Conduct of Business - Affirmative Covenants. Unless the prior written consent of CKF Bancorp shall have been obtained, and, except as otherwise contemplated herein: (a) First Lancaster and the Bank shall, and shall cause each First Lancaster Subsidiary to: (i) Operate its business only in the usual, regular, and ordinary course; (ii) Preserve intact its business organizations and assets and to maintain its rights and franchises; (iii) Take no action, unless otherwise required by law, rules or regulation, or except as contemplated by this Merger Agreement, that would (A) materially adversely affect the ability of any of them or CKF Bancorp to obtain any necessary approvals of Regulatory Authorities required to consummate the transactions contemplated by this Merger Agreement, or (B) adversely affect the ability of such Party to perform its covenants and agreements under this Merger Agreement; (iv) Except as they may terminate in accordance with their terms, keep in full force and effect, and not default in any of their obligations under, all material contracts; (v) Keep in full force and effect insurance coverage with existing or comparable responsible insurance carriers which is reasonably adequate in coverage and amount for companies the size of the First Lancaster, the Bank or any First Lancaster Subsidiary and for the businesses and properties owned by each and in which each is engaged, to the extent that such insurance is reasonably available; (vi) Use its best efforts to retain the Bank's present customer base and to facilitate the retention of such customers after the Effective Time; and (vii) Maintain, renew, keep in full force and effect, and preserve its business organization and material rights and franchises, permits and licenses, and to use its best efforts to maintain positive relations with its present employees so that such employees will continue to perform effectively and will be available to First Lancaster and the Bank or CKF Bancorp and CKF Bancorp's Subsidiaries at and after the Effective Time, and to use its best efforts to maintain its existing, or substantially equivalent, credit arrangements with banks and other financial institutions and to assure the continuance of the Bank's customer relationships. (b) First Lancaster and the Bank agree to use their best efforts to assist CKF Bancorp in obtaining the Government Approvals necessary to complete the transactions contemplated hereby, and First Lancaster and the Bank shall provide to CKF Bancorp or to the appropriate governmental authorities all information reasonably required to be submitted in connection with obtaining such approvals. (c) First Lancaster and the Bank, at their own cost and expense, shall use their best efforts to secure all consents and releases, if any, of third parties necessary or desirable for the consummation of the transactions contemplated by this Merger Agreement and shall comply with all applicable laws, regulations and rulings in connection with this Merger Agreement and the consummation of the transactions contemplated hereby. (d) At all times to and including, and as of, the Closing, First Lancaster and the Bank shall inform CKF Bancorp in writing of any and all facts necessary to amend or supplement the representations and warranties made herein and the Schedules attached hereto as necessary so that the representations and warranties and information provided in the Schedules remain true and correct in all respects; provided, however, that any such updates to the Schedules shall be required prior to the Closing only with respect to matters which represent material changes to the Schedules and the information contained therein; and provided further, that before such amendment, supplement or update may be deemed to be a part of this Merger Agreement, CKF Bancorp shall have agreed in writing to each amendment, supplement or update to the Schedules made subsequent to the date of this Merger Agreement as an amendment to this Merger Agreement. (e) At all times to and including, and as of, the Closing, First Lancaster and the Bank shall give such further assistance to CKF Bancorp and shall execute, acknowledge and deliver all such documents and instruments as CKF Bancorp may reasonably request and take such further action as may be reasonably necessary or appropriate to effectively consummate the transactions contemplated by this Merger Agreement. (f) Between the date of this Merger Agreement and the Closing Date, First Lancaster and the Bank shall afford CKF Bancorp and its authorized agents and representatives reasonable access during normal business hours to the properties, operations, books, records, contracts, documents, loan files and other information of, or relating to First Lancaster and the Bank other then documents or other materials relating to the transactions contemplated herein. First Lancaster and the Bank shall provide reasonable assistance to CKF Bancorp in its investigation of matters relating to First Lancaster and the Bank. (g) First Lancaster and the Bank have taken or will take all steps necessary to exempt the transactions contemplated by this Merger Agreement from any applicable state anti-takeover or similar law or anti- takeover or similar provision in the charter documents or bylaws of First Lancaster and the Bank, including without limitation any provisions of the Certificate of Incorporation of First Lancaster restricting the ownership or acquisition of First Lancaster's capital stock or imposing any "fair price" or supermajority director or stockholder vote requirements, including but not limited to Articles 14, 15 and 16 of the First Lancaster Certificate of Incorporation. (h) Subject to the terms and conditions of this Merger Agreement, First Lancaster and the Bank agree to use all reasonable efforts and to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things necessary, proper, or advisable under applicable laws and regulations to consummate and make effective, with reasonable promptness after the date of this Merger Agreement, the transactions contemplated by this Merger Agreement, including, without limitation, using reasonable efforts to lift or rescind any injunction or restraining or other order adversely affecting the ability of the Parties to consummate the transaction contemplated by this Merger Agreement; provided, however, that such efforts do not impose unreasonable expense or obligations on First Lancaster and the Bank. (i) At the request of CKF Bancorp, First Lancaster and the Bank shall hire an outside consultant, reasonably acceptable to CKF Bancorp, to undertake to determine as soon as reasonably practicable but in any event prior to Closing whether or not there are any underground storage tanks, asbestos, ureaformaldehyde, polychlorinated biphenyls, solid wastes or hazard substances, as defined in the Applicable Environmental Laws, present at or on any of the REO of First Lancaster, the Bank or any First Lancaster Subsidiary (excluding any one- to four- family residential property with appraised value less than $100,000) or at or on any of the branch or office facilities owned by First Lancaster, the Bank or any First Lancaster Subsidiary. Such investigation shall be conducted in a manner reasonably satisfactory to CKF Bancorp, and the results of such investigation shall be set forth in a written report delivered to CKF Bancorp prior to Closing. The scope and detail of such report shall be reasonably satisfactory to CKF Bancorp. It is understood that the investigation shall be a "Phase I." The expense of hiring such consultant shall be paid by CKF Bancorp. The parties agree to keep confidential the contents and results of such report. (j) At the request of CKF Bancorp, First Lancaster and the Bank shall hire an outside appraiser, reasonably acceptable to CKF Bancorp, to prepare an appraisal prior to Closing of any or all of the REO of First Lancaster, the Bank or any First Lancaster Subsidiary. The expense of hiring such appraiser shall be paid by CKF Bancorp. (k) First Lancaster and the Bank shall use their best efforts to assist CKF Bancorp to assume First Lancaster's data processing contract with Intrieve Incorporated without the imposition of any penalty or acceleration in payments. (l) The First Lancaster Bancshares, Inc. Employee Stock Ownership Plan ("First Lancaster ESOP") shall be terminated as of, or prior to, the Effective Time. As of the Effective Time, all shares held by the First Lancaster ESOP shall be converted into the right to receive the Consideration in respect of each share of First Lancaster Common Stock. As soon as administratively practicable following the Effective Time, all outstanding indebtedness of the First Lancaster ESOP shall be repaid in full, in accordance with Section 17.3 of the First Lancaster ESOP and the balance remaining with respect to unallocated shares previously held by the First Lancaster ESOP shall be allocated and distributed to First Lancaster ESOP participants as provided in the First Lancaster ESOP and in accordance with applicable law and regulations, subject to receipt of a favorable determination letter from the Internal Revenue Service and unless otherwise required by applicable law. Notwithstanding anything in this Section 6.2(l) to the contrary, distributions may be made from the First Lancaster ESOP to terminated employees of First Lancaster or the Bank as soon as administratively practicable after the determination of final allocations and the receipt of a determination letter from the Internal Revenue Service, unless CKF Bancorp determines that it is appropriate to make earlier distributions. (m) First Lancaster shall use its best efforts to obtain from each holder of a First Lancaster Option and to deliver to CKF Bancorp at or before the Closing an agreement to the cancellation of such holder's First Lancaster Options in exchange for a cash payment as described in Section 2.6. (n) The existing employment agreements between First Lancaster and the Bank and Virginia X. X. Xxxxx and Xxxx X. Xxxxxx shall each be terminated at the Effective Time. CKF
Appears in 1 contract
Conduct of Business - Affirmative Covenants. Unless the prior written consent of CKF Bancorp Omega shall have been obtained, and, except as otherwise contemplated herein:
(a) First Lancaster Sun and the Bank each Sun Subsidiary shall, and shall cause each First Lancaster Subsidiary to:
(i) Operate its business only in the usual, regular, and ordinary course;
(ii) Preserve intact its business organizations and assets and to maintain its rights and franchises;
(iii) Take no action, unless otherwise required by law, rules or regulation, or except as contemplated by this Merger AgreementApplicable Law, that would reasonably be considered to (A) materially adversely affect the ability of any of them or CKF Bancorp Omega to obtain any necessary approvals of Regulatory Governmental Authorities required to consummate the transactions contemplated by this Merger Agreement, or (B) adversely affect the ability of such Party to perform its covenants and agreements under this Merger Agreement;
(iv) Except as they may terminate in accordance with their termsterms or as may be terminated by Sun or the applicable Sun Subsidiary as a result of a material default by a party other than Sun or the applicable Sun Subsidiary, keep in full force and effect, and not default in any of their obligations under, all material contracts;
(v) Keep in full force and effect insurance coverage with existing or comparable responsible insurance carriers which is reasonably adequate in coverage and amount for companies the size of the First Lancaster, the Bank Sun or any First Lancaster such Sun Subsidiary and for the businesses and properties owned by each and in which each is engaged, to the extent that such insurance is reasonably available;
(vi) Use its best efforts to retain the Bank's present customer base of each Sun Subsidiary and to facilitate the retention of such customers by each Sun Subsidiary and its respective locations and branches after the Effective Time; and
(vii) Maintain, renew, keep in full force and effect, and preserve its business organization and material rights and franchises, permits and licenses, and to use its best efforts to maintain positive relations with its present employees so that such employees will continue to perform effectively and will be available to First Lancaster Sun, the Sun Subsidiaries or Omega and the Bank or CKF Bancorp and CKF BancorpOmega's Subsidiaries at and after the Effective Time, and to use its best efforts to maintain its existing, or substantially equivalent, credit arrangements with banks and other financial institutions and to assure the continuance of the Bankeach Sun Subsidiary's customer relationships.
(b) First Lancaster and the Bank agree Sun agrees to use their its best efforts to assist CKF Bancorp Omega in obtaining the Government Banking Approvals and any Governmental Approvals necessary to complete the transactions contemplated herebyhereby and does not know of any reason that such approvals can not be obtained, and First Lancaster Sun and the Bank Sun Subsidiaries shall provide to CKF Bancorp Omega or to the appropriate governmental authorities Governmental Authorities all information reasonably required to be submitted in connection with obtaining such approvals.
(c) First Lancaster Sun and the BankSun Subsidiaries, at their own cost and expense, shall use their best efforts to secure all consents necessary Consents and releases, if any, required of Sun, any Sun Subsidiary or any third parties necessary or desirable for the consummation of the transactions contemplated by this Merger Agreement parties, and shall comply with all applicable lawsApplicable Laws and rulings, regulations and rulings in connection with this Merger Agreement and the consummation of the transactions contemplated hereby.
(d) At all times to and including, and as of, the Closing, First Lancaster and the Bank shall inform CKF Bancorp in writing of any and all facts necessary to amend or supplement the representations and warranties made herein and the Schedules attached hereto as necessary so that the representations and warranties and information provided in the Schedules remain true and correct in all respects; provided, however, that any such updates to the Schedules shall be required prior to the Closing only with respect to matters which represent material changes to the Schedules and the information contained therein; and provided further, that before such amendment, supplement or update may be deemed to be a part of this Merger Agreement, CKF Bancorp shall have agreed in writing to each amendment, supplement or update to the Schedules made subsequent to the date of this Merger Agreement as an amendment to this Merger Agreement.
(e) At all times to and including, and as of, the Closing, First Lancaster and the Bank shall give such further assistance to CKF Bancorp and shall execute, acknowledge and deliver all such documents and instruments as CKF Bancorp may reasonably request and take such further action as may be reasonably necessary or appropriate to effectively consummate the transactions contemplated by this Merger Agreement.
(f) Between the date of this Merger Agreement and the Closing Date, First Lancaster and the Bank shall afford CKF Bancorp and its authorized agents and representatives reasonable access during normal business hours to the properties, operations, books, records, contracts, documents, loan files and other information of, or relating to First Lancaster and the Bank other then documents or other materials relating to the transactions contemplated herein. First Lancaster and the Bank shall provide reasonable assistance to CKF Bancorp in its investigation of matters relating to First Lancaster and the Bank.
(g) First Lancaster and the Bank have taken or will take all steps necessary to exempt the transactions contemplated by this Merger Agreement from any applicable state anti-takeover or similar law or anti- takeover or similar provision in the charter documents or bylaws of First Lancaster and the Bank, including without limitation any provisions of the Certificate of Incorporation of First Lancaster restricting the ownership or acquisition of First Lancaster's capital stock or imposing any "fair price" or supermajority director or stockholder vote requirements, including but not limited to Articles 14, 15 and 16 of the First Lancaster Certificate of Incorporation.
(h) Subject to the terms and conditions of this Merger Agreement, First Lancaster and the Bank agree to Sun shall use all reasonable its best efforts and to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things necessary, proper, or advisable under applicable laws and regulations Applicable Laws to consummate and make effective, with reasonable promptness after the date of this Merger Agreement, the transactions contemplated by this Merger Agreement, including, without limitation, using reasonable best efforts to lift or rescind any injunction or restraining or other order adversely affecting the ability of the Parties to consummate the transaction contemplated by this Merger Agreement; provided, however, that such efforts do not impose unreasonable expense or obligations on First Lancaster and the Bank.
(i) At the request of CKF Bancorp, First Lancaster and the Bank . Sun shall hire an outside consultant, reasonably acceptable to CKF Bancorp, to undertake to determine as soon as reasonably practicable but in any event prior to Closing whether or not there are any underground storage tanks, asbestos, ureaformaldehyde, polychlorinated biphenyls, solid wastes or hazard substances, as defined in the Applicable Environmental Laws, present at or on any of the REO of First Lancaster, the Bank or any First Lancaster Subsidiary (excluding any one- to four- family residential property with appraised value less than $100,000) or at or on any of the branch or office facilities owned by First Lancaster, the Bank or any First Lancaster Subsidiary. Such investigation shall be conducted in a manner reasonably satisfactory to CKF Bancorpuse, and the results shall cause each of such investigation shall be set forth in a written report delivered its Subsidiaries to CKF Bancorp prior to Closing. The scope and detail of such report shall be reasonably satisfactory to CKF Bancorp. It is understood that the investigation shall be a "Phase I." The expense of hiring such consultant shall be paid by CKF Bancorp. The parties agree to keep confidential the contents and results of such report.
(j) At the request of CKF Bancorpuse, First Lancaster and the Bank shall hire an outside appraiser, reasonably acceptable to CKF Bancorp, to prepare an appraisal prior to Closing of any or all of the REO of First Lancaster, the Bank or any First Lancaster Subsidiary. The expense of hiring such appraiser shall be paid by CKF Bancorp.
(k) First Lancaster and the Bank shall use their best efforts to assist CKF Bancorp to assume First Lancaster's data processing contract with Intrieve Incorporated without the imposition of any penalty or acceleration in payments.
(l) The First Lancaster Bancshares, Inc. Employee Stock Ownership Plan ("First Lancaster ESOP") shall be terminated as of, or prior to, the Effective Time. As of the Effective Time, all shares held by the First Lancaster ESOP shall be converted into the right to receive the Consideration in respect of each share of First Lancaster Common Stock. As soon as administratively practicable following the Effective Time, all outstanding indebtedness of the First Lancaster ESOP shall be repaid in full, in accordance with Section 17.3 of the First Lancaster ESOP and the balance remaining with respect to unallocated shares previously held by the First Lancaster ESOP shall be allocated and distributed to First Lancaster ESOP participants as provided in the First Lancaster ESOP and in accordance with applicable law and regulations, subject to receipt of a favorable determination letter from the Internal Revenue Service and unless otherwise required by applicable law. Notwithstanding anything in this Section 6.2(l) to the contrary, distributions may be made from the First Lancaster ESOP to terminated employees of First Lancaster or the Bank as soon as administratively practicable after the determination of final allocations and the receipt of a determination letter from the Internal Revenue Service, unless CKF Bancorp determines that it is appropriate to make earlier distributions.
(m) First Lancaster shall use its best efforts to obtain from the Banking Approvals and all other Consents of all third parties and Governmental Authorities necessary or desirable for the consummation of each holder of a First Lancaster Option and to deliver to CKF Bancorp at or before the Closing an agreement to the cancellation of such holder's First Lancaster Options in exchange for a cash payment as described in Section 2.6transactions contemplated by this Agreement.
(ne) The existing employment agreements between First Lancaster and On the Bank and Virginia X. X. Xxxxx and Xxxx X. Xxxxxx shall each be terminated at business day immediately prior to the Effective Time, assuming that all conditions precedent to the Merger as Omega may require have been satisfied, Sun shall, at the request of Omega, take all permissible legal, accounting and regulatory action necessary to convert to the accounting policies and practices of Omega, such actions to include, without limitation, at Omega's option, adjustments to loan loss reserves, reserves for federal income taxes, accounting for post-retirement medical benefits, and accruals for severance and related costs and accrued vacation and disability leave. CKFSun's representations, warranties and covenants contained in this Agreement shall not be deemed to be untrue or breached in any respect for any purpose as a consequence of any modifications or changes undertaken at the request of Omega under this Section 5.2(e) or otherwise.
Appears in 1 contract
Conduct of Business - Affirmative Covenants. Unless the prior written consent of CKF Bancorp Omega shall have been obtained, and, except as otherwise contemplated herein:
(a) First Lancaster Sun and the Bank each Sun Subsidiary shall, and shall cause each First Lancaster Subsidiary to:
(i) Operate its business only in the usual, regular, and ordinary course;
(ii) Preserve intact its business organizations and assets and to maintain its rights and franchises;
(iii) Take no action, unless otherwise required by law, rules or regulation, or except as contemplated by this Merger AgreementApplicable Law, that would reasonably be considered to (A) materially adversely affect the ability of any of them or CKF Bancorp Omega to obtain any necessary approvals of Regulatory Governmental Authorities required to consummate the transactions contemplated by this Merger Agreement, or (B) adversely affect the ability of such Party to perform its covenants and agreements under this Merger Agreement;
(iv) Except as they may terminate in accordance with their termsterms or as may be terminated by Sun or the applicable Sun Subsidiary as a result of a material default by a party other than Sun or the applicable Sun Subsidiary, keep in full force and effect, and not default in any of their obligations under, all material contracts;
(v) Keep in full force and effect insurance coverage with existing or comparable responsible insurance carriers which is reasonably adequate in coverage and amount for companies the size of the First Lancaster, the Bank Sun or any First Lancaster such Sun Subsidiary and for the businesses and properties owned by each and in which each is engaged, to the extent that such insurance is reasonably available;
(vi) Use its best efforts to retain the Bank's present customer base of each Sun Subsidiary and to facilitate the retention of such customers by each Sun Subsidiary and its respective locations and branches after the Effective Time; and
(vii) Maintain, renew, keep in full force and effect, and preserve its business organization and material rights and franchises, permits and licenses, and to use its best efforts to maintain positive relations with its present employees so that such employees will continue to perform effectively and will be available to First Lancaster Sun, the Sun Subsidiaries or Omega and the Bank or CKF Bancorp and CKF Bancorp's Omega’s Subsidiaries at and after the Effective Time, and to use its best efforts to maintain its existing, or substantially equivalent, credit arrangements with banks and other financial institutions and to assure the continuance of the Bank's each Sun Subsidiary’s customer relationships.
(b) First Lancaster and the Bank agree Sun agrees to use their its best efforts to assist CKF Bancorp Omega in obtaining the Government Banking Approvals and any Governmental Approvals necessary to complete the transactions contemplated herebyhereby and does not know of any reason that such approvals can not be obtained, and First Lancaster Sun and the Bank Sun Subsidiaries shall provide to CKF Bancorp Omega or to the appropriate governmental authorities Governmental Authorities all information reasonably required to be submitted in connection with obtaining such approvals.
(c) First Lancaster Sun and the BankSun Subsidiaries, at their own cost and expense, shall use their best efforts to secure all consents necessary Consents and releases, if any, required of Sun, any Sun Subsidiary or any third parties necessary or desirable for the consummation of the transactions contemplated by this Merger Agreement parties, and shall comply with all applicable lawsApplicable Laws and rulings, regulations and rulings in connection with this Merger Agreement and the consummation of the transactions contemplated hereby.
(d) At all times to and including, and as of, the Closing, First Lancaster and the Bank shall inform CKF Bancorp in writing of any and all facts necessary to amend or supplement the representations and warranties made herein and the Schedules attached hereto as necessary so that the representations and warranties and information provided in the Schedules remain true and correct in all respects; provided, however, that any such updates to the Schedules shall be required prior to the Closing only with respect to matters which represent material changes to the Schedules and the information contained therein; and provided further, that before such amendment, supplement or update may be deemed to be a part of this Merger Agreement, CKF Bancorp shall have agreed in writing to each amendment, supplement or update to the Schedules made subsequent to the date of this Merger Agreement as an amendment to this Merger Agreement.
(e) At all times to and including, and as of, the Closing, First Lancaster and the Bank shall give such further assistance to CKF Bancorp and shall execute, acknowledge and deliver all such documents and instruments as CKF Bancorp may reasonably request and take such further action as may be reasonably necessary or appropriate to effectively consummate the transactions contemplated by this Merger Agreement.
(f) Between the date of this Merger Agreement and the Closing Date, First Lancaster and the Bank shall afford CKF Bancorp and its authorized agents and representatives reasonable access during normal business hours to the properties, operations, books, records, contracts, documents, loan files and other information of, or relating to First Lancaster and the Bank other then documents or other materials relating to the transactions contemplated herein. First Lancaster and the Bank shall provide reasonable assistance to CKF Bancorp in its investigation of matters relating to First Lancaster and the Bank.
(g) First Lancaster and the Bank have taken or will take all steps necessary to exempt the transactions contemplated by this Merger Agreement from any applicable state anti-takeover or similar law or anti- takeover or similar provision in the charter documents or bylaws of First Lancaster and the Bank, including without limitation any provisions of the Certificate of Incorporation of First Lancaster restricting the ownership or acquisition of First Lancaster's capital stock or imposing any "fair price" or supermajority director or stockholder vote requirements, including but not limited to Articles 14, 15 and 16 of the First Lancaster Certificate of Incorporation.
(h) Subject to the terms and conditions of this Merger Agreement, First Lancaster and the Bank agree to Sun shall use all reasonable its best efforts and to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things necessary, proper, or advisable under applicable laws and regulations Applicable Laws to consummate and make effective, with reasonable promptness after the date of this Merger Agreement, the transactions contemplated by this Merger Agreement, including, without limitation, using reasonable best efforts to lift or rescind any injunction or restraining or other order adversely affecting the ability of the Parties to consummate the transaction contemplated by this Merger Agreement; provided, however, that such efforts do not impose unreasonable expense or obligations on First Lancaster and the Bank.
(i) At the request of CKF Bancorp, First Lancaster and the Bank . Sun shall hire an outside consultant, reasonably acceptable to CKF Bancorp, to undertake to determine as soon as reasonably practicable but in any event prior to Closing whether or not there are any underground storage tanks, asbestos, ureaformaldehyde, polychlorinated biphenyls, solid wastes or hazard substances, as defined in the Applicable Environmental Laws, present at or on any of the REO of First Lancaster, the Bank or any First Lancaster Subsidiary (excluding any one- to four- family residential property with appraised value less than $100,000) or at or on any of the branch or office facilities owned by First Lancaster, the Bank or any First Lancaster Subsidiary. Such investigation shall be conducted in a manner reasonably satisfactory to CKF Bancorpuse, and the results shall cause each of such investigation shall be set forth in a written report delivered its Subsidiaries to CKF Bancorp prior to Closing. The scope and detail of such report shall be reasonably satisfactory to CKF Bancorp. It is understood that the investigation shall be a "Phase I." The expense of hiring such consultant shall be paid by CKF Bancorp. The parties agree to keep confidential the contents and results of such report.
(j) At the request of CKF Bancorpuse, First Lancaster and the Bank shall hire an outside appraiser, reasonably acceptable to CKF Bancorp, to prepare an appraisal prior to Closing of any or all of the REO of First Lancaster, the Bank or any First Lancaster Subsidiary. The expense of hiring such appraiser shall be paid by CKF Bancorp.
(k) First Lancaster and the Bank shall use their best efforts to assist CKF Bancorp to assume First Lancaster's data processing contract with Intrieve Incorporated without the imposition of any penalty or acceleration in payments.
(l) The First Lancaster Bancshares, Inc. Employee Stock Ownership Plan ("First Lancaster ESOP") shall be terminated as of, or prior to, the Effective Time. As of the Effective Time, all shares held by the First Lancaster ESOP shall be converted into the right to receive the Consideration in respect of each share of First Lancaster Common Stock. As soon as administratively practicable following the Effective Time, all outstanding indebtedness of the First Lancaster ESOP shall be repaid in full, in accordance with Section 17.3 of the First Lancaster ESOP and the balance remaining with respect to unallocated shares previously held by the First Lancaster ESOP shall be allocated and distributed to First Lancaster ESOP participants as provided in the First Lancaster ESOP and in accordance with applicable law and regulations, subject to receipt of a favorable determination letter from the Internal Revenue Service and unless otherwise required by applicable law. Notwithstanding anything in this Section 6.2(l) to the contrary, distributions may be made from the First Lancaster ESOP to terminated employees of First Lancaster or the Bank as soon as administratively practicable after the determination of final allocations and the receipt of a determination letter from the Internal Revenue Service, unless CKF Bancorp determines that it is appropriate to make earlier distributions.
(m) First Lancaster shall use its best efforts to obtain from the Banking Approvals and all other Consents of all third parties and Governmental Authorities necessary or desirable for the consummation of each holder of a First Lancaster Option and to deliver to CKF Bancorp at or before the Closing an agreement to the cancellation of such holder's First Lancaster Options in exchange for a cash payment as described in Section 2.6transactions contemplated by this Agreement.
(ne) The existing employment agreements between First Lancaster and On the Bank and Virginia X. X. Xxxxx and Xxxx X. Xxxxxx shall each be terminated at business day immediately prior to the Effective Time, assuming that all conditions precedent to the Merger as Omega may require have been satisfied, Sun shall, at the request of Omega, take all permissible legal, accounting and regulatory action necessary to convert to the accounting policies and practices of Omega, such actions to include, without limitation, at Omega’s option, adjustments to loan loss reserves, reserves for federal income taxes, accounting for post-retirement medical benefits, and accruals for severance and related costs and accrued vacation and disability leave. CKFSun’s representations, warranties and covenants contained in this Agreement shall not be deemed to be untrue or breached in any respect for any purpose as a consequence of any modifications or changes undertaken at the request of Omega under this Section 5.2(e) or otherwise.
Appears in 1 contract
Samples: Merger Agreement (Sun Bancorp Inc)
Conduct of Business - Affirmative Covenants. Unless the prior written consent of CKF Bancorp Smoky Mountain shall have been obtained, obtained and, except as otherwise contemplated herein:
(a) First Lancaster and the Bank BankFirst shall, and shall cause each First Lancaster the BankFirst Subsidiary to:
(i) Operate its business only in the usual, regular, and ordinary course;
(ii) Preserve intact its business organizations and assets and to maintain its rights and franchises;
(iii) Take no action, unless otherwise required by law, rules or regulation, or except as contemplated by this Merger Agreement, that would (Aa) materially adversely affect the ability of any of them or CKF Bancorp Smoky Mountain to obtain any necessary approvals of Regulatory Authorities required to consummate the transactions contemplated by this Merger Agreement, or (Bb) adversely affect the ability of such Party party to perform its covenants and agreements under this Merger Agreement;
(iv) Except as they may terminate in accordance with their terms, keep in full force and effect, and not default in any of their obligations under, all material contracts;
(v) Keep in full force and effect insurance coverage with existing or comparable responsible insurance carriers which is reasonably adequate in coverage and amount for companies the size of BankFirst or the First Lancaster, the Bank or any First Lancaster BankFirst Subsidiary and for the businesses and properties owned by each and in which each is engaged, to the extent that such insurance is reasonably available;
(vi) Use its best efforts to retain the Bank's its present customer base and to facilitate the retention of such customers by BankFirst and its branches after the Effective Time; andclosing;
(vii) MaintainTo maintain, renew, keep in full force and effect, and preserve its business organization and material rights and franchises, permits and licenses, and to use its best efforts to maintain positive relations with its present employees so that such employees will continue to perform effectively and will be available to First Lancaster BankFirst or Smoky Mountain and the Bank BankFirst's Subsidiaries or CKF Bancorp and CKF BancorpSmoky Mountain's Subsidiaries at and after the Effective Timeclosing, and to use its best efforts to maintain its existing, or substantially equivalent, credit arrangements with banks and other financial institutions and to assure the continuance of the Bank's its customer relationships.;
(b) First Lancaster and the Bank agree BankFirst agrees to use their its best efforts to assist CKF Bancorp Smoky Mountain in obtaining the Government Approvals necessary to complete the transactions contemplated hereby, and First Lancaster and the Bank BankFirst shall provide to CKF Bancorp Smoky Mountain or to the appropriate governmental authorities all information reasonably required to be submitted in connection with obtaining such approvals.
(c) First Lancaster and the BankBankFirst, at their its own cost and expense, shall use their its best efforts to secure all necessary consents and all consents and releases, if any, required of BankFirst or third parties necessary or desirable for the consummation of the transactions contemplated by this Merger Agreement and shall comply with all applicable laws, regulations and rulings in connection with this Merger Agreement and the consummation of the transactions contemplated hereby.
(d) At all times to and including, and as of, the Closing, First Lancaster and the Bank BankFirst shall inform CKF Bancorp Smoky Mountain in writing of any and all facts necessary to amend or supplement the representations and warranties made herein and the Schedules schedules attached hereto as necessary so that the representations and warranties and information provided in the Schedules remain true and correct in all respects; provided, however, that any such updates to the Schedules shall be required prior to the Closing only with respect to matters which represent material changes to the Schedules and the information contained therein; herein and provided further, that before such amendment, supplement or update may be deemed to be a part therein will accurately reflect the current status of this Merger Agreement, CKF Bancorp shall have agreed in writing to each amendment, supplement or update to the Schedules made subsequent to the date of this Merger Agreement as an amendment to this Merger AgreementBankFirst.
(e) At all times to and including, and as of, the Closing, First Lancaster and the Bank shall give such further assistance to CKF Bancorp and shall execute, acknowledge and deliver all such documents and instruments as CKF Bancorp may reasonably request and take such further action as may be reasonably necessary or appropriate to effectively consummate the transactions contemplated by this Merger Agreement.
(f) Between the date of this Merger Agreement and the Closing Date, First Lancaster and the Bank shall afford CKF Bancorp and its authorized agents and representatives reasonable access during normal business hours to the properties, operations, books, records, contracts, documents, loan files and other information of, or relating to First Lancaster and the Bank other then documents or other materials relating to the transactions contemplated herein. First Lancaster and the Bank shall provide reasonable assistance to CKF Bancorp in its investigation of matters relating to First Lancaster and the Bank.
(g) First Lancaster and the Bank have taken or will take all steps necessary to exempt the transactions contemplated by this Merger Agreement from any applicable state anti-takeover or similar law or anti- takeover or similar provision in the charter documents or bylaws of First Lancaster and the Bank, including without limitation any provisions of the Certificate of Incorporation of First Lancaster restricting the ownership or acquisition of First Lancaster's capital stock or imposing any "fair price" or supermajority director or stockholder vote requirements, including but not limited to Articles 14, 15 and 16 of the First Lancaster Certificate of Incorporation.
(h) Subject to the terms and conditions of this Merger Agreement, First Lancaster and the Bank agree to use all reasonable efforts and to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things necessary, proper, or advisable under applicable laws and regulations to consummate and make effective, with reasonable promptness after the date of this Merger Agreement, the transactions contemplated by this Merger Agreement, including, without limitation, using reasonable efforts to lift or rescind any injunction or restraining or other order adversely affecting the ability of the Parties to consummate the transaction contemplated by this Merger Agreement; provided, however, that such efforts do not impose unreasonable expense or obligations on First Lancaster and the Bank.
(i) At the request of CKF Bancorp, First Lancaster and the Bank shall hire an outside consultant, reasonably acceptable to CKF Bancorp, to undertake to determine as soon as reasonably practicable but in any event prior to Closing whether or not there are any underground storage tanks, asbestos, ureaformaldehyde, polychlorinated biphenyls, solid wastes or hazard substances, as defined in the Applicable Environmental Laws, present at or on any of the REO of First Lancaster, the Bank or any First Lancaster Subsidiary (excluding any one- to four- family residential property with appraised value less than $100,000) or at or on any of the branch or office facilities owned by First Lancaster, the Bank or any First Lancaster Subsidiary. Such investigation shall be conducted in a manner reasonably satisfactory to CKF Bancorp, and the results of such investigation shall be set forth in a written report delivered to CKF Bancorp prior to Closing. The scope and detail of such report shall be reasonably satisfactory to CKF Bancorp. It is understood that the investigation shall be a "Phase I." The expense of hiring such consultant shall be paid by CKF Bancorp. The parties agree to keep confidential the contents and results of such report.
(j) At the request of CKF Bancorp, First Lancaster and the Bank shall hire an outside appraiser, reasonably acceptable to CKF Bancorp, to prepare an appraisal prior to Closing of any or all of the REO of First Lancaster, the Bank or any First Lancaster Subsidiary. The expense of hiring such appraiser shall be paid by CKF Bancorp.
(k) First Lancaster and the Bank shall use their best efforts to assist CKF Bancorp to assume First Lancaster's data processing contract with Intrieve Incorporated without the imposition of any penalty or acceleration in payments.
(l) The First Lancaster Bancshares, Inc. Employee Stock Ownership Plan ("First Lancaster ESOP") shall be terminated as of, or prior to, the Effective Time. As of the Effective Time, all shares held by the First Lancaster ESOP shall be converted into the right to receive the Consideration in respect of each share of First Lancaster Common Stock. As soon as administratively practicable following the Effective Time, all outstanding indebtedness of the First Lancaster ESOP shall be repaid in full, in accordance with Section 17.3 of the First Lancaster ESOP and the balance remaining with respect to unallocated shares previously held by the First Lancaster ESOP shall be allocated and distributed to First Lancaster ESOP participants as provided in the First Lancaster ESOP and in accordance with applicable law and regulations, subject to receipt of a favorable determination letter from the Internal Revenue Service and unless otherwise required by applicable law. Notwithstanding anything in this Section 6.2(l) to the contrary, distributions may be made from the First Lancaster ESOP to terminated employees of First Lancaster or the Bank as soon as administratively practicable after the determination of final allocations and the receipt of a determination letter from the Internal Revenue Service, unless CKF Bancorp determines that it is appropriate to make earlier distributions.
(m) First Lancaster shall use its best efforts to obtain from each holder of a First Lancaster Option and to deliver to CKF Bancorp at or before the Closing an agreement to the cancellation of such holder's First Lancaster Options in exchange for a cash payment as described in Section 2.6.
(n) The existing employment agreements between First Lancaster and the Bank and Virginia X. X. Xxxxx and Xxxx X. Xxxxxx shall each be terminated at the Effective Time. CKF
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