Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement or consented to or approved in writing by the other party hereto, each of CBSI and Oneida shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve its properties, business and relationships with customers, employees and other Persons. (b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld or delayed) or as expressly permitted by this Agreement, Oneida shall not, and shall not permit any of its Subsidiaries to: (1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 in the aggregate or which requires performance over more than one year (other than loans and investments booked in the usual, regular and ordinary course of business); (2) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings other than its regular quarterly cash dividends on Oneida Common Stock in amounts consistent with past practice; (3) issue any shares of its capital stock or permit any treasury shares to become outstanding (except that Oneida may issue shares of Oneida Common Stock pursuant to a valid exercise of an unexpired Oneida Option), or redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock; (4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice; (5) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stock; (6) amend or otherwise change its articles of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of Oneida of any lien, charge or encumbrance; (7) merge or consolidate with, or acquire control over, any Person or create any Subsidiary; (8) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSI; (9) sell, liquidate, pledge or encumber or dispose of, or acquire any, assets with a value in excess of $50,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $50,000 in the aggregate; or establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto; (10) hire any new employee without first consulting with CBSI; increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional employee benefit or incentive (including without limitation, any “change of control” or severance payment) to any of its directors, officers or employees except as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business consistent with past practice or except as required by existing plans or agreements; or accelerate the vesting of any deferred compensation; (11) change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law or changes required by a regulatory authority; (12) change its methods of accounting in effect at December 31, 2013, except as required by changes in GAAP concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the year ended December 31, 2013, except as required by applicable law; (13) take any action that could result in (i) any of its representations or warranties in this Agreement being or becoming untrue in any material respects at any time prior to the Effective Time, (ii) any of the conditions to the Merger set forth in Article VI not being satisfied, except as may be required by law or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law or regulatory requirement; or (14) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delay, or make more costly the consummation of the Transactions. (c) CBSI shall not, except with the prior written consent of Oneida (which consent shall not unreasonably be withheld or delayed) or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted; provided, however, that nothing herein shall be construed to prevent CBSI from acquiring or agreeing to acquire any Person, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent the consummation of the Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Community Bank System, Inc.), Merger Agreement (Oneida Financial Corp.)
Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement Reorganization Agreement, the Plan of Merger, the Option Agreement, or consented to or approved in writing by the other party hereto, each of CBSI Purchaser and Oneida Seller shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve in all material respects its properties, business and relationships with customers, employees and other Personspersons.
(b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld or delayed) or as expressly permitted by this Agreement, Oneida Seller shall not, and shall not permit any of its the Seller Subsidiaries to, except with the prior written consent of Purchaser and except as Previously Disclosed or expressly contemplated or permitted by this Agreement, the Plan of Merger, or the Option Agreement:
(1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 in the aggregate or which requires performance over more than one year (other than loans and investments booked in the usual, regular and ordinary course of business);
(2) in the case of Seller only, declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings other than its regular quarterly cash dividends on Oneida Seller Common Stock in amounts consistent with past practicenot in excess of $0.15 per share except as permitted by Section 4.14;
(3) issue any shares of its capital stock or permit any treasury shares to become outstanding (except that Oneida may issue shares of Oneida Common Stock other than pursuant to a valid exercise the Option Agreement or pursuant to Seller's Dividend Reinvestment Plan or Rights outstanding at the date hereof or that become outstanding hereafter in accordance with the terms of an unexpired Oneida Option), or redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stockthis Agreement;
(4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stock;stock except for Trust Account Shares and DPC Shares, and except for shares to be used to fulfill Seller's obligations under the Seller Stock Option Plans, the Premier National Bancorp Retirement & Thrift Plan and the Seller Dividend Reinvestment Plan; provided, however, that in order to fulfill such obligations, Seller shall acquire the necessary shares of Seller Common Stock solely through open market purchases or shall use
(6) amend or otherwise change its articles or certificate of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of Oneida any Seller Subsidiary held by Seller of any lien, charge or encumbrance, or permit any such lien, charge or encumbrance to exist except, in each case, for liens, charges and encumbrances which have been Previously Disclosed;
(7) merge with any other corporation, savings association or bank or permit any other corporation, savings association or bank to merge into it or consolidate withwith any other corporation, savings association or bank; acquire control overover any other firm, any Person bank, corporation, savings association or organization or create any Subsidiary;
(8) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice that is material to CBSISeller on a consolidated basis;
(9) sell, liquidate, pledge liquidate or encumber sell or dispose of, of any material assets or acquire anyany material assets; except as Previously Disclosed, assets with a value in excess of $50,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $50,000 100,000 in any instance or $500,000 in the aggregate; or or, except as Previously Disclosed, establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto;
(10) hire any new employee without first consulting with CBSI; increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional other employee benefit or incentive (including without limitationto, any “change of control” or severance payment) to any of its directors, officers or employees employees, except in a manner consistent with past practice or as required by law or contractual obligation in effect as of the date hereof; or become party to, adoptexcept that Seller may pay, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business in amounts consistent with Seller's past practice, all annual bonuses for calendar 2000 to such employees who remain employed by Seller as of the Closing Date in accordance with past practice or except as required by existing plans or agreements; or accelerate and the vesting terms of any deferred compensation;bonus plan, up to the aggregate amount Previously Disclosed to Purchaser.
(11) change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law law, regulation or changes required by a regulatory authorityorder;
(12) change its methods of accounting in effect at December 31, 20131999, except as required by changes in GAAP generally accepted accounting principles concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the year ended December 31, 20131999, except as required by applicable law;
(13) take authorize or permit any action that could result in of its officers, directors, employees or agents to directly or indirectly solicit, initiate or encourage any inquiries relating to, or the making of any proposal which constitutes, a "Takeover Proposal" (as defined below), or, except to the extent its Board of Directors determines to be legally required for the discharge of its fiduciary duties, (i) recommend or endorse any of its representations or warranties in this Agreement being or becoming untrue in any material respects at any time prior to the Effective TimeTakeover Proposal, (ii) participate in any of the conditions to the Merger set forth in Article VI not being satisfieddiscussions or negotiations, except as may be required by law or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law provide third parties with any nonpublic information, relating to any such inquiry or regulatory requirement; or
(14) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delay, or make more costly the consummation of the Transactions.
(c) CBSI shall not, except with the prior written consent of Oneida (which consent shall not unreasonably be withheld or delayed) or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted; provided, however, that nothing herein shall be construed to prevent CBSI from acquiring or agreeing to acquire any Person, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent the consummation of the Transactions.proposal,
Appears in 2 contracts
Samples: Reorganization Agreement (M&t Bank Corp), Reorganization Agreement (Premier National Bancorp Inc)
Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement Reorganization Agreement, the Plan of Merger, the Option Agreement, or consented to or approved in writing by the other party heretoM&T, each of CBSI and Oneida FNB shall, and shall cause each of its the FNB Subsidiaries to, use its reasonable best efforts to preserve its properties, business and relationships with customers, employees and other Personspersons.
(b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld or delayed) or as expressly permitted by this Agreement, Oneida FNB shall not, and shall not permit any of its the FNB Subsidiaries to, except with the prior written consent of M&T and except as Previously Disclosed or expressly contemplated or permitted by this Agreement, the Plan of Merger, or the Option Agreement:
(1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 in the aggregate or which requires performance over more than one year (other than loans and investments booked in the usual, regular and ordinary course of business);
(2) in the case of FNB only, declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings other than its regular quarterly cash dividends on Oneida FNB Common Stock in amounts consistent with past practicenot in excess of $.08 per share;
(3) issue any shares of its capital stock or permit any treasury shares to become outstanding (except that Oneida may issue shares of Oneida Common Stock other than pursuant to a valid exercise of an unexpired Oneida Option), the Option Agreement or redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stockRights outstanding at the date hereof;
(4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stockstock except for Trust Account Shares and DPC Shares, and except for shares to be used to fulfill FNB's obligations under the FNB Employee Stock Purchase Plan and the FNB 401(k) Stock Purchase Plan; provided however, that in order to fulfill such obligations, FNB shall acquire the necessary shares of FNB Common Stock solely through open market purchases or the use of treasury shares previously acquired by FNB in open market purchases;
(6) amend or otherwise change its articles or certificate of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of Oneida any FNB Subsidiary held by FNB of any lien, charge or encumbrance, or permit any such lien, charge or encumbrance to exist except, in each case, for liens, charges and encumbrances which have been Previously Disclosed;
(7) merge with any other corporation, savings association or bank or permit any other corporation, savings association or bank to merge into it or consolidate withwith any other corporation, savings association or bank; acquire control overover any other firm, any Person bank, corporation, savings association or organization or create any Subsidiary;
(8) except in the ordinary course of business, waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSIclaim;
(9) sell, liquidate, pledge liquidate or encumber sell or dispose of, of any material assets or acquire anyany material assets; except as Previously Disclosed, assets with a value in excess of $50,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $50,000 25,000 in any instance or $100,000 in the aggregate; or or, except as Previously Disclosed, establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto;
(10) hire any new employee without first consulting with CBSI; increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional other employee benefit or incentive (including without limitationto, any “change of control” or severance payment) to any of its directors, officers or employees except as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business a manner consistent with past practice or except as required by existing plans or agreements; or accelerate the vesting of any deferred compensationpractice;
(11) change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law or changes required by a regulatory authoritylaw;
(12) change its methods of accounting in effect at December 31, 20131997, except as required by changes in GAAP generally accepted accounting principles concurred in by its independent certified public accountants, or change any of its methods of reporting income, income and deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the year ended December 31, 20131997, except as required by applicable law;
(13) take any action that could result in (i) authorize or permit any of its representations officers, directors, employees or warranties in this Agreement being agents to directly or becoming untrue indirectly solicit, initiate or encourage any inquiries relating to, or the making of any proposal which constitutes, a "takeover proposal" (as defined below), or, except to the extent legally required for the discharge of the fiduciary duties of its Board of Directors, recommend or endorse any takeover proposal, or participate in any material respects at any time prior to the Effective Time, (ii) any of the conditions to the Merger set forth in Article VI not being satisfied, except as may be required by law discussions or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law or regulatory requirement; or
(14) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delaynegotiations, or provide third parties with any nonpublic information, relating to any such inquiry or proposal or otherwise facilitate any effort or attempt to make more costly the consummation of the Transactions.
(c) CBSI shall not, except with the prior written consent of Oneida (which consent shall not unreasonably be withheld or delayed) or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conductedimplement a takeover proposal; provided, however, that nothing herein shall be construed FNB may communicate information about any such takeover proposal to prevent CBSI from acquiring its stockholders if, in the judgment of FNB's Board of Directors, after consultation with outside counsel, such communication is necessary in order to comply with its fiduciary duties to FNB's shareholders required under applicable law. FNB will take all actions necessary or agreeing advisable to acquire any Person, by merging inform the appropriate individuals or consolidating with, by purchasing an equity interest entities referred to in or a portion the first sentence hereof of the assets ofobligations undertaken herein. FNB will notify M&T immediately if any such inquiries or takeover proposals are received by, or by any other manner, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent the consummation of the Transactions.information is
Appears in 2 contracts
Samples: Reorganization Agreement (FNB Rochester Corp), Reorganization Agreement (M&t Bank Corp)
Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement or consented to or approved in writing by the other party hereto, each of CBSI and Oneida Xxxxxx shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve its properties, business and relationships with customers, employees and other Personspersons.
(b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld or delayed) or as expressly permitted by this Agreement, Oneida Xxxxxx shall not, and shall not permit any of its Subsidiaries to:
(1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 in the aggregate or which requires performance over more than one year (other than loans and investments booked in the usual, regular and ordinary course of business);
(2) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings other than its regular quarterly cash dividends on Oneida Xxxxxx Common Stock in amounts consistent with past practice, except for dividends issued by Xxxxxx Bank to Xxxxxx (provided that such dividends are consistent with Xxxxxx Bank’s past practice);
(3) issue any shares of its capital stock or permit any treasury shares to become outstanding (except that Oneida may issue shares of Oneida Common Stock pursuant to a valid exercise of an unexpired Oneida Option), or outstanding; redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock;
(4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stock;
(6) amend or otherwise change its articles certificate of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of Oneida Xxxxxx of any lien, charge or encumbrance;
(7) merge or consolidate with, or acquire control over, any Person or create any Subsidiary;
(8) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSI;
(9) sell, liquidate, pledge or encumber or dispose of, or acquire any, assets with a value in excess of $50,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, loans in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $50,000 in the aggregate; or establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto;
(10) hire any new employee without first consulting with CBSI; increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional employee benefit or incentive (including without limitation, any “change of control” or severance payment) to to, any of its directors, officers or employees except as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business consistent with past practice or except as required by existing plans or agreementsagreements (provided that Xxxxxx may amend its vacation pay policy to increase the number of vacation days an employee may carry over from one year to another from five days to ten days); or accelerate the vesting of any deferred compensationcompensation other than as required by existing plans or agreements;
(11) change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law or changes required by a regulatory authority;
(12) change its methods of accounting in effect at December 31, 20132009, except as required by changes in GAAP concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the year ended December 31, 20132009, except as required by applicable law;
(13) take any action that could result in (i) any of its representations or warranties in this Agreement being or becoming untrue in any material respects at any time prior to the Effective Time, (ii) any of the conditions to the Merger set forth in Article VI not being satisfied, except as may be required by law or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law or regulatory requirement; or
(14) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delay, or make more costly the consummation of the Transactions.
(c) CBSI shall not, except with the prior written consent of Oneida Xxxxxx (which consent shall not unreasonably be withheld or delayed) or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted; provided, however, that nothing herein shall be construed to prevent CBSI from acquiring or agreeing to acquire any Person, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent the consummation of the Transactions.
Appears in 2 contracts
Samples: Merger Agreement (Community Bank System Inc), Merger Agreement (Community Bank System Inc)
Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Reorganization Agreement and the Plan of Merger, or consented to or approved in writing by the other party parties hereto, each of CBSI Newco Parent and Oneida the Company shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve its properties, business and relationships with customers, employees and other Personspersons.
(b) Except The Company shall not, and to the extent applicable as regards its relationship with the Company, Company Parent shall itself not and shall cause its Affiliates to not, except with the prior written consent of CBSI (Newco Parent which consent will not be unreasonably withheld and except as Previously Disclosed or delayed) expressly contemplated or as expressly permitted by this Agreement, Oneida shall not, and shall not permit any Agreement or the Plan of its Subsidiaries toMerger:
(1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 in the aggregate or which requires performance over more than one year (other than loans and investments booked in the usual, regular and ordinary course of business);
(2) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings other than its regular quarterly cash dividends on Oneida Common Stock distributions to Company Parent in amounts the ordinary course consistent with past practicepractices;
(3) issue any shares of its capital stock or permit any treasury shares to become outstanding (except that Oneida may issue shares of Oneida Common Stock other than pursuant to a valid exercise of an unexpired Oneida Option), or redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stockRights outstanding and Previously Disclosed at the date hereof;
(4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stock;
(6) amend or otherwise change its articles certificate of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of Oneida of any lien, charge or encumbrance;
(7) merge with any other corporation or permit any other corporation to merge into it or consolidate with, or with any other corporation; acquire control over, over any Person other corporation or organization or create any Subsidiary;
(8) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSIclaim;
(9) sell, liquidate, pledge liquidate or encumber sell or dispose of, of any material assets or acquire anyany material assets; except as Previously Disclosed, assets with a value in excess of $50,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $50,000 500,000 in any instance or $2,000,000 in the aggregate; or establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto;
(10) hire any new employee without first consulting with CBSI; increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional other employee benefit or incentive (including without limitationto, any “change of control” or severance payment) to any of its directors, officers or employees except in a manner consistent with past practice or as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business consistent with past practice or except as required by existing plans or agreements; or accelerate the vesting of any deferred compensation;
(11) change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law or changes required by a regulatory authority;
(12) change its methods of accounting in effect at December 3128, 20132000, except as required by changes in GAAP generally accepted accounting principles concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the year ended December 31, 2013, except as required by applicable law;
(13) take any action that could result in (i) any of its representations or warranties in this Agreement being or becoming untrue in any material respects at any time prior to the Effective Time, (ii) any of the conditions to the Merger set forth in Article VI not being satisfied, except as may be required by law or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law or regulatory requirement; or
(1412) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delay, or make more costly the consummation of the Transactionsforegoing.
(c) CBSI Newco Parent shall not, and shall not permit any of the Newco Parent Subsidiaries to, except with the prior written consent of Oneida (which consent shall not unreasonably be withheld or delayed) the Company Parent or as expressly contemplated or permitted by this Agreement, Agreement or the Plan of Merger:
(1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted;
(2) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock except as Previously Disclosed;
(3) issue any shares of its capital stock or permit any treasury shares to become outstanding other than pursuant to Rights outstanding at the date hereof;
(4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5) issue, grant or authorize any Rights or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stock;
(6) amend its certificate of incorporation or bylaws;
(7) merge with any other corporation or permit any other corporation to merge into it or consolidate with any other corporation; acquire control over any other corporation or organization or create any Subsidiary;
(8) waive or release any material right or cancel or compromise any material debt or claim;
(9) liquidate or sell or dispose of any material assets or acquire any material assets; except as Previously Disclosed, make any capital expenditure in excess of $500,000 in any instance or $2,000,000 in the aggregate;
(10) increase the rate of compensation of, pay or agree to pay any bonus to, or provide any other employee benefit or incentive to, any of its directors, officers or employees except in a manner consistent with past practice or as required by law or contractual obligation in effect as of the date hereof;
(11) change its methods of accounting in effect at December 31, 2000, except as required by changes in generally accepted accounting principles concurred in by its independent certified public accountants;
(12) authorize or permit any of its officers, directors, employees or agents to directly or indirectly solicit or initiate any inquiries relating to, or the making of any proposal which constitutes, a "Takeover Proposal" (as defined below), or, except to the extent legally required in the judgment of Newco Parent's Board of Directors after consultation with outside counsel for the discharge of the fiduciary duties of its Board of Directors, recommend or endorse any Takeover Proposal, or participate in any discussions or negotiations, or provide third parties with any material nonpublic information, relating to any such inquiry or proposal or otherwise knowingly facilitate any effort or attempt to make or implement a Takeover Proposal; provided, however, that nothing herein the Newco Parent may communicate information about any such Takeover Proposal to its stockholders if, in the judgment of the Newco Parent's Board of Directors, after consultation with outside counsel, such communication is necessary in order to comply with its fiduciary duties to the Newco Parent's stockholders required under applicable law. Newco Parent will take all actions necessary or advisable to inform the appropriate individuals or entities referred to in the first sentence of this subsection 12 of the obligations undertaken herein. Newco Parent will notify Company Parent promptly if any such inquiries or Takeover Proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, Newco Parent, and Newco Parent will promptly inform Company Parent in writing of all of the relevant details with respect to the foregoing. As used in this Agreement, "Takeover Proposal" shall be construed to prevent CBSI from acquiring mean any tender or agreeing exchange offer, proposal for a merger, consolidation or other business combination involving Newco Parent or any proposal or offer to acquire in any Person, by merging or consolidating with, by purchasing an manner a substantial equity interest in in, or a substantial portion of the assets of, Newco Parent other than the transactions contemplated or permitted by any other mannerthis Agreement, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent and the consummation Plan of the Transactions.Merger; or
Appears in 2 contracts
Samples: Reorganization Agreement (Tekinsight Com Inc), Reorganization Agreement (Dyncorp)
Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement Reorganization Agreement, the Plan of Merger, the Option Agreement, or consented to or approved in writing by the other party heretoFESC, each of CBSI and Oneida OBC shall, and shall cause each of its Subsidiaries the OBC subsidiaries to, use its reasonable best efforts to preserve its properties, business and relationships with customers, employees and other Personspersons.
(b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld or delayed) or as expressly permitted by this Agreement, Oneida OBC shall not, and shall not permit any of its the OBC Subsidiaries to, except with the prior written consent of FESC and except as Previously Disclosed or expressly contemplated or permitted by this Agreement, the Plan of Merger, or the Option Agreement:
(1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 in the aggregate or which requires performance over more than one year (other than loans and investments booked in the usual, regular and ordinary course of business);
(2) in the case of OBC only, declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings other than its regular quarterly cash dividends on Oneida OBC Common Stock in amounts consistent with past practicenot in excess of $.34 per share;
(3) issue any shares of its capital stock or permit any treasury shares to become outstanding (except that Oneida may issue shares of Oneida Common Stock other than pursuant to a valid exercise of an unexpired Oneida Option), the Option Agreement or redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stockRights outstanding at the date hereof;
(4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stock, except as contemplated by Section 2.27 hereof and except for Trust Account Shares and DPC Shares (each as defined in the Plan of Merger);
(6) amend or otherwise change its articles or certificate of incorporation or articles of association or bylawsby-laws; impose, or suffer the imposition, on any share of capital stock of Oneida any OBC Subsidiary held by OBC of any lien, charge or encumbrance;
, or permit any such lien, charge or encumbrance to exist, except, in each case, for liens, charges and encumbrances which have been Previously Disclosed; (7) merge with any other corporation, savings association or bank or permit any other corporation, savings association or bank to merge into it or consolidate withwith any other corporation, savings association or bank; other than through the acquisition of DPC Shares acquire control overover any other firm, any Person bank, corporation, savings association or organization or create any Subsidiarysubsidiary;
(8) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSI;
(9) sell, liquidate, pledge or encumber or dispose of, or acquire any, assets with a value in excess of $50,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $50,000 in the aggregate; or establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto;
(10) hire any new employee without first consulting with CBSI; increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional employee benefit or incentive (including without limitation, any “change of control” or severance payment) to any of its directors, officers or employees except as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business consistent with past practice or except as required by existing plans or agreements; or accelerate the vesting of any deferred compensation;
(11) change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law or changes required by a regulatory authority;
(12) change its methods of accounting in effect at December 31, 2013, except as required by changes in GAAP concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the year ended December 31, 2013, except as required by applicable law;
(13) take any action that could result in (i) any of its representations or warranties in this Agreement being or becoming untrue in any material respects at any time prior to the Effective Time, (ii) any of the conditions to the Merger set forth in Article VI not being satisfied, except as may be required by law or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law or regulatory requirement; or
(14) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delay, or make more costly the consummation of the Transactions.
(c) CBSI shall not, except with the prior written consent of Oneida (which consent shall not unreasonably be withheld or delayed) or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted; provided, however, that nothing herein shall be construed to prevent CBSI from acquiring or agreeing to acquire any Person, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent the consummation of the Transactions.
Appears in 2 contracts
Samples: Reorganization Agreement (First Empire State Corp), Reorganization Agreement (Onbancorp Inc)
Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement or consented to or approved in writing by the other party hereto, each of CBSI and Oneida GNBC shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve its properties, business and relationships with customers, vendors, employees and other Persons.
(b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld or delayedwithheld) or as expressly permitted by this AgreementAgreement or as Previously Disclosed, Oneida GNBC shall not, and shall not permit any of its Subsidiaries to:
(1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 25,000 in the aggregate or which requires performance over more than one year (other than loans and investments booked in the usual, regular and ordinary course of business), provided, that nothing in this Section 5.7(b)(1) shall prevent GNBC from entering into a lease for the proposed branch office in Clarks Summit, Pennsylvania on terms mutually acceptable to GNBC and CBSI;
(2) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings other than its regular quarterly cash dividends on Oneida GNBC Common Stock in amounts consistent with past practicenot in excess of $0.18 per share;
(3) issue any shares of its capital stock or permit any treasury shares to become outstanding outstanding, other than (except that Oneida may issue shares of Oneida Common Stock i) pursuant to a valid the exercise of an unexpired Oneida Option)Stock Options which are outstanding on the date hereof, (ii) pursuant to GNBC's Dividend Reinvestment and Stock Purchase Plan, or (iii) issuance of up to an aggregate of 100 treasury shares for educational and similar purposes; redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock;
(4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stock;
(6) amend or otherwise change its articles certificate of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of Oneida GNBC of any lien, charge or encumbrance;
(7) merge or consolidate with, or acquire control over, any Person or create any Subsidiary;
(8) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSI;
(9) sell, liquidate, pledge or encumber or dispose of, or acquire any, assets with a value in excess of $50,000 25,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, loans in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $50,000 25,000 in the aggregate; or establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto;
(10) hire any new employee without first consulting with CBSI; increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional employee benefit or incentive (including without limitation, any “"change of control” " or severance payment) to to, any of its directors, officers or employees except as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business consistent with past practice (including, without limitation, pursuant to the terms of the existing incentive plans for management employees and directors as in effect on the date hereof, correct and complete copies of which have previously been provided to GNBC) or except as required by existing plans or agreements; or accelerate the vesting of any deferred compensation; provided, however, that nothing in this Section 5.7(b)(10) shall be construed to prevent GNBC from permitting one or more directors to change the change-of-control payment election under their Amended and Restated Deferred Fee Agreements;
(11) change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law or changes required by a regulatory authoritylaw;
(12) change its methods of accounting in effect at December 31, 20132002, except as required by changes in GAAP generally accepted accounting principles concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the year ended December 31, 20132002, except as required by applicable law;
(13) take any action that could will result in (i) any of its representations or warranties in this Agreement being or becoming untrue in any material respects at any time prior to the Effective Time, (ii) or in any of the conditions to the Merger set forth in Article VI not being satisfied, except as may be required by law or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law or regulatory requirementlaw; or
(14) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delay, or make more costly the consummation of the Transactionstransactions contemplated hereby.
(c) CBSI shall not, except with the prior written consent of Oneida GNBC (which consent shall not unreasonably be withheld or delayed) withheld), as Previously Disclosed or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted; provided, however, that nothing herein shall be construed to prevent CBSI from acquiring or agreeing to acquire any Person, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent the consummation of the Transactionstransactions contemplated by this Agreement.
Appears in 1 contract
Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement or consented to or approved in writing by the other party hereto, each of CBSI and Oneida ONBC shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve its properties, business and relationships with customers, employees and other Personspersons.
(b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld or delayedwithheld) or as expressly permitted by this Agreement, Oneida ONBC shall not, and shall not permit any of its Subsidiaries to:
(1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 25,000 in the aggregate or which requires performance over more than one year (other than loans and investments booked in the usual, regular and ordinary course of business);
(2) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings earnings, other than its regular quarterly cash dividends on Oneida of $0.95 per share of ONBC Common Stock on each of October 1, 2006 and January 1, 2007, subject in amounts consistent with past practiceeach case to the approval of ONBC's Board of Directors and any applicable regulatory requirements;
(3) issue any shares of its capital stock or permit any treasury shares to become outstanding (except that Oneida may issue shares of Oneida Common Stock pursuant to a valid exercise of an unexpired Oneida Option), or outstanding; redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock;
(4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stock;
(6) amend or otherwise change its articles certificate of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of Oneida ONBC of any lien, charge or encumbrance;
(7) merge or consolidate with, or acquire control over, any Person or create any Subsidiary;
(8) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSI;
(9) sell, liquidate, pledge or encumber or dispose of, or acquire any, assets with a value in excess of $50,000 25,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, loans in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $50,000 25,000 in the aggregate; or establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto;
(10) hire any new employee without first consulting with CBSI; other than as Previously Disclosed, increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional employee benefit or incentive (including without limitation, any “"change of control” " or severance payment) to to, any of its directors, officers or employees except as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business consistent with past practice or except as required by existing plans or agreements; or accelerate the vesting of any deferred compensation;
(11) change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law law, or changes as required by a regulatory authoritythe OCC;
(12) engage or enter into any new Interested Party Transactions, or modify, extend or renew any existing Interested Party Transactions other than renewal of loans or credit facilities in the ordinary course of business consistent with past practice, on terms and conditions substantially identical to the terms being renewed;
(13) change its methods of accounting in effect at December 31, 20132005, except as required by changes in GAAP generally accepted accounting principles concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the fiscal year ended December 31, 20132005, except as required by applicable law;
(1314) take any action that could would result in (i) any of its representations or warranties in this Agreement being or becoming untrue in any material respects at any time prior to the Effective Time, (ii) or in any of the conditions to the Merger set forth in Article VI not being satisfied, except as may be required by law or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law or regulatory requirementlaw; or
(1415) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delay, or make more costly the consummation of the Transactionstransactions contemplated hereby.
(c) CBSI shall not, except with the prior written consent of Oneida ONBC (which consent shall not unreasonably be withheld or delayedwithheld) or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted; provided, however, that nothing herein shall be construed to prevent CBSI from acquiring or agreeing to acquire any Person, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent the consummation of the Transactionstransactions contemplated by this Agreement.
Appears in 1 contract
Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement or consented to or approved in writing by the other party hereto, each of CBSI and Oneida GNBC shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve its properties, business and relationships with customers, vendors, employees and other Persons.
(b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld or delayedwithheld) or as expressly permitted by this AgreementAgreement or as Previously Disclosed, Oneida GNBC shall not, and shall not permit any of its Subsidiaries to:
(1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 25,000 in the aggregate or which requires performance over more than one year (other than loans and investments booked in the usual, regular and ordinary course of business), provided, that nothing in this SECTION 5.7(B)(1) shall prevent GNBC from entering into a lease for the proposed branch office in Clarks Summit, Pennsylvania on terms mutually acceptable to GNBC and CBSI;
(2) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings other than its regular quarterly cash dividends on Oneida GNBC Common Stock in amounts consistent with past practicenot in excess of $0.18 per share;
(3) issue any shares of its capital stock or permit any treasury shares to become outstanding outstanding, other than (except that Oneida may issue shares of Oneida Common Stock i) pursuant to a valid the exercise of an unexpired Oneida Option)Stock Options which are outstanding on the date hereof, (ii) pursuant to GNBC's Dividend Reinvestment and Stock Purchase Plan, or (iii) issuance of up to an aggregate of 100 treasury shares for educational and similar purposes; redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock;
(4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stock;
(6) amend or otherwise change its articles certificate of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of Oneida GNBC of any lien, charge or encumbrance;
(7) merge or consolidate with, or acquire control over, any Person or create any Subsidiary;
(8) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSI;
(9) sell, liquidate, pledge or encumber or dispose of, or acquire any, assets with a value in excess of $50,000 25,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, loans in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $50,000 25,000 in the aggregate; or establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto;
(10) hire any new employee without first consulting with CBSI; increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional employee benefit or incentive (including without limitation, any “"change of control” " or severance payment) to to, any of its directors, officers or employees except as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business consistent with past practice (including, without limitation, pursuant to the terms of the existing incentive plans for management employees and directors as in effect on the date hereof, correct and complete copies of which have previously been provided to GNBC) or except as required by existing plans or agreements; or accelerate the vesting of any deferred compensation; PROVIDED, HOWEVER, that nothing in this SECTION 5.7(B)(10) shall be construed to prevent GNBC from permitting one or more directors to change the change-of-control payment election under their Amended and Restated Deferred Fee Agreements;
(11) change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law or changes required by a regulatory authoritylaw;
(12) change its methods of accounting in effect at December 31, 20132002, except as required by changes in GAAP generally accepted accounting principles concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the year ended December 31, 20132002, except as required by applicable law;
(13) take any action that could will result in (i) any of its representations or warranties in this Agreement being or becoming untrue in any material respects at any time prior to the Effective Time, (ii) or in any of the conditions to the Merger set forth in Article ARTICLE VI not being satisfied, except as may be required by law or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law or regulatory requirementlaw; or
(14) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delay, or make more costly the consummation of the Transactionstransactions contemplated hereby.
(c) CBSI shall not, except with the prior written consent of Oneida GNBC (which consent shall not unreasonably be withheld or delayed) withheld), as Previously Disclosed or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted; providedPROVIDED, howeverHOWEVER, that nothing herein shall be construed to prevent CBSI from acquiring or agreeing to acquire any Person, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent the consummation of the Transactionstransactions contemplated by this Agreement.
Appears in 1 contract
Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement or consented to or approved in writing by the other party hereto, each of CBSI and Oneida PBI shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve its properties, business and relationships with customers, employees and other Personspersons.
(b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld or delayedwithheld) or as expressly permitted by this Agreement, Oneida PBI shall not, and shall not permit any of its Subsidiaries to:
(1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 25,000 in the aggregate or which requires performance over more than one year (other than loans loans, investments and investments FHLB borrowings booked in the usual, regular and ordinary course of business);
(2) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings other than its regular quarterly annual cash dividends on Oneida PBI Common Stock in amounts consistent with past practicenot in excess of $0.075 per share paid in the fourth quarter of 2003;
(3) issue any shares of its capital stock or permit any treasury shares to become outstanding (except that Oneida may issue shares of Oneida Common Stock outstanding, other than pursuant to a valid the exercise of an unexpired Oneida Option), or Stock Options which are outstanding on the date hereof; redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock;
(4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) ), including without limitation, any Stock Options or any awards under the ESOP or MRP, except as otherwise set forth herein, or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stock;
(6) amend or otherwise change its articles certificate of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of Oneida PBI of any lien, charge or encumbrance;
(7) merge or consolidate with, or acquire control over, any Person or create any Subsidiary;
(8) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSI;
(9) sell, liquidate, pledge or encumber or dispose of, or acquire any, assets with a value in excess of $50,000 25,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, loans in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $50,000 25,000 in the aggregate; or establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto;
(10) hire any new employee without first consulting with CBSI; increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional employee benefit or incentive (including without limitation, any “"change of control” " or severance payment) to to, any of its directors, officers or employees except as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business consistent with past practice or except as required by existing plans or agreements; or accelerate the vesting of any deferred compensation, except as otherwise set forth herein;
(11) except as set forth on Schedule 5.7(b)(11), change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law law, or changes as required by a regulatory authoritythe OTS;
(12) change its methods of accounting in effect at December 31, 20132002, except as required by changes in GAAP generally accepted accounting principles concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the year ended December 31, 20132002, except as required by applicable law;
(13) take any action that could is intended or result in (i) any of its representations or warranties in this Agreement being or becoming untrue in any material respects at any time prior to the Effective Time, (ii) or in any of the conditions to the Merger set forth in Article VI not being satisfied, except as may be required by law or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law or regulatory requirementlaw; or
(14) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delay, or make more costly the consummation of the Transactionstransactions contemplated hereby.
(c) CBSI shall not, except with the prior written consent of Oneida PBI (which consent shall not unreasonably be withheld or delayedwithheld) or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted; provided, however, that nothing herein shall be construed to prevent CBSI from acquiring or agreeing to acquire any Person, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent the consummation of the Transactionstransactions contemplated by this Agreement.
Appears in 1 contract
Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement or consented to or approved in writing by the other party hereto, each of CBSI and Oneida Wxxxxx shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve its properties, business and relationships with customers, employees and other Personspersons.
(b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld or delayed) or as expressly permitted by this Agreement, Oneida Wxxxxx shall not, and shall not permit any of its Subsidiaries to:
(1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 in the aggregate or which requires performance over more than one year (other than loans and investments booked in the usual, regular and ordinary course of business);
(2) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings other than its regular quarterly cash dividends on Oneida Wxxxxx Common Stock in amounts consistent with past practice, except for dividends issued by Wxxxxx Bank to Wxxxxx (provided that such dividends are consistent with Wxxxxx Bank’s past practice);
(3) issue any shares of its capital stock or permit any treasury shares to become outstanding (except that Oneida may issue shares of Oneida Common Stock pursuant to a valid exercise of an unexpired Oneida Option), or outstanding; redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock;
(4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stock;
(6) amend or otherwise change its articles certificate of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of Oneida Wxxxxx of any lien, charge or encumbrance;
(7) merge or consolidate with, or acquire control over, any Person or create any Subsidiary;
(8) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSI;
(9) sell, liquidate, pledge or encumber or dispose of, or acquire any, assets with a value in excess of $50,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, loans in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $50,000 in the aggregate; or establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto;
(10) hire any new employee without first consulting with CBSI; increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional employee benefit or incentive (including without limitation, any “change of control” or severance payment) to to, any of its directors, officers or employees except as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business consistent with past practice or except as required by existing plans or agreementsagreements (provided that Wxxxxx may amend its vacation pay policy to increase the number of vacation days an employee may carry over from one year to another from five days to ten days); or accelerate the vesting of any deferred compensationcompensation other than as required by existing plans or agreements;
(11) change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law or changes required by a regulatory authority;
(12) change its methods of accounting in effect at December 31, 20132009, except as required by changes in GAAP concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the year ended December 31, 20132009, except as required by applicable law;
(13) take any action that could result in (i) any of its representations or warranties in this Agreement being or becoming untrue in any material respects at any time prior to the Effective Time, (ii) any of the conditions to the Merger set forth in Article VI not being satisfied, except as may be required by law or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law or regulatory requirement; or
(14) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delay, or make more costly the consummation of the Transactions.
(c) CBSI shall not, except with the prior written consent of Oneida Wxxxxx (which consent shall not unreasonably be withheld or delayed) or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted; provided, however, that nothing herein shall be construed to prevent CBSI from acquiring or agreeing to acquire any Person, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent the consummation of the Transactions.
Appears in 1 contract
Samples: Merger Agreement (Wilber CORP)
Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement or consented to or approved in writing by the other party hereto, each of CBSI and Oneida ESLBI shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve its properties, business and relationships with customers, employees and other Personspersons.
(b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld or delayedwithheld) or as expressly permitted by this Agreement, Oneida ESLBI shall not, and shall not permit any of its Subsidiaries to:
(1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 25,000 in the aggregate or which requires performance over more than one year (other than loans and investments booked in the usual, regular and ordinary course of business);
(2) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings other than its regular quarterly cash dividends on Oneida ESLBI Common Stock in amounts consistent with past practicenot in excess of $0.35 per share;
(3) issue any shares of its capital stock or permit any treasury shares to become outstanding (except that Oneida may issue shares of Oneida Common Stock outstanding, other than pursuant to a valid the exercise of an unexpired Oneida Option), or Stock Options which are outstanding on the date hereof; redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock;
(4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stock;
(6) amend or otherwise change its articles certificate of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of Oneida ESLBI of any lien, charge or encumbrance;
(7) merge or consolidate with, or acquire control over, any Person or create any Subsidiary;
(8) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSI;
(9) sell, liquidate, pledge or encumber or dispose of, or acquire any, assets with a value in excess of $50,000 25,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, loans in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $50,000 25,000 in the aggregate; or establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto;
(10) hire any new employee without first consulting with CBSI; increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional employee benefit or incentive (including without limitation, any “"change of control” " or severance payment) to to, any of its directors, officers or employees except as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business consistent with past practice or except as required by existing plans or agreements; or accelerate the vesting of any deferred compensation;
(11) change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law law, or changes as required by a regulatory authoritythe OTS;
(12) engage or enter into any new Interested Party Transactions, or modify, extend or renew any existing Interested Party Transactions;
(13) change its methods of accounting in effect at December 31June 30, 20132005, except as required by changes in GAAP generally accepted accounting principles concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the fiscal year ended December 31June 30, 20132005, except as required by applicable law;
(1314) take any action that could would result in (i) any of its representations or warranties in this Agreement being or becoming untrue in any material respects at any time prior to the Effective Time, (ii) or in any of the conditions to the Merger set forth in Article VI not being satisfied, except as may be required by law or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law or regulatory requirementlaw; or
(1415) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delay, or make more costly the consummation of the Transactionstransactions contemplated hereby.
(c) CBSI shall not, except with the prior written consent of Oneida ESLBI (which consent shall not unreasonably be withheld or delayedwithheld) or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted; provided, however, that nothing herein shall be construed to prevent CBSI from acquiring or agreeing to acquire any Person, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent the consummation of the Transactionstransactions contemplated by this Agreement.
Appears in 1 contract
Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement Reorganization Agreement, the Plan of Merger, or consented to or approved in writing by the other party heretoPurchaser, each of CBSI and Oneida Seller shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve its properties, business and relationships with customers, employees and other Personspersons.
(b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld or delayed) or as expressly permitted by this Agreement, Oneida Seller shall not, and shall not permit any of its the Seller Subsidiaries to, except with the prior written consent of Purchaser and except as Previously Disclosed or expressly contemplated or permitted by this Agreement or the Plan of Merger:
(1i) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 in the aggregate or which requires performance over more than one year (other than loans and investments booked in the usual, regular and ordinary course of business);
(2ii) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings other than its regular quarterly cash dividends on Oneida Seller Common Stock in amounts consistent with past practicenot in excess of $.22 per share;
(3iii) issue any shares of its capital stock or permit any treasury shares to become outstanding (except that Oneida may issue shares of Oneida Common Stock pursuant to a valid exercise of an unexpired Oneida Option), or redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stockoutstanding;
(4iv) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5v) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stockstock except for Trust Account Shares and PFC Shares;
(6vi) amend or otherwise change its articles or certificate of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of Oneida any Seller Subsidiary held by Seller of any lien, charge or encumbrance, or permit any such lien, charge or encumbrance to exist except, in each case, for liens, charges and encumbrances which have been Previously Disclosed;
(7vii) merge with any other corporation, savings association or bank or permit any other corporation, savings association or bank to merge into it or consolidate withwith any other corporation, savings association or bank; acquire control overover any other firm, any Person bank, corporation, savings association or organization or create any Subsidiary;
(8) viii) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSIclaim;
(9ix) sellfail to comply in any material respect with any material laws, liquidateregulations, pledge ordinances or encumber governmental actions applicable to it and to the conduct of its business;
(x) liquidate or sell or dispose of, of any material assets or acquire anyany material assets; except as Previously Disclosed, assets with a value in excess of $50,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $50,000 20,000 in any instance or $150,000 in the aggregate; or or, except as Previously Disclosed, establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto;
(10xi) hire any new employee without first consulting with CBSI; except as Previously Disclosed, increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional other employee benefit or incentive (including without limitationto, any “change of control” or severance payment) to any of its directors, officers or employees except in a manner consistent with past practice or as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business consistent with past practice or except as required by existing plans or agreements; or accelerate the vesting of any deferred compensation;
(11xii) change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law or changes required by a regulatory authoritylaw;
(12xiii) change its methods of accounting in effect at December 31, 20132001, except as required by changes in GAAP generally accepted accounting principles concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the year ended December 31, 20132001, except as required by applicable law;
(13xiv) take any action that could result in (i) authorize or permit any of its representations officers, directors, employees or warranties in this Agreement being agents to directly or becoming untrue indirectly solicit, initiate or encourage any inquiries relating to, or the making of any proposal which constitutes, a Takeover Proposal (as defined below), or, except to the extent legally required for the discharge of the fiduciary duties of its Board of Directors, recommend or endorse any Takeover Proposal, or participate in any material respects at any time prior to the Effective Time, (ii) any of the conditions to the Merger set forth in Article VI not being satisfied, except as may be required by law discussions or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law or regulatory requirement; or
(14) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delaynegotiations, or provide third parties with any nonpublic information, relating to any such inquiry or proposal or otherwise facilitate any effort or attempt to make more costly the consummation of the Transactions.
(c) CBSI shall not, except with the prior written consent of Oneida (which consent shall not unreasonably be withheld or delayed) or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conductedimplement a Takeover Proposal; provided, however, that nothing herein shall be construed -------- ------- Seller may communicate information about any such Takeover Proposal to prevent CBSI from acquiring or agreeing to acquire any Personits stockholders if, by merging or consolidating within the judgment of Seller's Board of Directors, by purchasing an equity interest in or a portion of the assets of, or by any other mannerafter consultation with outside counsel, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent the consummation of the Transactions.communication is necessary in order to comply with its fiduciary duties to Seller's shareholders required under
Appears in 1 contract
Samples: Reorganization Agreement (Peoples Financial Corp Inc /Pa/)
Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement or consented to or approved in writing by the other party hereto, each of CBSI and Oneida PBI shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve its properties, business and relationships with customers, employees and other Personspersons.
(b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld or delayedwithheld) or as expressly permitted by this Agreement, Oneida PBI shall not, and shall not permit any of its Subsidiaries to:
(1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 25,000 in the aggregate or which requires performance over more than one year (other than loans loans, investments and investments FHLB borrowings booked in the usual, regular and ordinary course of business);
(2) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings other than its regular quarterly annual cash dividends on Oneida PBI Common Stock in amounts consistent with past practicenot in excess of $0.075 per share paid in the fourth quarter of 2003;
(3) issue any shares of its capital stock or permit any treasury shares to become outstanding (except that Oneida may issue shares of Oneida Common Stock outstanding, other than pursuant to a valid the exercise of an unexpired Oneida Option), or Stock Options which are outstanding on the date hereof; redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock;
(4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) ), including without limitation, any Stock Options or any awards under the ESOP or MRP, except as otherwise set forth herein, or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stock;
(6) amend or otherwise change its articles certificate of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of Oneida PBI of any lien, charge or encumbrance;
(7) merge or consolidate with, or acquire control over, any Person or create any Subsidiary;
(8) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSI;
(9) sell, liquidate, pledge or encumber or dispose of, or acquire any, assets with a value in excess of $50,000 25,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, loans in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $50,000 25,000 in the aggregate; or establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto;
(10) hire any new employee without first consulting with CBSI; increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional employee benefit or incentive (including without limitation, any “"change of control” " or severance payment) to to, any of its directors, officers or employees except as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business consistent with past practice or except as required by existing plans or agreements; or accelerate the vesting of any deferred compensation, except as otherwise set forth herein;
(11) except as set forth on Schedule 5.7(b)(11), change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law law, or changes as required by a regulatory authoritythe OTS;
(12) change its methods of accounting in effect at December 31, 20132002, except as required by changes in GAAP generally accepted accounting principles concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the year ended December 31, 20132002, except as required by applicable law;
(13) take any action that could is intended or result in (i) any of its representations or warranties in this Agreement being or becoming untrue in any material respects at any time prior to the Effective Time, (ii) or in any of the conditions to the Merger set forth in Article VI not being satisfied, except as may be required by law or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law or regulatory requirementlaw; or
(14) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delay, or make more costly the consummation of the Transactionstransactions contemplated hereby.
(c) CBSI shall not, except with the prior written consent of Oneida PBI (which consent shall not unreasonably be withheld or delayedwithheld) or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted; provided, however, that nothing herein shall be construed to prevent CBSI from -------- ------- acquiring or agreeing to acquire any Person, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent the consummation of the Transactionstransactions contemplated by this Agreement.
Appears in 1 contract
Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement or consented to or approved in writing by the other party hereto, each of CBSI and Oneida First Liberty shall, and shall cause each of its Subsidiaries to, use its reasonable best efforts to preserve its properties, business and relationships with customers, employees and other Personspersons.
(b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld or delayedwithheld) or as expressly permitted by this Agreement, Oneida First Liberty shall not, and shall not permit any of its Subsidiaries to:
(1) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 25,000 in the aggregate or which requires performance over more than one year (other than loans and investments booked in the usual, regular and ordinary course of business);
(2) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings other than its regular quarterly cash dividends on Oneida First Liberty Common Stock in amounts consistent with past practicenot in excess of $0.11 per share;
(3) issue any shares of its capital stock or permit any treasury shares to become outstanding (except that Oneida may issue shares of Oneida Common Stock outstanding, other than pursuant to a valid the exercise of an unexpired Oneida Option), or Stock Options which are outstanding on the date hereof; redeem, purchase or otherwise acquire any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock;
(4) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stock;
(6) amend or otherwise change its articles of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of Oneida of any lien, charge or encumbrance;
(7) merge or consolidate with, or acquire control over, any Person or create any Subsidiary;
(8) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSI;
(9) sell, liquidate, pledge or encumber or dispose of, or acquire any, assets with a value in excess of $50,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, in each case in the ordinary course of business consistent with past practice); make any capital expenditure in excess of $50,000 in the aggregate; or establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto;
(10) hire any new employee without first consulting with CBSI; increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional employee benefit or incentive (including without limitation, any “change of control” or severance payment) to any of its directors, officers or employees except as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business consistent with past practice or except as required by existing plans or agreements; or accelerate the vesting of any deferred compensation;
(11) change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law or changes required by a regulatory authority;
(12) change its methods of accounting in effect at December 31, 2013, except as required by changes in GAAP concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the year ended December 31, 2013, except as required by applicable law;
(13) take any action that could result in (i) any of its representations or warranties in this Agreement being or becoming untrue in any material respects at any time prior to the Effective Time, (ii) any of the conditions to the Merger set forth in Article VI not being satisfied, except as may be required by law or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law or regulatory requirement; or
(14) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delay, or make more costly the consummation of the Transactions.
(c) CBSI shall not, except with the prior written consent of Oneida (which consent shall not unreasonably be withheld or delayed) or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted; provided, however, that nothing herein shall be construed to prevent CBSI from acquiring or agreeing to acquire any Person, by merging or consolidating with, by purchasing an equity interest in or a portion of the assets of, or by any other manner, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent the consummation of the Transactions.
Appears in 1 contract
Actions Pending the Merger. (a) Prior to the Closing Date, and except as otherwise provided for by this Agreement Reorganization Agreement, the Plan of Merger, or consented to or approved in writing by the other party heretoPurchaser, each of CBSI and Oneida Seller shall, and shall cause each of its the Seller Subsidiaries to, use its reasonable best efforts to preserve its the properties, business and relationships with customers, employees and other Personspersons of each of the Seller Subsidiaries.
(b) Except with the prior written consent of CBSI (which consent will not be unreasonably withheld or delayed) or as expressly permitted by this Agreement, Oneida Seller shall not, and shall not permit any of its the Seller Subsidiaries to, except with the prior written consent of Purchaser or except as Previously Disclosed or expressly contemplated or permitted by this Agreement or the Plan of Merger:
(1i) carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, or incur an obligation in excess of $50,000 in the aggregate or which requires performance over more than one year (other than loans and investments booked in the usual, regular and ordinary course of business);
(2ii) declare, set aside, make or pay any dividend or other distribution in respect of its capital stock or earnings other than its regular quarterly cash dividends on Oneida Common Stock in amounts consistent with past practicestock;
(3iii) issue any shares of its capital stock or permit any treasury shares to become outstanding (outstanding, except that Oneida may issue for the issuance of shares of Oneida Seller Common Stock pursuant to a valid upon the exercise of an unexpired Oneida Option), or redeem, purchase or otherwise acquire any shares options granted under Seller Plans that are issued and outstanding as of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stockthe date hereof;
(4iv) incur any additional debt obligation or other obligation for borrowed money other than in the ordinary course of business consistent with past practice;
(5v) issue, grant or authorize any Rights (or amend or modify the terms or exercisability of any outstanding Rights) or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization, or redeem, repurchase or otherwise acquire any shares of its capital stockstock except for Trust Account Shares and DPC Shares;
(6vi) amend or otherwise change its articles or certificate of incorporation or articles of association or bylaws; impose, or suffer the imposition, on any share of capital stock of Oneida any Seller Subsidiary held by Seller of any lien, charge or encumbrance, or permit any such lien, charge or encumbrance to exist;
(7vii) merge with any other corporation, savings association or bank or permit any other corporation, savings association or bank to merge into it or consolidate withwith any other corporation, savings association or bank (this clause being subject to Sections 4.7(b)(xiv) and 6.1(f) of this Agreement); acquire control overover any other firm, any Person bank, corporation, savings association or organization or create any Subsidiary;
(8) viii) waive or release any material right or cancel or compromise any material debt or claim other than in the ordinary course of business consistent with past practice with prior notice to CBSI;
(9) sell, liquidate, pledge loans written down or encumber or dispose of, or acquire any, assets with a value in excess of $50,000 (other than assets acquired in foreclosure, in lieu of foreclosure or other legal proceedings relating to collateral for Loans, in each case charged off in the ordinary course of business consistent with past practice);
(ix) fail to comply in any material respect with any material laws, regulations, ordinances or governmental actions applicable to it and to the conduct of its business;
(x) liquidate or sell or dispose of any material assets or acquire any material assets, except in the ordinary course of business consistent with past practice; except as Previously Disclosed, make any capital expenditure in excess of $50,000 in any instance or $250,000 in the aggregate; or or, except as Previously Disclosed, establish new branches or other similar facilities, close existing branches or similar facilities or enter into or modify any leases or other contracts relating thereto;
(10xi) hire any new employee without first consulting with CBSI; except as Previously Disclosed, increase the rate of compensation of, pay or agree to pay any bonus to, or provide any additional other employee benefit or incentive (including without limitationto, any “change of control” or severance payment) to any of its directors, officers or employees except in a manner consistent with past practice or as required by law or contractual obligation in effect as of the date hereof; or become party to, adopt, terminate, amend, or commit itself to, any pension, retirement, profit sharing or welfare benefit plan or agreement or employment agreement, other than in the ordinary course of business consistent with past practice or except as required by existing plans or agreements; or accelerate the vesting of any deferred compensation;
(11xii) change its lending, investment, asset/liability management or other material banking policies in any material respect except as may be required by changes in applicable law or changes required by a regulatory authoritylaw;
(12xiii) change its methods of accounting in effect at December 31, 20132001, except as required by changes in GAAP generally accepted accounting principles concurred in by its independent certified public accountants, or change any of its methods of reporting income, deductions or other items for federal income tax purposes from those employed in the preparation of its federal income tax returns for the year ended December 31, 20132001, except as required by applicable law;
(13xiv) take any action that could result in (i) authorize or permit any of its representations officers, directors, employees or warranties in this Agreement being agents to directly or becoming untrue indirectly solicit, initiate or encourage any inquiries relating to, or the making of any proposal which constitutes, a Takeover Proposal (as defined below), or, except to the extent legally required for the discharge of the fiduciary duties of Board of Directors of Seller, recommend or endorse any Takeover Proposal, or participate in any material respects at any time prior to the Effective Time, (ii) any of the conditions to the Merger set forth in Article VI not being satisfied, except as may be required by law discussions or (iii) materially delaying the receipt of necessary regulatory approvals for the Transactions except as may be required by law or regulatory requirement; or
(14) agree to do any of the foregoing or take any other action which would in any manner interfere with, impede, delaynegotiations, or provide third parties with any nonpublic information, relating to any such inquiry or proposal or otherwise facilitate any effort or attempt to make more costly the consummation of the Transactions.
(c) CBSI shall not, except with the prior written consent of Oneida (which consent shall not unreasonably be withheld or delayed) or as expressly permitted by this Agreement, carry on its business other than in the usual, regular and ordinary course in substantially the same manner as heretofore conductedimplement a Takeover Proposal; provided, however, that nothing herein Seller may communicate information about any such Takeover Proposal to its shareholders if, in the judgment of Board of Directors of Seller, after consultation with outside counsel, such communication is necessary in order to comply with its fiduciary duties to shareholders of Seller required under applicable law. Seller shall take all actions necessary or advisable to inform the appropriate individuals or entities referred to in the first sentence hereof of the obligations undertaken herein. Seller shall notify Purchaser immediately if any such inquiries or Takeover Proposals are received by, any such information is requested from, or any such negotiations or discussions are sought to be construed initiated or continued with, Seller, and Seller shall promptly inform Purchaser in writing of all of the relevant details with respect to prevent CBSI from acquiring the foregoing. As used in this Agreement, "Takeover Proposal" shall mean any tender or agreeing exchange offer, proposal for a merger, consolidation or other business combination involving Seller or any Seller Subsidiary or any proposal or offer to acquire in any Person, by merging or consolidating with, by purchasing an manner a substantial equity interest in in, or a substantial portion of the assets of, Seller or any Seller Subsidiary other than the transactions contemplated or permitted by any other manner, such Person or taking actions reasonably related thereto, so long as such transaction would not materially delay or prevent this Agreement and the consummation Plan of the Transactions.Merger; or
Appears in 1 contract
Samples: Reorganization Agreement (Vib Corp)
