Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other Party, each Party shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party also will use, and will cause each of is subsidiaries to use, all reasonable efforts to (x) preserve its business organization intact, (y) keep available to itself and the other Party the present services of its respective employees and (z) preserve for itself and the other Party the goodwill of its respective customers and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party hereto, between the date hereof and the Effective Time, the Parties shall not, and shall cause each of their respective Subsidiaries not to: (i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Common Stock, except for regular quarterly cash dividends at a rate per share of Company Common Stock not in excess of $.19 per share and except, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the Company; (ii) issue any shares of its capital stock, other than upon exercise of the Company Options referred to in Section 3.1 hereof, or issue, grant, modify or authorize any Rights; purchase any shares of Company Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization; (iii) amend its Articles of Incorporation, Articles of Association, Bylaws or similar organizational documents; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim; (iv) increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, (ii) as may be required by law and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilities; (v) enter into or, except as may be required by law, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's or Keystone's Pension Plans or the Company's ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein; (vi) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party or a Party Subsidiary or guarantee by a Party or any Party Subsidiary of any such obligation, except in the case of the Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union; (vii) change its method of accounting in effect for the year ended December 31, 2001, except as required by changes in laws or regulations or generally accepted accounting principles, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations; (viii) make any capital expenditures in excess of $75,000 individually or $150,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease of real property or any new lease of personal property providing for annual payments exceeding $50,000; (ix) file any applications or make any contract with respect to branching or site location or relocation; (x) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class; (xi) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights; (xii) change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority; (xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code; (xiv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest; (xv) take any action that would result in any of the representations and warranties contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 or 6.3 hereof not to be satisfied; (xvi) materially increase or decrease the rate of interest paid on time deposits, or certificates of deposit, except in a manner and pursuant to policies consistent with past practices, or (xvii) agree to do any of the foregoing. (b) Each of the Company and Keystone shall promptly notify the other Party in writing of the occurrence of any matter or event known to and directly involving it or any of its Subsidiaries, other than any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on it.
Appears in 2 contracts
Samples: Merger Agreement (First Colonial Group Inc), Merger Agreement (KNBT Bancorp Inc)
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyBuyer, each Party Seller and its Subsidiary shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party Seller also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its business organization and that of Seller Bank intact, (y) keep available to itself and the other Party Buyer the present services of its respective the employees of Seller and Seller Bank and (z) preserve for itself and the other Party Buyer the goodwill of its respective the customers of Seller and Seller Bank and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoBuyer, which consent shall not be unreasonably withheld, or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties Seller shall not, and shall cause each of their respective Subsidiaries Seller Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Seller Common Stock, Stock except for one regular quarterly cash dividends dividend at a rate per share of Company Seller Common Stock not in excess of $.19 0.07 per share and exceptto be paid on or about May 15, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate2001; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the CompanySeller;
(ii) issue any shares of its capital stock, stock other than upon exercise of the Company Seller Options referred to in Section 3.1 hereof, or ; issue, grant, modify or authorize any Rights; purchase any shares of Company Seller Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles of Incorporation, Articles Code of AssociationRegulations, Bylaws Constitution or similar organizational documents, unless such amendment shall be necessary to complete the Corporate Merger, Company Merger, or Bank Merger; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party Seller in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, (ii) as may be required by law and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilitieslaw;
(v) enter into or, except as may be required by lawlaw and for amendments contemplated by Section 5.10 hereof, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance Seller Employee Plan or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's or Keystone's Pension Plans Seller Defined Benefit Plan, Seller 401(k) Plan or the Company's Seller ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except practices or as specifically provided hereinrequired by the Plan documents);
(vi) originate or purchase any loan in excess of $250,000 with respect to loans secured by one- to four-family properties and in excess of $300,000 with respect to loans secured by commercial properties;
(vii) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party Seller or a Party Subsidiary or guarantee by a Party Seller or any Party Seller Subsidiary of any such obligation, except in the case of the Seller Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Seller and Seller Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Seller or Seller Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(viiviii) change its method of accounting in effect for the year ended December 31, 20012000, except as required by changes in laws or regulations or generally accepted accounting principlesGAAP, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viiiix) except as Previously Disclosed, make any capital expenditures in excess of $75,000 5,000 individually or $150,000 10,000 in the aggregate, other than (a) in the ordinary course of business, (b) in connection with the transactions contemplated by this Agreement, (c) pursuant to binding commitments that have been Previously Disclosed and are existing on the date hereof hereof, and other than (d) expenditures necessary to maintain existing assets in good repair; or enter into any new lease or lease renewal of real property or any new lease or lease renewal of personal property providing for annual payments exceeding $50,0005,000;
(ixx) file any applications or make any contract with respect to branching or site location or relocation;
(xxi) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xixii) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xiixiii) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties of Seller contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 6.1 or 6.3 hereof not to be satisfied;
(xvi) take any action that would materially impede or delay the completion of the transactions contemplated by this Agreement or the ability of Buyer or Seller to perform its covenants and agreements under this Agreement; or
(xvii) materially increase or decrease the rate of interest paid on time deposits, or on certificates of deposit, except in a manner and pursuant to policies consistent with past practices, practices or to reflect changes in market interest rates; or
(xviixviii) agree to do any of the foregoing.
(b) Each of the Company and Keystone Seller shall promptly notify the other Party Buyer in writing of the occurrence of any matter or event known to and directly involving it or any of its SubsidiariesSeller, other than which would not include any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on itSeller.
(c) Except with the prior written consent of Seller or as expressly contemplated hereby, between the date hereof and the Effective Time, Buyer shall not, and shall cause each Buyer Subsidiary not to:
(i) take any action that would result in any of the representations and warranties of Buyer contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1 or 6.2 hereof not to be satisfied;
(ii) take any action that would materially impede or delay the completion of the transactions contemplated by this Agreement or the ability of Buyer or Seller to perform its covenants and agreements under this Agreement; or
(iii) agree to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Advance Financial Bancorp), Merger Agreement (Ohio State Financial Services Inc)
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other Party, each Party shall carry on its business and cause its Subsidiaries to carry on their respective businesses only in the ordinary course consistent with past practice. During such period, each Party also will use, and will cause each of is subsidiaries its Subsidiaries to use, all reasonable efforts to (x) preserve its business organization intact, (y) keep available to itself and the other Party the present services of its respective employees and (z) preserve for itself and the other Party the goodwill of its respective customers and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoor as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties shall not, and shall cause each neither Party nor any of their respective its Subsidiaries not toshall:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Common Stockits capital stock, except for (A) the declaration and payment of regular quarterly cash dividends at a rate per share of Company Common Stock by Cohoes in an amount not in excess of $.19 0.07 per outstanding share of Cohoes Common Stock and exceptthe declaration and payment of regular quarterly cash dividends by Hudson in an amount not in excess of $0.05 per outstandixx xxare of Hudson Common Stock, in each case with usual record and payment dates for such dividends consistent with such Parties' past dividend practices; provided however, the event declaration of the last quarterly dividend by Cohoes prior to the Effective Time occurs more than 45 days after and the commencement of any calendar quarter but prior payment thereof shall be coordinated with, and subject to the normal approval of (which approval will not be unreasonably withheld), Hudson so as to preclude any duplication of dividends (it being the intention of the Parties that holders of Cohoes Common Stock shall not receive a dividend payment date from both Parties relating to such period, or fail to receive one dividend relating to such period); and provided further that the initial dividend for such calendar quarter, a pro rata cash the first full quarterly dividend based on period subsequent to the Company's normal quarterly cash dividend rate; provided, however, that nothing contained herein Effective Time shall be deemed equal to affect the ability $0.06 per share of Surviving Corporation Common Stock, and (B) dividends or distributions by a wholly owned Subsidiary of a Company Subsidiary Party to pay dividends on its capital stock to the Companysuch Party;
(ii) issue any shares of its capital stock, other than upon the exercise of options outstanding on the Company Options referred date hereof to in Section 3.1 hereof, or acquire a Party's Common Stock; issue, grant, modify or authorize any Rights; purchase any shares of Company its Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles of Incorporation, Articles of Association, Bylaws Charter or similar organizational documents; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to existbylaws; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (iA) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, (iihereof;(B) as may be required by law and law; (iiiC) merit increases in accordance with past practices, normal cost-of-living increases increases, and normal increases related to promotions or increased job responsibilities;
(v) enter into or, except as may be required by law, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's or Keystone's Pension Plans or the Company's ESOP (other than as required by law or regulation or in a manner and amount each case consistent with past practices; (D) bonuses under plans and except as specifically provided herein;
(vi) enter into (w) any transaction, agreement, arrangement or commitment not made programs Previously Disclosed in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party or a Party Subsidiary or guarantee by a Party or any Party Subsidiary of any such obligation, except in the case of the Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business amounts consistent with past practice, practices (y) any agreement, arrangement or commitment relating even though the amounts thereof are subject to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Bank Board discretion and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(vii) change its method of accounting in effect for the year ended December 31, 2001, except as required by changes in laws or regulations or generally accepted accounting principles, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viii) make any capital expenditures in excess of $75,000 individually or $150,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease of real property or any new lease of personal property providing for annual payments exceeding $50,000;
(ix) file any applications or make any contract with respect to branching or site location or relocation;
(x) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and have not exceeding 5% of the outstanding shares of any class;
(xi) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xii) change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 or 6.3 hereof not to be satisfied;
(xvi) materially increase or decrease the rate of interest paid on time deposits, or certificates of deposit, except in a manner and pursuant to policies consistent with past practices, or
(xvii) agree to do any of the foregoing.
(b) Each of the Company and Keystone shall promptly notify the other Party in writing of the occurrence of any matter or event known to and directly involving it or any of its Subsidiaries, other than any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on it.been heretofore
Appears in 2 contracts
Samples: Merger Agreement (Hudson River Bancorp Inc), Merger Agreement (Cohoes Bancorp Inc)
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyBuyer, each Party Seller and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party also will useSeller will, and will cause each of is subsidiaries to useits Subsidiaries to, use all reasonable efforts to (x) preserve its business organization intact, (y) keep available to itself and the other Party the present services of its respective employees and (z) preserve for itself and the other Party the goodwill of its respective customers and others with whom it has business relationships existrelationships. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoBuyer (which consent under subparts (vi), (ix) and (xiv) shall not be unreasonably withheld or delayed) or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties Seller shall not, and shall cause each of their respective Subsidiaries Seller Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Seller Common Stock, except for regular quarterly cash dividends at a rate per share of Company Seller Common Stock not in excess of $.19 0.17 per share (with record and exceptpayment dates to be consistent with past practices), in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior only to the normal dividend payment date for extent that such calendar quarterdividends may be funded out of current earnings, a pro rata cash dividend based on without regard to severance costs paid by Seller or Seller Bank pursuant to Previously Disclosed employment or change in control severance agreements or the Company's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock financial reporting expense relating to the Companyretirement of the Seller ESOP loan pursuant to Section 5.11(e);
(ii) issue any shares of its capital stock, other than (i) upon exercise of the Company Seller Options referred to in Section 3.1 3.1(a) hereof, or issue, grant, modify or authorize any Rights; purchase any shares of Company Seller Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles Certificate of Incorporation, Articles of Association, Bylaws or similar organizational documents; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party Seller in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus bonus, severance, or severance change in control benefit to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, (ii) as may be required by law and law, or (iii) merit regular pay increases to non-officer employees in accordance the ordinary course of business consistent with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilities;
(v) enter into or, except as may be required by law, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance Seller Employee Plan or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of qualified Seller Employee Plan including the Company's or Keystone's Pension Plans or the Company's Seller ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein);
(vi) except for any loans pursuant to legally binding commitments in effect on the date of this Agreement that have been Previously Disclosed, originate or purchase any loan other than (A) a brokered loan pursuant to a commitment Previously Disclosed and existing on the date hereof, (B) an unsecured loan not in excess of $50,000, (C) a loan secured by a first trust or mortgage on a one- to four-family residential property not in excess of $350,000 or (D) a loan secured by a first trust or mortgage on commercial real property not in excess of $400,000;
(vii) enter into (wA) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (xB) any agreement, indenture or other instrument relating to the borrowing of money by the Party Seller or a Party Subsidiary or guarantee by a Party Seller or any Party Seller Subsidiary of any such obligation, except in the case of the Seller Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (yC) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (zD) any contract, agreement or understanding with a labor union;
(viiviii) change any of its method methods of accounting in effect for the year ended December 31, 2001accounting, except as required by changes in laws or regulations or generally accepted accounting principlesGAAP, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its last federal income tax return for such yearreturn, except as required by changes in laws or regulations;
(viiiix) make any capital expenditures in excess of $75,000 30,000 individually or $150,000 50,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease agreement or renew any existing agreement that involves an annual expenditure in excess of real property $15,000, unless such agreement may be terminated at any time by Seller or any new lease of personal property providing for annual payments exceeding $50,000a Seller Subsidiary without penalty or premium upon not more than 60 days' advance written notice;
(ixx) file any applications or make any contract with respect to branching or site location or relocation;
(xxi) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in readily marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xixii) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xiixiii) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) knowingly take any action that would result in any of the representations and warranties of Seller contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 6.1 or 6.3 hereof not to be satisfied;
(xvi) knowingly take any action that would materially impede or delay the completion of the Transactions or the ability of any Party to perform its covenants and agreements under this Agreement;
(xvii) materially increase or decrease the rate of interest paid on time deposits, or on certificates of deposit, except in a manner and pursuant to policies consistent with past practices, ; or
(xviixviii) agree to do any of the foregoing.
(b) Each of the Company and Keystone Seller shall promptly notify the other Party Buyer in writing of the occurrence of any matter or event known to and directly involving it Seller or any of its Subsidiaries, other than any changes in conditions Subsidiaries that affect the banking has had or savings institution industry generally, that would is reasonably likely to have, either individually or in the aggregate, a Material Adverse Effect on itSeller.
(c) Except with the prior written consent of Seller or as expressly contemplated hereby, between the date hereof and the Effective Time, Buyer shall not, and shall cause each Buyer Subsidiary not to:
(i) knowingly take any action that would result in any of the representations and warranties of Buyer contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1 or 6.2 hereof not to be satisfied;
(ii) knowingly take any action that would materially impede or delay the receipt of any necessary regulatory approvals or the completion of the Transactions contemplated by this Agreement or the ability of either Party to perform its covenants and agreements under this Agreement; or
(iii) agree to do any of the foregoing.
(d) Notwithstanding the foregoing, Seller shall cause Seller Bank to close its New Jersey loan production office at the earliest practicable time.
Appears in 2 contracts
Samples: Merger Agreement (Hudson River Bancorp Inc), Merger Agreement (Ambanc Holding Co Inc)
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of Citizens, the other Party, each Party Company and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party the Company also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its business organization and that of the Bank intact, (y) keep available to itself and the other Party Citizens the present services of its respective the employees of the Company and the Bank and (z) preserve for itself and the other Party Citizens the goodwill of its respective the customers of the Company and the Bank and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoCitizens or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties Company shall not, and shall cause each of their respective Subsidiaries Company Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Common Stock, except for regular quarterly cash dividends at a rate per share of Company Common Stock not in excess of $.19 .08 per share and except, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the Company;
(ii) issue any shares of its capital stock, other than upon exercise of the Company Options referred to in Section 3.1 hereof, or issue, grant, modify or authorize any Rights; purchase any shares of Company Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles Certificate of Incorporation, Articles of Association, Bylaws or similar organizational documents; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party the Company in a Party Company Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, (ii) as may be required by law and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilities;
(v) enter into or, except as may be required by law, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's Pension Plan, BIP or Keystone's Pension Plans or the Company's ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein);
(vi) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party Company or a Party Company Subsidiary or guarantee by a Party the Company or any Party Company Subsidiary of any such obligation, except in the case of the Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, Company and the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, Company or the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(vii) change its method of accounting in effect for the year ended December 31, 20011996, except as required by changes in laws or regulations or generally accepted accounting principles, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viii) make any capital expenditures in excess of $75,000 50,000 individually or $150,000 100,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease of real property or any new lease of personal property providing for annual payments exceeding $50,00025,000;
(ix) file any applications or make any contract with respect to branching or site location or relocation;
(x) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xi) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xii) change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the CodeCode or from being accounted for as a pooling-of-interests under GAAP;
(xiv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties of the Company contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 6.1 or 6.3 hereof not to be satisfied;; or
(xvi) materially increase or decrease the rate of interest paid on time deposits, or certificates of deposit, except in a manner and pursuant to policies consistent with past practices, or
(xvii) agree to do any of the foregoing.
(b) Each During the period from the date of this Agreement and continuing until the Effective Time, except with the prior written consent of the Company or as expressly contemplated hereby, Citizens and Keystone its Subsidiaries shall promptly notify carry on their respective businesses in the other Party in writing ordinary course consistent with past practice. During the period between the date hereof and the Effective Time, Citizens will use all reasonable efforts to (x) preserve its business organization intact, and (y) preserve for itself and the Company the goodwill of the occurrence customers of Citizens and others with whom business relationships exist. Without limiting the generality of the foregoing, except with the prior written consent of the Company or as expressly contemplated hereby, between the date hereof and the Effective Time, Citizens shall not, and shall cause each Citizens Subsidiary not to:
(i) take any matter action that would prevent or event known to and directly involving it impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code or from being accounted for as a pooling-of-interests under GAAP;
(ii) take any action that would result in any of its Subsidiaries, other than the representations and warranties of Citizens contained in this Agreement not to be true and correct in any changes in conditions that affect material respect at the banking Effective Time or savings institution industry generally, that would have, either individually cause any of the conditions of Sections 6.1 or in 6.2 hereof not to be satisfied; or
(iii) agree to do any of the aggregate, a Material Adverse Effect on itforegoing.
Appears in 1 contract
Samples: Merger Agreement (CFS Bancorp Inc)
Business of the Parties. (a) During the period from the date of this Agreement hereof and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of Parent, the other Party, each Party Company and FirstBank shall carry on their respective businesses business only in the ordinary course consistent with past practice. During such period, each Party the Company also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its the business organization organizations of the Company and FirstBank intact, (y) keep available to itself and the other Party Parent the present services of its respective the employees of the Company and FirstBank and (z) preserve for itself and the other Party Parent the goodwill of its respective the customers of FirstBank and others with whom a business relationships existrelationship with FirstBank exists. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoParent or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties Company shall not, with respect to the Company or FirstBank, and shall cause each of their respective Subsidiaries FirstBank not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Common Stock, except for regular quarterly cash dividends at a rate per share of Company Common Stock not in excess of $.19 per share and except, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of a the Company Subsidiary Subsidiaries to pay dividends on its capital stock to the Company;
(ii) issue any shares of its capital stock, other than upon the exercise of the Company Options referred to in Section 3.1 3.01 hereof, or ; issue, grant, modify or authorize any Rights; purchase any shares of Company Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles Certificate of Incorporation, Articles of AssociationCharter, Bylaws Bylaws, By-laws or similar organizational documents; impose, or suffer unless such amendment shall be necessary to complete the imposition, on any share of stock or other ownership interest held by a Party in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to existMerger; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its the directors, officers or employeesemployees of the Company or FirstBank, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its the directors, officers or employeesemployees of the Company or FirstBank, except (iw) as may have been previously accrued as reflected in the Company Financial Statements as of March 31, 2003 or ordinary accruals consistent with past practice for 401(k), deferred compensation and officer discretionary bonuses, (x) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, (iiy) for Previously Disclosed regular scheduled salary increases or bonuses, or (z) as may be required by law and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilitieslaw;
(v) enter into or, except as may be required by law, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance Company Employee Plan or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's or Keystone's Pension Plans or the Company's ESOP (, other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided hereinan amendment to the Director Retainer Plan;
(vi) make or commit to make (x) any loan in excess of $500,000 or (y) any loan in excess of $100,000 without a written certification of FirstBank's President that such loan conforms with FirstBank's established underwriting guidelines and its past practice with respect to such lending activities; provided, however, that the foregoing restrictions shall not apply to any one to four family residential loan meeting Xxxxxx Xxx or Xxxxxxx Mac underwriting criteria;
(vii) except as otherwise expressly permitted hereunder, enter into (v) any agreement for the purchase, sale, transfer, mortgage, encumbrance or other disposition of any properties or assets outside the ordinary course of business, (w) any other transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party Company or a Party Subsidiary FirstBank or guarantee by a Party the Company or any Party Subsidiary FirstBank of any such obligation, except except, in the case of the Bank or Keystone FirstBank, for deposits, FHLB advancesadvances not to exceed six months to maturity, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) except as otherwise permitted pursuant to Section 5.06(a)(xxi) hereof, any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor unioncollective bargaining unit;
(viiviii) change its method of accounting in effect for the year ended December 31, 20012002, except as required by changes in laws or regulations or generally accepted accounting principlesGAAP, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viiiix) enter into or renew any lease of real or personal property or any service contract; or fail to give any required notice to prevent a lease or service contract from being renewed; or make any capital expenditures in excess of $75,000 100,000 individually or $150,000 300,000 in the aggregate, other than pursuant to binding commitments Previously Disclosed and existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease of real property or any new lease of personal property providing for annual payments exceeding $50,000;
(ixx) file any applications or make any contract with respect to branching or site location or relocation;
(xxi) acquire in sell any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over common or any equity interest in any business or entity, except for investments in marketable equity securities preferred stock in the ordinary course of business and not exceeding 5% of the outstanding shares of any classFederal Home Loan Mortgage Corporation;
(xixii) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xiixiii) except as necessitated in the reasonable opinion of the management of FirstBank due to changes in interest rates, and in accordance with safe and sound banking practices, change or modify in any material respect any of its FirstBank's lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) enter into any futures contract, option contract, interest rate capscap, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in cause any of the representations and warranties of the Company contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 6.01 or 6.3 6.03 hereof not to be satisfied;
(xvi) take any action that would materially impede or delay the completion of the transactions contemplated by this Agreement or the ability of Parent or the Company to perform its covenants and agreements under this Agreement;
(xvii) materially increase or decrease the rate of interest paid on time deposits, deposits or on certificates of depositdeposit or the interest rate charged on loans to customers, except (A) in a manner and pursuant to policies consistent with past practicespractices or (B) to decrease rates on jumbo certificates of deposit; or change the interest rate paid on passbook or statement savings accounts. The Company shall on a weekly basis provide to Parent a written schedule of FirstBank's interest rates and terms of deposit accounts and loans;
(xviii) prepay any debt, including FHLB advances at a premium or with a prepayment penalty or fee;
(xix) originate any fixed rate one to four family mortgage loan that is not underwritten and documented to permit saleability to GSE secondary market investors, other than the Company's existing seven and ten year residential loan programs;
(xx) create or fill any new employment position providing for annual compensation in excess of $40,000;
(xxi) replace any current non-officer employee and provide the replacement employee with wages or salary that in an aggregate amount are greater than 120% of those that were provided to the employee that such employee is replacing; or
(xviixxii) agree to do any of the foregoing.
(b) Each of the The Company and Keystone shall promptly notify the other Party Parent in writing of the occurrence of any matter or event known to and directly involving it the Company or any of its SubsidiariesFirstBank, other than any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on itthe Company or FirstBank.
(c) Except with the prior written consent of the Company or as expressly contemplated hereby, between the date hereof and the Effective Time, Parent shall not:
(i) take any action that would cause any of the representations and warranties of Parent contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.01 or 6.02 hereof not to be satisfied;
(ii) take any action that would materially impede or delay the completion of the transactions contemplated by this Agreement or the ability of Parent or the Company to perform its covenants and agreements under this Agreement; or
(iii) agree to do any of the foregoing.
Appears in 1 contract
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyCohoes, each Party SFS and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party SFS also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its business organization and that of the Bank intact, (y) keep available to itself and the other Party Cohoes the present services of its respective the employees of SFS and the Bank and (z) preserve for itself and the other Party Cohoes the goodwill of its respective the customers of SFS and the Bank and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoCohoes or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties SFS shall not, and shall cause each of their respective Subsidiaries SFS Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company SFS Common Stock, except for regular quarterly cash dividends at a rate per share of Company SFS Common Stock not in excess of $.19 .08 per share and except, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the CompanySFS's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the CompanySFS;
(ii) issue any shares of its capital stock, other than upon exercise of the Company SFS Options referred to in Section 3.1 hereof or upon the reissuance of shares pursuant to Section 5.15(b)(i) hereof, or issue, grant, modify or authorize any Rights; purchase any shares of Company SFS Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles Certificate of Incorporation, Articles of Association, Bylaws or similar organizational documents, other than as contemplated by Section 5.1 hereof; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party SFS in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, (ii) as may be required by law and law, (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilitiesresponsibilities and (iv) that immediately prior to the Effective Time, SFS may pay bonuses under the SFS Incentive Plan in amounts as provided under such plan, provided that if the Effective Time is prior to December 31, 1998, then the amount for 1998 shall be pro rated for the period from January 1, 1998 to the Effective Time;
(v) enter into or, except as may be required by lawlaw and for amendments contemplated by Sections 5.11 or 5.15 hereof, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's or Keystone's Pension Plans SFS Defined Benefit Plan or the Company's SFS ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein);
(vi) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party SFS or a Party Subsidiary or guarantee by a Party SFS or any Party SFS Subsidiary of any such obligation, except in the case of the Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, SFS and the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, SFS or the Bank or Keystone, as the case may be, at will without liability, other than as required by law; and provided that the term of the employment agreements and change in control severance agreements existing as of the date hereof (other than the employment agreement with Xx. Xxxxxxxxx) may be extended for an additional one year as of the anniversary date of such agreements in accordance with the provisions thereof; or (z) any contract, agreement or understanding with a labor union;
(vii) change its method of accounting in effect for the year ended December 31, 20011997, except as required by changes in laws or regulations or generally accepted accounting principlesGAAP, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viii) make any capital expenditures in excess of $75,000 25,000 individually or $150,000 50,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease of real property or any new lease of personal property providing for annual payments exceeding $50,00010,000;
(ix) file any applications or make any contract with respect to branching or site location or relocation;
(x) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xi) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xii) except as necessitated in the reasonable opinion of SFS due to changes in interest rates, and in accordance with safe and sound banking practices, change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the CodeCode or from being accounted for as a pooling-of-interests under GAAP;
(xiv) except as necessitated in the reasonable opinion of SFS due to changes in interest rates, and in accordance with safe and sound banking practices, enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties of SFS contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 6.1 or 6.3 hereof not to be satisfied;; or
(xvi) materially increase or decrease the rate of interest paid on time deposits, or certificates of deposit, except in a manner and pursuant to policies consistent with past practices, or
(xvii) agree to do any of the foregoing.
(b) Each During the period from the date of this Agreement and continuing until the Effective Time, except with the prior written consent of SFS or as expressly contemplated hereby, Cohoes and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. During the period between the date hereof and the Effective Time, Cohoes will use all reasonable efforts to (x) preserve its business organization intact, and (y) preserve for itself and SFS the goodwill of the Company customers of Cohoes and Keystone shall promptly notify others with whom business relationships exist. Without limiting the other Party in writing generality of the occurrence foregoing, except with the prior written consent of SFS or as expressly contemplated hereby, between the date hereof and the Effective Time, Cohoes shall not, and shall cause each Cohoes Subsidiary not to:
(i) take any matter action that would prevent or event known to and directly involving it impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code or from being accounted for as a pooling-of-interests under GAAP;
(ii) take any action that would result in any of its Subsidiaries, other than the representations and warranties of Cohoes contained in this Agreement not to be true and correct in any changes in conditions that affect material respect at the banking Effective Time or savings institution industry generally, that would have, either individually cause any of the conditions of Sections 6.1 or in 6.2 hereof not to be satisfied; or
(iii) agree to do any of the aggregate, a Material Adverse Effect on itforegoing.
Appears in 1 contract
Samples: Merger Agreement (SFS Bancorp Inc)
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyBuyer, each Party Seller and Preferred shall carry on their respective businesses business only in the ordinary course consistent with past practice. During such period, each Party Seller also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its the business organization of Preferred intact, (y) keep available to itself and the other Party Buyer the present services of its respective the employees of Preferred and (z) preserve for itself and the other Party Buyer the goodwill of its respective the customers of Preferred and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of Buyer (which consent shall not be unreasonably withheld or delayed with respect to subparts (vi) (and particularly with respect to brokered loans to be acquired from Mortgage Square), (ix) and (xi) (but in the other Party heretocase of subpart (xi) as to the purchase of marketable securities in the ordinary course of business only)) or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties Seller shall not, and shall cause each of their respective Subsidiaries not to:
with respect to Seller or Preferred: (i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Seller Common Stock, except for regular quarterly cash dividends at the declaration and payment of a rate dividend in the amount of $0.15 per share of Company Common Stock not in excess August, 2001 and the dividend previously declared in the amount of $.19 0.15 per share and exceptpayable to stockholders of record of Seller on May 11, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate; provided2001. Provided, however, that nothing contained herein shall be deemed to affect notwithstanding the ability of a Company Subsidiary to pay dividends on its capital stock foregoing to the Company;
contrary, Buyer encourages Preferred to declare and pay cash dividends to the maximum amount permitted under the Thrift Regulations to the extent such dividends do not result in the impairment of Preferred's liquidation account or the recapture of Preferred's tax bad debt reserve; (ii) issue any shares of its capital stock, other than the issuance of previously awarded but unissued shares of Seller Restricted Stock or upon exercise of the Company Seller Options referred to in Section 3.1 hereof, or ; issue, grant, modify or authorize any Rights; purchase any shares of Company Seller Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
; (iii) amend its Articles Certificate of Incorporation, Articles of AssociationCharter, Bylaws or similar organizational documents; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
; 27 Next Page (iv) increase the rate of compensation of any of its the directors, officers or employeesemployees of Seller or Preferred, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its the directors, officers or employeesemployees of Seller or Preferred, except (ix) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, (iiy) for Previously Disclosed regular scheduled salary increases, or (z) as may be required by law and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilities;
law; (v) enter into or, except as may be required by law, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance Seller Employee Plan or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's or Keystone's Pension Plans or the Company's ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein;
(vi) originate or purchase (x) any brokered loan not pursuant to a commitment Previously Disclosed and existing on the date hereof, (y) any loan in excess of $250,000 for a loan secured by a first trust or mortgage or any loan in excess of $100,000 for a loan secured by a second trust or mortgage, or (z) any loan not secured by a first or second trust or mortgage on a one- to four-family residential property; (vii) except as otherwise permitted hereunder, enter into (v) any agreement for the purchase, sale, transfer, mortgage, encumbrance or other disposition of any properties or assets outside the ordinary course of business or (w) any other transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party Seller or a Party Subsidiary Preferred or guarantee by a Party Seller or any Party Subsidiary Preferred of any such obligation, except in the case of the Bank or Keystone for deposits, FHLB advancesadvances not to exceed six months to maturity, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
; (viiviii) change its method of accounting in effect for the year ended December 31, 20012000, except as required by changes in laws or regulations or generally accepted accounting principlesGAAP, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
; (viiiix) enter into or renew any lease of real or personal property or any service contract; or fail to give any required notice to prevent a lease or service contract from being renewed; or make any capital expenditures in excess of $75,000 20,000 individually or $150,000 50,000 in the aggregate, other than pursuant to binding commitments Previously Disclosed and existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease of real property or any new lease of personal property providing for annual payments exceeding $50,000;
(ixx) file any applications or make any contract with respect to branching or site location or relocation;
; 28 Next Page (xxi) purchase any security or acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
; (xixii) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
; (xiixiii) except as necessitated in the reasonable opinion of the management of Preferred due to changes in interest rates, and in accordance with safe and sound banking practices, change or modify in any material respect any of its Preferred's lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
; (xiv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
; (xv) take any action that would result in cause any of the representations and warranties of Seller contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 6.1 or 6.3 hereof not to be satisfied;
; (xvi) take any action that would materially impede or delay the completion of the transactions contemplated by this Agreement or the ability of Buyer or Seller to perform its covenants and agreements under this Agreement; (xvii) materially increase or decrease the rate of interest paid on time deposits, or on certificates of deposit, except (A) in a manner and pursuant to policies consistent with past practicespractices or (B) to decrease rates on jumbo certificates of deposit; or change the interest rate paid on passbook or statement savings accounts . Seller shall on a weekly basis provide to Buyer a written schedule of Preferred's interest rates and term on deposit accounts and loans; (xviii) prepay any debt, or
including FHLB advances at a premium or with a prepayment penalty or fee, except prepayment of July 2001 FHLB advances may be made with penalty in June 2001; or (xviixix) agree to do any of the foregoing.
(b) Each of the Company and Keystone shall promptly notify the other Party in writing of the occurrence of any matter or event known to and directly involving it or any of its Subsidiaries, other than any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on it.
Appears in 1 contract
Samples: Merger Agreement (Ps Financial Inc)
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyAcquiror, each Party the Company and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party the Company also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its business organization and that of the Bank intact, (y) keep available to itself and the other Party Acquiror the present services of its respective the employees of the Company and the Bank and (z) preserve for itself and the other Party Acquiror the goodwill of its respective the customers of the Company and the Bank and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoAcquiror or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties Company shall not, and shall cause each of their respective Subsidiaries Company Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Common Stock, except for regular quarterly cash dividends at a rate per share of Company Common Stock not in excess of $.19 .12 per share share, which shall be declared and exceptpaid at approximately the same time as dividends on the Acquiror Common Stock, in it being the event intention of the Effective Time occurs more than 45 days after parties that the commencement shareholders of the Company receive dividends for any particular calendar quarter but prior on either the Company Common Stock or the Acquiror Common Stock acquired in exchange therefor pursuant to the normal dividend payment date for such calendar quarterterms of this Agreement but not both, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the Company;
(ii) issue any shares of its capital stock, other than in the case of the Company pursuant to the Company Stock Option Agreement and upon exercise of the Company Options referred to in Section 3.1 hereof, or issue, grant, modify or authorize any Rights, other than the Company Stock Option Agreement; purchase any shares of Company Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles Certificate of Incorporation, Articles of AssociationCharter, Bylaws or similar organizational documents; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party the Company in a Party Company Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) as may be required pursuant to Previously Disclosed binding commitments existing on the date hereof, (ii) as may be required by law and law, (iii) merit increases in accordance with past practices, normal cost-cost- of-living increases and normal increases related to promotions or increased job responsibilitiesresponsibilities and (iv) a pro rata bonus for fiscal 1997 pursuant to the Company's Executive Annual Incentive Plan, as Previously Disclosed by the Company pursuant to Section 3.14(a) hereof;
(v) except as Previously Disclosed, enter into or, except as may be required by law, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; make any contributions to the Company's defined contribution employee retirement plan, except as required by the presently existing terms of the plan or the policies under which it is operated as of the date hereof; or make any contributions to any of the Company's or Keystone's Pension Plans or the Company's ESOP (Employee Stock Ownership Plan, other than necessary to enable such plan to make required payments on its indebtedness as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided hereinof the date hereof;
(vi) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party Company or a Party Company Subsidiary or guarantee by a Party the Company or any Party Company Subsidiary of any such obligation, except in the case of the Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, Company and the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, Company or the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(vii) change its method of accounting in effect for the fiscal year ended December 31June 30, 20011996, except as required by changes in laws or regulations or generally accepted accounting principles, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such yearthe fiscal year ended June 30, 1996, except as required by changes in laws or regulations;
(viii) make any capital expenditures in excess of $75,000 50,000 individually or $150,000 250,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into as lessee any new lease of real property or any new lease of personal property providing for annual payments exceeding in excess of $50,00025,000;
(ix) file any applications or make any contract with respect to branching or site location or relocation;
(x) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xi) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xii) change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interestinterest (other than forward commitments to sell loans in the ordinary course of business);
(xii) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xiii) change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiv) take any action that would prevent or impede the Merger from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xv) take any action that would result in any of the representations and warranties of the Company contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 or 6.3 hereof not to be satisfied;Time; or
(xvi) materially increase or decrease the rate of interest paid on time deposits, or certificates of deposit, except in a manner and pursuant to policies consistent with past practices, or
(xvii) agree to do any of the foregoing.
(b) Each During the period from the date of this Agreement and continuing until the Effective Time, the Acquiror shall continue to conduct its business and the business of the Acquiror Subsidiaries which are Significant Subsidiaries in a manner designed in its reasonable judgment to enhance the long-term value of the Acquiror Common Stock and the business prospects of the Acquiror. Without limiting the generality of the foregoing, except with the prior written consent of the Company or as expressly contemplated hereby, between the date hereof and Keystone the Effective Time, the Acquiror shall promptly notify not, and shall cause each Acquiror Subsidiary which is a Significant Subsidiary not to:
(i) amend its Articles of Incorporation or Bylaws in a manner which would adversely affect in any manner the other Party in writing terms of the occurrence Acquiror Common Stock or the ability of the Acquiror or the Acquiror Maryland Bank to consummate the transactions contemplated hereby;
(ii) make any matter acquisition or event known to and directly involving it or take any of its Subsidiaries, other than any changes in conditions action that affect the banking or savings institution industry generally, that would have, either individually or in the aggregateaggregate could materially adversely affect the ability of the Acquiror or the Acquiror Maryland Bank to consummate the transactions contemplated hereby, or enter into any agreement providing for, or otherwise participate in, any merger, consolidation or other transaction in which the Acquiror or any surviving corporation may be required not to consummate the Merger or any of the other transactions contemplated hereby in accordance with the terms of this Agreement;
(iii) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Acquiror Common Stock, except for regular quarterly cash dividends in an amount determined by the Board of Directors in the ordinary course of business and consistent with past practice, provided, however, that nothing contained herein shall be deemed to affect the ability of (x) an Acquiror Subsidiary to pay dividends on its capital stock to the Acquiror or (y) the Acquiror to repurchase shares of Acquiror Common Stock;
(iv) take any action that would prevent or impede the Merger from qualifying as a Material Adverse Effect on itreorganization within the meaning of Section 368 of the Code; provided, however, that nothing contained herein shall limit the ability of the Acquiror to exercise its rights under the Company Stock Option Agreement;
(v) take any action that would result in any of the representations and warranties of the Acquiror contained in this Agreement not to be true and correct in any material respect at the Effective Time; or
(vi) agree to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (First Financial Corp of Western Maryland)
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of Peoples, the other Party, each Party Company and the Bank shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party the Company also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its business organization and that of the Bank intact, (y) keep available to itself and the other Party Peoples the present services of its respective the employees of the Company and the Bank and (z) preserve for itself and the other Party Peoples the goodwill of its respective the customers of the Company and the Bank and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoPeoples or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties Company shall not, and shall cause each of their respective Subsidiaries the Bank not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Common Stock, except for regular quarterly cash dividends at a rate per share of Company Common Stock not in excess of $.19 .11 per share and except, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary the Bank to pay dividends on its capital stock to the Company;
(ii) issue any shares of its capital stock, other than upon exercise of the Company Options referred to in Section 3.1 hereof, or issue, grant, modify or authorize any Rights; purchase any shares of Company Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles of Incorporation, Articles Constitution, Code of AssociationRegulations, Bylaws or similar organizational documents; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party the Company in a Party Subsidiary the Bank of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, (ii) as may be required by law and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilities;
(v) enter into or, except as may be required by law, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's Pension Plan or Keystone's Pension Plans or the Company's ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein);
(vi) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party Company or a Party Subsidiary the Bank or guarantee by a Party the Company or any Party Subsidiary the Bank of any such obligation, except in the case of the Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, Company and the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, Company or the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(vii) change its method of accounting in effect for the year ended December 31September 30, 20011999, except as required by changes in laws or regulations or generally accepted accounting principles, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viii) make any capital expenditures in excess of $75,000 50,000 individually or $150,000 100,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease of real property or any new lease of personal property providing for annual payments exceeding $50,00015,000;
(ix) file any applications or make any contract with respect to branching or site location or relocation;
(x) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xi) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xii) change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties of the Company contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 6.1 or 6.3 hereof not to be satisfied;; or
(xvi) materially increase or decrease the rate of interest paid on time deposits, or certificates of deposit, except in a manner and pursuant to policies consistent with past practices, or
(xvii) agree to do any of the foregoing.
(b) Each During the period from the date of this Agreement and continuing until the Effective Time, except with the prior written consent of the Company or as expressly contemplated hereby, Peoples shall carry on its business in the ordinary course consistent with past practice. During the period between the date hereof and Keystone shall promptly notify the other Party in writing Effective Time, Peoples will use all reasonable efforts to (x) preserve its business organization intact, and (y) preserve for itself and the Company the goodwill of the occurrence customers of Peoples and others with whom business relationships exist. Without limiting the generality of the foregoing, except with the prior written consent of the Company or as expressly contemplated hereby, between the date hereof and the Effective Time, Peoples shall not:
(i) take any matter action that would prevent or event known to and directly involving it impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(ii) take any action that would result in any of its Subsidiaries, other than the representations and warranties of Peoples contained in this Agreement not to be true and correct in any changes in conditions that affect material respect at the banking Effective Time or savings institution industry generally, that would have, either individually cause any of the conditions of Sections 6.1 or in 6.2 hereof not to be satisfied; or
(iii) agree to do any of the aggregate, a Material Adverse Effect on itforegoing.
Appears in 1 contract
Samples: Merger Agreement (Peoples Community Bancorp Inc /De/)
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyBuyer, each Party which consent shall not be unreasonably withheld, Seller and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party Seller also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its business organization and that of Seller Bank intact, (y) keep available to itself and the other Party Buyer the present services of its respective the employees of Seller and Seller Bank and (z) preserve for itself and the other Party Buyer the goodwill of its respective the customers of Seller and Seller Bank and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the Buyer, which consent shall not be unreasonably withheld or as expressly contemplated in Section 5.17, or any other Party heretosection of this Agreement, between the date hereof and the Effective Time, the Parties Seller shall not, and shall cause each of their respective Subsidiaries Seller Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Seller Common Stock, except for regular quarterly cash dividends at a rate per share of Company Seller Common Stock not in excess of $.19 0.19 per share and except, to be paid in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rateaccordance with past practice; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the CompanySeller;
(ii) issue any shares of its capital stock, other than upon exercise of the Company Seller Options referred to in Section 3.1 hereof, or ; issue, grant, modify or authorize any Rights; purchase any shares of Company Seller Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles of Incorporation, Articles Code of AssociationRegulations, Bylaws or similar organizational documents, unless such amendment shall be necessary to complete the Merger; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party Seller in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, (ii) as may be required by law and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilities;
(v) enter into or, except as may be required by law, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's or Keystone's Pension Plans or the Company's ESOP (employees other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein;
(vi) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party or a Party Subsidiary or guarantee by a Party or any Party Subsidiary of any such obligation, except in the case of the Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(vii) change its method of accounting in effect for the year ended December 31, 2001, except as required by changes in laws or regulations or generally accepted accounting principles, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viii) make any capital expenditures in excess of $75,000 individually or $150,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease of real property or any new lease of personal property providing for annual payments exceeding $50,000;
(ix) file any applications or make any contract with respect to branching or site location or relocation;
(x) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xi) enter in accordance with past practice, or agree to enter into or amend any employment or consulting agreement or arrangement granting extend the term of or renew any preferential right to purchase any of its assets existing employment or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xii) change or modify in any material respect any of its lending or investment policiesconsulting agreement including, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) enter into any futures contractwithout limitation, option contractexisting employment agreements with Davix Xxxxxx, interest rate capsXxepxxx Xxxx xxx Davix Xxxx; ); provided, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 or 6.3 hereof not to be satisfied;
(xvi) materially increase or decrease the rate of interest paid on time deposits, or certificates of deposit, except in a manner and pursuant to policies consistent with past practices, or
(xvii) agree to do any of the foregoing.
(b) Each of the Company and Keystone shall promptly notify the other Party in writing of the occurrence of any matter or event known to and directly involving it or any of its Subsidiaries, other than any changes in conditions that affect the banking or savings institution industry generallyhowever, that would have, either individually or in the aggregate, a Material Adverse Effect on it.Seller may pay to eligible employees any
Appears in 1 contract
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of PHFG, the other Party, each Party Company and the Company Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party also The Company will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its business organization and that of the Company Subsidiaries intact, (y) keep available to itself and the other Party PHFG the present services of its respective the employees of the Company and the Company Subsidiaries and (z) preserve for itself and the other Party PHFG the goodwill of its respective the customers of the Company and the Company Subsidiaries and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of PHFG, as expressly contemplated hereby or as Previously Disclosed as of the other Party heretodate hereof, between the date hereof and the Effective Time, the Parties Company shall not, and shall cause each of their respective Subsidiaries Company Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Common Stock, except for regular other than (i) quarterly cash dividends at a rate per share of Company Common Stock not in excess of $.19 .16 per share and exceptwith record and payment dates consistent with past practice, in provided that the event declaration of the last quarterly dividend by the Company prior to the Effective Time occurs more than 45 days after and the commencement of any calendar quarter but prior payment thereof shall be coordinated with, and subject to the normal approval of, PHFG so as to preclude any duplication of dividend payment date benefit and be consistent with the condition set forth in Section 6.3(f) hereof (it being the intention of the parties that the stockholders of the Company receive dividends for such calendar quarterany particular quarter on either the Company Common Stock or the PHFG Common Stock but not both), a pro rata cash dividend based on the Company's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of and (ii) dividends paid by a Company Subsidiary to pay dividends on its capital stock to the Company;
(ii) issue any shares of its capital stock, other than upon exercise pursuant to (i) Company Options outstanding as of the date hereof pursuant to the Company Options referred Stock Option Plan, as Previously Disclosed pursuant to in Section 3.1 hereof, or and (ii) the Company Stock Option Agreement; issue, grant, modify or authorize any Rights, other than pursuant to the Company Stock Option Agreement; purchase any shares of Company Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles of Incorporation, Articles of Association, Organization or Bylaws or similar organizational equivalent documents; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party the Company in a Party Company Subsidiary of any lien, charge or encumbrance material Lien or permit any such lien, charge or encumbrance Lien to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) except as Previously Disclosed by the Company to PHFG, increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or accelerate the payment of any employee benefit or incentive to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) as may be required pursuant to Previously Disclosed binding commitments existing on the date hereof, hereof and (ii) in the case of employees who are not officers above the level of Vice President, such as may be required by law and (iii) merit increases granted in accordance the ordinary course of business consistent with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilitiespractice;
(v) enter into or, except as may be required by law, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to or on behalf of any Company Employee Plan not in the ordinary course of the Company's or Keystone's Pension Plans or the Company's ESOP (other than as required by law or regulation or in a manner and amount business consistent with past practices) and except as specifically provided hereinpractice;
(vi) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party Company or a Party Company Subsidiary or guarantee by the Company or a Party or any Party Company Subsidiary of any such obligation, except in the case of the Bank or Keystone a Company Subsidiary for deposits, FHLB advances, federal funds purchased purchased, FHLB advances and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultantemployee, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Bank and Keystone Company or a Company Subsidiary may employ an employee if necessary to operate the business of the Company or consultant a Company Subsidiary in the ordinary course of business consistent with past practice and if the employment of such employee or consultant is terminable by the Company, Company or the Bank or Keystone, as the case may be, Company Subsidiary at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(vii) change its method of accounting in effect for the year ended December 31, 20011997, except as required by changes in laws or regulations or generally accepted accounting principles, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such yearthe year ended December 31, 1997, except as required by changes in laws or regulations;
(viii) purchase or otherwise acquire, or sell or otherwise dispose of, any assets or incur any liabilities other than in the ordinary course of business consistent with past practices and policies;
(ix) make any capital expenditures in excess of $75,000 100,000 individually or $150,000 500,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease of real property or any new lease of personal property providing for annual payments exceeding $50,000;
(ixx) file any applications or make any contract with respect to branching or site location or relocation;
(xxi) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entityentity or enter into any new line of business;
(xii) enter into any futures contract, except option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other derivative instruments, other than for investments in marketable equity purposes of hedging interest rate risk on U.S. dollar-denominated securities and other financial instruments in the ordinary course of business and not exceeding 5% of the outstanding shares of any classconsistent with past practice;
(xixiii) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xii) change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiiixiv) take any action that would prevent or impede the Merger or the Conversion from qualifying (A) for pooling-of-interests accounting treatment under generally accepted accounting principles or (B) as a reorganization within the meaning of Section 368 368(a) of the Code;
(xiv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would or could reasonably be expected to result in any of the representations and warranties of the Company contained in this Agreement not to be true and correct in any material respect at or prior to the Effective Time Time, or that would cause in any of the conditions of Sections 6.1, 6.2 or 6.3 to the Merger set forth in Article VI hereof not to being satisfied or in violation of any provision of this Agreement, except in each case as may be satisfied;required by applicable law; or
(xvi) materially increase or decrease the rate of interest paid on time deposits, or certificates of deposit, except in a manner and pursuant to policies consistent with past practices, or
(xvii) agree to do any of the foregoing.
(b) Each During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the Company, PHFG and its Significant Subsidiaries shall conduct their business in substantially the same manner as heretofore conducted, it being understood and agreed that nothing contained herein shall prevent PHFG from acquiring another financial institution or company engaged in businesses in which it is engaged or from entering into new lines of business, whether through acquisition or otherwise, provided, however, that PHFG shall advise the Company of any proposed material acquisitions to be made by PHFG. Except with the prior written consent of the Company or as expressly contemplated hereby, between the date hereof and Keystone the Effective Time, PHFG shall not, and shall cause each PHFG Subsidiary which is a Significant Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the PHFG Common Stock, except for regular quarterly cash dividends which are not in excess of $.15 per share of PHFG Common Stock, provided, however, that nothing contained herein shall be deemed to affect the ability of a PHFG Subsidiary to pay dividends on its capital stock to PHFG;
(ii) amend its Articles of Incorporation or equivalent document or Bylaws in a manner which would adversely affect in any manner the terms of the PHFG Common Stock or the ability of PHFG, Merger Sub or the PHFG Massachusetts Bank to consummate the transactions contemplated hereby;
(iii) take any action that would prevent or impede the Merger from qualifying (A) for pooling-of-interests accounting treatment under generally accepted accounting principles or (B) as a reorganization within the meaning of Section 368 of the Code; provided, however, that nothing contained herein shall limit the ability of PHFG to exercise its rights under the Company Stock Option Agreement;
(iv) take any action that would or could reasonably be expected to result in any of the representations and warranties of PHFG contained in this Agreement not to be true and correct in any material respect at or prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VI hereof not being satisfied or in violation of this Agreement, except in each case as may be required by applicable law; or
(v) agree to do any of the foregoing.
(c) The Company shall not authorize or permit any of its directors, officers, employees or agents to directly or indirectly solicit, initiate or encourage any inquiries relating to, or the making of any proposal which constitutes, an Acquisition Transaction (as defined below), or, except to the extent legally required for the discharge of the fiduciary duties of the Board of Directors of the Company, as advised by counsel, (i) recommend or endorse an Acquisition Transaction, (ii) participate in any discussions or negotiations regarding an Acquisition Transaction or (iii) provide any third party with any nonpublic information in connection with any inquiry or proposal relating to an Acquisition Transaction (other than in each case with or to PHFG or an affiliate of PHFG). The Company will immediately cease and cause to be terminated any existing activities, discussions or negotiations previously conducted with any parties other than PHFG with respect to any of the foregoing, and will take all actions necessary or advisable to inform the appropriate individuals or entities referred to in the first sentence hereof of the obligations undertaken in this Section 5.6(c). The Company will notify PHFG immediately if any inquiries or proposals relating to an Acquisition Transaction are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with, the Company, and the Company will promptly notify the other Party inform PHFG in writing of all of the occurrence of any matter relevant details with respect to the foregoing. As used in this Agreement, "Acquisition Transaction" shall mean (i) a merger or event known to and directly involving it consolidation, or any similar transaction, involving the Company or a Company Subsidiary, (ii) a purchase, lease or other acquisition of its Subsidiariesall or a substantial portion of the assets or liabilities of the Company or a Company Subsidiary or (iii) a purchase or other acquisition (including by way of share exchange, other than tender offer, exchange offer or otherwise) of an interest in any changes in conditions that affect class or series of equity securities of the banking Company or savings institution industry generallya Company Subsidiary, provided, however, that would have, either individually any sale or in the aggregate, a Material Adverse Effect on itdisposition of an inactive subsidiary shall not constitute an "Acquisition Transaction."
Appears in 1 contract
Samples: Merger Agreement (Peoples Heritage Financial Group Inc)
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyAcquiror, each Party the Company and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party the Company also will use, and will cause each of is subsidiaries to use, use all commercially reasonable efforts to (x) preserve its business organization and that of the Bank intact, (y) keep available to itself and the other Party Acquiror the present services of its respective the employees of the Company and the Bank and (z) preserve for itself and the other Party Acquiror the goodwill of its respective the customers of the Company and the Bank and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoAcquiror or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties Company shall not, and shall cause each of their respective Subsidiaries Company Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Common Stock, except for regular quarterly cash dividends at a rate per share of Company Common Stock not in excess of $.19 0.07 per share share, which shall be declared and exceptpaid at approximately the same time as dividends on the Acquiror Common Stock, in it being the event intention of the Effective Time occurs more than 45 days after parties that the commencement shareholders of the Company receive dividends for any particular calendar quarter but prior on either the Company Common Stock or the Acquiror Common Stock acquired in exchange therefor pursuant to the normal dividend payment date for such calendar quarterterms of this Agreement but not both, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the Company;
(ii) issue any shares of its capital stock, other than in the case of the Company pursuant to the Company Stock Option Agreement and upon exercise of the Company Options referred to in Section 3.1 hereof, or issue, grant, modify or authorize any Rights, other than the Company Stock Option Agreement; purchase any shares of Company Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles Certificate of Incorporation, Articles of AssociationCharter, Bylaws or similar organizational documents; impose, or knowingly suffer the imposition, on any share of stock or other ownership interest held by a Party the Company in a Party Company Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) as Previously Disclosed, (ii) as may be required pursuant to Previously Disclosed binding commitments existing on the date hereof, (iiiii) as may be required by law and (iiiiv) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilities;
(v) except as Previously Disclosed, enter into or, except as may be required by law, modify any pension, retirement, stock option, restricted stock, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; make any contributions to the Company Pension Plan, except as required by the presently existing terms of the Company Pension Plan or the policies under which it is operated as of the date hereof; or make any contributions to any the Company ESOP, other than necessary to enable the Company ESOP to make required payments on its indebtedness as of the Company's or Keystone's Pension Plans or the Company's ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided hereindate hereof;
(vi) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party Company or a Party Company Subsidiary or guarantee by a Party the Company or any Party Company Subsidiary of any such obligation, except in the case of the Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, Company and the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, Company or the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(vii) change its method of accounting in effect for the fiscal year ended December March 31, 20011997, except as required by changes in laws or regulations or generally accepted accounting principlesGAAP, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such yearthe fiscal year ended March 31, 1997, except as required by changes in laws or regulations;
(viii) make any capital expenditures in excess of $75,000 10,000 individually or $150,000 50,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into as lessee any new lease of real property or any new lease of personal property providing for annual payments exceeding in excess of $50,0005,000;
(ix) file any applications or make any contract with respect to branching or site location or relocation;
(x) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 52% of the outstanding shares of any class;
(xi) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xii) change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 or 6.3 hereof not to be satisfied;
(xvi) materially increase or decrease the rate of interest paid on time deposits, or certificates of deposit, except in a manner and pursuant to policies consistent with past practices, or
(xvii) agree to do any of the foregoing.
(b) Each of the Company and Keystone shall promptly notify the other Party in writing of the occurrence of any matter or event known to and directly involving it or any of its Subsidiaries, other than any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on it.market
Appears in 1 contract
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyBuyer, each Party Seller and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party Seller also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its business organization and that of Seller Bank intact, (y) keep available to itself and the other Party the present services of its respective the employees of Seller and Seller Bank and (z) preserve for itself and the other Party Buyer the goodwill of its respective the customers of Seller and Seller Bank and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoBuyer or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties shall Seller will not, and shall will cause each of their respective Subsidiaries Seller Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Seller Common Stock, except for regular quarterly cash dividends at a rate per share of Company Common Stock not in excess of $.19 per share and except, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the CompanySeller;
(ii) issue any shares of its capital stock, other than upon exercise of the Company Seller Options referred to in Section 3.1 hereof, or issue, grant, modify or authorize any Rights; purchase any shares of Company Seller Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles Certificate of Incorporation, Articles of Association, Bylaws or similar organizational documents, other than as contemplated by Section 5.1 hereof; impose, or suffer the imposition, imposition on any share of stock or other ownership interest held by a Party Seller in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, (ii) as may be required by law and law, (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilities;; (iv) for bonuses (e.g., Christmas or annual bonuses) and fringe benefits consistent with past practice; and (v) as contemplated by this Agreement.
(v) enter into or, except as may be required by lawlaw and for amendments contemplated by Section 5.11 hereof, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance Seller Employee Plan or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's or Keystone's Pension Plans Seller Defined Benefit Plan or the Company's Seller ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein);
(vi) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party Seller or a Party Subsidiary or guarantee by a Party Seller or any Party Seller Subsidiary of any such obligation, except in the case of the Seller Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Seller and Seller Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Seller or Seller Bank or Keystone, as the case may be, at will without liability, other than as required by law, provided that the Seller Bank may cancel the Employment Agreement; or (z) any contract, agreement or understanding with a labor union;
(vii) change its method of accounting in effect for the year ended December 31June 30, 20011999, except as required by changes in laws or regulations or generally accepted accounting principlesGAAP, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such the immediately preceding tax year, except as required by changes in laws or regulations;
(viii) make any capital expenditures in excess of $75,000 10,000 individually or $150,000 50,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof hereof, and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease of real property or any new lease of personal property providing for annual payments exceeding $50,00015,000;
(ix) file any applications or make any contract with respect to branching or site location or relocation;
(x) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xi) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xii) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede except as necessitated in the Merger or the Conversion from qualifying as a reorganization within the meaning reasonable opinion of Section 368 of the Code;
(xiv) Seller due to changes in interest rates, and in accordance with safe and sound banking practices, enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xvxiv) take any action that would result in any of the representations and warranties of Seller contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 6.1 or 6.3 hereof not to be satisfied; or
(xv) agree to do any of the foregoing. Nothing contained in this Section 5.6(a) is intended to influence the general management or overall operations of the Seller or its Subsidiaries in a manner not permitted by applicable law and the provisions thereof shall automatically be reduced, if required, in compliance therewith.
(b) Except with the prior written consent of Seller or as expressly contemplated hereby, between the date hereof and the Effective Time, Buyer shall not, and shall cause each Buyer Subsidiary not to:
(i) take any action that would result in any of the representations and warranties of Buyer contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1 or 6.2 hereof not to be satisfied;
(xviii) materially increase except as contemplated by this Agreement, adopt a plan of complete or decrease the rate of interest paid on time depositspartial liquidation, dissolution, merger, consolidation, restructuring, recapitalization, or certificates other reorganization, or business combination of deposit, except in a manner and pursuant to policies consistent with past practices, the Buyer or its Subsidiaries; or
(xviiiii) agree to do any of the foregoing.
(bc) Each of the Company and Keystone Seller shall promptly notify the other Party Buyer in writing of the occurrence of any matter or event known to and directly involving it Seller or any of its Subsidiaries, other than any changes Seller Subsidiary that is reasonably likely to result in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on itSeller or impair the ability of Seller to consummate the transactions contemplated herein. Buyer agrees that, within thee business days of receipt of all relevant information regarding the matter or event, it will advise Seller whether, on an individual basis or on a cumulative basis to date, Buyer believes that such occurrence has resulted in a Material Adverse Effect.
Appears in 1 contract
Samples: Merger Agreement (East Texas Financial Services Inc)
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyBuyer, each Party Seller and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party Seller also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its business organization and that of Seller Bank intact, (y) keep available to itself and the other Party Buyer the present services of its respective the employees of Seller and Seller Bank and (z) preserve for itself and the other Party Buyer the goodwill of its respective the customers of Seller and Seller Bank and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoBuyer or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties Seller shall not, and shall cause each of their respective Subsidiaries Seller Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Seller Common Stock, except for one regular quarterly cash dividends dividend at a rate per share of Company Seller Common Stock not in excess of $.19 0.075 per share and exceptto be paid on or after April 1, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate2000; provided, however, that (I) Seller shall be allowed to make or pay an additional cash dividend at a rate per share on Seller Common Stock not in excess of $0.075 per share if the Closing Date does not occur before September 1, 2000, but only to the extent that such dividend may be funded out of Seller's earnings for the quarter ended June 30, 2000; and (II) that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the CompanySeller;
(ii) issue any shares of its capital stock, other than upon exercise of the Company Seller Options referred to in Section 3.1 hereof, or ; issue, grant, modify or authorize any Rights; purchase any shares of Company Seller Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles of Incorporation, Articles of Association, Bylaws or similar organizational documents, unless such amendment shall be necessary to complete the Corporate Merger, Company Merger, or Bank Merger; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party Seller in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) Seller may pay bonuses that in the aggregate do not exceed $25,000 to certain key employees, as may Previously Disclosed, provided such bonuses shall not be required pursuant paid to Previously Disclosed commitments existing on any employees that terminate employment prior to the date hereofEffective Time, or (ii) as may be required by law and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilitieslaw;
(v) enter into or, except as may be required by lawlaw and for amendments contemplated by Section 5.11 hereof, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance Seller Employee Plan or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's or Keystone's Pension Plans Seller Defined Benefit Plan or the Company's Seller ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein);
(vi) originate or purchase any loan in excess of $250,000 with respect to loans secured by one- to four-family properties and in excess of $300,000 with respect to loans secured by commercial properties;
(vii) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party Seller or a Party Subsidiary or guarantee by a Party Seller or any Party Seller Subsidiary of any such obligation, except in the case of the Seller Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Seller and Seller Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Seller or Seller Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(viiviii) change its method of accounting in effect for the year ended December 31June 30, 20011999, except as required by changes in laws or regulations or generally accepted accounting principlesGAAP, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viiiix) except as Previously Disclosed, make any capital expenditures in excess of $75,000 10,000 individually or $150,000 25,000 in the aggregate, other than (a) in the ordinary course of business, (b) in connection with the transactions contemplated by this Agreement, (c) pursuant to binding commitments that have been Previously Disclosed and are existing on the date hereof hereof, and other than (d) expenditures necessary to maintain existing assets in good repair; or enter into any new lease or lease renewal of real property or any new lease or lease renewal of personal property providing for annual payments exceeding $50,0005,000;
(ixx) file any applications or make any contract with respect to branching or site location or relocation;
(xxi) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xixii) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xiixiii) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties of Seller contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 6.1 or 6.3 hereof not to be satisfied;
(xvi) take any action that would materially impede or delay the completion of the transactions contemplated by this Agreement or the ability of Buyer or Seller to perform its covenants and agreements under this Agreement; or
(xvii) materially increase or decrease the rate of interest paid on time deposits, or on certificates of deposit, except in a manner and pursuant to policies consistent with past practices, practices or to reflect changes in market interest rates; or
(xviixviii) agree to do any of the foregoing.
(b) Each of the Company and Keystone Seller shall promptly notify the other Party Buyer in writing of the occurrence of any matter or event known to and directly involving it or any of its SubsidiariesSeller, other than which would not include any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on itSeller.
(c) Except with the prior written consent of Seller or as expressly contemplated hereby, between the date hereof and the Effective Time, Buyer shall not, and shall cause each Buyer Subsidiary not to:
(i) take any action that would result in any of the representations and warranties of Buyer contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1 or 6.2 hereof not to be satisfied;
(ii) take any action that would materially impede or delay the completion of the transactions contemplated by this Agreement or the ability of Buyer or Seller to perform its covenants and agreements under this Agreement; or
(iii) agree to do any of the foregoing.
Appears in 1 contract
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyBuyer, each Party Seller and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party Seller also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its business organization and that of Seller Bank intact, (y) keep available to itself and the other Party Buyer the present services of its respective the employees of Seller and Seller Bank and (z) preserve for itself and the other Party Buyer the goodwill of its respective the customers of Seller and Seller Bank and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoBuyer or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties Seller shall not, and shall cause each of their respective Subsidiaries Seller Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Seller Common Stock, except for one regular quarterly cash dividends dividend at a rate per share of Company Seller Common Stock not in excess of $.19 0.075 per share and exceptto be paid on or after April 1, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate2000; provided, however, that (I) Seller shall be allowed to make or pay an additional cash dividend at a rate per share on Seller Common Stock not in excess of $0.075 per share if the Closing Date does not occur before September 1, 2000, but only to the extent that such dividend may be funded out of Seller's earnings for the quarter ended June 30, 2000; and (II) that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the CompanySeller;
(ii) issue any shares of its capital stock, other than upon exercise of the Company Seller Options referred to in Section 3.1 hereof, or ; issue, grant, modify or authorize any Rights; purchase any shares of Company Seller Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles of Incorporation, Articles of Association, Bylaws or similar organizational documents, unless such amendment shall be necessary to complete the Corporate Merger, Company Merger, or Bank Merger; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party Seller in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) Seller may pay bonuses that in the aggregate do not exceed $25,000 to certain key employees, as may Previously Disclosed, provided such bonuses shall not be required pursuant paid to Previously Disclosed commitments existing on any employees that terminate employment prior to the date hereofEffective Time, or (ii) as may be required by law and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilitieslaw;
(v) enter into or, except as may be required by lawlaw and for amendments contemplated by Section 5.11 hereof, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance Seller Employee Plan or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's or Keystone's Pension Plans Seller Defined Benefit Plan or the Company's Seller ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein);
(vi) originate or purchase any loan in excess of $250,000 with respect to loans secured by one- to four-family properties and in excess of $300,000 with respect to loans secured by commercial properties;
(vii) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party Seller or a Party Subsidiary or guarantee by a Party Seller or any Party Seller Subsidiary of any such obligation, except in the case of the Seller Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Seller and Seller Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Seller or Seller Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(viiviii) change its method of accounting in effect for the year ended December 31June 30, 20011999, except as required by changes in laws or regulations or generally accepted accounting principlesGAAP, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viiiix) except as Previously Disclosed, make any capital expenditures in excess of $75,000 10,000 individually or $150,000 25,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease of real property or any new lease of personal property providing for annual payments exceeding $50,000;
(ixa) file any applications or make any contract with respect to branching or site location or relocation;
(x) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xi) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xii) change or modify in any material respect any of its lending or investment policiesbusiness, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 or 6.3 hereof not to be satisfied;
(xvi) materially increase or decrease the rate of interest paid on time deposits, or certificates of deposit, except in a manner and pursuant to policies consistent with past practices, or
(xvii) agree to do any of the foregoing.
(b) Each of in connection with the Company and Keystone shall promptly notify the other Party in writing of the occurrence of any matter or event known to and directly involving it or any of its Subsidiaries, other than any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on it.transactions contemplated by this Agreement,
Appears in 1 contract
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective TimeClosing, except as expressly contemplated or permitted by this Agreement or with the prior written consent of Buyer, which consent shall not be unreasonably withheld, Seller shall cause the other Party, each Party shall Bank to carry on their respective businesses its business in the ordinary course consistent with past practice. During such period, each Party also Seller will use, and will cause each of is subsidiaries to use, all use reasonable efforts to (x) preserve its the business organization of the Bank intact, (y) keep available to itself and the other Party Bank the present services of its respective the employees of the Bank, and (z) preserve for itself and the other Party Buyer the goodwill of its respective the customers of the Bank and others with whom the Bank has business relationships existrelationships. Without limiting the generality of the foregoing, except as Previously Disclosed or (i) with the prior written consent of Buyer, which consent shall not be unreasonably withheld, (ii) as contemplated in this Agreement, and (iii) as otherwise disclosed in the other Party heretoDisclosure Schedule, between the date hereof of this Agreement and the Effective TimeClosing, Seller shall use all reasonable efforts to prevent the Parties shall not, and shall cause each Bank from doing any of their respective Subsidiaries not tothe following:
(i) declare, set aside, make make, or pay any dividend or other distribution (whether in cash, stock stock, or property or any combination thereof) in respect of the Company Common Stock, except for regular quarterly cash dividends at a rate per share of Company Common Stock not in excess of $.19 per share and except, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the Company;
(ii) issue any shares of its capital stock, other than upon exercise of the Company Options referred to in Section 3.1 hereof, or ; issue, grant, modify modify, or authorize any Rights; purchase or redeem any shares of Company Common the Stock; or effect any recapitalization, reclassification, stock dividend, stock split split, or like change in capitalization;
(iii) amend its Articles of Incorporation, Articles of AssociationBylaws, Bylaws or similar organizational documents; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers officers, or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers officers, or employees, except (i) as may be required pursuant to Previously Disclosed commitments existing on employees other than in the date hereof, (ii) as may be required by law ordinary course of business and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions practice; or increased job responsibilitiesenter into or amend any employment or consulting agreement or extend the term of or renew any existing employment or consulting agreement;
(v) enter into or, except as may be required by lawlaw and for amendments contemplated by this Agreement, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance Bank Employee Plan or other employee benefit, incentive incentive, or welfare contract, plan plan, or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers officers, or employees; or make any contributions to any of the Company's or Keystone's Pension Plans or the Company's ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein;
(vi) enter into (w) any transaction, agreement, arrangement arrangement, or commitment not made in the ordinary course of business, (x) any agreement, indenture indenture, or other instrument relating to the borrowing of money by the Party Bank or a Party Subsidiary or the guarantee by a Party or any Party Subsidiary the Bank of any such obligation, except in the case of the Bank or Keystone for deposits, FHLB advances, federal funds purchased purchased, and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement arrangement, or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement arrangement, or commitment, provided that the Company, the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement agreement, or understanding with a labor union;
(vii) change its method of accounting in effect for the year ended December 31, 20012003, except as required by changes in laws or regulations or generally accepted accounting principlesprinciples or Call Report Instructions, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viii) make any capital expenditures in excess of $75,000 10,000 individually or $150,000 25,000 in the aggregate, other than (a) in the ordinary course of business, (b) in connection with the transactions contemplated by this Agreement, (c) pursuant to binding commitments disclosed on the Disclosure Schedule that are existing on the date hereof of this Agreement, and other than (d) expenditures necessary to maintain existing assets in good repair; or enter into any new lease or lease renewal of real property or any new lease or lease renewal of personal property providing for annual payments exceeding $50,0005,000;
(ix) file any applications or make any contract with respect to branching or site location or relocation;
(x) acquire except for purchases of U.S. Treasury securities or U.S. Government agency securities (which in either case shall have maturities of three (3) years or less) or commercial paper, agreements to repurchase, or federal funds (which in all cases shall have maturities of ninety (90) days or less), purchase any securities or make any material investment, either by purchase of stock or securities, contributions to capital, asset transfers, or purchase of any assets, in any manner whatsoever (person, or otherwise acquire direct or indirect control over any person, other than to realize upon collateral for a defaulted loan) control over in connection with foreclosures or any equity interest in any business or entity, except for investments in marketable equity securities other repossessions in the ordinary course of business and not exceeding 5% of the outstanding shares of any classbusiness;
(xi) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xii) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, and except to the extent required by law or any Regulatory Authority, change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede except as necessitated in the Merger or the Conversion from qualifying as a reorganization within the meaning reasonable opinion of Section 368 of the Code;
(xiv) Seller due to changes in interest rates, and in accordance with safe and sound banking practices, enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement agreement, or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xiv) materially increase or decrease the rate of interest paid on time deposits, or on certificates of deposit, except in a manner and pursuant to policies consistent with past practices or to reflect changes in market interest rates;
(xv) take any action that would result in any of the representations and warranties of Seller contained in this Agreement not to be true and correct in any material respect at the Effective Time Closing or that would cause any of the conditions of Sections 6.1, 6.2 or 6.3 hereof precedent to the Closing not to be satisfied;
(xvi) take any action that would materially increase impede or decrease delay the rate completion of interest paid on time deposits, the transactions contemplated by this Agreement or certificates the ability of deposit, except in a manner any Party to perform its covenants and pursuant to policies consistent with past practices, agreements under this Agreement; or
(xvii) agree to do any of the foregoing.
(b) Each Except with the prior written consent of Seller, or as required by applicable law or any rule, regulation, order, or directive of any Governmental Entity, or as expressly contemplated hereby, between the date of this Agreement and the Closing, Buyer shall not, and shall cause each of its Subsidiaries not to:
(i) take any action that would result in any of the Company representations and Keystone shall promptly notify warranties of Buyer contained in this Agreement not to be true and correct at the other Party in writing Closing or that would cause any of the occurrence conditions precedent to the Closing not to be satisfied;
(ii) take any action that would materially impede or delay the completion of the transactions contemplated by this Agreement or the ability of any matter or event known Party to perform its covenants and directly involving it or agreements under this Agreement; or
(iii) agree to do any of its Subsidiaries, other than any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on itforegoing.
Appears in 1 contract
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyBuyer, each Party Seller and Seller Bank shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party Seller also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its business organization and that of Seller Bank intact, (y) keep available to itself and the other Party Buyer the present services of its respective the employees of Seller and Seller Bank and (z) preserve for itself and the other Party Buyer the goodwill of its respective the customers of Seller and Seller Bank and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoBuyer, which consent shall not be unreasonably withheld, or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties Seller shall not, and shall cause each of their respective Subsidiaries Seller Bank not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Seller Common Stock, except for a regular quarterly annual cash dividends dividend at a rate per share of Company Common Stock not in excess of the result obtained by prorating the most recently paid rate, $.19 0.20 per share and exceptshare, in for the event number of full months elapsed since the Effective Time occurs more than 45 days after end of the commencement of any calendar quarter but prior to last annual period for which a dividend was paid (i.e., the normal dividend payment date for such calendar quarteryear ended December 31, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate2000); provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary Seller Bank to pay dividends on its capital stock to the CompanySeller;
(ii) issue any shares of its capital stock, other than upon exercise of the Company Seller Options referred to in Section 3.1 hereof, or ; issue, grant, modify or authorize any Rights; purchase any shares of Company Seller Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles of Incorporation, Articles of AssociationCharter, Bylaws or similar organizational documents, unless such amendment shall be necessary to complete the Company Merger or Bank Merger; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party Seller in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) except as may be required by law, increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (iprovided that Seller may pay bonuses at the Effective Time as provided under Section 5.10(h) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, (ii) as may be required by law and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilities;
(v) enter into or, except as may be required by lawlaw and for amendments contemplated by Section 5.10 hereof, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance Seller Employee Plan or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's or Keystone's Pension Plans Seller Defined Benefit Plan, Seller SEP or the Company's Seller ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except practices or as specifically provided hereinrequired by the Plan documents);
(vi) originate or purchase any loan in excess of $100,000 with respect to loans secured by one- to four-family properties and in excess of $200,000 with respect to loans secured by commercial properties; provided, however, that Seller may originate or purchase loans in excess of the aforementioned limits with the prior approval, in writing, of Buyer;
(vii) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party Seller or a Party Subsidiary Seller Bank or guarantee by a Party Seller or any Party Subsidiary Seller Bank of any such obligation, except in the case of the Seller Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Seller and Seller Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Seller or Seller Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(viiviii) change its method of accounting in effect for the year ended December 31, 2001, except as required by changes in laws or regulations or generally accepted accounting principlesGAAP, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viiiix) make any capital expenditures in excess of $75,000 5,000 individually or $150,000 10,000 in the aggregate, other than (a) in the ordinary course of business, (b) in connection with the transactions contemplated by this Agreement, (c) pursuant to binding commitments that are listed on Schedule 5.6(ix), and are existing on the date hereof hereof, and other than (d) expenditures necessary to maintain existing assets in good repair; or (e) enter into any new lease or lease renewal of real property or any new lease or lease renewal of personal property providing for annual payments exceeding $50,000property;
(ixx) except with respect to renewals of locations existing on the date of this Agreement, file any applications or make any contract with respect to branching or site location or relocation;
(xxi) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xixii) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xiixiii) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties of Seller contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 6.1 or 6.3 hereof not to be satisfied;
(xvi) take any action that would materially impede or delay the completion of the transactions contemplated by this Agreement or the ability of Buyer or Seller to perform its covenants and agreements under this Agreement; or
(xvii) materially increase or decrease the rate of interest paid on time deposits, or on certificates of deposit, except in a manner and pursuant to policies consistent with past practices, practices or to reflect changes in market interest rates; or
(xviixviii) agree to do any of the foregoing.
(b) Each of the Company and Keystone Seller shall promptly notify the other Party Buyer in writing of the occurrence of any matter or event known to and directly involving it or any of its SubsidiariesSeller, other than which would not include any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on itSeller.
(c) Except with the prior written consent of Seller or as expressly contemplated hereby, between the date hereof and the Effective Time, Buyer shall not, and shall cause each Buyer Subsidiary not to:
(i) take any action that would result in any of the representations and warranties of Buyer contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1 or 6.2 hereof not to be satisfied;
(ii) take any action that would materially impede or delay the completion of the transactions contemplated by this Agreement or the ability of Buyer or Seller to perform its covenants and agreements under this Agreement; or
(iii) agree to do any of the foregoing.
Appears in 1 contract
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyBuyer, each Party Seller and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party also will useSeller will, and will cause each of is subsidiaries to useits Subsidiaries to, use all reasonable efforts to (x) preserve its business organization intact, (y) keep available to itself and the other Party the present services of its respective employees and (z) preserve for itself and the other Party the goodwill of its respective customers and others with whom it has business relationships existrelationships. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoBuyer or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties Seller shall not, and shall cause each of their respective Subsidiaries Seller Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Seller Common Stock, except for the payment of one regular quarterly cash dividends dividend to be paid after the date of this Agreement at a rate per share of Company Seller Common Stock not in excess of $.19 0.05 per share (with record and except, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior payment dates to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the Companyconsistent with past practices);
(ii) issue any shares of its capital stock, other than (i) upon exercise of the Company Seller Options referred to in Section 3.1 3.1(a) hereof, or issue, grant, modify or authorize any Rights; purchase any shares of Company Seller Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles Certificate of Incorporation, Articles of Association, Bylaws or similar organizational documentsdocuments of any Seller Subsidiary, except as contemplated by this Agreement; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party Seller in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, or (ii) as may be required by law and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilitieslaw;
(v) enter into or, except as may be required by lawlaw or this Agreement, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance Seller Employee Plan or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of qualified Seller Employee Plan including the Company's or Keystone's Pension Plans or the Company's Seller ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein);
(vi) originate or purchase any loan other than (A) a loan secured by a first trust or mortgage on one-to-four family residential property not in excess of $250,000 or (B) a loan secured by a deposit at Seller Bank;
(vii) enter into (wA) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (xB) any agreement, indenture or other instrument relating to the borrowing of money by the Party Seller or a Party Subsidiary or guarantee by a Party Seller or any Party Seller Subsidiary of any such obligation, except in the case of the Seller Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (yC) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (zD) any contract, agreement or understanding with a labor union;
(viiviii) change any of its method methods of accounting in effect for the year ended December 31, 2001accounting, except as required by changes in laws or regulations or generally accepted accounting principlesGAAP, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its last federal income tax return for such yearreturn, except as required by changes in laws or regulations;
(viiiix) make any capital expenditures in excess of $75,000 10,000 individually or $150,000 20,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease of real property or any new lease of personal property providing for annual payments exceeding $50,000property;
(ixx) file any applications or make any contract with respect to branching or site location or relocation;
(xxi) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in readily marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xixii) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xiixiii) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties of Seller contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 6.1 or 6.3 hereof not to be satisfied;
(xvi) take any action that would materially impede or delay the completion of the Transactions or the ability of any Party to perform its covenants and agreements under this Agreement;
(xvii) materially increase or decrease the rate of interest paid on time deposits, or on certificates of deposit, except in a manner and pursuant to policies consistent with past practices, ; or
(xviixviii) agree to do any of the foregoing.
(b) Each of the Company and Keystone Seller shall promptly notify the other Party Buyer in writing of the occurrence of any matter or event known to and directly involving it Seller or any of its Subsidiaries, other than any changes in conditions Subsidiaries that affect the banking has had or savings institution industry generally, that would is reasonably likely to have, either individually or in the aggregate, a Material Adverse Effect on itSeller.
(c) Except with the prior written consent of Seller or as expressly contemplated hereby, between the date hereof and the Effective Time, Buyer shall not, and shall cause each Buyer Subsidiary not to:
(i) take any action that would result in any of the representations and warranties of Buyer contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1 or 6.2 hereof not to be satisfied;
(ii) take any action that would materially impede or delay the completion of the Transactions contemplated by this Agreement or the ability of either Party to perform its covenants and agreements under this Agreement; or
(iii) agree to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Teche Holding Co)
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyBuyer, each Party Seller and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party Seller also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve intact its business organization intactand that of Seller Bank, (y) keep available to itself and the other Party Buyer the present services of its respective the employees of Seller and Seller Bank and (z) preserve for itself and the other Party Buyer the goodwill of its respective the customers of Seller and Seller Bank and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoBuyer, which consent shall not be unreasonably withheld or as expressly contemplated in this Agreement, between the date hereof and the Effective Time, the Parties Seller shall not, and shall cause each of their respective Subsidiaries Seller Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Common Stock, except for regular quarterly cash dividends at a rate per share of Company Common Stock not in excess of $.19 per share and except, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the CompanySeller's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the Companystock;
(ii) issue any shares of its capital stock, other than upon exercise of the Company Options referred to in Section 3.1 hereof, or ; issue, grant, modify or authorize any Rights; purchase any shares of Company Seller Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization; or change the number of shares of its authorized capital stock;
(iii) amend its Articles of Incorporation, Articles Code of Association, Bylaws Regulations or similar organizational documents; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party Seller in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) except as provided herein, increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or increase in any manner the compensation or fringe benefits of, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) as may be required pursuant to Previously Disclosed commitments existing on employees other than normal salary increases in the date hereof, (ii) as may be required by law ordinary course of business and (iii) merit increases in accordance with past practicespractice and, normal cost-of-living increases with respect to employees other than Stebbins family members, bonus xxxxxxxx in the ordinary course of business and normal increases related to promotions in accordance with past practice, or increased job responsibilitiesenter into or amend any employment or consulting agreement or extend the term of or renew any existing employment or consulting agreement;
(v) enter into or, except as may be required by lawlaw and for amendments contemplated by this Agreement, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance Seller Employee Plan or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees;
(vi) except for any commitments Previously Disclosed, make any new loan or other credit facility commitment (including without limitation, lines of credit and letters of credit) in excess of $200,000; or increase, compromise, extend, renew or modify any existing loan or commitment outstanding in excess of $200,000; or make any contributions new loan or other credit facility commitment (including without limitation, lines of credit and letters of credit) in any amount if thereafter the exposure to any one borrower or group of affiliated borrowers (including obligors under loan participations) in the Company's or Keystone's Pension Plans or the Company's ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided hereinaggregate would exceed $300,000;
(vivii) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party Seller or a Party Seller Subsidiary or guarantee by a Party Seller or any Party Seller Subsidiary of any such obligation, except in the case of the Seller Bank or Keystone for deposits, FHLB advances,, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, ; (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Seller and Seller Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Seller or Seller Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(viiviii) change its method of accounting in effect for prior to the year ended December 31, 2001Effective Time, except as required by changes in laws or regulations or generally accepted regulatory accounting principlesprinciples or GAAP , or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viiiix) make any capital expenditures in excess of $75,000 10,000 individually or $150,000 25,000 in the aggregate, other than pursuant to binding commitments that have been Previously Disclosed and are existing on the date hereof and other than expenditures necessary to maintain existing assets in good repairhereof; or enter into any new lease or lease renewal of real property or any new lease or lease renewal of personal property providing for annual payments exceeding $50,000;
(ix) file any applications or make any contract with respect to branching or site location or relocation5,000;
(x) sell or otherwise dispose of the capital stock of Seller Bank, or sell or otherwise dispose of any asset other than in the ordinary course of business consistent with past practice; subject any asset to a lien, pledge, security interest or other encumbrance (other than in connection with deposits, repurchase agreements, bankers acceptances, "treasury tax and loan" accounts established in the ordinary course of business and transactions in "federal funds" and the satisfaction of legal requirements in the exercise of trust powers) other than in the ordinary course of business consistent with past practice; incur any liability or indebtedness for borrowed money (or guarantee any indebtedness for borrowed money), except in the ordinary course of business consistent with past practice;
(xi) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except or purchase any security for investments in marketable equity securities in the ordinary course its investment portfolio not rated "A" or higher by either Standard & Poor's Corporation or Moody's Investor Services, Inc, xx xxxh a remaining term to maturity of business and not exceeding more than five (5% of the outstanding shares of any class) years;
(xixii) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xiixiii) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties of Seller or Seller Bank contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions precedent to effect closing of Sections 6.1, 6.2 or 6.3 hereof the transactions contemplated by this Agreement not to be satisfied;
(xvi) take any action that would materially impede or delay the completion of the Merger or the ability of Buyer or Seller to perform its covenants and agreements under this Agreement;
(xvii) materially increase or decrease the rate of interest paid on time deposits, or on certificates of deposit, except in a manner and pursuant to policies consistent with past practices, orpractices or to reflect changes in market interest rates;
(xviixviii) merge or consolidate with any other corporation; sell or lease all or any substantial portion of its assets or business; make any acquisition of all or any substantial portion of the business or assets of any other person, firm, association, corporation or business organization other than in connection with foreclosures, settlements in lieu of foreclosure, troubled loan or debt restructuring, or the collection of any loan or credit arrangement between Seller, or any Seller Subsidiary, and any other person; enter into a purchase and assumption transaction with respect to deposits and liabilities; permit the revocation or surrender by it or any Seller Subsidiary of its certificate of authority to maintain, or file an application for the relocation of, any existing branch office, or file an application for a certificate of authority to establish a new branch office;
(xix) make any change in policies with regard to: the extension of credit, or the establishment of reserves with respect to the possible loss thereon or the charge off of losses incurred thereon; investments; asset/liability management; or other material banking policies in any material respect except as may be required by changes in applicable law or regulations, or GAAP;
(xx) acquire any loan participation or loan servicing rights;
(xxi) engage in any loan transaction with an officer or director;
(xxii) invest in "high risk" mortgage derivative investments as defined by the Federal Financial Institutions Examination Council other than those held as of the date hereof and Previously Disclosed;
(xxiii) discharge or satisfy any lien or encumbrance or pay any material obligation or liability (absolute or contingent) other than at scheduled maturity or in the ordinary course of business;
(xxiv) agree to do any of the foregoing.
(b) Each of the Company and Keystone Seller shall promptly notify the other Party Buyer in writing of the occurrence of any matter or event known to and directly involving it or any of its SubsidiariesSeller, other than which would not include any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on itSeller.
(c) Except with the prior written consent of Seller or as expressly contemplated hereby, between the date hereof and the Effective Time, Buyer shall not, and shall cause each Buyer Subsidiary not to:
(i) take any action that would result in any of the representations and warranties of Buyer contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions precedent to effect closing of the transactions contemplated by this Agreement not to be satisfied;
(ii) take any action that would materially impede or delay the completion of the Merger or the ability of Buyer or Seller to perform its covenants and agreements under this Agreement; or
(iii) agree to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Wayne Savings Bancshares Inc /De/)
Business of the Parties. (a) During the period from the date of this Agreement hereof and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyBuyer, each Party Seller and Peoples Federal shall carry on their respective businesses business only in the ordinary course consistent with past practice. During such period, each Party Seller also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its the business organization organizations of Seller and Peoples Federal intact, (y) keep available to itself and the other Party Buyer the present services of its respective the employees of Seller and Peoples Federal and (z) preserve for itself and the other Party Buyer the goodwill of its respective the customers of Peoples Federal and others with whom a business relationships existrelationship with Peoples Federal exists. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoBuyer or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties Seller shall not, with respect to Seller or Peoples Federal, and shall cause each of their respective Subsidiaries Peoples Federal not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Seller Common Stock, except for regular quarterly cash dividends payable by Seller consistent with past practice at a rate per share of Company Common Stock not in excess of $.19 .06 per share and except, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rateSeller Common Stock; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Seller Subsidiary to pay dividends on its capital stock to the CompanySeller;
(ii) issue any shares of its capital stock, other than upon the exercise of the Company Seller Options referred to in Section 3.1 hereof, or ; issue, grant, modify or authorize any Rights; purchase any shares of Company Seller Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles of Incorporation, Articles Charter, Code of AssociationRegulations, Bylaws By-laws or similar organizational documents; impose, or suffer unless such amendment shall be necessary to complete the imposition, on any share of stock or other ownership interest held by a Party in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to existMerger; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its the directors, officers or employeesemployees of Seller or Peoples Federal, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its the directors, officers or employeesemployees of Seller or Peoples Federal, except (iw) as may have been previously accrued as reflected in the Seller Financial Statements as of June 30, 2001, (x) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, (iiy) for Previously Disclosed regular scheduled salary increases or bonuses, or (z) as may be required by law and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilitieslaw;
(v) enter into or, except as may be required by law, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance Seller Employee Plan or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's or Keystone's Pension Plans or the Company's ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein;
(vi) enter into with respect to any of the following loans the application for which is first received by Seller or Peoples Federal after the date hereof, approve or close (w) any brokered loan, (x) any loan in excess of $275,000 for a loan secured by a first trust or mortgage, (y) any loan in excess of $100,000 for a loan secured by a second trust or mortgage, or (z) any loan in excess of $15,000 that is not secured by a first or second trust or mortgage on a one to four family residential property;
(vii) except as otherwise expressly permitted hereunder, enter into (v) any agreement for the purchase, sale, transfer, mortgage, encumbrance or other disposition of any properties or assets outside the ordinary course of business, (w) any other transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) ), any agreement, indenture or other instrument relating to the borrowing of money by the Party Seller or a Party Subsidiary Peoples Federal or guarantee by a Party Seller or any Party Subsidiary Peoples Federal of any such obligation, except except, in the case of the Bank or Keystone Peoples Federal, for deposits, FHLB advancesadvances not to exceed six months to maturity, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) except as otherwise permitted pursuant to Section 5.6(a)(xxi) hereof, any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(vii) change its method of accounting in effect for the year ended December 31, 2001, except as required by changes in laws or regulations or generally accepted accounting principles, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viii) make any capital expenditures in excess of $75,000 individually or $150,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease of real property or any new lease of personal property providing for annual payments exceeding $50,000;
(ix) file any applications or make any contract with respect to branching or site location or relocation;
(x) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xi) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xii) change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 or 6.3 hereof not to be satisfied;
(xvi) materially increase or decrease the rate of interest paid on time deposits, or certificates of deposit, except in a manner and pursuant to policies consistent with past practices, or
(xvii) agree to do any of the foregoing.
(b) Each of the Company and Keystone shall promptly notify the other Party in writing of the occurrence of any matter or event known to and directly involving it or any of its Subsidiaries, other than any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on it.
Appears in 1 contract
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyXxxxxx or Xxxxxx Bank, Cohoes shall, and shall cause each Party shall of its Subsidiaries to, carry on their respective businesses its business only in the ordinary course consistent with past practice. During such period, each Party also will useCohoes will, and will cause each of is subsidiaries to useits Subsidiaries to, use all reasonable efforts to (x) preserve its business organization intact, (y) keep available to itself and the other Party the present services of its respective employees and (z) preserve for itself and the other Party the goodwill of its respective customers and others with whom it has business relationships existrelationships. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoXxxxxx or Xxxxxx Bank (which consent shall not be unreasonably withheld or delayed with respect to subparts (vi), (ix) and (xv)) or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties shall not, and shall cause each neither Cohoes nor any of their respective its Subsidiaries not toshall:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Common Stockits capital stock, except for (A) the declaration and payment of regular quarterly cash dividends at a rate per share of Company Common Stock by Cohoes in an amount not in excess of $.19 0.08 per outstanding share of Cohoes Common Stock with usual record and except, in payment dates for such dividends consistent with the event past dividend practices of Cohoes and (B) the Effective Time occurs more than 45 days after declaration and payment of cash dividends by Cohoes Bank to Cohoes to facilitate the commencement payment of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly by Cohoes pursuant to clause (A) above or any other cash dividend rate; provided, however, that nothing contained herein shall payments to be deemed made by Cohoes pursuant to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the Companyor as contemplated by this Agreement;
(ii) issue any shares of its capital stock, other than upon exercise of the Company Cohoes Options referred to in Section 3.1 hereof, or ; issue, grant, modify or authorize any RightsRights other than a modification pursuant to the Previously Disclosed amendments to the Cohoes Option Plan approved by Cohoes' shareholders at Cohoes' 2000 annual meeting of shareholders; purchase any shares of Company Common Stockits capital stock or ownership interests; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) except for the deletion of Section 7 of the Charter of Cohoes Bank, amend its Articles Certificate of Incorporation, Articles of AssociationCharter, Bylaws or similar organizational documents; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of or benefits to any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (iA) compensation increases and bonus payments as may be required pursuant to Previously Disclosed commitments existing on the date hereof, and in the case of Previously Disclosed bonuses the amounts accrued therefor through December, 2000 may be paid in December, 2000 and unpaid amounts accrued immediately before the Closing may be paid on the Closing Date, (iiB) the Cohoes Special Bonus to the persons and in the amounts Previously Disclosed if such persons are employees or directors of Cohoes Bank immediately prior to the Effective Time,(C) as may be required by law and law; or (iiiD) merit increases in accordance to rank and file employees consistent with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilities;
(v) enter into or, except as may be required by law, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's or Keystone's Pension Plans or the Company's ESOP (Employee Plan other than as required a modification pursuant to the Previously Disclosed amendments to the Cohoes Option Plan and the Cohoes Recognition Plan approved by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided hereinCohoes' shareholders at Cohoes' 2000 annual meeting of shareholders;
(vi) originate or purchase (A) any brokered loan not pursuant to a commitment Previously Disclosed and existing on the date hereof, (B) any unsecured loan in excess of $50,000,(C) any loan secured by a first trust or mortgage on a one- to four-family residential property in excess of $250,000, (D) any loan secured by a first trust or mortgage on commercial real property in excess of $400,000, or (E) any other loan in excess of $100,000;
(vii) except as otherwise permitted hereunder, enter into (wA) any agreement for the purchase, sale, transfer, Encumbrance or other disposition of any properties or assets (other than real estate acquired in foreclosure (or by deed in lieu thereof) or repossessed assets, in each case, with a carrying value on Cohoes' Financial Reports of less than $300,000 individually),(B) any other transaction, agreement, arrangement or commitment not made in the ordinary course of business, (xC) any agreement, indenture or other instrument relating to the borrowing of money by the Party or a Party Subsidiary or guarantee by a Party or any Party Subsidiary of any such obligationobligations, except in the case of the Bank or Keystone for deposits, FHLB advancesadvances not to exceed six months to maturity, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (yD) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (zE) any contract, agreement or understanding with a labor union;
(viiviii) change any of its method methods of accounting in effect for the year ended December 31, 2001accounting, except as required by changes in laws or regulations or generally accepted accounting principlesGAAP, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its last federal income tax return for such yearreturn, except as required by changes in laws or regulations;
(viiiix) enter into or renew any lease of real or personal property or any service contract; or fail to give any required notice to prevent a lease or service contract from being renewed; or make any capital expenditures in excess of $75,000 25,000 individually or $150,000 50,000 in the aggregate, other than pursuant to binding commitments Previously Disclosed and existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; ;
(x) enter into or agree to enter into any new lease of real property agreement, arrangement or any new lease of personal property providing for annual payments exceeding $50,000commitment described in Section 3.12(b) - (h);
(ixxi) file any applications or make any contract with respect to branching or site location or relocation;
(xxii) purchase any security or acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in other than marketable equity securities (which do not exceed 1% of the securities outstanding within such class) in the ordinary course of business and not exceeding 5% of the outstanding shares of any classbusiness;
(xixiii) except with respect to real estate acquired in foreclosure (or by deed in lieu thereof) or repossessed assets, enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xiixiv) except as necessitated in the reasonable opinion of Cohoes Bank due to changes in interest rates, and in accordance with safe and sound banking practices, change or modify in any material respect any of its lending lending, investment, or investment deposit gathering policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xivxv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xvxvi) take any action that would result in cause any of the representations and warranties of Cohoes contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 Section 7.1 or 6.3 7.3 hereof not to be satisfied;
(xvixvii) voluntarily take any action that would materially increase impede or decrease delay the rate completion of interest paid on time deposits, the Transactions or certificates the ability of deposit, except in a manner the Parties to perform their covenants and pursuant to policies consistent with past practices, agreements under this Agreement; or
(xviixviii) agree to do any of the foregoing.
(b) Each Except with the prior written consent of Cohoes or as expressly contemplated hereby, between the date hereof and the Effective Time, neither Xxxxxx nor Xxxxxx Bank shall:
(i) take any action that would cause any of its representations and warranties contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any -44- of the Company conditions of Section 7.1 or 7.2 hereof not to be satisfied;
(ii) voluntarily take any action that would materially impede or delay the completion of the Transactions or its ability to perform its covenants and Keystone agreements under this Agreement; or
(iii) agree to do any of the foregoing.
(c) Each Party shall promptly notify the other Party Parties in writing of the occurrence of any matter or event known to and directly involving it or any of its Subsidiaries, other than any changes in conditions that affect the banking or savings institution industry generallyit, that would could have, either individually or in the aggregate, a Material Adverse Effect on upon it.
Appears in 1 contract
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyBuyer, each Party which consent shall not be unreasonably withheld, Seller and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party also Seller will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its business organization and that of each of its Subsidiaries intact, (y) keep available to itself and the other Party Buyer the present services of the employees of Seller and each of its respective employees Subsidiaries, and (z) preserve for itself and the other Party Buyer the goodwill of the customers of Seller and each of its respective customers Subsidiaries and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoBuyer, which consent shall not be unreasonably withheld, and except as expressly contemplated in this Agreement, between the date hereof of this Agreement and the Effective Time, the Parties Seller shall not, and shall cause each of their respective its Subsidiaries not to:
(i) declare, set aside, make make, or pay any dividend or other distribution (whether in cash, stock stock, or property or any combination thereof) in respect of the Company Common Seller Stock, except for regular quarterly cash dividends at a rate per share of Company Common Stock not in excess of $.19 per share and except, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the Company;
(ii) issue any shares of its capital stock, other than upon exercise of the Company Options referred to in Section 3.1 hereof, or ; issue, grant, modify modify, or authorize any Rights; purchase or redeem any shares of Company Common Seller Stock; or effect any recapitalization, reclassification, stock dividend, stock split split, or like change in capitalization;
(iii) amend its Articles of Incorporation, Articles of AssociationBylaws, Bylaws or similar organizational documents; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party Seller in a Party Subsidiary of any lien, charge charge, or encumbrance or permit any such lien, charge charge, or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers officers, or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers officers, or employees, except (i) as may be required pursuant to Previously Disclosed commitments existing on employees other than in the date hereof, (ii) as may be required by law ordinary course of business and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions practice; or increased job responsibilitiesenter into or amend any employment or consulting agreement or extend the term of or renew any existing employment or consulting agreement;
(v) enter into or, except as may be required by lawlaw and for amendments contemplated by this Agreement, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance Seller Employee Plan or other employee benefit, incentive incentive, or welfare contract, plan plan, or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers officers, or employees; or make any contributions to any of the Company's or Keystone's Pension Plans or the Company's ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein;
(vi) without consultation with Buyer (which shall not be construed to require Buyer's consent), with respect to any customer relationship (which for purposes hereof shall include the customer and any person attributed to such customer when computing the limitation on loans to a single borrower under the terms of Buyer's loan policy as disclosed to Seller), originate, renew, refinance, or purchase any loan in excess of $150,000 with respect to loans secured by one-to-four-family properties, excluding loans purchased by Xxxxxxx Mac; or in excess of $250,000 with respect to commercial loans;
(vii) enter into (w) any transaction, agreement, arrangement arrangement, or commitment not made in the ordinary course of business, (x) any agreement, indenture indenture, or other instrument relating to the borrowing of money by the Party Seller or a Party Subsidiary any of its Subsidiaries or guarantee by a Party Seller or any Party Subsidiary of its Subsidiaries of any such obligation, except in the case of the Seller Bank or Keystone for deposits, FHLB advances, federal funds purchased purchased, and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement arrangement, or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement arrangement, or commitment, provided that the Company, the Seller and Seller Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Seller or Seller Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement agreement, or understanding with a labor union;
(viiviii) change its method of accounting in effect for the year ended December 31, 20012002, except as required by changes in laws or regulations or generally accepted accounting principlesGAAP, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viiiix) make any capital expenditures in excess of $75,000 10,000 individually or $150,000 25,000 in the aggregate, other than (a) in the ordinary course of business, (b) in connection with the transactions contemplated by this Agreement, (c) pursuant to binding commitments disclosed on Schedule 3.15 and are existing on the date hereof of this Agreement, and other than (d) expenditures necessary to maintain existing assets in good repair; or enter into any new lease or lease renewal of real property or any new lease or lease renewal of personal property providing for annual payments exceeding $50,0005,000;
(ixx) file any applications or make any contract with respect to branching or site location or relocation;
(xxi) acquire except for purchases of U.S. Treasury securities or U.S. Government agency securities, which in either case have maturities of three (3) years or less, or commercial paper, agreements to repurchase or federal funds, which in all cases shall have maturities of ninety (90) days or less, purchase any securities or make any material investment, either by purchase of stock or securities, contributions to capital, asset transfers, or purchase of any assets, in any manner whatsoever (person other than to realize upon collateral for a defaulted loan) wholly owned Subsidiary of Seller, or otherwise acquire direct or indirect control over any person, other than in connection with foreclosures or any equity interest in any business or entity, except for investments in marketable equity securities other repossessions in the ordinary course of business and not exceeding 5% of the outstanding shares of any classbusiness;
(xixii) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xiixiii) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement agreement, or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties of Seller or Seller Bank contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions precedent to effect closing of Sections 6.1, 6.2 or 6.3 hereof the transactions contemplated by this Agreement not to be satisfied;
(xvi) take any action that would materially impede or delay the completion of the Corporate Merger or the ability of any Party to perform its covenants and agreements under this Agreement;
(xvii) materially increase or decrease the rate of interest paid on time deposits, or on certificates of deposit, except in a manner and pursuant to policies consistent with past practices, practices or to reflect changes in market interest rates; or
(xviixviii) agree to do any of the foregoing.
(b) Each of the Company and Keystone Seller shall promptly notify the other Party Buyer in writing of the occurrence of any matter or event known to and directly involving it Seller or any of its Subsidiaries, other than any changes in conditions that affect the banking or savings institution industry generally, Subsidiaries that would have, either individually or in the aggregate, a Material Adverse Effect on itSeller.
(c) Except with the prior written consent of Seller, or as required by applicable law or any rule, regulation, order, or directive of any Governmental Entity, or as expressly contemplated hereby, between the date of this Agreement and the Effective Time, Buyer shall not, and shall cause each of its Subsidiaries not to:
(i) take any action that would result in any of the representations and warranties of Buyer contained in this Agreement not to be true and correct at the Effective Time or that would cause any of the conditions precedent to effect closing of the transactions contemplated by this Agreement not to be satisfied;
(ii) take any action that would materially impede or delay the completion of the Corporate Merger or the ability of any Party to perform its covenants and agreements under this Agreement; or
(iii) agree to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (North Bancorp Inc)
Business of the Parties. (a) During the period from the date of this Agreement hereof and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyBuyer, each Party Seller and Peoples Federal shall carry on their respective businesses business only in the ordinary course consistent with past practice. During such period, each Party Seller also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its the business organization organizations of Seller and Peoples Federal intact, (y) keep available to itself and the other Party Buyer the present services of its respective the employees of Seller and Peoples Federal and (z) preserve for itself and the other Party Buyer the goodwill of its respective the customers of Peoples Federal and others with whom a business relationships existrelationship with Peoples Federal exists. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoBuyer or as expressly contemplated hereby, between the date hereof and the Effective Time, the Parties Seller shall not, with respect to Seller or Peoples Federal, and shall cause each of their respective Subsidiaries Peoples Federal not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Seller Common Stock, except for regular quarterly cash dividends payable by Seller consistent with past practice at a rate per share of Company Common Stock not in excess of $.19 .06 per share and except, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rateSeller Common Stock; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Seller Subsidiary to pay dividends on its capital stock to the CompanySeller;
(ii) issue any shares of its capital stock, other than upon the exercise of the Company Seller Options referred to in Section 3.1 hereof, or ; issue, grant, modify or authorize any Rights; purchase any shares of Company Seller Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles of Incorporation, Articles Charter, Code of AssociationRegulations, Bylaws By-laws or similar organizational documents; impose, or suffer unless such amendment shall be necessary to complete the imposition, on any share of stock or other ownership interest held by a Party in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to existMerger; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its the directors, officers or employeesemployees of Seller or Peoples Federal, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its the directors, officers or employeesemployees of Seller or Peoples Federal, except (iw) as may have been previously accrued as reflected in the Seller Financial Statements as of June 30, 2001, (x) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, (ii) as may be required by law and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilities;
(v) enter into or, except as may be required by law, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's or Keystone's Pension Plans or the Company's ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein;
(vi) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party or a Party Subsidiary or guarantee by a Party or any Party Subsidiary of any such obligation, except in the case of the Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(vii) change its method of accounting in effect for the year ended December 31, 2001, except as required by changes in laws or regulations or generally accepted accounting principles, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viii) make any capital expenditures in excess of $75,000 individually or $150,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease of real property or any new lease of personal property providing for annual payments exceeding $50,000;
(ix) file any applications or make any contract with respect to branching or site location or relocation;
(x) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xi) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xii) change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of Sections 6.1, 6.2 or 6.3 hereof not to be satisfied;
(xvi) materially increase or decrease the rate of interest paid on time deposits, or certificates of deposit, except in a manner and pursuant to policies consistent with past practices, or
(xvii) agree to do any of the foregoing.
(b) Each of the Company and Keystone shall promptly notify the other Party in writing of the occurrence of any matter or event known to and directly involving it or any of its Subsidiaries, other than any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on it.for
Appears in 1 contract
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other Party, each Party shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party also will use, and will cause each of is subsidiaries to use, all reasonable efforts to (x) preserve its business organization intact, (y) keep available to itself and the other Party the present services of its respective employees and (z) preserve for itself and the other Party the goodwill of its respective customers and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party hereto, which consent shall not be unreasonably withheld, between the date hereof and the Effective Time, the Parties shall not, and shall cause each of their respective Subsidiaries not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Common Stock, Stock except for Home Bancorp may pay regular quarterly cash dividends on the Home Bancorp Common Stock at a rate per share of Company Home Bancorp Common Stock not in excess of $.19 0.06 per share and except, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rateshare; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary or a Home Bancorp Subsidiary to pay dividends on its capital stock to the CompanyCompany or Home Bancorp, respectively;
(ii) issue any shares of its capital stock, other than upon the exercise of the Company Options referred to in Section 3.1 hereof, the exercise of any options outstanding as of the date hereof under the Home Bancorp 2005 Stock Option Plan or the vesting of share awards outstanding as of the date hereof pursuant to the Home Bancorp 2005 Recognition and Retention Plan and Trust Agreement or issue, grant, modify or authorize any Rights; purchase any shares of Company Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles of Incorporation, Articles of AssociationCharter, Bylaws or similar organizational documentsdocuments other than as contemplated by the terms of this Agreement; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) as may be required pursuant to Previously Disclosed commitments existing on the date hereof, (ii) as may be required by law and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions or increased job responsibilities;
(v) except as Previously Disclosed, enter into or, except as may be required by law, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; or make any contributions to any of the Company's ’s or Keystone's Home Bancorp’s Pension Plans or the Company's ’s or Home Bancorp’s respective KSOP or ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein;
(vi) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party or a Party Subsidiary or guarantee by a Party or any Party Subsidiary of any such obligation, except in the case of the Bank or Keystone Home Federal for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Bank Bank, Home Bancorp and Keystone Home Federal may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Bank Bank, Home Bancorp or KeystoneHome Federal, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(vii) change its method of accounting in effect for the Company’s fiscal year ended December 31, 20012006, or Home Bancorp’s fiscal year ended June 30, 2007, except as required by changes in laws or regulations or generally accepted accounting principles, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viii) except as Previously Disclosed, make any capital expenditures in excess of $75,000 individually or $150,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair; or enter into any new lease of real property or any new lease of personal property providing for annual payments exceeding $50,000;
(ix) except as Previously Disclosed, file any applications or make any contract with respect to branching or site location or relocation;
(x) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xi) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xii) change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions of set forth in Sections 6.1, 6.2 or 6.3 hereof not to be satisfied;
(xvi) materially increase or decrease the rate of interest paid on time deposits, deposits or certificates of deposit, except in a manner and pursuant to policies consistent with past practices, or
(xvii) agree to do any of the foregoing.
(b) Each of the Company and Keystone Home Bancorp shall promptly notify the other Party in writing of the occurrence of any matter or event known to and directly involving it or any of its Subsidiaries, other than any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on it.
Appears in 1 contract
Samples: Merger Agreement (Home Federal Bancorp, Inc. Of Louisiana)
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective TimeClosing, except as expressly contemplated or permitted by this Agreement or with the prior written consent of Agent, which consent shall not be unreasonably withheld, Seller shall cause the other Party, each Party shall Bank to carry on their respective businesses its business in the ordinary course consistent with past practice. During such period, each Party also Seller will use, and will cause each of is subsidiaries to use, all use reasonable efforts to (x) preserve its the business organization of the Bank intact, (y) keep available to itself and the other Party Bank the present services of its respective the employees of the Bank, provided, Buyers and Seller each acknowledge and agree that, effective on the Closing Date, the employment of the Bank’s CEO will be terminated and such CEO will thereafter become employed by Seller or another Subsidiary of Seller, and (z) preserve for itself and the other Party Buyer the goodwill of its respective the customers of the Bank and others with whom the Bank has business relationships existrelationships. Without limiting the generality of the foregoing, except as Previously Disclosed or (i) with the prior written consent of Agent, which consent shall not be unreasonably withheld, (ii) as contemplated in this Agreement, and (iii) as otherwise disclosed in the other Party heretoDisclosure Schedule, between the date hereof of this Agreement and the Effective TimeClosing, Seller shall use all reasonable efforts to prevent the Parties shall not, and shall cause each Bank from doing any of their respective Subsidiaries not tothe following:
(i) declare, set aside, make make, or pay any dividend or other distribution (whether in cash, stock stock, or property or any combination thereof) in respect of the Company Common Stock, except for regular quarterly cash dividends at a rate per share of Company Common Stock not in excess of $.19 per share and except, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the Company;
(ii) issue any shares of its capital stock, other than upon exercise of the Company Options referred to in Section 3.1 hereof, or ; issue, grant, modify modify, or authorize any Rights; purchase or redeem any shares of Company Common the Stock; or effect any recapitalization, reclassification, stock dividend, stock split split, or like change in capitalization;
(iii) amend its Articles of Incorporation, Articles of AssociationBylaws, Bylaws or similar organizational documents; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) increase the rate of compensation of any of its directors, officers officers, or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers officers, or employees, except (i) as may be required pursuant to Previously Disclosed commitments existing on employees other than in the date hereof, (ii) as may be required by law ordinary course of business and (iii) merit increases in accordance with past practices, normal cost-of-living increases and normal increases related to promotions practice; or increased job responsibilitiesenter into or amend any employment or consulting agreement or extend the term of or renew any existing employment or consulting agreement;
(v) enter into or, except as may be required by lawlaw and for amendments contemplated by this Agreement, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance Bank Employee Plan or other employee benefit, incentive incentive, or welfare contract, plan plan, or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers officers, or employees; or make any contributions to any of the Company's or Keystone's Pension Plans or the Company's ESOP (other than as required by law or regulation or in a manner and amount consistent with past practices) and except as specifically provided herein;
(vi) enter into (w) any transaction, agreement, arrangement arrangement, or commitment not made in the ordinary course of business, (x) any agreement, indenture indenture, or other instrument relating to the borrowing of money by the Party Bank or a Party Subsidiary or the guarantee by a Party or any Party Subsidiary the Bank of any such obligation, except in the case of the Bank or Keystone for deposits, FHLB advances, federal funds purchased purchased, and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement arrangement, or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement arrangement, or commitment, provided that the Company, the Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement agreement, or understanding with a labor union;
(vii) change its method of accounting (including, but not limited to, its policies and practices for loan classification and determination of ALLL) in effect for the year ended December 31, 20012009, except as required by changes in laws or regulations or generally accepted accounting principlesprinciples or Call Report Instructions, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viii) make any capital expenditures in excess of $75,000 10,000 individually or $150,000 25,000 in the aggregate, other than (a) in the ordinary course of business, (b) in connection with the transactions contemplated by this Agreement, (c) pursuant to binding commitments disclosed on the Disclosure Schedule that are existing on the date hereof of this Agreement, and other than (d) expenditures necessary to maintain existing assets in good repair; or enter into any new lease or lease renewal of real property or any new lease or lease renewal of personal property providing for annual payments exceeding $50,0005,000;
(ix) file any applications or make any contract with respect to branching or site location or relocation;
(x) acquire except for purchases of U.S. Treasury securities or U.S. Government agency securities (which in either case shall have maturities of three (3) years or less) or commercial paper, agreements to repurchase, or federal funds (which in all cases shall have maturities of ninety (90) days or less), purchase any securities or make any material investment, either by purchase of stock or securities, contributions to capital, asset transfers, or purchase of any assets, in any manner whatsoever (person, or otherwise acquire direct or indirect control over any person, other than to realize upon collateral for a defaulted loan) control over in connection with foreclosures or any equity interest in any business or entity, except for investments in marketable equity securities other repossessions in the ordinary course of business and not exceeding 5% of the outstanding shares of any classbusiness;
(xi) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xii) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, and except to the extent required by law or any Regulatory Authority, change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede except as necessitated in the Merger or the Conversion from qualifying as a reorganization within the meaning reasonable opinion of Section 368 of the Code;
(xiv) Seller due to changes in interest rates, and in accordance with safe and sound banking practices, enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement agreement, or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xiv) materially increase or decrease the rate of interest paid on time deposits, or on certificates of deposit, except in a manner and pursuant to policies consistent with past practices or to reflect changes in market interest rates;
(xv) take any action that would result in any of the representations and warranties of Seller contained in this Agreement not to be true and correct in any material respect at the Effective Time Closing or that would cause any of the conditions of Sections 6.1, 6.2 or 6.3 hereof precedent to the Closing not to be satisfied;
(xvi) take any action that would materially increase impede or decrease delay the rate completion of interest paid on time deposits, the transactions contemplated by this Agreement or certificates the ability of deposit, except in a manner any Party to perform its covenants and pursuant to policies consistent with past practices, agreements under this Agreement; or
(xvii) agree to do any of the foregoing.
(b) Each Except with the prior written consent of Seller, or as required by applicable law or any rule, regulation, order, or directive of any Governmental Entity, or as expressly contemplated hereby, between the date of this Agreement and the Closing, Buyers shall not:
(i) take any action that would result in any of the Company representations and Keystone shall promptly notify warranties of Buyers contained in this Agreement not to be true and correct at the other Party in writing Closing or that would cause any of the occurrence conditions precedent to the Closing not to be satisfied;
(ii) take any action that would materially impede or delay the completion of the transactions contemplated by this Agreement or the ability of any matter or event known Party to perform its covenants and directly involving it or agreements under this Agreement; or
(iii) agree to do any of its Subsidiaries, other than any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on itforegoing.
Appears in 1 contract
Business of the Parties. (a) During the period from the date of this Agreement and continuing until the Effective Time, except as expressly contemplated or permitted by this Agreement or with the prior written consent of the other PartyBuyer, each Party which consent shall not be unreasonably withheld, Seller and its Subsidiaries shall carry on their respective businesses in the ordinary course consistent with past practice. During such period, each Party Seller also will use, and will cause each of is subsidiaries to use, use all reasonable efforts to (x) preserve its business organization and that of Seller Bank intact, (y) keep available to itself and the other Party Buyer the present services of its respective the employees of Seller and Seller Bank and (z) preserve for itself and the other Party Buyer the goodwill of its respective the customers of Seller and Seller Bank and others with whom business relationships exist. Without limiting the generality of the foregoing, except as Previously Disclosed or with the prior written consent of the other Party heretoBuyer, which consent shall not be unreasonably withheld or as expressly contemplated in this Agreement, between the date hereof and the Effective Time, the Parties Seller shall not, and shall cause each of their respective Subsidiaries Seller Subsidiary not to:
(i) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of the Company Seller Common Stock, except for regular quarterly cash dividends at a rate per share of Company Common Stock not in excess of $.19 per share and except, in the event the Effective Time occurs more than 45 days after the commencement of any calendar quarter but prior to the normal dividend payment date for such calendar quarter, a pro rata cash dividend based on the Company's normal quarterly cash dividend rate; provided, however, that nothing contained herein shall be deemed to affect the ability of a Company Subsidiary to pay dividends on its capital stock to the Company;
(ii) issue any shares of its capital stock, other than upon exercise of the Company Options referred to in Section 3.1 hereof, or ; issue, grant, modify or authorize any Rights; purchase any shares of Company Seller Common Stock; or effect any recapitalization, reclassification, stock dividend, stock split or like change in capitalization;
(iii) amend its Articles of Incorporation, Articles of Association, Bylaws or similar organizational documents, unless such amendment shall be necessary to complete the Merger; impose, or suffer the imposition, on any share of stock or other ownership interest held by a Party Seller in a Party Subsidiary of any lien, charge or encumbrance or permit any such lien, charge or encumbrance to exist; or waive or release any material right or cancel or compromise any material debt or claim;
(iv) except as Previously Disclosed, increase the rate of compensation of any of its directors, officers or employees, or pay or agree to pay any bonus or severance to, or provide any other new employee benefit or incentive to, any of its directors, officers or employees, except (i) as may be required pursuant to Previously Disclosed commitments existing on employees other than in the date hereof, (ii) as may be required by law ordinary course of business and (iii) merit increases in accordance with past practicespractice, normal cost-of-living increases and normal increases related to promotions or increased job responsibilitiesenter into or amend any employment or consulting agreement or extend the term of or renew any existing employment or consulting agreement;
(v) enter into or, except as may be required by lawlaw and for amendments contemplated by this Agreement, modify any pension, retirement, stock option, stock purchase, stock appreciation right, savings, profit sharing, deferred compensation, supplemental retirement, consulting, bonus, group insurance Seller Employee Plan or other employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement related thereto, in respect of any of its directors, officers or employees; employees provided, further, however, that Seller or Seller Bank may not make any contributions to any of the Company's or Keystone's Pension Plans or the Company's Seller ESOP (other than as required by law or regulation or in a manner and amount accrued prior to the Effective Time and consistent with past practices) and except as specifically provided herein);
(vi) with respect to any customer relationship (which for purposes hereof shall include the customer and any person attributed to such customer when computing the limitation on loans to a single borrower under the terms of Buyer’s loan policy as Previously Disclosed to Seller): (i) originate or purchase any loan in excess of $300,000 with respect to loans secured by one-to-four-family properties; or in excess of $1,000,000 with respect to commercial loans; or (ii) originate any loan which would violate the terms of Buyer’s loan policy a copy of which Buyer shall deliver to Seller immediately upon execution of this Agreement.
(vii) enter into (w) any transaction, agreement, arrangement or commitment not made in the ordinary course of business, (x) any agreement, indenture or other instrument relating to the borrowing of money by the Party Seller or a Party Seller Subsidiary or guarantee by a Party Seller or any Party Seller Subsidiary of any such obligation, except in the case of the Seller Bank or Keystone for deposits, FHLB advances, federal funds purchased and securities sold under agreements to repurchase in the ordinary course of business consistent with past practice, (y) any agreement, arrangement or commitment relating to the employment of an employee or consultant, or amend any such existing agreement, arrangement or commitment, provided that the Company, the Seller and Seller Bank and Keystone may employ an employee or consultant in the ordinary course of business if the employment of such employee or consultant is terminable by the Company, the Seller or Seller Bank or Keystone, as the case may be, at will without liability, other than as required by law; or (z) any contract, agreement or understanding with a labor union;
(viiviii) change its method of accounting in effect for the year ended December 31, 20012002, except as required by changes in laws or regulations or generally accepted accounting principlesGAAP, or change any of its methods of reporting income and deductions for federal income tax purposes from those employed in the preparation of its federal income tax return for such year, except as required by changes in laws or regulations;
(viiiix) except as Previously Disclosed, make any capital expenditures in excess of $75,000 25,000 individually or $150,000 50,000 in the aggregate, other than (a) in the ordinary course of business, (b) in connection with the transactions contemplated by this Agreement, (c) pursuant to binding commitments that have been Previously Disclosed and are existing on the date hereof hereof, and other than (d) expenditures necessary to maintain existing assets in good repair; or or, except as Previously Disclosed, enter into any new lease or lease renewal of real property or any new lease or lease renewal of personal property providing for annual payments exceeding $50,0005,000;
(ixx) file any applications or make any contract with respect to branching or site location or relocation;
(xxi) acquire in any manner whatsoever (other than to realize upon collateral for a defaulted loan) control over or any equity interest in any business or entity, except for investments in marketable equity securities in the ordinary course of business and not exceeding 5% of the outstanding shares of any class;
(xixii) enter or agree to enter into any agreement or arrangement granting any preferential right to purchase any of its assets or rights or requiring the consent of any party to the transfer and assignment of any such assets or rights;
(xiixiii) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, change or modify in any material respect any of its lending or investment policies, except to the extent required by law or an applicable regulatory authority;
(xiii) take any action that would prevent or impede the Merger or the Conversion from qualifying as a reorganization within the meaning of Section 368 of the Code;
(xiv) except as necessitated in the reasonable opinion of Seller due to changes in interest rates, and in accordance with safe and sound banking practices, enter into any futures contract, option contract, interest rate caps, interest rate floors, interest rate exchange agreement or other agreement for purposes of hedging the exposure of its interest-earning assets and interest-bearing liabilities to changes in market rates of interest;
(xv) take any action that would result in any of the representations and warranties of Seller contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions precedent to effect closing of Sections 6.1, 6.2 or 6.3 hereof the transactions contemplated by this Agreement not to be satisfied;
(xvi) take any action that would materially impede or delay the completion of the Merger or the ability of Buyer or Seller to perform its covenants and agreements under this Agreement; or
(xvii) materially increase or decrease the rate of interest paid on time deposits, or on certificates of deposit, except in a manner and pursuant to policies consistent with past practices, practices or to reflect changes in market interest rates; or
(xviixviii) agree to do any of the foregoing.
(b) Each of the Company and Keystone Seller shall promptly notify the other Party Buyer in writing of the occurrence of any matter or event known to and directly involving it or any of its SubsidiariesSeller, other than which would not include any changes in conditions that affect the banking or savings institution industry generally, that would have, either individually or in the aggregate, a Material Adverse Effect on itSeller.
(c) Except with the prior written consent of Seller or as expressly contemplated hereby, between the date hereof and the Effective Time, Buyer shall not, and shall cause each Buyer Subsidiary not to:
(i) take any action that would result in any of the representations and warranties of Buyer contained in this Agreement not to be true and correct in any material respect at the Effective Time or that would cause any of the conditions precedent to effect closing of the transactions contemplated by this Agreement not to be satisfied;
(ii) take any action that would materially impede or delay the completion of the Merger or the ability of Buyer or Seller to perform its covenants and agreements under this Agreement; or (iii) agree to do any of the foregoing.
Appears in 1 contract
