Common use of Company Forbearances Clause in Contracts

Company Forbearances. From the date hereof until the earlier of the Closing Date or the termination of this Agreement in accordance with its terms, the Company shall not, and shall not permit any Company Subsidiary to: (a) (i) adjust, split, combine or reclassify any of its capital stock, (ii) set any record or payment dates for the payment of any dividends or distributions on its capital stock or make, declare or pay any dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exercisable or exchangeable for any shares of its capital stock or stock appreciation rights or grant any person any right to acquire any shares of its capital stock; or (iii) issue or commit to issue any additional shares of capital stock (except pursuant to the exercise of options and restricted stock unit grants outstanding as of the date hereof and disclosed in Schedule 3.17(a)), convertible debt or any securities convertible into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any additional shares of capital stock (including options) or convertible debt; (b) (i) increase the compensation or benefits of any employee of the Company or any Company Subsidiary (except (x) for increases in salary or wages of employees of the Company or any Company Subsidiary in the ordinary course of business consistent with past practice, provided that no such increase shall result in an annual adjustment of more than 3% of the aggregate base salary and wages payable by the Company and the Company Subsidiaries during 2013 and (y) pursuant to the Company’s Benefit Plans as described in Schedule 3.17(b) as in effect on the date of this Agreement and made available to the Investor prior to the date of this Agreement (other than as amended to comply with Law)); (ii) except as required by Law, grant any severance or termination pay to any employee of the Company or any Company Subsidiary except pursuant to the terms of any Benefit Plan in effect on the date of this Agreement and which was made available to the Investor prior to the date of this Agreement and disclosed in Schedule 3.17(b); (iii) loan or advance any money or other property to any employees or directors of the Company or Company any Subsidiary other than in the ordinary course of business consistent with past practice; (iv) (x) establish, adopt, enter into, amend or terminate, or (y) grant (other than in the ordinary course of business consistent with past practice), any waiver or consent under any Benefit Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement; or (v) grant or amend or modify any equity or equity-based awards (including options and restricted stock units); (c) (i) incur any indebtedness for borrowed money, other than (x) deposit liabilities, advances from the Federal Reserve discount window, Fed funds purchases and reverse repurchase agreements, in each case entered into in the ordinary course of business consistent with past practice and, in the case of reverse repurchase agreements, with a final maturity of five years or less, or (y) indebtedness incurred in the ordinary course of business consistent with past practice in order to finance working capital (subject in the case of this clause (y) to an aggregate maximum amount of $5,000,000), (ii) guarantee, endorse or assume responsibility for, the obligations of any person other than any wholly-owned subsidiary of the Company (other than the endorsement of checks and other negotiable instruments in the normal process of collection) or (iii) redeem, repurchase, prepay, defease, or cancel, or modify in any material respect the terms of, indebtedness for borrowed money, other than (x) deposit liabilities and reverse repurchase agreements in each case in the ordinary course of business consistent with past practice or (y) in accordance with the terms of the applicable instrument as in effect on the date hereof; (i) settle any action involving claims against the Company or any Company Subsidiary resulting in monetary damages or other payments in excess of $100,000, or (ii) agree or consent to the issuance of any order restricting or otherwise affecting its business or operations, or, in each case, that would cause the Company or any Company Subsidiary to breach a representation, warranty or covenant contained in this Agreement or would otherwise adversely affect the rights of the Investor under this Agreement; (e) amend its certificate of incorporation, bylaws or similar governing documents (other than for the purpose of effectuating the transactions contemplated by the Transaction Documents), or enter into a plan of consolidation, merger, share exchange, reorganization or complete or partial liquidation with any Person (other than consolidations, mergers or reorganizations solely among wholly-owned subsidiaries of the Company), or a letter of intent or agreement in principle with respect thereto; (f) make any changes in its accounting methods or method of Tax accounting, practices or policies, except as may be required under Law or GAAP, in each case following consultation with the Company’s independent public accountants; (g) except as required by Law, make or change any Tax election, file any amended Tax Returns, settle or compromise any material Tax liability of the Company or any Company Subsidiary, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes of the Company or any Company Subsidiary, enter into any closing agreement with respect to any Tax or surrender any right to claim a Tax refund; (h) sell any assets in any one transaction or series of related transactions where the aggregate sales price equals or exceeds $100,000 and represents a discount of 10% or more from the aggregate book value of such assets; or (i) agree to, or make any commitment to, take any of the actions prohibited by this Section 3.17 or that would otherwise materially adversely affect or materially delay the consummation of the transactions contemplated hereby.

Company Forbearances. From During the date hereof until the earlier of the Pre-Closing Date or the termination of this Agreement in accordance with its termsPeriod, the Company shall not, and shall not permit any Company Subsidiary to: (a) (i) adjust, split, combine or reclassify any of its capital stockstock other than in connection with the reverse stock split as described in the Company’s proxy statements filed pursuant to Section 14(a) of the Exchange Act on March 15, 2010 and November 10, 2009 affecting the Common Stock, the terms of which shall be subject to the prior written consent of the Investor; (ii) set any record or payment dates for the payment of any dividends or distributions on its capital stock or make, declare or pay any dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exercisable or exchangeable for any shares of its capital stock or stock appreciation rights or grant any person any right to acquire any shares of its capital stock; or (iii) issue or commit to issue any additional shares of capital stock (except pursuant to the exercise of options and restricted stock unit grants outstanding as of the date hereof and disclosed in Schedule 3.17(a)the Disclosure Schedule), convertible debt or any securities convertible into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any additional shares of capital stock (including options) or convertible debt; (b) (i) increase the compensation or benefits of any employee of the Company or any Company Subsidiary (except (x) for increases in salary or wages of employees of the Company or any Company Subsidiary in the ordinary course of business consistent with past practice, provided that no such increase shall result in an annual adjustment of more than 35% of the aggregate base salary and wages payable by the Company and the Company its Subsidiaries during 2013 2009 and (y) pursuant to the Company’s Benefit Plans as described in Schedule 3.17(b) as in effect on the date of this Agreement and made available to the Investor prior to the date of this Agreement (other than as amended to comply with Law)Company’s Disclosure Schedule); (ii) except as required by Lawlaw, grant any severance or termination pay to any employee of the Company or any Company Subsidiary except pursuant to the terms of any Benefit Plan in effect on the date of this Agreement and which was made available to the Investor prior to the date of this Agreement and disclosed in Schedule 3.17(b)the Company’s Disclosure Schedule; (iii) loan or advance any money or other property to any employees or directors of the Company or any Company any Subsidiary other than in the ordinary course of business consistent with past practice; (iv) (x) establish, adopt, enter into, amend or terminate, or (y) grant (other than in the ordinary course of business consistent with past practice), any waiver or consent under any Benefit Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement; or (v) grant or amend or modify any equity or equity-based awards (including options and restricted stock units); (c) (i) incur any indebtedness for borrowed money, other than (x) deposit liabilities, FHLB advances, advances from the Federal Reserve discount window, Fed funds purchases and reverse repurchase agreements, in each case entered into in the ordinary course of business consistent with past practice and, in the case of reverse repurchase agreements, with a final maturity of five years or less, or (y) indebtedness incurred in the ordinary course of business consistent with past practice in order to finance working capital (subject in the case of this clause (y) to an aggregate maximum amount of $5,000,000), (ii) guarantee, endorse or assume responsibility for, the obligations of any person other than any wholly-owned subsidiary of the Company (other than the endorsement of checks and other negotiable instruments in the normal process of collection) or (iii) redeem, repurchase, prepay, defease, or cancel, or modify in any material respect the terms of, indebtedness for borrowed money, other than (x) deposit liabilities liabilities, FHLB advances and reverse repurchase agreements in each case in the ordinary course of business consistent with past practice or (y) in accordance with the terms of the applicable instrument as in effect on the date hereof; (i) settle any action involving claims against the Company or any Company Subsidiary resulting in monetary damages or other payments in excess of $100,000, or (ii) agree or consent to the issuance of any order restricting or otherwise affecting its business or operations, or, in each case, that would cause the Company or any Company Subsidiary to breach a representation, warranty or covenant contained in this Agreement or would otherwise adversely affect the rights of the Investor under this Agreement; (e) amend its certificate of incorporation, bylaws or similar governing documents (other than for the purpose of effectuating the transactions contemplated by the Transaction Documents), or enter into a plan of consolidation, merger, share exchange, reorganization or complete or partial liquidation with any Person person (other than consolidations, mergers or reorganizations solely among wholly-owned subsidiaries of the Company), or a letter of intent or agreement in principle with respect thereto; (f) make any changes in its accounting methods or method of Tax accounting, practices or policies, except as may be required under Law law or GAAP, in each case following consultation with the Company’s independent public accountants; (g) except as required by Lawlaw, make or change any Tax election, file any amended Tax Returns, settle or compromise any material Tax liability of the Company or any Company Subsidiaryof its subsidiaries, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes of the Company or any Company Subsidiaryof its subsidiaries, enter into any closing agreement with respect to any Tax or surrender any right to claim a Tax refund; (h) amend, grant any waiver under or permit to be terminated the Trust Preferred Securities Exchange Agreements; (i) sell any assets in any one transaction or series of related transactions where the aggregate sales price equals or exceeds $100,000 1 million and represents a discount of 1020% or more from the aggregate book value of such assets; or (ij) agree to, or make any commitment to, take any of the actions prohibited by this Section 3.17 3.6 or that would otherwise materially adversely affect or materially delay the consummation of the transactions contemplated herebyhereby or by the Other Securities Purchase Agreements.

Company Forbearances. From During the period from the date hereof until the earlier of the Closing Date or the termination of this Agreement to the Effective Time, except as set forth in accordance with its termsthe Company Disclosure Schedule and except as required by Law or as expressly contemplated or permitted by this Agreement, the Company shall will not, and shall will not permit any of the Company Subsidiary Subsidiaries to, without the prior written consent of Parent: (a) incur any indebtedness for borrowed money (iother than indebtedness of the Company or any of the wholly owned Company Subsidiaries to the Company or any of the wholly owned Company Subsidiaries or between wholly owned Company Subsidiaries) in excess of $25 million in the aggregate, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance; (b) adjust, split, combine or reclassify any of its the Company's capital stock, ; (iic) set any record or payment dates for the payment of any dividends or distributions on its capital stock or make, declare or pay any dividend dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exercisable or exchangeable for any shares of its capital stock (except (i) dividends paid by any of the wholly owned Company Subsidiaries to the Company or to any of its wholly owned Subsidiaries, (ii) regular quarterly dividends with respect to shares of Company Common Stock not to exceed $0.09 per share per quarter for the third and fourth quarters of the fiscal year ending on December 31, 2005 and any subsequent fiscal quarters of the fiscal year ending December 31, 2006 that are completed prior to the Effective Time, and (iii) the acceptance of shares of Company Common Stock as payment for the exercise price of Company Stock Options or for withholding taxes incurred in connection with the exercise of Company Stock Options, in each case, in accordance with past practice and the terms of the applicable award agreements); (d) grant any stock appreciation rights right, any Company Stock Options or grant any person any other right to acquire any shares of its capital stock; stock or other Company Stock-Based Awards, other than as required by employment agreements with the Company as in effect on the date hereof; (iiie) issue or commit to issue any additional shares of capital stock (except pursuant to the exercise of options and restricted stock unit grants outstanding as of the date hereof and disclosed in Schedule 3.17(a))stock, convertible debt any Company Voting Debt or any securities convertible into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any additional such shares of capital stock (including options) or convertible debt; (b) Company Voting Debt, except (i) increase the compensation or benefits of any employee of the Company or any Company Subsidiary (except (x) for increases in salary or wages of employees of the Company or any Company Subsidiary in the ordinary course of business consistent with past practice, provided that no such increase shall result in an annual adjustment of more than 3% of the aggregate base salary and wages payable by the Company and the Company Subsidiaries during 2013 and (y) pursuant to the Company’s exercise of Company Stock Options or the satisfaction of any Company Stock-Based Awards, in each case, outstanding and in accordance with the terms and conditions in effect as of the date of this Agreement or issued hereafter in compliance with this Agreement or (ii) for issuances by a wholly owned Company Subsidiary of capital stock to such Subsidiary's parent or another wholly owned Company Subsidiary; (f) notwithstanding any other provision hereof, increase, decrease, change or exchange any Company Common Stock for a different number or kind of shares or securities as a result of a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in capitalization; (g) other than as required to comply with applicable Law (including Section 409A of the Code) or a Company Benefit Plans as described in Schedule 3.17(b) Plan as in effect on the date of this Agreement and made available to the Investor prior to the date of this Agreement (other than as amended to comply with Law)); (ii) except as required by Law, grant any severance hereof or termination pay to any employee of the Company collective bargaining or any Company Subsidiary except pursuant to the terms of any Benefit Plan in effect on the date of this Agreement and which was made available to the Investor prior to the date of this Agreement and disclosed in Schedule 3.17(b); (iii) loan or advance any money similar labor union or other property to any employees or directors agreement the existence of the Company or Company any Subsidiary which does not breach this Agreement, (i) other than in the ordinary course of business consistent with past practice; , increase the wages, salaries, compensation, bonus, pension or other benefits or perquisites payable to any current or former director, officer or employee, (ii) grant or increase any severance, change of control, termination or similar compensation or benefits payable to any current or former director, officer or employee, (iii) except in the ordinary course of business and consistent with past practice, pay any bonus, (iv) (x) establish, adopt, enter into, terminate or amend in any material respect any Company Benefit Plan or terminateany collective bargaining or similar labor union agreement, (v) except for the provision of indemnification pursuant to indemnification agreements in effect on the date hereof, enter into any Company S-K 404 Arrangement, other than in connection with the appointment or election of new directors or the hiring or promotion of new officers in the ordinary course of business, or (yvi) grant accelerate the time of payment or vesting of, or the lapsing of restrictions with respect to, or fund or otherwise secure the payment of, any compensation or benefits under any Company Benefit Plan; provided, however, that in no event may any such acceleration of vesting, lapse of restrictions or funding be as a result of the execution and delivery of this Agreement or the consummation of the transactions contemplated by this Agreement unless required to comply with applicable Law; (h) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets that are material to the Company and the Company Subsidiaries, taken as a whole, in any transaction or series of transactions, to any Person other than the Company or a Company Subsidiary, or cancel, release or assign to any such Person any indebtedness or any claims held by the Company or any Company Subsidiary, in each case that is material to the Company and the Company Subsidiaries, taken as a whole, other than in the ordinary course of business consistent with past practice), any waiver or consent under any Benefit Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement; or (v) grant or amend or modify any equity or equity-based awards (including options and restricted stock units); (c) (i) incur enter into any indebtedness for borrowed moneynew line of business that is material to the Company and the Company Subsidiaries, taken as a whole; (j) make any material acquisition or investment either by purchase of stock or securities, contributions to capital, property transfers, or by purchase of any property or assets of any other than (x) deposit liabilitiesPerson, advances from the Federal Reserve discount window, Fed funds purchases and reverse repurchase agreementsor make any capital expenditures, in each case entered into other than (i) investments in wholly owned Subsidiaries or (ii) acquisitions of assets used in the operations of the Company and its Subsidiaries in the ordinary course of business; (k) amend its Certificate of Incorporation or Bylaws or similar organizational documents, or amend, or redeem the rights issued under, the Company Rights Agreement, or otherwise take any action to exempt any Person (other than as required pursuant to Section 3.19(b) of this Agreement), or any action taken by any such Person, from the Company Rights Agreement or any Takeover Statute or similarly restrictive provisions of its organizational documents, or terminate, amend or waive any provisions of any confidentiality or standstill agreements in place with any third parties; (l) settle any material claim, action or proceeding, except (i) in the ordinary course of business consistent with past practice and, in the case of reverse repurchase agreements, with a final maturity of five years or less, or (y) indebtedness incurred in the ordinary course of business consistent with past practice in order to finance working capital (subject in the case of this clause (y) to an aggregate maximum amount of $5,000,000), (ii) guarantee, endorse or assume responsibility for, the obligations of any person other than any wholly-owned subsidiary of the Company (other than the endorsement of checks and other negotiable instruments in the normal process of collection) or (iii) redeem, repurchase, prepay, defease, or cancel, or modify in any material respect the terms of, indebtedness for borrowed money, other than (x) deposit liabilities and reverse repurchase agreements in each case in the ordinary course of business consistent with past practice or (y) in accordance with the terms of the applicable instrument as in effect on the date hereof; (i) settle any action involving claims against the Company or any Company Subsidiary resulting in monetary damages or other payments in excess of $100,000, or (ii) agree or consent settlements to the issuance extent subject to and not in excess of any order restricting or otherwise affecting its business or operationsreserves that relate to the matter being settled existing as of June 30, or, 2005 in each case, that would cause the Company or any Company Subsidiary to breach a representation, warranty or covenant contained in this Agreement or would otherwise adversely affect the rights of the Investor under this Agreementaccordance with GAAP; (em) amend its certificate of incorporation, bylaws take any action that is intended or similar governing documents (other than for the purpose of effectuating the transactions contemplated by the Transaction Documents), or enter into a plan of consolidation, merger, share exchange, reorganization or complete or partial liquidation with would be reasonably likely to result in any Person (other than consolidations, mergers or reorganizations solely among wholly-owned subsidiaries of the Company), or a letter of intent or agreement conditions to the Merger set forth in principle with respect thereto; (f) make any changes in its accounting methods or method of Tax accounting, practices or policiesArticle VII not being satisfied, except as may be required under Law or GAAP, in each case following consultation with the Company’s independent public accountantsby applicable Law; (gn) except implement or adopt any material change in its tax accounting or financial accounting policies, practices or methods, other than as may be required by applicable Law, make GAAP or change any Tax election, file any amended Tax Returns, settle or compromise regulatory guidelines; (o) amend in any material Tax liability respect, waive any of the Company its material rights under, or any Company Subsidiary, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes of the Company or any Company Subsidiary, enter into any closing contract or binding agreement with respect to any Tax or surrender any right to claim that would be a Tax refundCompany Contract; (hp) sell take, or agree to take, any assets action that would prevent the Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code; (q) except in the ordinary course of business, sell, assign, abandon, license, or otherwise dispose of any one transaction Intellectual Property that is used in the conduct of, or series is otherwise material to, the business of Company and the Company Subsidiaries; (r) pay or agree to pay to the Company's Advisors any investment banking or fairness opinion fees in connection with the Merger or related transactions where contemplated by this Agreement in excess of the aggregate sales price equals or exceeds $100,000 and represents a discount of 10% or more from amount set forth on Section 5.2(r) to the aggregate book value of such assetsCompany Disclosure Schedule; or (is) agree to, or make any commitment to, commit to take any of the actions prohibited by this Section 3.17 or that would otherwise materially adversely affect or materially delay the consummation of the transactions contemplated hereby5.2.

Company Forbearances. From During the date hereof until Pre-Closing Period, other than as approved by the earlier of the Closing Date or the termination of this Agreement Investor in accordance with its termswriting, the Company shall not, and shall not permit any Company Subsidiary to: (a) (i) adjust, split, combine or reclassify any of its capital stock, ; (ii) set any record or payment dates for the payment of any dividends or distributions on its capital stock or make, declare or pay any dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exercisable or exchangeable for any shares of its capital stock or stock appreciation rights or grant any person any right to acquire any shares of its capital stock; or (iii) issue or commit to issue any additional shares of capital stock (except pursuant to the exercise of options and restricted stock unit grants outstanding as of the date hereof and disclosed in Schedule 3.17(a)the Company's Disclosure Schedule), convertible debt or any securities convertible into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any additional shares of capital stock (including options) or convertible debt, it being understood and agreed that for purposes of this Section 3.6(a), and only for such purposes, the Pre-Closing Period shall terminate on the earlier to occur of (x) the Second Closing Date, (y) the termination of this Agreement and (z) the date of a Second Closing Termination; (b) (i) increase the compensation or benefits of any employee of the Company or any Company Subsidiary (except (x) for increases in salary or wages of employees of the Company or any Company Subsidiary in the ordinary course of business consistent with past practice, provided that no such increase shall result in an annual adjustment of more than 35% of the aggregate base salary and wages payable by the Company and the Company Subsidiaries during 2013 2009 and (y) pursuant to the Company’s 's Benefit Plans as described in Schedule 3.17(b) as in effect on the date of this Agreement and made available to the Investor prior to the date of this Agreement (other than as amended to comply with Law)Company's Disclosure Schedule); (ii) except as required by Lawlaw, grant any severance or termination pay to any employee of the Company or any Company Subsidiary except pursuant to the terms of any Benefit Plan in effect on the date of this Agreement and which was made available to the Investor prior to the date of this Agreement and disclosed in Schedule 3.17(b)the Company's Disclosure Schedule; (iii) loan or advance any money or other property to any employees or directors of the Company or any Company any Subsidiary other than in the ordinary course of business consistent with past practice; (iv) (x) establish, adopt, enter into, amend or terminate, or (y) grant (other than in the ordinary course of business consistent with past practice), any waiver or consent under under, any Benefit Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement; or (v) grant or amend or modify any equity or equity-based awards (including options and restricted stock units); (c) (i) incur any indebtedness for borrowed money, other than (x) deposit liabilities, FHLB advances, advances from the Federal Reserve discount window, Fed funds purchases purchases, guarantees and reverse letters of credit on behalf of Company Bank customers and repurchase agreements, in each case entered into in the ordinary course of business consistent with past practice and, in the case of reverse repurchase agreements, with a final maturity of five years or less, or (y) indebtedness incurred in the ordinary course of business consistent with past practice in order to finance working capital (subject in the case of this clause (y) to an aggregate maximum amount of $5,000,000), (ii) guarantee, endorse or assume responsibility for, the obligations of any person other than any wholly-owned subsidiary Subsidiary of the Company (other than the endorsement of checks and other negotiable instruments in the normal process of collection) or (iii) redeem, repurchase, prepay, defease, or cancel, or modify in any material respect the terms of, indebtedness for borrowed money, other than (x) deposit liabilities liabilities, FHLB advances and reverse repurchase agreements in each case in the ordinary course of business consistent with past practice or (y) in accordance with the terms of the applicable instrument as in effect on the date hereof; (i) settle any action involving claims against the Company or any Company Subsidiary resulting in monetary damages or other payments in excess of $100,000, or (ii) agree or consent to the issuance of any order restricting or otherwise affecting its business or operations, or, in each case, that would cause the Company or any Company Subsidiary to breach a representation, warranty or covenant contained in this Agreement or would otherwise adversely affect the rights of the Investor under this Agreement; (e) amend its certificate of incorporation, bylaws or similar governing documents (other than for the purpose of effectuating the transactions as contemplated by the Transaction Documents), or enter into a plan of consolidation, merger, share exchange, reorganization or complete or partial liquidation with any Person person (other than consolidations, mergers or reorganizations solely among wholly-owned subsidiaries of the CompanyCompany Subsidiaries), or a letter of intent or agreement in principle with respect thereto; (f) make any changes in its accounting methods or method of Tax accounting, practices or policies, except as may be required under Law or GAAP, in each case following consultation with the Company’s 's independent public accountantsaccountants or tax advisors; (g) except as required by Lawlaw, make or change any Tax election, file any amended Tax Returns, settle or compromise any material Tax liability of the Company or any of the Company SubsidiarySubsidiaries, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes of the Company or any Company Subsidiaryof its Subsidiaries, enter into any closing agreement with respect to any Tax or surrender any right to claim a Tax refund; (h) amend any Other Securities Purchase Agreement; (i) sell any assets or deposits of the Company Bank other than dispositions of other real estate owned (OREO) in any one transaction or series the ordinary course of related transactions where the aggregate sales price equals or exceeds $100,000 and represents a discount of 10% or more from the aggregate book value of such assetsbusiness; or (ij) agree to, or make any commitment to, take any of the actions prohibited by this Section 3.17 3.6 or that would otherwise materially adversely affect or materially delay the consummation of the transactions contemplated herebyhereby or by the other Transaction Documents.

Company Forbearances. From During the date hereof until the earlier of the Pre-Closing Date or the termination of this Agreement in accordance with its termsPeriod, the Company shall not, and shall not permit any Company Subsidiary to: (a) (i) adjust, split, combine or reclassify any of its capital stockstock other than in connection with the reverse stock split as described in the Company’s proxy statements filed pursuant to Section 14(a) of the Exchange Act on March 15, 2010 and November 10, 2009 affecting the Common Stock, the terms of which shall be subject to the prior written consent of the Investor; (ii) set any record or payment dates for the payment of any dividends or distributions on its capital stock or make, declare or pay any dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exercisable or exchangeable for any shares of its capital stock or stock appreciation rights or grant any person any right to acquire any shares of its capital stock; or (iii) issue or commit to issue any additional shares of capital stock (except pursuant to the exercise of options and restricted stock unit grants outstanding as of the date hereof and disclosed in Schedule 3.17(a)the Disclosure Schedule), convertible debt or any securities convertible into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any additional shares of capital stock (including options) or convertible debt; (b) (i) increase the compensation or benefits of any employee of the Company or any Company Subsidiary (except (x) for increases in salary or wages of employees of the Company or any Company Subsidiary in the ordinary course of business consistent with past practice, provided that no such increase shall result in an annual adjustment of more than 35% of the aggregate base salary and wages payable by the Company and the Company its Subsidiaries during 2013 2009 and (y) pursuant to the Company’s Benefit Plans as described in Schedule 3.17(b) as in effect on the date of this Agreement and made available to the Investor prior to the date of this Agreement (other than as amended to comply with Law)Company’s Disclosure Schedule); (ii) except as required by Lawlaw, grant any severance or termination pay to any employee of the Company or any Company Subsidiary except pursuant to the terms of any Benefit Plan in effect on the date of this Agreement and which was made available to the Investor prior to the date of this Agreement and disclosed in Schedule 3.17(b)the Company’s Disclosure Schedule; (iii) loan or advance any money or other property to any employees or directors of the Company or any Company any Subsidiary other than in the ordinary course of business consistent with past practice; (iv) (x) establish, adopt, enter into, amend or terminate, or (y) grant (other than in the ordinary course of business consistent with past practice), any waiver or consent under any Benefit Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement; or (v) grant or amend or modify any equity or equity-based awards (including options and restricted stock units); (c) (i) incur any indebtedness for borrowed money, other than (x) deposit liabilities, FHLB advances, advances from the Federal Reserve discount window, Fed funds purchases and reverse repurchase agreements, in each case entered into in the ordinary course of business consistent with past practice and, in the case of reverse repurchase agreements, with a final maturity of five years or less, or (y) indebtedness incurred in the ordinary course of business consistent with past practice in order to finance working capital (subject in the case of this clause (y) to an aggregate maximum amount of $5,000,000), (ii) guarantee, endorse or assume responsibility for, the obligations of any person other than any wholly-owned subsidiary of the Company (other than the endorsement of checks and other negotiable instruments in the normal process of collection) or (iii) redeem, repurchase, prepay, defease, or cancel, or modify in any material respect the terms of, indebtedness for borrowed money, other than (x) deposit liabilities liabilities, FHLB advances and reverse repurchase agreements in each case in the ordinary course of business consistent with past practice or (y) in accordance with the terms of the applicable instrument as in effect on the date hereof; (i) settle any action involving claims against the Company or any Company Subsidiary resulting in monetary damages or other payments in excess of $100,000, or (ii) agree or consent to the issuance of any order restricting or otherwise affecting its business or operations, or, in each case, that would cause the Company or any Company Subsidiary to breach a representation, warranty or covenant contained in this Agreement or would otherwise adversely affect the rights of the Investor under this Agreement; (e) amend its certificate of incorporation, bylaws or similar governing documents (other than for the purpose of effectuating the transactions contemplated by the Transaction Documents), or enter into a plan of consolidation, merger, share exchange, reorganization or complete or partial liquidation with any Person person (other than consolidations, mergers or reorganizations solely among wholly-owned subsidiaries of the Company), or a letter of intent or agreement in principle with respect thereto; (f) make any changes in its accounting methods or method of Tax accounting, practices or policies, except as may be required under Law law or GAAP, in each case following consultation with the Company’s independent public accountants; (g) except as required by Lawlaw, make or change any Tax election, file any amended Tax Returns, settle or compromise any material Tax liability of the Company or any Company Subsidiaryof its subsidiaries, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes of the Company or any Company Subsidiaryof its subsidiaries, enter into any closing agreement with respect to any Tax or surrender any right to claim a Tax refund; (h) amend, grant any waiver under or permit to be terminated the Trust Preferred Securities Exchange Agreements; (i) sell any assets in any one transaction or series of related transactions where the aggregate sales price equals or exceeds $100,000 1 million and represents a discount of 1020% or more from the aggregate book value of such assets; or (ij) agree to, or make any commitment to, take any of the actions prohibited by this Section 3.17 3.7 or that would otherwise materially adversely affect or materially delay the consummation of the transactions contemplated herebyhereby or by the Other Securities Purchase Agreements.

Company Forbearances. From During the date hereof until the earlier of the Pre-Closing Date or the termination of this Agreement in accordance with its termsPeriod, the Company shall not, and shall not permit any Company Subsidiary to: (a) (i) adjust, split, combine or reclassify any of its capital stockstock other than in connection with the reverse stock split described in the proxy statement filed pursuant to Section 14(a) of the Exchange Act on October 29, 2009 affecting the Common Stock, the terms of which shall be subject to the prior written consent of the Investor; (ii) set any record or payment dates for the payment of any dividends or distributions on its capital stock or make, declare or pay any dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exercisable or exchangeable for any shares of its capital stock or stock appreciation rights or grant any person any right to acquire any shares of its capital stock; or (iii) issue or commit to issue any additional shares of capital stock (except pursuant to the exercise of options and restricted stock unit grants outstanding as of the date hereof and disclosed in Schedule 3.17(a)the Company Disclosure Schedule), convertible debt or any securities convertible into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any additional shares of capital stock (including options) or convertible debt; (b) (i) increase the compensation or benefits of any employee of the Company or any Company Subsidiary (except (x) for increases in salary or wages of employees of the Company or any Company Subsidiary in the ordinary course of business consistent with past practice, provided that no such increase shall result in an annual adjustment of more than 35% of the aggregate base salary and wages payable by the Company and the Company its Subsidiaries during 2013 2008 and (y) pursuant to the Company’s Benefit Plans as described in Schedule 3.17(b) as in effect on the date of this Agreement and made available to the Investor prior to the date of this Agreement (other than as amended to comply with Law))Company’s Disclosure Schedule; (ii) except as required by Law, grant any severance or termination pay to any employee of the Company or any Company Subsidiary except pursuant to the terms of any Benefit Plan in effect on the date of this Agreement and which was made available to the Investor prior to the date of this Agreement and disclosed in Schedule 3.17(b)the Company’s Disclosure Schedule; (iii) loan or advance any money or other property to any employees or directors of the Company or any Company any Subsidiary other than in the ordinary course of business consistent with past practice; (iv) (x) establish, adopt, enter into, amend or terminate, or (y) grant (other than in the ordinary course of business consistent with past practice), any waiver or consent under any Benefit Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement; or (v) grant or amend or modify any equity or equity-based awards (including options and restricted stock units); (c) (i) incur any indebtedness for borrowed money, other than (x) deposit liabilities, FHLB advances, advances from the Federal Reserve discount window, Fed funds purchases and reverse repurchase agreements, in each case entered into in the ordinary course of business consistent with past practice and, in the case of reverse repurchase agreements, with a final maturity of five years or less, or (y) indebtedness incurred in the ordinary course of business consistent with past practice in order to finance working capital (subject in the case of this clause (y) to an aggregate maximum amount of $5,000,000), (ii) guarantee, endorse or assume responsibility for, the obligations of any person other than any wholly-owned subsidiary Subsidiary of the Company (other than the endorsement of checks and other negotiable instruments in the normal process of collection) or (iii) redeem, repurchase, prepay, defease, or cancel, or modify in any material respect the terms of, indebtedness for borrowed money, other than (x) deposit liabilities liabilities, FHLB advances and reverse repurchase agreements in each case in the ordinary course of business consistent with past practice or (y) in accordance with the terms of the applicable instrument as in effect on the date hereof; (i) settle any action involving claims against the Company or any Company Subsidiary resulting in monetary damages or other payments in excess of $100,000, or (ii) agree or consent to the issuance of any order restricting or otherwise affecting its business or operations, or, in each case, that would cause the Company or any Company Subsidiary to breach a representation, warranty or covenant contained in this Agreement or would otherwise adversely affect the rights of the Investor under this Agreement; (e) amend its certificate of incorporation, bylaws or similar governing documents (other than for the purpose of effectuating the transactions contemplated by the Transaction Documents), or enter into a plan of consolidation, merger, share exchange, reorganization or complete or partial liquidation with any Person person (other than consolidations, mergers or reorganizations solely among wholly-owned subsidiaries Subsidiaries of the Company), or a letter of intent or agreement in principle with respect thereto; (f) make any changes in its accounting methods or method of Tax accounting, practices or policies, except as may be required under Law or GAAP, in each case following consultation with the Company’s independent public accountants; (g) except as required by Law, make or change any Tax election, file any amended Tax Returns, settle or compromise any material Tax liability of the Company or any Company Subsidiaryof its Subsidiaries, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes of the Company or any Company Subsidiaryof its Subsidiaries, enter into any closing agreement with respect to any Tax or surrender any right to claim a Tax refund; (h) sell any assets in any one transaction or series of related transactions where the aggregate sales price equals or exceeds $100,000 and represents a discount of 10% or more from the aggregate book value of such assets; or (ih) agree to, or make any commitment to, take any of the actions prohibited by this Section 3.17 3.6 or that would otherwise materially adversely affect or materially delay the consummation of the transactions contemplated herebyhereby or by the other Transaction Documents.

Company Forbearances. From During the date hereof until the earlier of the Pre-Closing Date or the termination of this Agreement in accordance with its termsPeriod, the Company shall not, and shall not permit any Company Subsidiary to: (a) (i) adjust, split, combine or reclassify any of its capital stockstock other than in connection with the reverse stock split as described in the Company’s proxy statement filed pursuant to Section 14(a) of the Exchange Act on October 29, 2009 affecting the Common Stock, the terms of which shall be subject to the prior written consent of the Investor; (ii) set any record or payment dates for the payment of any dividends or distributions on its capital stock or make, declare or pay any dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exercisable or exchangeable for any shares of its capital stock or stock appreciation rights or grant any person any right to acquire any shares of its capital stock; or (iii) issue or commit to issue any additional shares of capital stock (except pursuant to the exercise of options and restricted stock unit grants outstanding as of the date hereof and disclosed in Schedule 3.17(a)the Company Disclosure Schedule), convertible debt or any securities convertible into or exercisable or exchangeable for, or any rights, warrants or options to acquire, any additional shares of capital stock (including options) or convertible debt; (b) (i) increase the compensation or benefits of any employee of the Company or any Company Subsidiary (except (x) for increases in salary or wages of employees of the Company or any Company Subsidiary in the ordinary course of business consistent with past practice, provided that no such increase shall result in an annual adjustment of more than 35% of the aggregate base salary and wages payable by the Company and the Company its Subsidiaries during 2013 2008 and (y) pursuant to the Company’s Benefit Plans as described in Schedule 3.17(b) as in effect on the date of this Agreement and made available to the Investor prior to the date of this Agreement (other than as amended to comply with Law))Company’s Disclosure Schedule; (ii) except as required by Law, grant any severance or termination pay to any employee of the Company or any Company Subsidiary except pursuant to the terms of any Benefit Plan in effect on the date of this Agreement and which was made available to the Investor prior to the date of this Agreement and disclosed in Schedule 3.17(b)the Company’s Disclosure Schedule; (iii) loan or advance any money or other property to any employees or directors of the Company or any Company any Subsidiary other than in the ordinary course of business consistent with past practice; (iv) (x) establish, adopt, enter into, amend or terminate, or (y) grant (other than in the ordinary course of business consistent with past practice), any waiver or consent under any Benefit Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be a Benefit Plan if it were in existence as of the date of this Agreement; or (v) grant or amend or modify any equity or equity-based awards (including options and restricted stock units); (c) (i) incur any indebtedness for borrowed money, other than (x) deposit liabilities, FHLB advances, advances from the Federal Reserve discount window, Fed funds purchases and reverse repurchase agreements, in each case entered into in the ordinary course of business consistent with past practice and, in the case of reverse repurchase agreements, with a final maturity of five years or less, or (y) indebtedness incurred in the ordinary course of business consistent with past practice in order to finance working capital (subject in the case of this clause (y) to an aggregate maximum amount of $5,000,000), (ii) guarantee, endorse or assume responsibility for, the obligations of any person other than any wholly-owned subsidiary Subsidiary of the Company (other than the endorsement of checks and other negotiable instruments in the normal process of collection) or (iii) redeem, repurchase, prepay, defease, or cancel, or modify in any material respect the terms of, indebtedness for borrowed money, other than (x) deposit liabilities liabilities, FHLB advances and reverse repurchase agreements in each case in the ordinary course of business consistent with past practice or (y) in accordance with the terms of the applicable instrument as in effect on the date hereof; (id) settle any action involving claims against the Company or any Company Subsidiary resulting in monetary damages or other payments in excess of $100,000, or (ii) agree or consent to the issuance of any order restricting or otherwise affecting its business or operations, or, in each case, that would cause the Company or any Company Subsidiary to breach a representation, warranty or covenant contained in this Agreement or would otherwise adversely affect the rights of the Investor under this Agreement; (e) amend its certificate of incorporation, bylaws or similar governing documents (other than for the purpose of effectuating the transactions contemplated by the Transaction Documents), or enter into a plan of consolidation, merger, share exchange, reorganization or complete or partial liquidation with any Person person (other than consolidations, mergers or reorganizations solely among wholly-owned subsidiaries Subsidiaries of the Company), or a letter of intent or agreement in principle with respect thereto; (f) make any changes in its accounting methods or method of Tax accounting, practices or policies, except as may be required under Law or GAAP, in each case following consultation with the Company’s independent public accountants; (g) except as required by Law, make or change any Tax election, file any amended Tax Returns, settle or compromise any material Tax liability of the Company or any Company Subsidiaryof its Subsidiaries, agree to an extension or waiver of the statute of limitations with respect to the assessment or determination of Taxes of the Company or any Company Subsidiaryof its Subsidiaries, enter into any closing agreement with respect to any Tax or surrender any right to claim a Tax refund; (h) sell any assets in any one transaction or series of related transactions where the aggregate sales price equals or exceeds $100,000 and represents a discount of 10% or more from the aggregate book value of such assets; or (ih) agree to, or make any commitment to, take any of the actions prohibited by this Section 3.17 3.7 or that would otherwise materially adversely affect or materially delay the consummation of the transactions contemplated herebyhereby or by the other Transaction Documents.