AgreementBusiness;
(il) subjected none of Sxxxxxx Company, the Company, Opco and their respective Subsidiaries has settled or compromised any pending or threatened Legal Proceeding, the settlement or compromise of which provides for covenants that materially restrict such Debtor’s or its Subsidiaries’ ability to any Lien any portion of the Transferred Assets conduct their business or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, which involves an amount in excess of $25,000; or1,000,000 individually or $2,000,000 in the aggregate;
(km) committed to none of Sxxxxxx Company, the Company, Opco and their respective Subsidiaries has made or changed any Tax election, filed any amended Tax Return, entered into any understandingclosing agreement, arrangement waived or agreement extended any statute of limitation with respect to Taxes, settled or compromised any Tax liability, claim or assessment, surrendered any right to claim a refund of Taxes or taken any other similar action relating to the filing of any Tax Return or the payment of any Tax;
(written n) none of Sxxxxxx Company, the Company, Opco and their respective Subsidiaries has decreased its reserves or unwrittenchanged the method of determining reserves other than as disclosed in the Financial Statements;
(o) none of Sxxxxxx Company, the Company, Opco and their respective Subsidiaries has made any change in its cash management practices, accounting methods, principles or practices other than as disclosed in the Financial Statements; and
(p) none of Sxxxxxx Company, the Company, Opco and their respective Subsidiaries has agreed to do take any of the foregoingforegoing actions described in clauses (c) through (o).
Appears in 1 contract
Samples: Plan Sponsor Agreement (Simmons Co)
Absence of Certain Changes and Events. Except (a) with respect to Since the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has notBalance Sheet Date, except as disclosed contemplated herein, in Schedule 3.18the other Transaction Documents, in any Series A Financing Transaction Document, or as set forth on Section 4.9 of the Disclosure Schedules, the Company and its Subsidiaries have not:
(a) to the Knowledge of the Company, suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementChange;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty destruction or loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case an amount in excess of $100,000;
(c) granted or agreed to make any increase in the compensation payable or to become payable by the Company or a Subsidiary to any officer or employee, except for normal raises for nonexecutive personnel made in the ordinary course of business that are usual and normal in amount;
(d) declared, set aside or paid any dividend or made any other distribution on or in respect of the shares of capital stock of the Company or a Subsidiary, or declared or agreed to any direct or indirect redemption, retirement, purchase or other acquisition by the Company or a Subsidiary of such shares;
(e) issued any shares of capital stock of the Company or a Subsidiary, or any warrants, rights or options thereof, or entered into any commitment relating to the shares of capital stock of the Company or a Subsidiary;
(f) adopted or proposed the adoption of any change in the Company’s Certificate of Incorporation or Bylaws;
(g) made any change in the accounting methods or practices they follow, whether for general financial or Tax purposes, or any change in depreciation or amortization policies or rates adopted therein, or any Tax election;
(h) sold, leased, abandoned or otherwise disposed of any real property or any machinery, equipment or other operating property other than in the ordinary course of their business;
(i) sold, assigned, transferred, licensed or otherwise disposed of any Company Intellectual Property or interest thereunder or other intangible asset except in the ordinary course of their business;
(j) been involved in any dispute involving any employee which would reasonably be expected to result in a Material Adverse Change;
(k) entered into, terminated or modified any employment, severance, termination or similar agreement or arrangement with, or granted any bonuses (or bonus opportunity) to, or otherwise increased the compensation of any executive officer or Key Employee;
(l) entered into any material commitment or transaction (including without limitation any borrowing or capital expenditure);
(m) amended or modified, or waived any default under, any Material Contract;
(n) to the Knowledge of the Company, incurred any material liabilities, contingent or otherwise, either matured or unmatured (whether or not required to be reflected in financial statements in accordance with GAAP, and whether due or to become due), except for accounts payable or accrued salaries that have been incurred by the Company since the Balance Sheet Date, in the ordinary course of its business and consistent with the Company’s past practices;
(o) permitted or allowed any of their material property or assets to be subjected to any Lien, except for Permitted Liens;
(p) settled any claim, litigation or action, whether now pending or hereafter made or brought;
(q) made any capital expenditure or commitment for additions to property, plant or equipment individually in excess of $100,000, or in the aggregate, in excess of $25,000250,000;
(r) paid, loaned or advanced any amount to, or sold, transferred or leased any properties or assets to, or entered into any agreement or arrangement with any of their Affiliates, officers, directors or stockholders or, to the Company's Knowledge, any Affiliate or associate of any of the foregoing;
(s) made any amendment to, or terminated any agreement that, if not so amended or terminated, would be material to the business, assets, liabilities, operations or financial performance of the Company or a Subsidiary;
(t) compromised or settled any claims relating to Taxes, any Tax audit or other Tax proceeding, or filed any amended Tax Returns;
(u) merged or consolidated with any other Person, or acquired a material amount of assets of any other Person;
(v) entered into any agreement in contemplation of the transactions specified herein other than this Agreement and the other Transaction Documents; or
(kw) committed agreed to take any action described in this Section 4.9 or entered into any understanding, arrangement or agreement (written or unwritten) which would reasonably be expected to do otherwise constitute a breach of any of the foregoingrepresentations or warranties contained in this Agreement or any other Transaction Documents.
Appears in 1 contract
Samples: Series B Convertible Preferred Stock Securities Purchase Agreement (China New Energy Group CO)
Absence of Certain Changes and Events. Except (a) with respect to Since the Excluded Assets and the Excluded LiabilitiesBalance Sheet Date, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller Seller's business has operated the Branch Offices been conducted only in the Ordinary Course ordinary course of Business and in substantially business consistent with past practice of Seller (the same manner as previously conducted by Seller"ORDINARY COURSE"). Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18set forth on SCHEDULE 5.6, since the Balance Sheet Date, there has not been, occurred or arisen:
(a) suffered any material adverse change in the operations (as now conducted or as presently proposed to be conducted), assets, liabilities, earnings, business, properties, rights, net worth, or condition (financial or otherwise) of Seller, nor are any such changes threatened, anticipated or contemplated;
(b) any sale, lease or other disposition of any properties or assets of Seller, or any transaction that is material to the business of Seller entered into or carried out, except in the Ordinary Course;
(c) any material change made in the methods of doing business, nor has a Material Adverse Effect in the accounting principles or practices or the method of application of such principles or practices used by Seller or any change which in depreciation or amortization policies or rates theretofore adopted occurred;
(d) any Encumbrance imposed or agreed to be imposed on or with respect to any of the Acquired Assets or capital stock of Seller, other than the Permitted Encumbrances;
(e) any modification, waiver, change, amendment, release, rescission or termination of, or accord and satisfaction with respect to, any material term, condition or provision of any Contract (as defined herein), other than any satisfaction by performance in accordance with the terms thereof in the Ordinary Course;
(f) any actual, threatened, anticipated or contemplated casualty, loss, damage or destruction (whether or not covered by insurance), conversion, termination, cancellation, default or taking by eminent domain or other action by any Governmental Authority that has had or is could reasonably likely be expected to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementEffect;
(bg) except any adverse pending, threatened, anticipated or contemplated dispute of any kind with any contractor, subcontractor, customer, supplier, source of financing, employee, landlord, subtenant or licensee of Seller that is reasonably likely to result in any material reduction in the amount, or any change in the material terms or conditions, of business with any material customer, supplier or source of financing of Seller;
(h) any increase, other than in the Ordinary Course of BusinessCourse, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation payable or to become payable to any of its officers Seller's officers, employees, agents or Employees located at the Branch Offices consultants (including including, without limitation, any increase pursuant to any bonus, pension, profit profit-sharing or other plan or commitment), except or the entering into with or modification of any employment contract or other agreement concerning the compensation of any officer, or employee, or the making of any loan to, or engagement in any transaction with, any officers, directors or shareholders of Seller, or the establishment of any new, or the modification of any existing, employee benefit, compensation or stock plan of Seller that affects the employees of Seller;
(i) capital expenditures or commitments therefore by Seller in excess of $10,000 in the aggregate for periodic increases additions, alterations or modifications to the property, plant or equipment of Seller;
(j) the incurrence of any material obligation or liability (whether absolute, accrued, contingent or otherwise and whether due or to become due) or the incurrence or entering into of any transaction, contract or commitment by Seller with respect to its business, other than items incurred or entered into (as the case may be) in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch OfficesCourse;
(fk) except for the Inter-Bank Transferany payment, caused the Branch Offices to transfer to Seller’s other operations discharge or satisfaction of any deposits other than deposits securing any loansclaim, except in the Ordinary Course of Business at the unsolicited request of depositors, Encumbrance or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) liability by Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business (whether absolute, accrued, contingent or otherwise and consistent with prudent banking practices except as contemplated by this Agreementwhether due or to become due);
(il) subjected any labor trouble, problem or grievance that has had or could reasonably be expected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Lienshave a Material Adverse Effect;
(jm) suffered any damagelicense, destructionsale, impairmenttransfer, casualty losspledge, condemnation, taking by eminent domain to mortgage or other disposition of any real, tangible or personal intangible asset or mixed property included Intellectual Property of Seller other than in the Transferred AssetsOrdinary Course;
(n) any cancellation of any Indebtedness (as defined herein) or claims or any amendment, termination, diminution or waiver of any rights of material value to Seller;
(o) any change in the customers or the personnel of Seller other than such routine changes which occur in the Ordinary Course;
(p) any material decrease in the level of maintenance of any material tangible assets of Seller from that level generally in effect prior to the date hereof;
(q) any material failure to operate the business of Seller in the Ordinary Course, including, but not limited to, any failure by Seller to make capital expenditures or investments in Seller or any failure to pay trade accounts payable consistent with past practice;
(r) any pending, threatened, anticipated or contemplated occurrence or situation of any kind, nature or description (including, without limitation, the enactment of any Laws (as defined herein)) that has had or could reasonably be expected to have a Material Adverse Effect; and
(s) any agreement or understanding, whether in writing or not covered by insuranceotherwise, in each case and the aggregate, in excess of $25,000; or
(k) committed for Seller to or entered into any understanding, arrangement or agreement (written or unwritten) to do take any of the foregoingactions specified in (a) through (r) above.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated between the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality date of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18Financial Statements and the Closing:
(a) suffered the business of Seller has been conducted only in the ordinary course and substantially in the manner that such business was heretofore conducted, and there has not been, except in the ordinary course and consistent with past practice:
(i) any change which has had purchase or is reasonably likely other acquisition of property, any sale, lease or other disposition of property, or any expenditure in excess of $10,000 in the aggregate not disclosed on Schedule 3.04;
(ii) any incurrence of liability in excess of $10,000 not disclosed on Schedule 3.04;
(iii) any encumbrance or consent to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets encumbrance of any property or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this Agreementassets not disclosed on Schedule 3.04;
(b) except Seller has not entered into any agreement or transaction which, based upon the good faith application of its best business knowledge and experience, has resulted or will result in the Ordinary Course a transfer of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiesassets for other than full and fair consideration;
(c) made there has not been any undisclosed change in the condition (financial or permitted any amendmentotherwise), terminationassets, lapse ofliabilities, business, results of operations, licenses, permits, franchises or waiver affairs of Seller which has or consent tois likely to have a material adverse effect on the business, any Assumed Contract, lease, agreement, consent, license financial condition or Permit with respect to the Branch Officesresults of operations of Seller;
(d) made any change in any method there has not been damage, destruction or casualty loss materially and adversely affecting the business, results of management operations or operation financial condition of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirementsSeller;
(e) granted there has not been (i) any increase in the rate or terms of compensation payable or to become payable by Seller to its directors, officers, key employees or commission sales personnel, except increases occurring in the ordinary course of business in accordance with its officers or Employees located at the Branch Offices customary practices, (including ii) any increase pursuant to in the rate or terms of any bonus, pensioninsurance, profit sharing pension or other plan employee benefit plan, payment or commitment)arrangement made to, for or with any such directors, officers, key employees or commission sales personnel, except for periodic increases occurring in the Ordinary Course ordinary course of Business made pursuant to established compensation policies applied on a basis consistent business in accordance with that its customary practices, or (iii) any entering by Seller into any new employment agreement or any modification of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation terms of the Branch Officesany existing employment agreement;
(f) except for the Inter-Bank Transferthere has not been any entry into any agreement, caused the Branch Offices to transfer to Seller’s other operations commitment or transaction (including, without limitation, any deposits other than deposits securing any loansborrowing, capital lease, capital expenditure or capital financing) by Seller except in the Ordinary Course ordinary course of Business at business and consistent with the unsolicited request practices of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except Seller in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, last fiscal year and except as applicableotherwise disclosed on Schedule 3.04;
(g) made there has not been and will not have been any change to its customary policies for setting rates on deposits offered at the Branch Officesby Seller in accounting methods, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6principles or practices;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets best of Seller's knowledge, there has not been and will not have been any threatened occurrence or Assumed Liabilitiesdevelopment relating to the business, other than in operations, financial condition or affairs of Seller which would materially and adversely affect the Ordinary Course business, operations, financial condition or affairs of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case and the aggregate, in excess of $25,000; or
(k) committed to or entered into any understanding, arrangement or agreement (written or unwritten) to do any of the foregoingSeller.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March Since December 31, 20111999, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller Company has not, except as disclosed in Schedule 3.18:
(a) suffered any change which has had or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementChange;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty destruction or loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, whether or not covered by insurance, in each case an amount in excess of $50,000;
(c) granted or agreed to make any increase in the compensation payable or to become payable by the Company to any of its officers or employees, except for normal raises for nonexecutive personnel made in the ordinary course of business that are usual and normal in amount;
(d) declared, set aside or paid any dividend or made any other distribution on or in respect of the shares of capital stock of the Company or declared or agreed to any direct or indirect redemption, retirement, purchase or other acquisition by the Company of such shares;
(e) issued any shares of capital stock of the Company or any warrants, rights, options or entered into any commitment relating to the shares of capital stock of the Company, except as disclosed on EXHIBIT 3, the Company's Disclosure Statement, attached hereto;
(f) made any change in the accounting methods or practices it follows, whether for general financial or tax purposes, or any change in depreciation or amortization policies or rates adopted therein;
(g) sold, leased, abandoned or otherwise disposed of any real property or any machinery, equipment or other operating property other than in the ordinary course of its business;
(h) sold, assigned, transferred, licensed or otherwise disposed of any patent, trademark, trade name, brand name, copyright (or pending application for any patent, trademark or copyright), invention, work of authorship, process, know-how, formula or trade secret or interest thereunder or other intangible asset except in the ordinary course of its business;
(i) been involved in any dispute involving any employee which may result in a Material Adverse Change;
(j) engaged in any activity or entered into any material commitment or transaction (including without limitation any borrowing or capital expenditure);
(k) incurred any material liabilities, contingent or otherwise, either matured or unmatured (whether or not required to be reflected in financial statements in accordance with GAAP, and whether due or to become due), except for accounts payable or accrued salaries that have been incurred by the Company since December 31, 1999, in the ordinary course of its business and consistent with the Company's past practices;
(l) permitted or allowed any of its material property or assets to be subjected to any mortgage, deed of trust, pledge, lien, security interest or other encumbrance of any kind, except those permitted under Section 3.9 hereof, other than any purchase money security interests incurred in the ordinary course of its business;
(m) made any capital expenditure or commitment for additions to property, plant or equipment individually in excess of $50,000, or in the aggregate, in excess of $25,000100,000;
(n) paid, loaned or advanced any amount to, or sold, transferred or leased any properties or assets to, or entered into any agreement or arrangement with any of its affiliates within the meaning of the rules and regulations promulgated under the Securities Act of 1933 ("AFFILIATES"), officers, directors or shareholders or, to the Company's knowledge, any Affiliate or associate of any of the foregoing;
(o) made any amendment to or terminated any agreement that, if not so amended or terminated, would be material to the business, assets, liabilities, operations or financial performance of the Company;
(p) entered into any agreement in contemplation of the transactions specified herein other than this Agreement and the Related Agreements; or
(kq) committed agreed to take any action described in this Section 3.8 or entered into any understanding, arrangement outside of the ordinary course of its business or agreement (written or unwritten) to do which would constitute a breach of any of the foregoingrepresentations or warranties contained in this Agreement.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to Since the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality date of the foregoing, since March 31, 2011, Seller has notBalance Sheet, except as disclosed set forth in Schedule 3.18Section 5.25 of the Disclosure Statement, Company and the Company Subsidiaries have conducted their businesses only in the usual and ordinary course consistent with past practice and there has not been any:
(ai) suffered declaration or payment of any change which has had dividend or is reasonably likely to have a Material Adverse Effect with other distribution or payment in respect to of the Branch Offices, the Transferred Assets shares of capital stock of Company or Assumed Liabilities any Company Subsidiary or Seller’s ability to consummate the transactions contemplated by this Agreementany repurchase or redemption of any such shares of capital stock or other securities;
(b) except in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business payment by Company or any accounting change, except as may be required by GAAP Company Subsidiary of any bonus or generally applicable regulatory requirements;
(e) granted increase of any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant payable to any bonusshareholder, pension, profit sharing director or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loansofficer or, except in the Ordinary Course ordinary course of Business at the unsolicited request of depositorsbusiness consistent with past practice, employee or caused entry into (or amendment of) any of Seller’s other operations employment, severance or customers to transfer to the Branch Offices similar agreement with any deposits shareholder, director, officer or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicableemployee;
(giii) made adoption of or change in any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6Employee Benefit Plan or labor policy;
(hiv) entered into any other transaction damage, destruction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected loss to any Lien any portion material asset or property of the Transferred Assets or the Assumed Liabilities Company or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred AssetsCompany Subsidiary, whether or not covered by insurance;
(v) except for agreements for the construction or sale of homes in the ordinary course of business, in each case and the aggregate, entry into any agreement involving payments in excess of $25,00010,000;
(vi) sale (other than sales of inventory in the ordinary course of business), assignment, conveyance, lease, or other disposition of any material asset or property of Company or any Company Subsidiary or mortgage or pledge, or to the Knowledge of Company imposition of any lien, on any material asset or property of Company or any Company Subsidiary;
(vii) discharge or satisfaction of any lien, claim or encumbrance, other than in the ordinary course of business consistent with past practice;
(viii) write-down or write-off of the value of any asset except for write-downs and write-offs in the ordinary course of business consistent with past practice and at a rate no greater than that during the twelve months ended June 30, 2000, or any cancellation or waiver of any other claim or right with a value in the aggregate in excess of $10,000;
(ix) material change in the business or operations of Company or any Company Subsidiary or in the manner of conducting the same or entry by Company or any Company Subsidiary into any transaction, other than in the ordinary course of business consistent with past practice (it being understood that the timing of the closing of home sales relative to the close of the Company's fiscal year on June 30, generally results in higher revenues in the fourth fiscal quarter and lower revenues in the first fiscal quarter); or
(kx) committed to change in the accounting methods, principles or entered into practices followed by Company or any understandingCompany Subsidiary, arrangement except as required by GAAP, or agreement any change in any of the assumptions underlying, or methods of calculating, any bad debt, contingency or other reserve;
(written xi) agreement, whether or unwritten) not in writing, to do any of the foregoingforegoing by Company or any Company Subsidiary.
(b) Since the date of the Balance Sheet, there has not been any material adverse change in the business, operations, properties, assets, or condition (financial or otherwise) of Company or any Company Subsidiary.
Appears in 1 contract
Samples: Stock Purchase Agreement (Orleans Homebuilders Inc)
Absence of Certain Changes and Events. Except (a) as set forth in Schedule 2.14, since the date of the Interim Financial Statements, the Sellers have conducted the Business only in the ordinary course consistent with respect prior practice and have not on behalf of, in connection with, or relating to the Excluded Assets and Business or the Excluded Liabilities, or (b) as otherwise contemplated by this Agreement, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18Assets:
(a) suffered any change which has had or is reasonably likely to have a Business Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementEffect;
(b) incurred any obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due, except current liabilities for trade or business obligations incurred in connection with the purchase of goods or services in the Ordinary Course ordinary course of Businessbusiness consistent with prior practice, none of which liabilities, in any case or in the aggregate, could have a Business Material Adverse Effect;
(ic) discharged or satisfied any Encumbrance other than those then required to be discharged or satisfied, or paid any obligation or liability, absolute, accrued, contingent or otherwise, whether due or to become due, other than current liabilities shown on the Interim Financial Statements and current liabilities incurred since the date thereof in the ordinary course of business consistent with prior practice;
(d) assigned, mortgaged, pledged or otherwise subjected to Encumbrance, any property, business or assets, tangible or intangible, held in connection with the Business or the Assets;
(e) sold, transferred, leased, pledged, mortgaged, leased to others or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, disposed of any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment)Assets, except for periodic increases inventory sold in the Ordinary Course ordinary course of Business made pursuant to established compensation policies applied on a basis consistent with that business, or forgiven, canceled or compromised any debt or claim, or waived or released any right of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Officessubstantial value;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, destruction or personal or mixed property included in the Transferred Assets, loss (whether or not covered by insurance) which, in each any case and or in the aggregate, has had a Business Material Adverse Effect;
(g) transferred or granted any rights or licenses under, or entered into any settlement regarding the breach or infringement of, any Intellectual Property, or modified any existing rights with respect thereto;
(h) made any change in the rate of compensation, commission, bonus or other direct or indirect remuneration payable, or paid or agreed or orally promised to pay, conditionally or otherwise, any bonus, incentive, retention or other compensation, retirement, welfare, fringe or severance benefit or vacation pay, to or in respect of any officer, employee, salesman, distributor or agent of the Company, or of any officer, employee, salesman, distributor or agent of the Sellers whose activities relate primarily to the Business, except for increases in the ordinary course of business consistent with prior practice;
(i) encountered any labor union organizing activity, had any actual or threatened employee strikes, work stoppages, slowdowns or lockouts, or had any material change in its relations with its employees, agents, customers or suppliers;
(j) failed to replenish the inventories and supplies of the Business in a normal and customary manner consistent with prior practice, or made any purchase commitment in excess of the normal, ordinary and usual requirements of the Business or at any price in excess of the then current market price or upon terms and conditions inconsistent with prior practice, or made any change in selling, pricing, advertising or personnel practices inconsistent with prior practice;
(k) made any capital expenditures or capital additions or improvements in that would cause total capital expenditures of the Business to exceed amounts budgeted for in the 2005 Budget attached hereto as Exhibit H by more than 120%;
(l) instituted, settled or agreed to settle any litigation, action or proceeding before any court or governmental body relating to the Business or the Assets other than in the ordinary course of business consistent with past practices, but not in any case involving amounts in excess of $25,000; or;
(km) committed (i) entered into, terminated, or received notice of termination of any contract or commitment, including without limitation, any license, distributorship, dealer, sales representative, joint venture or similar arrangement, other than in the ordinary course of business, (ii) breached any contract or commitment or (iii) paid or agreed to pay any legal, accounting, brokerage, finder’s fee, Taxes or other expenses in connection with, or incurred any severance pay obligations by reason of, this Agreement or the transactions contemplated hereby;
(n) made any material changes in policies or practices relating to selling practices, returns, discounts or other terms of sale or accounting therefor or in policies of employment;
(o) made any prepayment of any accounts payable, delayed payment of any trade payables or other obligations other than in the ordinary course of business consistent with past practice, or made any other cash payments other than in the ordinary course of business;
(p) failed to maintain all of the tangible Assets and all other tangible properties and assets owned, leased, occupied, operated or used in connection with the Business in good repair, working order and operating condition subject only to ordinary wear and tear;
(q) modified any existing Material Contract or entered into (i) any understandingagreement, arrangement commitment or other transaction, other than agreements entered into in the ordinary course of business consistent with prior practice and involving an expenditure of less than $150,000 in the aggregate, or (ii) any agreement or commitment that, pursuant to its terms, is cancelable without penalty on less than 30 days’ notice; and
(written r) made any material change in any respect in its accounting methods or unwritten) to do any of the foregoingpractices, policies or principles.
Appears in 1 contract
Samples: Share and Asset Purchase and Sale Agreement (Simclar Inc)
Absence of Certain Changes and Events. Except (a) with respect to as reflected in the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementInterim Financial Statements, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality date of the foregoing, since March 31, 2011Interim Financial Statements, Seller has not, except as disclosed in Schedule 3.18:
(a) suffered made any material change which has had in the accounting methods or is reasonably likely to have a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets practices it follows other than as required by Law or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementGAAP;
(b) except made any capital expenditures or commitments exceeding $20,000 per expenditure or commitment, or $50,000 in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any aggregate in respect of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed LiabilitiesBusiness;
(c) made sold, assigned, transferred or permitted licensed any amendmentpatents, terminationtrademarks, lapse oftrade names, copyrights, trade secrets or waiver or consent toother intangible assets, any Assumed Contractin each case used in connection with the Business, lease, agreement, consent, license or Permit except nonexclusive licenses in the ordinary course of business consistent with respect to the Branch Officespast practice;
(d) made sold, leased, licensed, transferred, or otherwise disposed of any change in any method of management its properties or operation of the Branch Offices not assets primarily used in the Ordinary Course of Business or any accounting changeBusiness, except as may be required by GAAP Inventory sold or generally applicable regulatory requirementstransferred in the ordinary course of business consistent with past practice and obsolete or worn out equipment sold or otherwise disposed of in a manner consistent with past practice which was not otherwise material (individually or in the aggregate) to the Business, or canceled any material indebtedness or waived any material claims or rights of material value;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any damage, destruction, impairment, damage to or destruction or casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assets, of (whether or not covered by insurance) any asset individually or in the aggregate material to the operation of the Business;
(f) failed to pay any creditor any amount arising from the operation of the Business owed to such creditor when due, other than good faith disputes and trade payables arising in each case the ordinary course of business and not past due more than sixty (60) days;
(g) failed to discharge or satisfy any Lien on any of the aggregatePurchased Assets, at or prior to the time that the obligation with respect to such Lien became due;
(h) defaulted on any material obligation relating to the conduct or operation of the Business without curing such default;
(i) granted any allowances or discounts with respect to the Business outside the ordinary course of business consistent with past practice or sold Inventory materially in excess of $25,000reasonably anticipated consumption for the near term outside the ordinary course of business consistent with past practice;
(j) incurred or assumed any liabilities with respect to the Business other than in the ordinary course of business consistent with past practice and liabilities that are not Assumed Liabilities;
(k) amended, cancelled or terminated any Contract or Authorization that is a Purchased Asset or entered into any Contract or obtained any Authorization primarily related to the Business, other than in the ordinary course of business and consistent with past practices;
(l) failed to carry on the Business in the ordinary course and consistent with past practices so as to preserve the Purchased Assets and the Business and the goodwill of the suppliers, customers, distributors and others having business relations with the Business;
(m) dismissed or provided notice of termination of the employment to any of the Current Employees; or
(kn) committed to or entered into any understandingagreement or commitment, arrangement whether in writing or agreement (written or unwritten) otherwise, to do any of the foregoing.
Appears in 1 contract
Absence of Certain Changes and Events. Except (a) with respect to as set forth in Section 4.8 of the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this AgreementDisclosure Schedule, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18Balance Sheet Date:
(a) suffered any there has been no Material Adverse Change or event, change which has had or is circumstance that would reasonably likely be expected to have constitute or result in a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementChange;
(b) except the Business has been conducted only in the Ordinary Course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilities;ordinary course; and
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices there has not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;been any:
(i) subjected amendment to any Lien any portion the Governing Documents of the Transferred Assets TEI Bio or the Assumed Liabilities or any interest thereon, except Permitted LiensUK Subsidiary;
(jii) suffered damage to or destruction or loss of any damage, destruction, impairment, casualty loss, condemnation, taking by eminent domain to any real, or personal or mixed property included in the Transferred Assetsmaterial Asset, whether or not covered by insurance;
(iii) sale, lease, license or other disposition of any material Asset (other than sale or use of Inventory in the ordinary course of the Business) or creation or imposition of any Encumbrance, other than Permitted Encumbrances on Assets, on any material Asset;
(iv) change in the financial or Tax accounting methods used; change in any annual Tax accounting period; making of or change in any material Tax election; settlement or compromise of any material claim, notice, audit report or assessment in respect of Taxes; filing of any amended income or other material Tax Return; entry into any Tax allocation agreement, Tax sharing agreement, Tax indemnity agreement or closing agreement relating to any Tax (with the exception of customary commercial leases or contracts that are not primarily related to Taxes entered into in the ordinary course of business); or consent to any extension or waiver of the statute of limitations period applicable to any Tax claim or assessment; in each case by or with respect to TEI Bio or the UK Subsidiary;
(v) change in the authorized or issued capital stock of TEI Bio or the UK Subsidiary; grant of option or right to purchase shares of capital stock of TEI Bio or the UK Subsidiary; issuance of any security convertible into such capital stock; grant of any registration rights with respect to such capital stock; purchase, redemption, retirement or other acquisition by TEI Bio or the UK Subsidiary of any shares of any such capital stock; or declaration or payment of any dividend or other distribution or payment in respect of shares of such capital stock;
(vi) payment or increase by TEI Bio or the UK Subsidiary of any bonuses, salaries, or other compensation to any stockholder, director, officer or employee (except, in the case of officers and employees, in the ordinary course of the Business); entry into any employment severance, change in control or similar Contract with any director or officer; or adoption or termination of, or increase in payments or benefits under, any Employee Plan;
(vii) termination of, or receipt of notice of termination of any Specified Contract;
(viii) waiver of any claim or right having a material value to TEI Bio and the aggregateUK Subsidiary, in excess of $25,000taken as a whole; or
(kix) committed to Contract by TEI Bio or entered into any understanding, arrangement or agreement (written or unwritten) the UK Subsidiary to do any of the foregoing.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Integra Lifesciences Holdings Corp)
Absence of Certain Changes and Events. Except (a) with respect to the Excluded Assets and the Excluded Liabilities, or (b) as otherwise contemplated by this Agreementexpressly described in Schedule 2.10, since March 31, 2011, Seller has operated the Branch Offices in the Ordinary Course of Business and in substantially the same manner as previously conducted by Seller. Without limiting the generality of the foregoing, since March 31, 2011, Seller has not, except as disclosed in Schedule 3.18Fiscal Year End Balance Sheet Date:
(a) suffered there has not occurred any change which has had Material Adverse Effect, or is any event, occurrence or other development that could reasonably likely be expected to have result in a Material Adverse Effect with respect to the Branch Offices, the Transferred Assets or Assumed Liabilities or Seller’s ability to consummate the transactions contemplated by this AgreementEffect;
(b) except each Acquired Company has conducted its business and operated its properties in the Ordinary Course ordinary course of Business, (i) sold, transferred, leased, pledged, mortgaged, or otherwise encumbered or agreed to sell, transfer, lease, pledge, mortgage or otherwise encumber, any of the Transferred Assets or the Assumed Liabilities or rights business consistent with respect thereto, or (ii) canceled, waived, compromised or agreed to cancel, waive or compromise any debts, claims or rights with respect to the Transferred Assets or Assumed Liabilitiespast practice;
(c) made or permitted any amendment, termination, lapse of, or waiver or consent to, any Assumed Contract, lease, agreement, consent, license or Permit with respect to the Branch Offices;
(d) made any change in any method of management or operation of the Branch Offices not in the Ordinary Course of Business or any accounting change, except as may be required by GAAP or generally applicable regulatory requirements;
(e) granted any increase in the compensation of its officers or Employees located at the Branch Offices (including any increase pursuant to any bonus, pension, profit sharing or other plan or commitment), except for periodic increases in the Ordinary Course of Business made pursuant to established compensation policies applied on a basis consistent with that of the prior year, other than increases and payments necessary, in the employer’s reasonable discretion, to maintain and preserve the operation of the Branch Offices;
(f) except for the Inter-Bank Transfer, caused the Branch Offices to transfer to Seller’s other operations any deposits other than deposits securing any loans, except in the Ordinary Course of Business at the unsolicited request of depositors, or caused any of Seller’s other operations or customers to transfer to the Branch Offices any deposits or loans, except in the Ordinary Course of Business at the unsolicited request of depositors or loan customers, as applicable;
(g) made any change to its customary policies for setting rates on deposits offered at the Branch Offices, including any increase in interest rates paid unless (and only to the extent that) Seller has effected such a rate increase in its other branch offices and such changes generally do not exceed the generally prevailing rates for similar deposits at similarly situated financial institutions in the respective market areas served by the Branch Offices and which further do not exceed interest rates allowed to be paid by depository institutions which are deemed undercapitalized pursuant to 12 C.F.R.§337.6;
(h) entered into any other transaction or conducted its affairs, in either case related to the Transferred Assets or Assumed Liabilities, other than in the Ordinary Course of Business and consistent with prudent banking practices except as contemplated by this Agreement;
(i) subjected to any Lien any portion of the Transferred Assets or the Assumed Liabilities or any interest thereon, except Permitted Liens;
(j) suffered any no damage, destruction, impairment, loss or casualty loss, condemnation, taking by eminent domain to any realof the properties or assets (in each case, whether leased or personal or mixed property included in the Transferred Assetsowned) of any Acquired Company, whether or not covered by insurance, has occurred, in each case and an amount exceeding $50,000 individually or $500,000 in the aggregate, in excess of $25,000; or;
(kd) committed to no Acquired Company has acquired all or any significant portion of the assets of any other Person or entered into a new line of business or commenced business operations in any understandingjurisdiction in which such Acquired Company was not operating as of the Fiscal Year End Balance Sheet Date, arrangement or agreement (written or unwritten) made any offer to do any of the foregoing;
(e) except for distributions from the Acquired Company to the Partners prior to the Closing of cash and cash equivalents, there has not been any declaration, setting aside or payment of any dividend or other distribution with respect to any membership interests, partnership interests, securities or other equity interests of any Acquired Company, or any repurchase, redemption or other acquisition by any Acquired Company of any outstanding membership interests, partnership interests, securities or other equity interests of any Acquired Company;
(f) there has not been any amendment of (i) the terms of any outstanding security of any Acquired Company or (ii) other than in the ordinary course of business consistent with past practices, any Company Benefit Plan or Existing Employment Agreement of any Acquired Company;
(g) none of the Acquired Companies has (i) sold any assets having value in excess of $50,000, except in the ordinary course of business consistent with past practice, (ii) created, incurred or assumed any indebtedness, except in the ordinary course of business consistent with past practice, (iii) granted, created, incurred or suffered to exist any Liens (other than Permitted Liens) on any assets or properties of any Acquired Company that did not exist on the Fiscal Year End Balance Sheet Date, (iv) written-off any guaranteed checks, notes or accounts receivable, except in the ordinary course of business consistent with past practice, (v) written-down the value of any asset or investment on the books or records of any Acquired Company, except for depreciation and amortization in the ordinary course of business and consistent with past practice, or (vi) canceled any debt or waived any material claims or rights;
(h) none of the Acquired Companies has adopted any plan of merger, consolidation, reorganization, liquidation or dissolution or filed a petition in bankruptcy under any provisions of federal or state bankruptcy law or consented to the filing of any bankruptcy petition against it under any similar law;
(i) no Acquired Company has paid, discharged or satisfied any claim, liability or obligation (absolute, contingent, accrued or otherwise) with a value in excess of $50,000, except in the ordinary course of business consistent with past practice;
(j) no Acquired Company has increased any reserve for contingent liabilities (excluding any adjustment to bad debt reserves in the ordinary course of business consistent with past practice);
(k) made any change in the Acquired Company’s cash management practices and its policies, practices and procedures, including 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 other expenses, deferral of revenue and acceptance of customer deposits, or failed to maintain the level and quality of its Inventory;
(l) no Acquired Company has failed to maintain its assets in the ordinary course of business consistent with past practices;
(m) no Acquired Company has modified its pricing and purchasing policies and levels, or entered into, amended (in any material respect), renewed, terminated, or permitted to lapse any Company Contract, other than work orders, rate sheets, or change orders taken or issued in the ordinary course of business within the terms of any such Company Contract;
(n) no Acquired Company has entered into any prepaid transactions or otherwise accelerated revenue recognition or the sales for periods prior to the Closing.
Appears in 1 contract
Samples: Securities Purchase Agreement (Quanta Services Inc)
