Conduct of Business - Negative Covenants. From the date hereof until the Effective Time, ProMed Pomona shall not, without the prior written consent of Group and Group Subsidiary, which consent shall not be unreasonably withheld, conduct the business of ProMed Pomona other than in the ordinary course of ProMed Pomona’s business as conducted through the date hereof or commit or suffer any material act or omission which deviates from the ordinary course of ProMed Pomona’s business as conducted through the date hereof. Without limiting the generality of the foregoing, from the date of execution of this Agreement until the Effective Time, ProMed Pomona shall not, without the prior written consent of Group and Group Subsidiary, which consent shall not be unreasonably withheld: (a) institute any new method of purchase, sale, lease, management, accounting or operation or engage in any transaction or activity, enter into any agreement or make any commitment or amend any existing material agreement other than as contemplated by this Agreement, except in the ordinary course of its business and consistent with past practice; (b) change or amend its Articles of Incorporation or By-Laws or propose any such change or amendment; (c) offer, issue, authorize or sell any shares of the capital stock or other securities (such term as used in this subsection shall include, without limitation, debt securities) of ProMed Pomona of any kind whatsoever, or acquire directly or indirectly, by redemption or otherwise, any such capital stock, reclassify or split-up any such capital stock, declare or pay any dividends thereon in cash, securities or other property, or make any other distribution with respect thereto, or grant or enter into any stock options, warrants, or other rights to acquire securities of ProMed Pomona or enter into any other contracts or commitments of any kind with respect to the issuance of additional shares of capital stock or other securities of ProMed Pomona; (d) (i) borrow or agree to borrow any funds, whether directly or by way of guaranty or otherwise, or (ii) except in the ordinary course of business and consistent with past practice, incur, or assume or become subject to any obligation or liability (absolute or contingent); (e) pay, discharge, waive, satisfy, compromise or adjust any claim, liability or obligation (absolute, accrued, contingent or otherwise) of an amount in excess of $10,000, other than as contemplated by this Agreement or occurring in the ordinary course of business and consistent with past practice; (f) prepay any obligation having a fixed maturity of more than 90 days from the date such obligation was incurred other than as contemplated by this Agreement or occurring in the ordinary course of business and consistent with past practice; (g) permit or allow any of its property or assets (real, personal or mixed, tangible or intangible) to be subjected to any mortgage, pledge, lien or other encumbrance except in the ordinary course of business and consistent with past practice; (h) cancel any debts or waive any claims or rights of substantial value or sell, transfer, or otherwise dispose of any of its properties or assets, except in the ordinary course of its business and consistent with past practice; (i) dispose of any rights to the use of any patent, trademark, service xxxx, trade name or copyright, or dispose of or disclose to any person any trade secret, formula, process or know-how not theretofore a matter of public knowledge, except in the ordinary course of business and consistent with past practice; (j) grant any general increase in the compensation of officers or employees (including any such increase pursuant to any bonus, pension, profit sharing or other plan or commitment) or any increase in the compensation (including salary and bonus) payable or to become payable to any officer except in the ordinary course of business and consistent with past practice; (k) appoint or remove from office any officers of ProMed Pomona other than as contemplated by this Agreement; (l) make any payment to or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, any of the officers or directors of ProMed Pomona or any other affiliate thereof, except in the ordinary course of business and consistent with past practice; (m) enter into any contract, commitment or transaction not in the usual and ordinary course of its business, other than transactions contemplated by, or referred to in, this Agreement; (n) change, or initiate a change of, any of the banking, safe deposit or power of attorney arrangements effective as of the date hereof, except for changes in the signatories on the accounts of ProMed Pomona, provided such changes are contemplated by this Agreement and ProMed Pomona shall have given Group and Group Subsidiary prior written notice of any such change in signatories and Group and Group Subsidiary approves same; (o) write down the value of any inventory (including write-downs by reason of shrinkage or xxxx-down) or write off as uncollectible any notes or accounts receivable, except for immaterial write-downs of inventory or accounts receivable in the ordinary course of business and consistent with past practice; (p) merge, consolidate, reorganize or liquidate ProMed Pomona; (q) file a voluntary petition on behalf of ProMed Pomona under the U.S. Bankruptcy Code or any other bankruptcy or insolvency law or any other law for relief of debtors; (r) change, amend or terminate a Material Contract constituting an affiliate agreement under Section 2.14 except as contemplated by this Agreement or with the written consent of Group and Group Subsidiary; or (s) agree or commit, whether in writing or otherwise, to do any of the foregoing. Notwithstanding the foregoing, ProMed Pomona may at any time prior to the Closing Date, (i) pay the Stay Bonuses described in Section 5.3 and (ii) distribute cash to any or all of the ProMed Pomona Shareholders provided such distribution shall not cause ProMed Pomona to violate the covenant set forth in Section 4.4 or any other representation, warranty, covenant or agreement provided herein.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Prospect Medical Holdings Inc)
Conduct of Business - Negative Covenants. From the date hereof of this Agreement until the earlier of the Effective TimeTime or until the termination of this Agreement, ProMed Pomona each Party covenants and agrees that it will not do or agree or commit to do, and shall notnot permit any of its Subsidiaries to do or to commit to do, any of the following without the prior written consent of Group and Group Subsidiarythe chief executive officer or chief financial officer of the other Party, which consent shall not be unreasonably delayed or withheld:
(a) except as set forth on the Lanxide Disclosure Schedule or the Commodore Disclosure Schedule, as the case may be, or as expressly contemplated by this Agreement, amend its certificates of incorporation or bylaws; or
(b) except as expressly permitted in this Agreement or (i) as to Commodore, in accordance with the specific terms of Commodore Capital Stock, Commodore Warrants, Commodore Convertible Notes or Commodore Stock Options, or (ii) as to Lanxide, in accordance with the specific terms of Lanxide Capital Stock, Lanxide Warrants, Lanxide Stock Options or Lanxide Deferred Compensation Plans, repurchase, redeem, or otherwise acquire or exchange, directly or indirectly, any shares of its capital stock or any securities convertible into any shares of its capital stock; or
(c) except as expressly contemplated by this Agreement or as disclosed in Disclosure Schedules hereto, acquire, or agree to acquire, any business or any corporation, partnership, limited liability company, association, firm, or organization or division thereof, or otherwise acquire or agree to acquire any assets other than in connection with (i) internal reorganizations or consolidations involving existing Subsidiaries or (ii) the creation of new Subsidiaries organized to conduct or continue activities otherwise permitted by this Agreement; or
(d) except as disclosed in the business Disclosure Schedules hereto, sell or otherwise dispose of, or agree to sell, lease or otherwise dispose of: (i) any shares of ProMed Pomona capital stock of any Subsidiary of such Party (unless any such shares of stock are sold or otherwise transferred to such Party or any of its wholly- owned Subsidiaries); (ii) any Subsidiary of such Party; (iii) any substantial part of the assets of such Party or any Subsidiary of such Party; or (iv) any asset other than in the ordinary course of ProMed Pomona’s business as conducted through for reasonable and adequate consideration; provided, however, such covenant in this subparagraph (e) shall not be applicable to the date hereof sale of shares or commit or suffer any material act or omission which deviates from the ordinary course of ProMed Pomona’s business as conducted through the date hereof. Without limiting the generality of the foregoing, from assets sold after the date of execution of this Agreement until the Effective Time, ProMed Pomona shall not, without the prior written consent of Group and Group Subsidiary, which consent shall in transactions not be unreasonably withheld:
(a) institute any new method of purchase, sale, lease, management, accounting or operation or engage in any transaction or activity, enter into any agreement or make any commitment or amend any existing material agreement other than as contemplated otherwise prohibited by this Agreement, except Agreement resulting in the ordinary course of its business and consistent with past practice;
(b) change a gain or amend its Articles of Incorporation or By-Laws or propose any such change or amendment;
(c) offer, issue, authorize or sell any shares of the capital stock or other securities (such term as used loss in this subsection shall include, without limitation, debt securities) of ProMed Pomona of any kind whatsoever, or acquire directly or indirectly, by redemption or otherwise, any such capital stock, reclassify or split-up any such capital stock, declare or pay any dividends thereon in cash, securities or other property, or make any other distribution with respect thereto, or grant or enter into any stock options, warrants, or other rights to acquire securities of ProMed Pomona or enter into any other contracts or commitments of any kind with respect to the issuance of additional shares of capital stock or other securities of ProMed Pomona;
(d) (i) borrow or agree to borrow any funds, whether directly or by way of guaranty or otherwise, or (ii) except in the ordinary course of business and consistent with past practice, incur, or assume or become subject to any obligation or liability (absolute or contingent);
(e) pay, discharge, waive, satisfy, compromise or adjust any claim, liability or obligation (absolute, accrued, contingent or otherwise) of an amount each sale not in excess of $10,000; or
(e) except as disclosed in the Disclosure Schedules or as contemplated hereby, incur, directly or indirectly, any additional debt obligation or other obligation for borrowed money, other than as contemplated by this Agreement or occurring (i) the replacement of existing short-term debt with other short-term debt in the ordinary course same or lesser aggregate principal amount or (ii) indebtedness of business any Lanxide Company to another Lanxide Company or of any Commodore Company to another Commodore Company, not in excess of an aggregate of $25,000 for such Party and consistent with past practice;its Subsidiaries on a consolidated basis; or
(f) prepay any obligation having a fixed maturity of more than 90 days from the date such obligation was incurred other than as contemplated by this Agreement or occurring in the ordinary course of business and consistent with past practice;
(g) permit or allow any of its property or assets (real, personal or mixed, tangible or intangible) to be subjected to any mortgage, pledge, lien or other encumbrance except in the ordinary course of business and consistent with past practice;
(h) cancel any debts or waive any claims or rights of substantial value or sell, transfer, or otherwise dispose of any of its properties or assets, except in the ordinary course of its business and consistent with past practice;
(i) dispose of any rights to the use of any patent, trademark, service xxxx, trade name or copyright, or dispose of or disclose to any person any trade secret, formula, process or know-how not theretofore a matter of public knowledge, except in the ordinary course of business and consistent with past practice;
(j) grant any general increase in compensation or benefits to its employees or to its officers, except in accordance with past practice or as required by law; pay any bonus except in accordance with past practice or the compensation provisions of any applicable program or plan adopted by the Board of Directors of such Party prior to the date of this Agreement; enter into any severance agreements with its officers or employees (including the officers of any such Subsidiary except as previously disclosed; grant any material increase pursuant in fees or other increases in compensation or other benefits to any bonus, pension, profit sharing or other plan or commitment) or any increase of its directors except as in the compensation (including salary and bonus) payable or to become payable to any officer except in the ordinary course of business and consistent accordance with past practice;
(k) appoint ; or remove from office effect any officers of ProMed Pomona other than as contemplated by this Agreement;
(l) make change in retirement benefits for any payment to or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, any of the officers or directors of ProMed Pomona or any other affiliate thereof, except in the ordinary course of business and consistent with past practice;
(m) enter into any contract, commitment or transaction not in the usual and ordinary course class of its business, other than transactions contemplated by, employees or referred to in, this Agreement;
officers (n) change, or initiate a change of, any of the banking, safe deposit or power of attorney arrangements effective as of the date hereof, except for changes in the signatories on the accounts of ProMed Pomona, provided such changes are contemplated by this Agreement and ProMed Pomona shall have given Group and Group Subsidiary prior written notice of any unless such change in signatories is required by applicable law) that would materially increase the retirement benefit liabilities of such Party and Group and Group Subsidiary approves same;
(o) write down the value of any inventory (including write-downs by reason of shrinkage or xxxx-down) or write off as uncollectible any notes or accounts receivable, except for immaterial write-downs of inventory or accounts receivable in the ordinary course of business and consistent with past practice;
(p) merge, consolidate, reorganize or liquidate ProMed Pomona;
(q) file its Subsidiaries on a voluntary petition on behalf of ProMed Pomona under the U.S. Bankruptcy Code or any other bankruptcy or insolvency law or any other law for relief of debtors;
(r) change, amend or terminate a Material Contract constituting an affiliate agreement under Section 2.14 except as contemplated by this Agreement or with the written consent of Group and Group Subsidiaryconsolidated basis; or
(s) agree or commit, whether in writing or otherwise, to do any of the foregoing. Notwithstanding the foregoing, ProMed Pomona may at any time prior to the Closing Date, (i) pay the Stay Bonuses described in Section 5.3 and (ii) distribute cash to any or all of the ProMed Pomona Shareholders provided such distribution shall not cause ProMed Pomona to violate the covenant set forth in Section 4.4 or any other representation, warranty, covenant or agreement provided herein.
Appears in 1 contract
Samples: Merger Agreement (Lanxide Corp)
Conduct of Business - Negative Covenants. From the date hereof until the Effective Time, ProMed Pomona shall not, without the prior written consent of Group and Group Subsidiary, which consent shall not be unreasonably withheld, conduct the business of ProMed Pomona other than in the ordinary course of ProMed Pomona’s business as conducted through the date hereof or commit or suffer any material act or omission which deviates from the ordinary course of ProMed Pomona’s business as conducted through the date hereof. Without limiting the generality of the foregoing, from the date of execution of this Agreement until the Effective Time, ProMed Pomona shall not, without the prior written consent of Group and Group Subsidiary, which consent shall not be unreasonably withheld:
(a) institute any new method of purchase, sale, lease, management, accounting or operation or engage in any transaction or activity, enter into any agreement or make any commitment or amend any existing material agreement other than Except (1) as contemplated by this Agreement, except including pursuant to the Pre-Closing Reorganization, (2) with the prior written consent of the Purchaser (which consent will not be unreasonably withheld, conditioned or delayed and, solely in the ordinary course case of its business and consistent with past practice;
clause (biii) change below, shall be deemed given if the Purchaser provides no written response within five Business Days after receipt of a written request from the Vendors for such consent), (3) as required by applicable Law or amend its Articles of Incorporation Order or By-Laws or propose any such change or amendment;
(c4) offer, issue, authorize or sell any shares as set forth in Section 6.5 of the capital stock or other securities (such term as used in this subsection Disclosure Schedule, during the Interim Period, the Vendors shall includeensure that the Company and each Wholly-Owned Subsidiary shall not, without limitation, debt securities) of ProMed Pomona of any kind whatsoever, or acquire directly or indirectly, by redemption or otherwise, any such capital stock, reclassify or split-up any such capital stock, declare or pay any dividends thereon in cash, securities or other property, or make any other distribution with respect thereto, or grant or enter into any stock options, warrants, or other rights to acquire securities of ProMed Pomona or enter into any other contracts or commitments of any kind with respect to the issuance of additional shares of capital stock or other securities of ProMed Pomona;:
(d) (i) borrow or agree to borrow any funds, whether directly or by way of guaranty or otherwise, or (ii) except in the ordinary course of business and consistent with past practice, incur, or assume or become subject to any obligation or liability (absolute or contingent);
(e) pay, discharge, waive, satisfy, compromise or adjust any claim, liability or obligation (absolute, accrued, contingent or otherwise) of an amount in excess of $10,000, other than as contemplated by this Agreement or occurring in the ordinary course of business and consistent with past practice;
(f) prepay any obligation having a fixed maturity of more than 90 days from the date such obligation was incurred other than as contemplated by this Agreement or occurring in the ordinary course of business and consistent with past practice;
(g) permit or allow any of its property or assets (real, personal or mixed, tangible or intangible) to be subjected to any mortgage, pledge, lien or other encumbrance except in the ordinary course of business and consistent with past practice;
(h) cancel any debts or waive any claims or rights of substantial value or sell, transfer, sell or otherwise dispose of any of its properties or assets, except for assets sold or otherwise disposed of in the ordinary course Ordinary Course of Business, or mortgage, pledge or grant or suffer to exist any Encumbrance on any of its business properties or assets (other than Permitted Encumbrances or Encumbrances that will be terminated, released and consistent with past practicedischarged on or prior to the Closing Date);
(iii) dispose of make any rights to capital expenditure that deviates by more than 5% from the use of any patentrelative mix between digital growth investments (new builds, trademarkconversions, service xxxxrelocations), trade name or copyright, or dispose of or disclose to any person any trade secret, formula, process or know-how not theretofore a matter of public knowledge, except other growth investments and maintenance capital expenditures set forth in the ordinary course of business and consistent with past practiceExhibit C;
(jiii) grant enter into any general Contract that had it been in effect as of the date of this Agreement would have been required to be set forth on Section 4.14 of the Disclosure Schedule, or amend or terminate any Material Contract (which, for the avoidance of doubt, shall include any renewal or expiration of such Material Contract in accordance with its terms), other than in the Ordinary Course of Business (except for Contracts in clauses (ii), (xiii), (xvi), (xvii) or (xix) of the definition of Material Contracts);
(iv) amend or terminate any Employee Benefit Plan in existence as of the date hereof or establish any new Employee Benefit Plan, in each case other than in the Ordinary Course of Business or where required by applicable Law;
(v) offer to employ or engage any prospective employee or Individual Independent Contractor, or terminate the employment or engagement of any of its employees or Individual Independent Contractors, in each case earning annual compensation in excess of $250,000, other than (i) the hiring of individuals to replace departed employees or Individual Independent Contractors or (ii) terminations for “cause” (as determined in the reasonable discretion of the employing entity);
(vi) grant, promise or agree to any of its directors, officers, employees, consultants or independent contractors (other than, solely with respect to employees, consultants or independent contractors, in the Ordinary Course of Business) (i) any increase in the compensation of officers or employees (including any such increase pursuant directors, officers, employees, consultants or independent contractors, (ii) any right to any bonusparticipate in, pension, profit sharing or other plan or commitment) or any increase in entitlements under, any retention, change of control, termination or severance programs, or (iii) any increase in benefits under any Employee Benefit Plan in any material respect, except, in each case of clauses (i) through (iii), (A) as required by the compensation terms of any Employee Benefit Plan or (including salary and bonusB) payable any increases for which the Guarantor or to become payable to any officer except in the ordinary course of business and consistent with past practiceits Affiliates (other than any Group Company) shall be solely obligated;
(kvii) appoint take any action to amend the articles of incorporation, by-laws or remove from office other Organizational Documents of any officers of ProMed Pomona other than as contemplated by this Agreementthe Group Companies;
(lviii) redeem or repurchase any shares in the capital of the Group Companies;
(ix) issue or authorize for issuance any shares in the capital of any of the Group Companies or effect any share split, share consolidation, recapitalization or other reorganization of the capital of any of the Group Companies, or grant or award any option, warrant or other right to acquire any shares of any of the Group Companies;
(x) file an amended Tax Return that could increase the Taxes payable by any of the Group Companies, make any payment election relating to or sellTaxes, transfer or lease any properties or assets to, or enter into any agreement with any Tax authority, settle or arrangement withcompromise any Proceeding relating to Taxes, or consent to the waiver of any statute of the officers limitations relating to any claim or directors audit of ProMed Pomona or any other affiliate thereof, except in the ordinary course of business and consistent with past practiceTaxes;
(mxi) initiate, discharge, settle, satisfy, compromise or make any payment in connection with any Proceeding or threatened Proceeding (other than a Proceeding relating to Taxes) for an amount in excess of $500,000;
(xii) enter into any contractnew line of business, commitment introduce any new type of products or transaction not services or change in any material respect any line of business, product or services;
(xiii) abandon, modify, waive or terminate any material Permit related to the Business;
(xiv) acquire (by merger, consolidation, amalgamation, acquisition of shares or assets or otherwise) any other Person, substantially all of the assets of any other Person, or all or any part of another Person’s business;
(xv) pay, discharge or satisfy any claims, liabilities or obligations other than in the usual and ordinary course Ordinary Course of its businessBusiness, or delay or postpone payment of accounts payable or other liabilities other than in the Ordinary Course of Business;
(xvi) incur, assume or guarantee any Indebtedness;
(xvii) make or provide any loans or advances, except for (i) transactions between or among the Group Companies only (other than the JV Entities) or (ii) intercompany transactions in the Ordinary Course of Business;
(xviii) subject to Section 6.5(xix), other than transactions contemplated byin the Ordinary Course of Business, purchase, lease or referred otherwise acquire the right to inown, this Agreementuse or lease any property or assets;
(nxix) changepurchase, lease or initiate a change ofotherwise acquire the right to own, use or lease any of the banking, safe deposit or power of attorney arrangements effective real property for use as of the date hereof, except for changes in the signatories on the accounts of ProMed Pomona, provided such changes are contemplated by this Agreement and ProMed Pomona shall have given Group and Group Subsidiary prior written notice of any such change in signatories and Group and Group Subsidiary approves same;
(o) write down the value of any inventory (including write-downs by reason of shrinkage or xxxx-down) or write off as uncollectible any notes or accounts receivable, except for immaterial write-downs of inventory or accounts receivable in the ordinary course of business and consistent with past practice;
(p) merge, consolidate, reorganize or liquidate ProMed Pomona;
(q) file a voluntary petition on behalf of ProMed Pomona under the U.S. Bankruptcy Code or any other bankruptcy or insolvency law or any other law for relief of debtors;
(r) change, amend or terminate a Material Contract constituting an affiliate agreement under Section 2.14 except as contemplated by this Agreement or with the written consent of Group and Group Subsidiaryoffice; or
(sxx) agree change any accounting practices or commitprinciples from those applied in the preparation of the Financial Statements, whether in writing other than those required or otherwisepermitted by GAAP or other applicable accounting standards or required by applicable Law.
(b) The Vendors shall, and shall cause the Group Companies (other than the JV Entities) to, to do any the extent within the control of the foregoing. Notwithstanding Vendors or the foregoing, ProMed Pomona may at any time prior to Group Companies (other than the Closing Date, (iJV Entities) pay and permitted by the Stay Bonuses described in Section 5.3 and (ii) distribute cash to any or all Organizational Documents of the ProMed Pomona Shareholders provided JV Entities, cause each of the JV Entities to comply with the provisions of this Section 6.5 as if each such distribution shall not cause ProMed Pomona to violate JV Entities was a Wholly-Owned Subsidiary for the covenant set forth in purposes of this Section 4.4 or any other representation, warranty, covenant or agreement provided herein6.5.
Appears in 1 contract
Conduct of Business - Negative Covenants. From the date hereof of this Agreement until the earlier of the Effective TimeTime or the termination of this Agreement, ProMed Pomona shall notexcept as may be separately agreed by Sun and Omega, Sun covenants and agrees that it will neither do, nor agree or commit to do, nor permit any Sun Subsidiary to do or commit or agree to do, any of the following without requesting Omega's approval and receiving the prior written consent of Group and Group Subsidiarythe President of Omega, which consent shall not be unreasonably withhelddeemed given unless Omega disapproves the same within five (5) business days of having received Sun's written request for such approval:
(a) Except as expressly contemplated by this Agreement, amend its any of its Charter Documents; or
(b) Impose on any share of capital stock held by it any lien, charge, or encumbrance, or permit any such lien, charge, or encumbrance to exist; or
(i) Repurchase, redeem, or otherwise acquire or exchange, directly or indirectly, any shares of its capital stock or other equity securities or any securities or instruments convertible into any shares of its capital stock, or any rights or options to acquire any shares of its capital stock or other equity securities except as expressly permitted by this Agreement; or (ii) split or otherwise subdivide its capital stock; or (iii) recapitalize in any way; or (iv) declare stock dividend on its capital stock; or (v) pay or declare a cash dividend or make or declare any other type of distribution on its capital stock except for any cash dividend already declared prior to this Agreement and regular quarterly cash dividends payable in the same amount and on the same schedule as past quarterly cash dividends; provided, however, that with respect to any cash dividend payable in the quarter in which the Effective Time occurs, only the pro rata portion of such cash dividend for such quarter shall be payable; or
(d) Except as expressly permitted by this Agreement, acquire direct or indirect control over any corporation, association, firm, organization or other entity, other than in connection with (i) mergers, acquisitions, or other transactions approved in writing by Omega, (ii) internal organization or consolidations involving existing Sun Subsidiaries, (iii) acquisitions of control in its fiduciary capacity, or (iv) the creation of new subsidiaries organized to conduct or continue activities otherwise permitted by this Agreement; or
(e) Except as expressly permitted by this Agreement, to (i) issue, sell, agree to sell, or otherwise dispose of or otherwise permit to become outstanding any additional shares of any capital stock, including, without limitation, Sun Common Stock (other than shares issuable upon the business exercise of ProMed Pomona Sun Stock Options outstanding as of the date of this Agreement), or any stock appreciation rights, or any option, warrant, conversion, call, scrip, or other right to acquire any such stock, or any security convertible into any such stock, unless any such shares of such stock are directly sold or otherwise directly transferred to Sun or any Sun Subsidiary; (ii) except as may otherwise be necessary for Sun's Board of Directors to fulfill its fiduciary duties, sell, agree to sell, or otherwise dispose of any substantial part of the assets or earning power of Sun or of any Sun Subsidiary; (iii) except as may otherwise be necessary for Sun's Board of Directors to fulfill its fiduciary duties, sell, agree to sell, or otherwise dispose of any asset of Sun or any Sun Subsidiary other than in the ordinary course of ProMed Pomona’s business as conducted through for reasonable and adequate consideration; or (iv) buy, agree to buy or otherwise acquire a substantial part of the date hereof assets or commit or suffer earning power of any material act or omission which deviates from other Person except in the ordinary course of ProMed Pomona’s business as conducted through the date hereof. Without limiting the generality of the foregoing, from the date of execution of this Agreement until the Effective Time, ProMed Pomona shall not, without the prior written consent of Group and Group Subsidiary, which consent shall not be unreasonably withheld:to realize upon a debt owed to it; or
(af) institute Incur any new method of purchase, sale, lease, management, accounting additional debt obligation or operation or engage in any transaction or activity, enter into any agreement or make any commitment or amend any existing material agreement other obligation for borrowed money other than as contemplated by this Agreement(i) in replacement of existing short-term debt with other short-term debt of an equal or lesser amount; (ii) financing of banking related activities; or (iii) indebtedness of Sun or any Sun Subsidiary to SunBank or another Sun Subsidiary not in excess of an aggregate of $300,000 (for Sun and Sun Subsidiaries on a consolidated basis), except in the ordinary course of its the business (and consistent with past practice;such ordinary course of business shall include, but shall not be limited to, creation of deposit liabilities, entry into repurchase agreements or reverse repurchase agreements, purchases or sales of federal funds, Federal Home Loan Bank advances, and sales of certificates of deposit); or
(bg) change Grant any increase in compensation or amend its Articles of Incorporation or By-Laws or propose any such change or amendment;
benefits (c) offer, issue, authorize or sell any shares of the capital stock or other securities (such term as used in this subsection shall includeincluding, without limitation, debt securitiesany grants or awards under Sun's 1998 Stock Incentive Plan, 1998 Independent Directors Stock Option Plan and 1998 Employee Stock Purchase Plan) to any of ProMed Pomona of any kind whatsoeveris employees or officers, except as required by Applicable Law, and except for the scheduled increases in salary or acquire directly or indirectlypayments made pursuant to incentive compensation plans specifically identified on Schedule 5.3(g) to this Agreement, by redemption or otherwise, any such capital stock, reclassify or split-up any such capital stock, declare or pay any dividends thereon in cash, securities or other property, or make any other distribution with respect thereto, or grant or enter into any stock options, warrants, or other rights which are to acquire securities of ProMed Pomona or enter into any other contracts or commitments of any kind with respect to the issuance of additional shares of capital stock or other securities of ProMed Pomona;
(d) (i) borrow or agree to borrow any funds, whether directly or by way of guaranty or otherwise, or (ii) except be granted in the ordinary course of business and consistent with past practicepractices; except as required by Applicable Law, incur, enter into any severance agreements with any of its officers or assume employees; grant any material increase in fees or become subject other increases in new compensation or other benefits to any obligation director; effect any change in retirement for any class of its employees or liability (absolute officers, unless such change is required by Applicable Law; or contingent);
(e) paypay any bonuses, dischargeincluding retention bonuses, waivebut excluding payments made pursuant to incentive compensation plans, satisfy, compromise or adjust to any claim, liability or obligation (absolute, accrued, contingent or otherwise) of an amount persons in excess of $10,000, other than as contemplated by this Agreement or occurring 150,000 for all bonuses paid in the ordinary course of business and consistent with past practice;
(f) prepay any obligation having a fixed maturity of more than 90 days from the date such obligation was incurred other than as contemplated by this Agreement or occurring in the ordinary course of business and consistent with past practice;
(g) permit or allow any of its property or assets (real, personal or mixed, tangible or intangible) to be subjected to any mortgage, pledge, lien or other encumbrance except in the ordinary course of business and consistent with past practiceaggregate;
(h) cancel Amend any debts existing employment or waive other contract between it and any claims director, officer or rights of substantial value employee to increase the compensation or sellbenefits payable thereunder; or enter into any employment or other contract with any director, transferofficer or employee that Sun or the Sun Subsidiary, as applicable, does not have the unconditional right to terminate without liability (other than liability for services already rendered), at any time on or otherwise dispose of any of its properties or assets, except in after the ordinary course of its business and consistent with past practiceEffective Time;
(i) dispose Adopt any new employee benefit plan or terminate or make any material change in or to any existing employee benefit plan other than any change that is required by Applicable Law or that, in the opinion of counsel, is necessary or advisable to maintain the tax-qualified status of any rights to the use of any patent, trademark, service xxxx, trade name or copyright, or dispose of or disclose to any person any trade secret, formula, process or know-how not theretofore a matter of public knowledge, except in the ordinary course of business and consistent with past practicesuch plan;
(j) grant Enter into any general increase new service contracts, purchase or sale agreements or lease agreements providing for annual payments in the compensation excess of officers or employees (including any such increase pursuant $100,000 that are material to any bonus, pension, profit sharing or other plan or commitment) Sun or any increase Sun Subsidiary except for the sale of collateral for customer loans in the compensation (including salary and bonus) payable or to become payable to any officer except in the ordinary course of business and consistent with past practicedefault;
(k) appoint Make any capital expenditure exceeding $200,000 except for budgeted expenses in connection with the previously announced or remove from office budgeted openings of a new branch location;
(l) Knowingly take any officers action that is intended or may reasonably be expected to result in any of ProMed Pomona other than as contemplated by its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article 7 not being satisfied, or in violation of any provision of this Agreement;
(lm) make any payment to or sellChange its methods of accounting in effect at December 31, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, any of the officers or directors of ProMed Pomona or any other affiliate thereof2003, except as required by changes in the ordinary course of business and consistent with past practice;
(m) enter into any contract, commitment or transaction not in the usual and ordinary course of its business, other than transactions contemplated by, or referred to generally accepted accounting principles as concurred in, this Agreementin writing, by Sun's independent auditors (a copy of which shall be provided to Omega) or regulatory accounting principles or the SEC;
(n) changeExcept as required by Applicable Law, knowingly take or initiate a change of, cause to be taken any action that could reasonably be expected to jeopardize or delay the receipt of any of the banking, safe deposit Banking Approvals or power of attorney arrangements effective as of the date hereof, except for changes required Governmental Approvals or which would reasonably be expected to result in the signatories on the accounts of ProMed Pomona, provided such changes are contemplated by this Agreement and ProMed Pomona shall have given Group and Group Subsidiary prior written notice of any such change in signatories and Group and Group Subsidiary approves sameBanking Approval or required Governmental Approval containing a condition that is determined by Omega to be unduly burdensome;
(o) write down Fail to use its best efforts to keep in full force and effect its insurance and bonds in such amounts as are reasonable to cover such risks customary in relation to the value character and location of any inventory (including write-downs by reason its properties and the nature of shrinkage or xxxx-down) or write off as uncollectible any notes or accounts receivable, except for immaterial write-downs of inventory or accounts receivable in the ordinary course of its business and consistent with past practicein any event at least equal in scope and amount of coverage of insurance and bonds now carried;
(p) mergeFail to notify Omega promptly of its receipt of any letter, consolidatenotice or other communication, reorganize whether written or liquidate ProMed Pomonaoral, from any Governmental Authority advising it of any investigation (other than normal bank regulatory examinations) or that such Governmental Authority is contemplating issuing, requiring, or requesting any agreement, memorandum of understanding, or similar undertaking, order or directive;
(q) file a voluntary petition on behalf Fail promptly to notify Omega of ProMed Pomona under (i) the U.S. Bankruptcy Code commencement or threat of any Proceeding involving any material amount of taxes against Sun or any other bankruptcy Sun Subsidiary or insolvency law (ii) the receipt by Sun or any Sun Subsidiary of any deficiency or audit notices oro reports in respect of any material deficiencies asserted by any federal, state, local or other law for relief of debtorstax authority;
(r) changeFail to maintain and keep its properties in good repair and condition, amend or terminate a Material Contract constituting an affiliate agreement under Section 2.14 except as contemplated by this Agreement or with the written consent of Group for depreciation due to ordinary wear and Group Subsidiary; ortear;
(s) agree or commit, whether Engage in writing or otherwise, to do any of the foregoing. Notwithstanding the foregoing, ProMed Pomona may at any time prior to the Closing Date, (i) pay the Stay Bonuses described in Section 5.3 and (ii) distribute cash to any or all of the ProMed Pomona Shareholders provided such distribution shall not cause ProMed Pomona to violate the covenant set forth in Section 4.4 or any other representation, warranty, covenant or agreement provided hereinoff-balance sheet hedge transaction.
Appears in 1 contract
Conduct of Business - Negative Covenants. From the date hereof of this Agreement until the earlier of the Effective TimeTime or the termination of this Agreement, ProMed Pomona shall notXXX will not do, or agree or commit to do, and will cause each of its Subsidiaries not to do or agree to commit to do, any of the following without the prior written consent of Group and Group Subsidiarya duly authorized officer of IBKC, which consent shall not be unreasonably withheld, conduct the business of ProMed Pomona other than in the ordinary course of ProMed Pomona’s business as conducted through the date hereof or commit or suffer any material act or omission which deviates from the ordinary course of ProMed Pomona’s business as conducted through the date hereof. Without limiting the generality of the foregoing, from the date of execution of this Agreement until the Effective Time, ProMed Pomona shall not, without the prior written consent of Group and Group Subsidiary, which consent shall will not be unreasonably withheld:
(a) institute any new method of purchase, sale, lease, management, accounting Except as Previously Disclosed or operation or engage in any transaction or activity, enter into any agreement or make any commitment or amend any existing material agreement other than as expressly contemplated by this Agreement, amend its articles of incorporation or association or by-laws, or
(b) Impose, or suffer the imposition, on any share of stock held by it or by any of its Subsidiaries, of any material lien, charge or encumbrance, or permit any such lien, charge or encumbrance to exist, or
(c) Except as expressly permitted in this Agreement or in connection with (1) the use of Common Stock by optionees to pay an option exercise price or to satisfy tax liabilities under the XXX Stock Option Plan and (2) the repurchase of XXX Common Stock in accordance with the Stock Option Agreement, repurchase, redeem, or otherwise acquire or exchange, directly or indirectly, any shares of its capital stock or any securities convertible into any shares of its capital stock, or
(d) Except as expressly contemplated by this Agreement or as Previously Disclosed, acquire direct or indirect control over any corporation, association, firm or organization, other than in connection with (i) internal reorganizations or consolidations involving existing Subsidiaries, (ii) good faith foreclosures in the ordinary course of business, (iii) acquisitions of control by a banking Subsidiary in a bona fide fiduciary capacity, (iv) investments made by small business investment corporations or by Subsidiaries that invest in unaffiliated companies in the ordinary course of business, or (v) the creation of new Subsidiaries organized to conduct or continue activities otherwise permitted by this Agreement, or
(e) Except as Previously Disclosed, XXX will not sell or otherwise dispose of, or permit any of its Subsidiaries to sell or otherwise dispose of: (i) any shares of capital stock of XXX or any Subsidiary of XXX (except for shares of stock sold or otherwise transferred to IBKC or any of its Subsidiaries or shares which may be issued upon the exercise and otherwise under the terms of any of the 245,469 stock options outstanding, pursuant to the XXX Stock Option Plan, on the date hereof), (ii) any substantial part of the assets or earning power of such Party or any Subsidiary of such Party, or (iii) any asset other than in the ordinary course of business for reasonable and adequate consideration, or
(f) Except as Previously Disclosed, incur, or permit any of its Subsidiaries to incur, any additional material debt obligation or other material obligation for borrowed money (other than (i) in replacement of existing short-term debt with other short-term debt, (ii) financing of banking related Subsidiary activities consistent with past practices, (iii) indebtedness of any of its Companies to another of its Companies or (iv) indebtedness of any of its Companies to any of their respective affiliates), except in the ordinary course of the business of such Party and its business and Subsidiaries consistent with past practice;
practices (b) change or amend its Articles of Incorporation or By-Laws or propose any and such change or amendment;
(c) offer, issue, authorize or sell any shares of the capital stock or other securities (such term as used in this subsection shall include, without limitation, debt securities) of ProMed Pomona of any kind whatsoever, or acquire directly or indirectly, by redemption or otherwise, any such capital stock, reclassify or split-up any such capital stock, declare or pay any dividends thereon in cash, securities or other property, or make any other distribution with respect thereto, or grant or enter into any stock options, warrants, or other rights to acquire securities of ProMed Pomona or enter into any other contracts or commitments of any kind with respect to the issuance of additional shares of capital stock or other securities of ProMed Pomona;
(d) (i) borrow or agree to borrow any funds, whether directly or by way of guaranty or otherwise, or (ii) except in the ordinary course of business shall include, but shall not be limited to, the creation of deposit liabilities, purchases of federal funds, sales of certificates of deposit and entry into repurchase agreements), or
(g) Grant any increase in compensation or benefits to its employees or to its officers or employees; pay any bonus not in accordance with past practice and the provisions of any applicable program or plan of the XXX Companies as in effect prior to the date of this Agreement and which has been Previously Disclosed, enter into any severance agreements with any of its directors or officers or the directors or officers of any Subsidiary; grant any increase in fees or other increases in compensation or other benefits to any of its present or former directors, or effect any change in retirement benefits for any class of its employees or officers (unless such change is required by applicable law or, in the opinion of counsel, is necessary or advisable to maintain the tax qualification of any plan under which the retirement benefits are provided) that would increase the retirement benefit liabilities of the XXX Companies on a consolidated basis, except that XXX ma y (A) pay up to $90,000 (or such greater amount to which IBKC may consent) as retention bonuses to employees and in amounts mutually agreed upon by XXX and IBKC, (B) under its management bonus program pay amounts accrued and to be accrued monthly in amounts not in excess of monthly accruals since January 1, 2002 on the Financial Statements of XXX, but only immediately prior to the Effective Time, (C) pay its Christmas bonuses in an aggregate amount not to exceed the aggregate amount accrued on the Financial Statements of XXX for Christmas bonuses for 2002, (D) increase the compensation of non-exempt employees consistent with past practice, incur, or assume or become subject and (E) increase the compensation of exempt employees to any obligation or liability (absolute or contingent);
(e) pay, discharge, waive, satisfy, compromise or adjust any claim, liability or obligation (absolute, accrued, contingent or otherwise) of an amount in excess of $10,000, other than as contemplated by this Agreement or occurring in the ordinary course of business and extent consistent with past practice;
(f) prepay practice and in an individual or aggregate amount not to exceed 4% of the annual rate of total compensation of any obligation having a fixed maturity of more than 90 days from the date such obligation was incurred other than as contemplated by this Agreement person or occurring in the ordinary course of business and consistent with past practice;
(g) permit or allow any of its property or assets (real, personal or mixed, tangible or intangible) to be subjected to any mortgage, pledge, lien or other encumbrance except in the ordinary course of business and consistent with past practice;all non-exempt employees.
(h) cancel any debts or waive any claims or rights of substantial value or sell, transfer, or otherwise dispose of any of its properties or assets, except in the ordinary course of its business and consistent with past practice;
(i) dispose of any rights to the use of any patent, trademark, service xxxx, trade name or copyright, or dispose of or disclose to any person any trade secret, formula, process or know-how not theretofore a matter of public knowledge, except in the ordinary course of business and consistent with past practice;
(j) grant any general increase in the compensation of officers or employees (including any such increase pursuant to any bonus, pension, profit sharing or other plan or commitment) or any increase in the compensation (including salary and bonus) payable or to become payable to any officer except in the ordinary course of business and consistent with past practice;
(k) appoint or remove from office any officers of ProMed Pomona other than Except as contemplated by this Agreement;
, the Merger Agreement or any of the agreements, documents or instruments contemplated hereby or thereby, or except as Previously Disclosed, amend any existing employment, severance or similar contract between such Party or any Subsidiary thereof (lunless such amendment is required by law) make any payment to or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement withnew contract with any person, any of the officers or directors of ProMed Pomona or any other affiliate thereof, except in the ordinary course of business and consistent with past practice;or
(mi) enter into any contract, commitment or transaction not in the usual and ordinary course of its business, other than transactions contemplated by, or referred to in, this Agreement;
(n) change, or initiate a change of, any of the banking, safe deposit or power of attorney arrangements effective as of the date hereof, except for changes in the signatories on the accounts of ProMed Pomona, provided such changes are contemplated by this Agreement and ProMed Pomona shall have given Group and Group Subsidiary prior written notice of any such change in signatories and Group and Group Subsidiary approves same;
(o) write down the value of any inventory (including write-downs by reason of shrinkage or xxxx-down) or write off as uncollectible any notes or accounts receivable, except for immaterial write-downs of inventory or accounts receivable in the ordinary course of business and consistent with past practice;
(p) merge, consolidate, reorganize or liquidate ProMed Pomona;
(q) file a voluntary petition on behalf of ProMed Pomona under the U.S. Bankruptcy Code or any other bankruptcy or insolvency law or any other law for relief of debtors;
(r) change, amend or terminate a Material Contract constituting an affiliate agreement under Section 2.14 except Except as contemplated by this Agreement, the Merger Agreement or with the written consent of Group and Group Subsidiary; or
(s) agree or commit, whether in writing or otherwise, to do any of the foregoing. Notwithstanding the foregoingagreements, ProMed Pomona may at documents or instruments contemplated hereby or thereby, adopt any time prior new employee benefit plan of XXX or any XXX Subsidiary or make any material change in or to the Closing Date, any existing employee benefit plan of such Party or any Subsidiary thereof other than (i) pay the Stay Bonuses described in Section 5.3 and as Previously Disclosed or (ii) distribute cash any such change that is required by law or that, in the opinion of counsel, is necessary or advisable to maintain the tax qualified status of any or all of the ProMed Pomona Shareholders provided such distribution shall not cause ProMed Pomona to violate the covenant set forth in Section 4.4 or any other representation, warranty, covenant or agreement provided hereinplan.
Appears in 1 contract
Samples: Merger Agreement (Iberiabank Corp)
Conduct of Business - Negative Covenants. From the date hereof of this Agreement until the earlier of the Effective TimeTime or the termination of this Agreement, ProMed Pomona shall notXXX will not do, or agree or commit to do, and will cause each of its Subsidiaries not to do or agree to commit to do, any of the following without the prior written consent of Group and Group Subsidiarya duly authorized officer of IBKC, which consent shall not be unreasonably withheld, conduct the business of ProMed Pomona other than in the ordinary course of ProMed Pomona’s business as conducted through the date hereof or commit or suffer any material act or omission which deviates from the ordinary course of ProMed Pomona’s business as conducted through the date hereof. Without limiting the generality of the foregoing, from the date of execution of this Agreement until the Effective Time, ProMed Pomona shall not, without the prior written consent of Group and Group Subsidiary, which consent shall will not be unreasonably withheld:
(a) institute any new method of purchase, sale, lease, management, accounting Except as Previously Disclosed or operation or engage in any transaction or activity, enter into any agreement or make any commitment or amend any existing material agreement other than as expressly contemplated by this Agreement, amend its articles of incorporation or association or by-laws, or
(b) Impose, or suffer the imposition, on any share of stock held by it or by any of its Subsidiaries, of any material lien, charge or encumbrance, or permit any such lien, charge or encumbrance to exist, or
(c) Except as expressly permitted in this Agreement or in connection with (1) the use of Common Stock by optionees to pay an option exercise price or to satisfy tax liabilities under the XXX Stock Option Plan and (2) the repurchase of XXX Common Stock in accordance with the Stock Option Agreement, repurchase, redeem, or otherwise acquire or exchange, directly or indirectly, any shares of its capital stock or any securities convertible into any shares of its capital stock, or
(d) Except as expressly contemplated by this Agreement or as Previously Disclosed, acquire direct or indirect control over any corporation, association, firm or organization, other than in connection with (i) internal reorganizations or consolidations involving existing Subsidiaries, (ii) good faith foreclosures in the ordinary course of business, (iii) acquisitions of control by a banking Subsidiary in a bona fide fiduciary capacity, (iv) investments made by small business investment corporations or by Subsidiaries that invest in unaffiliated companies in the ordinary course of business, or (v) the creation of new Subsidiaries organized to conduct or continue activities otherwise permitted by this Agreement, or
(e) Except as Previously Disclosed, XXX will not sell or otherwise dispose of, or permit any of its Subsidiaries to sell or otherwise dispose of: (i) any shares of capital stock of XXX or any Subsidiary of XXX (except for shares of stock sold or otherwise transferred to IBKC or any of its Subsidiaries or shares which may be issued upon the exercise and otherwise under the terms of any of the 245,469 stock options outstanding, pursuant to the XXX Stock Option Plan, on the date hereof), (ii) any substantial part of the assets or earning power of such Party or any Subsidiary of such Party, or (iii) any asset other than in the ordinary course of business for reasonable and adequate consideration, or
(f) Except as Previously Disclosed, incur, or permit any of its Subsidiaries to incur, any additional material debt obligation or other material obligation for borrowed money (other than (i) in replacement of existing short-term debt with other short-term debt, (ii) financing of banking related Subsidiary activities consistent with past practices, (iii) indebtedness of any of its Companies to another of its Companies or (iv) indebtedness of any of its Companies to any of their respective affiliates), except in the ordinary course of the business of such Party and its business and Subsidiaries consistent with past practice;
practices (b) change or amend its Articles of Incorporation or By-Laws or propose any and such change or amendment;
(c) offer, issue, authorize or sell any shares of the capital stock or other securities (such term as used in this subsection shall include, without limitation, debt securities) of ProMed Pomona of any kind whatsoever, or acquire directly or indirectly, by redemption or otherwise, any such capital stock, reclassify or split-up any such capital stock, declare or pay any dividends thereon in cash, securities or other property, or make any other distribution with respect thereto, or grant or enter into any stock options, warrants, or other rights to acquire securities of ProMed Pomona or enter into any other contracts or commitments of any kind with respect to the issuance of additional shares of capital stock or other securities of ProMed Pomona;
(d) (i) borrow or agree to borrow any funds, whether directly or by way of guaranty or otherwise, or (ii) except in the ordinary course of business shall include, but shall not be limited to, the creation of deposit liabilities, purchases of federal funds, sales of certificates of deposit and entry into repurchase agreements), or
(g) Grant any increase in compensation or benefits to its employees or to its officers or employees; pay any bonus not in accordance with past practice and the provisions of any applicable program or plan of the XXX Companies as in effect prior to the date of this Agreement and which has been Previously Disclosed, enter into any severance agreements with any of its directors or officers or the directors or officers of any Subsidiary; grant any increase in fees or other increases in compensation or other benefits to any of its present or former directors, or effect any change in retirement benefits for any class of its employees or officers (unless such change is required by applicable law or, in the opinion of counsel, is necessary or advisable to maintain the tax qualification of any plan under which the retirement benefits are provided) that would increase the retirement benefit liabilities of the XXX Companies on a consolidated basis, except that XXX may (A) pay up to $90,000 (or such greater amount to which IBKC may consent) as retention bonuses to employees and in amounts mutually agreed upon by XXX and IBKC, (B) under its management bonus program pay amounts accrued and to be accrued monthly in amounts not in excess of monthly accruals since January 1, 2002 on the Financial Statements of XXX, but only immediately prior to the Effective Time, (C) pay its Christmas bonuses in an aggregate amount not to exceed the aggregate amount accrued on the Financial Statements of XXX for Christmas bonuses for 2002, (D) increase the compensation of non- exempt employees consistent with past practice, incur, or assume or become subject and (E) increase the compensation of exempt employees to any obligation or liability (absolute or contingent);
(e) pay, discharge, waive, satisfy, compromise or adjust any claim, liability or obligation (absolute, accrued, contingent or otherwise) of an amount in excess of $10,000, other than as contemplated by this Agreement or occurring in the ordinary course of business and extent consistent with past practice;
(f) prepay practice and in an individual or aggregate amount not to exceed 4% of the annual rate of total compensation of any obligation having a fixed maturity of more than 90 days from the date such obligation was incurred other than as contemplated by this Agreement person or occurring in the ordinary course of business and consistent with past practice;
(g) permit or allow any of its property or assets (real, personal or mixed, tangible or intangible) to be subjected to any mortgage, pledge, lien or other encumbrance except in the ordinary course of business and consistent with past practice;all non-exempt employees.
(h) cancel any debts or waive any claims or rights of substantial value or sell, transfer, or otherwise dispose of any of its properties or assets, except in the ordinary course of its business and consistent with past practice;
(i) dispose of any rights to the use of any patent, trademark, service xxxx, trade name or copyright, or dispose of or disclose to any person any trade secret, formula, process or know-how not theretofore a matter of public knowledge, except in the ordinary course of business and consistent with past practice;
(j) grant any general increase in the compensation of officers or employees (including any such increase pursuant to any bonus, pension, profit sharing or other plan or commitment) or any increase in the compensation (including salary and bonus) payable or to become payable to any officer except in the ordinary course of business and consistent with past practice;
(k) appoint or remove from office any officers of ProMed Pomona other than Except as contemplated by this Agreement;
, the Merger Agreement or any of the agreements, documents or instruments contemplated hereby or thereby, or except as Previously Disclosed, amend any existing employment, severance or similar contract between such Party or any Subsidiary thereof (lunless such amendment is required by law) make any payment to or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement withnew contract with any person, any of the officers or directors of ProMed Pomona or any other affiliate thereof, except in the ordinary course of business and consistent with past practice;or
(mi) enter into any contract, commitment or transaction not in the usual and ordinary course of its business, other than transactions contemplated by, or referred to in, this Agreement;
(n) change, or initiate a change of, any of the banking, safe deposit or power of attorney arrangements effective as of the date hereof, except for changes in the signatories on the accounts of ProMed Pomona, provided such changes are contemplated by this Agreement and ProMed Pomona shall have given Group and Group Subsidiary prior written notice of any such change in signatories and Group and Group Subsidiary approves same;
(o) write down the value of any inventory (including write-downs by reason of shrinkage or xxxx-down) or write off as uncollectible any notes or accounts receivable, except for immaterial write-downs of inventory or accounts receivable in the ordinary course of business and consistent with past practice;
(p) merge, consolidate, reorganize or liquidate ProMed Pomona;
(q) file a voluntary petition on behalf of ProMed Pomona under the U.S. Bankruptcy Code or any other bankruptcy or insolvency law or any other law for relief of debtors;
(r) change, amend or terminate a Material Contract constituting an affiliate agreement under Section 2.14 except Except as contemplated by this Agreement, the Merger Agreement or with the written consent of Group and Group Subsidiary; or
(s) agree or commit, whether in writing or otherwise, to do any of the foregoing. Notwithstanding the foregoingagreements, ProMed Pomona may at documents or instruments contemplated hereby or thereby, adopt any time prior new employee benefit plan of XXX or any XXX Subsidiary or make any material change in or to the Closing Date, any existing employee benefit plan of such Party or any Subsidiary thereof other than (i) pay the Stay Bonuses described in Section 5.3 and as Previously Disclosed or (ii) distribute cash any such change that is required by law or that, in the opinion of counsel, is necessary or advisable to maintain the tax qualified status of any or all of the ProMed Pomona Shareholders provided such distribution shall not cause ProMed Pomona to violate the covenant set forth in Section 4.4 or any other representation, warranty, covenant or agreement provided hereinplan.
Appears in 1 contract
Conduct of Business - Negative Covenants. From the date hereof of this Agreement until the earlier of the Effective TimeTime or until the termination of this Agreement, ProMed Pomona each Party covenants and agrees that it will not do or agree or commit to do, and shall notnot permit any of its Subsidiaries to do or to commit to do, any of the following without the prior written consent of Group and Group Subsidiarythe chief executive officer or chief financial officer of the other Party, which consent shall not be unreasonably delayed or withheld:
(a) except as set forth on the Lanxide Disclosure Schedule or the Commodore Disclosure Schedule, as the case may be, or as expressly contemplated by this Agreement, amend its certificates of incorporation or bylaws; or
(b) except as expressly permitted in this Agreement or (i) as to Commodore, in accordance with the specific terms of Commodore Capital Stock, Commodore Warrants, Commodore Convertible Notes or Commodore Stock Options, or (ii) as to Lanxide, in accordance with the specific terms of Lanxide Capital Stock, Lanxide Warrants, Lanxide Stock Options or Lanxide Deferred Compensation Plans, repurchase, redeem, or otherwise acquire or exchange, directly or indirectly, any shares of its capital stock or any securities convertible into any shares of its capital stock; or
(c) except as expressly contemplated by this Agreement or as disclosed in Disclosure Schedules hereto, acquire, or agree to acquire, any business or any corporation, partnership, limited liability company, association, firm, or organization or division thereof, or otherwise acquire or agree to acquire any assets other than in connection with (i) internal reorganizations or consolidations involving existing Subsidiaries or (ii) the creation of new Subsidiaries organized to conduct or continue activities otherwise permitted by this Agreement; or
(d) except as disclosed in the business Disclosure Schedules hereto, sell or otherwise dispose of, or agree to sell, lease or otherwise dispose of: (i) any shares of ProMed Pomona capital stock of any Subsidiary of such Party (unless any such shares of stock are sold or otherwise transferred to such Party or any of its wholly-owned Subsidiaries); (ii) any Subsidiary of such Party; (iii) any substantial part of the assets of such Party or any Subsidiary of such Party; or (iv) any asset other than in the ordinary course of ProMed Pomona’s business as conducted through for reasonable and adequate consideration; provided, however, such covenant in this subparagraph (e) shall not be applicable to the date hereof sale of shares or commit or suffer any material act or omission which deviates from the ordinary course of ProMed Pomona’s business as conducted through the date hereof. Without limiting the generality of the foregoing, from assets sold after the date of execution of this Agreement until the Effective Time, ProMed Pomona shall not, without the prior written consent of Group and Group Subsidiary, which consent shall in transactions not be unreasonably withheld:
(a) institute any new method of purchase, sale, lease, management, accounting or operation or engage in any transaction or activity, enter into any agreement or make any commitment or amend any existing material agreement other than as contemplated otherwise prohibited by this Agreement, except Agreement resulting in the ordinary course of its business and consistent with past practice;
(b) change a gain or amend its Articles of Incorporation or By-Laws or propose any such change or amendment;
(c) offer, issue, authorize or sell any shares of the capital stock or other securities (such term as used loss in this subsection shall include, without limitation, debt securities) of ProMed Pomona of any kind whatsoever, or acquire directly or indirectly, by redemption or otherwise, any such capital stock, reclassify or split-up any such capital stock, declare or pay any dividends thereon in cash, securities or other property, or make any other distribution with respect thereto, or grant or enter into any stock options, warrants, or other rights to acquire securities of ProMed Pomona or enter into any other contracts or commitments of any kind with respect to the issuance of additional shares of capital stock or other securities of ProMed Pomona;
(d) (i) borrow or agree to borrow any funds, whether directly or by way of guaranty or otherwise, or (ii) except in the ordinary course of business and consistent with past practice, incur, or assume or become subject to any obligation or liability (absolute or contingent);
(e) pay, discharge, waive, satisfy, compromise or adjust any claim, liability or obligation (absolute, accrued, contingent or otherwise) of an amount each sale not in excess of $10,000, other than as contemplated by this Agreement or occurring in the ordinary course of business and consistent with past practice;
(f) prepay any obligation having a fixed maturity of more than 90 days from the date such obligation was incurred other than as contemplated by this Agreement or occurring in the ordinary course of business and consistent with past practice;
(g) permit or allow any of its property or assets (real, personal or mixed, tangible or intangible) to be subjected to any mortgage, pledge, lien or other encumbrance except in the ordinary course of business and consistent with past practice;
(h) cancel any debts or waive any claims or rights of substantial value or sell, transfer, or otherwise dispose of any of its properties or assets, except in the ordinary course of its business and consistent with past practice;
(i) dispose of any rights to the use of any patent, trademark, service xxxx, trade name or copyright, or dispose of or disclose to any person any trade secret, formula, process or know-how not theretofore a matter of public knowledge, except in the ordinary course of business and consistent with past practice;
(j) grant any general increase in the compensation of officers or employees (including any such increase pursuant to any bonus, pension, profit sharing or other plan or commitment) or any increase in the compensation (including salary and bonus) payable or to become payable to any officer except in the ordinary course of business and consistent with past practice;
(k) appoint or remove from office any officers of ProMed Pomona other than as contemplated by this Agreement;
(l) make any payment to or sell, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, any of the officers or directors of ProMed Pomona or any other affiliate thereof, except in the ordinary course of business and consistent with past practice;
(m) enter into any contract, commitment or transaction not in the usual and ordinary course of its business, other than transactions contemplated by, or referred to in, this Agreement;
(n) change, or initiate a change of, any of the banking, safe deposit or power of attorney arrangements effective as of the date hereof, except for changes in the signatories on the accounts of ProMed Pomona, provided such changes are contemplated by this Agreement and ProMed Pomona shall have given Group and Group Subsidiary prior written notice of any such change in signatories and Group and Group Subsidiary approves same;
(o) write down the value of any inventory (including write-downs by reason of shrinkage or xxxx-down) or write off as uncollectible any notes or accounts receivable, except for immaterial write-downs of inventory or accounts receivable in the ordinary course of business and consistent with past practice;
(p) merge, consolidate, reorganize or liquidate ProMed Pomona;
(q) file a voluntary petition on behalf of ProMed Pomona under the U.S. Bankruptcy Code or any other bankruptcy or insolvency law or any other law for relief of debtors;
(r) change, amend or terminate a Material Contract constituting an affiliate agreement under Section 2.14 except as contemplated by this Agreement or with the written consent of Group and Group Subsidiary; or
(s) agree or commit, whether in writing or otherwise, to do any of the foregoing. Notwithstanding the foregoing, ProMed Pomona may at any time prior to the Closing Date, (i) pay the Stay Bonuses described in Section 5.3 and (ii) distribute cash to any or all of the ProMed Pomona Shareholders provided such distribution shall not cause ProMed Pomona to violate the covenant set forth in Section 4.4 or any other representation, warranty, covenant or agreement provided herein.
Appears in 1 contract
Samples: Merger Agreement (Commodore Environmental Services Inc /De/)
Conduct of Business - Negative Covenants. From the date hereof of this Reorganization Agreement until the earlier of the Effective TimeTime or the termination of this Reorganization Agreement, ProMed Pomona shall notBancorp and Stock Bank covenant and agree that they will neither do, nor agree or commit to do, nor permit any Bancorp Subsidiary to do or commit or agree to do, any of the following without requesting Kearny's approval and receiving the prior written consent of Group and Group Subsidiarythe President of Kearny, which consent shall not be unreasonably withheld, conduct the business of ProMed Pomona other than in the ordinary course of ProMed Pomona’s business as conducted through the date hereof or commit or suffer any material act or omission which deviates from the ordinary course of ProMed Pomona’s business as conducted through the date hereof. Without limiting the generality of the foregoing, from the date of execution of this Agreement until the Effective Time, ProMed Pomona shall not, without the prior written consent of Group and Group Subsidiary, which consent shall will not be unreasonably withheld:
(a) institute any new method of purchase, sale, lease, management, accounting or operation or engage in any transaction or activity, enter into any agreement or make any commitment or amend any existing material agreement other than Except as expressly contemplated by this Reorganization Agreement or the Plans of Merger, amend their Certificate of Incorporation, Charter or Bylaws; or
(b) Impose on any share of capital stock held by it or by any of its Subsidiaries of any lien, charge, or encumbrance, or permit any such lien, charge, or encumbrance to exist; or
(c) Except as provided in accordance with the Stock Option Agreement between the Parties contained herein at Appendix I: (i) Repurchase, redeem, or otherwise acquire or exchange, directly or indirectly, any shares of its capital stock or other equity securities or any securities or instruments convertible into any shares of its capital stock, or any rights or options to acquire any shares of its capital stock or other equity securities except as expressly permitted by this Reorganization Agreement or the Plans of Merger; or (ii) split or otherwise subdivide its capital stock; or (iii) recapitalize in any way; or (iv) declare a stock dividend on the Bancorp Common Stock; or (v) pay or declare a cash dividend or make or declare any other type of distribution on the Bancorp Common Stock except for any cash dividend already declared prior to this Reorganization Agreement or regular quarterly cash dividends payable in the same amount and during the same time periods as past quarterly dividends; or
(d) Except as expressly permitted by this Reorganization Agreement, except acquire direct or indirect control over any corporation, association, firm, organization or other entity, other than in connection with (i) mergers, acquisitions, or other transactions approved in writing by Kearny, (ii) internal reorganizations or consolidations involving existing Subsidiaries, (iii) acquisitions of control in its fiduciary capacity, or (iv) the creation of new subsidiaries organized to conduct or continue activities otherwise permitted by this Reorganization Agreement;
(e) Except as expressly permitted by this Reorganization Agreement or the Plans of Merger, to (i) issue, sell, agree to sell, or otherwise dispose of or otherwise permit to become outstanding any additional shares of Bancorp Common Stock (not including shares issuable upon the exercise of validly issued and Bancorp Stock Options outstanding as of the date of this Reorganization Agreement), or any other capital stock of Bancorp or of any Bancorp Subsidiary, or any stock appreciation rights, or any option, warrant, conversion, call, scrip, or other right to acquire any such stock, or any security convertible into any such stock, unless any such shares of such stock are directly sold or otherwise directly transferred to Bancorp or any Bancorp Subsidiary, (ii) sell, agree to sell, or otherwise dispose of any substantial part of the assets or earning power of Bancorp or of any Bancorp Subsidiary; (iii) sell, agree to sell, or otherwise dispose of any asset of Bancorp or any Bancorp Subsidiary other than in the ordinary course of its business for reasonable and consistent with past practiceadequate consideration or (iv) buy, agree to buy or otherwise acquire a substantial part of the assets or earning power of any other Person or entity;
(bf) change Incur, or amend its Articles of Incorporation or By-Laws or propose permit any such change or amendment;
(c) offerBancorp Subsidiary to incur, issue, authorize or sell any shares of the capital stock additional debt obligation or other securities (such term as used in this subsection shall include, without limitation, debt securities) of ProMed Pomona of any kind whatsoever, or acquire directly or indirectly, by redemption or otherwise, any such capital stock, reclassify or split-up any such capital stock, declare or pay any dividends thereon in cash, securities or obligation for borrowed money other property, or make any other distribution with respect thereto, or grant or enter into any stock options, warrants, or other rights to acquire securities of ProMed Pomona or enter into any other contracts or commitments of any kind with respect to the issuance of additional shares of capital stock or other securities of ProMed Pomona;
(d) than (i) borrow in replacement of existing short-term debt with other short-term debt of an equal or agree to borrow any fundslesser amount, whether directly or by way (ii) financing of guaranty or otherwisebanking related activities, or (iiiii) indebtedness of Bancorp or any Bancorp Subsidiary to Stock Bank or another Bancorp Subsidiary in excess of an aggregate of $50,000 (for Bancorp and its Subsidiaries on a consolidated basis) except in the ordinary course of the business of Bancorp or such Bancorp Subsidiary (and consistent with past practice, incur, or assume or become subject to any obligation or liability (absolute or contingent);
(e) pay, discharge, waive, satisfy, compromise or adjust any claim, liability or obligation (absolute, accrued, contingent or otherwise) of an amount in excess of $10,000, other than as contemplated by this Agreement or occurring in the such ordinary course of business shall include, but shall not be limited to, creation of deposit liabilities, entry into repurchase agreements or reverse repurchase agreements, purchases or sales of federal funds, and consistent with past practice;
(f) prepay any obligation having a fixed maturity sales of more than 90 days from the date such obligation was incurred other than as contemplated by this Agreement or occurring in the ordinary course certificates of business and consistent with past practicedeposit);
(g) permit Grant any increase in compensation or allow benefits to any officer or director or grant any increase in compensation or benefits to any of its property non-officer employees in excess of the lesser of five percent (5%) per annum or assets $5,000 for any of them individually upon not less than three (real3) business days notice to Kearny, personal except in accordance with past practices or mixed, tangible as required by law; pay any bonus except in accordance with past practices or intangible) to be subjected any plan or arrangement disclosed in Bancorp Schedule 5.3(g); enter into any employment or severance agreements with any of its officers or employees; grant any material increase in fees or other increases in new compensation or other benefits to any mortgagedirector of Bancorp or of any Bancorp Subsidiary; or effect any change in retirement benefits for any class of its employees or officers, pledge, lien or other encumbrance except in the ordinary course of business and consistent with past practiceunless such change is required by applicable law;
(h) cancel Amend any debts existing employment contract between it and any person to increase the compensation or waive benefits payable thereunder; or enter into any claims new employment contract with any person that Bancorp or rights of substantial value Stock Bank do not have the unconditional right to terminate without liability (other than liability for services already rendered), at any time on or sell, transfer, or otherwise dispose of any of its properties or assets, except in after the ordinary course of its business and consistent with past practiceEffective Time;
(i) dispose Except as disclosed in Bancorp Schedule 5.3(i), adopt any new employee benefit plan or terminate or make any material change in or to any existing employee benefit plan other than any change that is required by law or that, in the opinion of counsel, is necessary or advisable to maintain the tax-qualified status of any rights to the use of any patent, trademark, service xxxx, trade name or copyright, or dispose of or disclose to any person any trade secret, formula, process or know-how not theretofore a matter of public knowledge, except in the ordinary course of business and consistent with past practicesuch plan;
(j) grant Enter into any general increase new service contracts, purchase or sale agreements or lease agreements in the compensation excess of officers or employees (including any such increase pursuant $25,000 that are material to any bonus, pension, profit sharing or other plan or commitment) Bancorp or any increase in the compensation (including salary and bonus) payable or to become payable to any officer except in the ordinary course of business and consistent with past practiceBancorp Subsidiary;
(k) appoint or remove from office Make any officers of ProMed Pomona other than as contemplated by this Agreementcapital expenditure exceeding $25,000;
(l) make Knowingly take any payment action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Reorganization Agreement being or sell, transfer or lease becoming untrue in any properties or assets tomaterial respect, or enter into any agreement or arrangement with, in any of the officers conditions to the Merger set forth in Article 7 not being satisfied, or directors in violation of ProMed Pomona or any other affiliate thereofprovision of this Reorganization Agreement, except except, in the ordinary course of business and consistent with past practiceevery case, as may be required by applicable law;
(m) enter into any contractChange its methods of accounting in effect at June 30, commitment or transaction not 1998, except as required by changes in the usual and ordinary course of its business, other than transactions contemplated by, or referred to generally accepted accounting principles as concurred in, this Agreementin writing, by Bancorp's independent auditors (a copy of which shall be provided to Kearny) or regulatory accounting principles;
(n) changeExcept as required by applicable law, knowingly take or initiate a change of, cause to be taken any action that could reasonably be expected to jeopardize or delay the receipt of any of the banking, safe deposit required regulatory approvals or power of attorney arrangements effective as of the date hereof, except for changes which would reasonably be expected to result in the signatories on the accounts of ProMed Pomona, provided such changes are contemplated by this Agreement and ProMed Pomona shall have given Group and Group Subsidiary prior written notice of any such change in signatories and Group and Group Subsidiary approves samerequired regulatory approval containing a condition that is determined by Kearny to be unduly burdensome;
(o) write down Fail to use its best efforts to keep in full force and effect its insurance and bonds in such amounts as are reasonable to cover such risks customary in relation to the value character and location of any inventory (including write-downs by reason its properties and the nature of shrinkage or xxxx-down) or write off as uncollectible any notes or accounts receivable, except for immaterial write-downs of inventory or accounts receivable in the ordinary course of its business and consistent with past practicein any event at least equal in scope and amount of coverage of insurance and bonds now carried;
(p) mergeFail to notify Kearny promptly of its receipt of any letter, consolidatenotice or other communication, reorganize whether written or liquidate ProMed Pomonaoral, from any governmental entity advising Bancorp that it is contemplating issuing, requiring, or requesting any agreement, memorandum of understanding, or similar undertaking, order or directive;
(q) file a voluntary petition on behalf Fail promptly to notify Kearny of ProMed Pomona under (i) the U.S. Bankruptcy Code commencement or threat of any audit, action, or proceeding involving any material amount of taxes against either Bancorp or (ii) the receipt by Bancorp or any Bancorp Subsidiary of any deficiency or audit notices or reports in respect of any material deficiencies asserted by any federal, state, local or other bankruptcy or insolvency law or any other law for relief of debtorstax authorities;
(r) changeFail to maintain and keep its properties in good repair and condition, amend or terminate a Material Contract constituting an affiliate agreement under Section 2.14 except as contemplated by this Agreement or with the written consent of Group for depreciation due to ordinary wear and Group Subsidiary; ortear;
(s) agree or commit, whether Engage in writing or otherwise, to do any of the foregoing. Notwithstanding the foregoing, ProMed Pomona may at any time prior to the Closing Date, (i) pay the Stay Bonuses described in Section 5.3 and (ii) distribute cash to any or all of the ProMed Pomona Shareholders provided such distribution shall not cause ProMed Pomona to violate the covenant set forth in Section 4.4 or any other representation, warranty, covenant or agreement provided hereinoff-balance sheet hedge transactions.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (1st Bergen Bancorp)
Conduct of Business - Negative Covenants. From the date hereof of this Agreement until the earlier of the Effective TimeTime or the termination of this Agreement, ProMed Pomona shall notexcept as may be separately agreed by Sun and Omega, Sun covenants and agrees that it will neither do, nor agree or commit to do, nor permit any Sun Subsidiary to do or commit or agree to do, any of the following without requesting Omega’s approval and receiving the prior written consent of Group and Group Subsidiarythe President of Omega, which consent shall not be unreasonably withhelddeemed given unless Omega disapproves the same within five (5) business days of having received Sun’s written request for such approval:
(a) Except as expressly contemplated by this Agreement, amend its any of its Charter Documents; or
(b) Impose on any share of capital stock held by it any lien, charge, or encumbrance, or permit any such lien, charge, or encumbrance to exist; or
(i) Repurchase, redeem, or otherwise acquire or exchange, directly or indirectly, any shares of its capital stock or other equity securities or any securities or instruments convertible into any shares of its capital stock, or any rights or options to acquire any shares of its capital stock or other equity securities except as expressly permitted by this Agreement; or (ii) split or otherwise subdivide its capital stock; or (iii) recapitalize in any way; or (iv) declare stock dividend on its capital stock; or (v) pay or declare a cash dividend or make or declare any other type of distribution on its capital stock except for any cash dividend already declared prior to this Agreement and regular quarterly cash dividends payable in the same amount and on the same schedule as past quarterly cash dividends; provided, however, that with respect to any cash dividend payable in the quarter in which the Effective Time occurs, only the pro rata portion of such cash dividend for such quarter shall be payable; or
(d) Except as expressly permitted by this Agreement, acquire direct or indirect control over any corporation, association, firm, organization or other entity, other than in connection with (i) mergers, acquisitions, or other transactions approved in writing by Omega, (ii) internal organization or consolidations involving existing Sun Subsidiaries, (iii) acquisitions of control in its fiduciary capacity, or (iv) the creation of new subsidiaries organized to conduct or continue activities otherwise permitted by this Agreement; or
(e) Except as expressly permitted by this Agreement, to (i) issue, sell, agree to sell, or otherwise dispose of or otherwise permit to become outstanding any additional shares of any capital stock, including, without limitation, Sun Common Stock (other than shares issuable upon the business exercise of ProMed Pomona Sun Stock Options outstanding as of the date of this Agreement), or any stock appreciation rights, or any option, warrant, conversion, call, scrip, or other right to acquire any such stock, or any security convertible into any such stock, unless any such shares of such stock are directly sold or otherwise directly transferred to Sun or any Sun Subsidiary; (ii) except as may otherwise be necessary for Sun’s Board of Directors to fulfill its fiduciary duties, sell, agree to sell, or otherwise dispose of any substantial part of the assets or earning power of Sun or of any Sun Subsidiary; (iii) except as may otherwise be necessary for Sun’s Board of Directors to fulfill its fiduciary duties, sell, agree to sell, or otherwise dispose of any asset of Sun or any Sun Subsidiary other than in the ordinary course of ProMed Pomona’s business as conducted through for reasonable and adequate consideration; or (iv) buy, agree to buy or otherwise acquire a substantial part of the date hereof assets or commit or suffer earning power of any material act or omission which deviates from other Person except in the ordinary course of ProMed Pomona’s business as conducted through the date hereof. Without limiting the generality of the foregoing, from the date of execution of this Agreement until the Effective Time, ProMed Pomona shall not, without the prior written consent of Group and Group Subsidiary, which consent shall not be unreasonably withheld:to realize upon a debt owed to it; or
(af) institute Incur any new method of purchase, sale, lease, management, accounting additional debt obligation or operation or engage in any transaction or activity, enter into any agreement or make any commitment or amend any existing material agreement other obligation for borrowed money other than as contemplated by this Agreement(i) in replacement of existing short-term debt with other short-term debt of an equal or lesser amount; (ii) financing of banking related activities; or (iii) indebtedness of Sun or any Sun Subsidiary to SunBank or another Sun Subsidiary not in excess of an aggregate of $300,000 (for Sun and Sun Subsidiaries on a consolidated basis), except in the ordinary course of its the business (and consistent with past practice;such ordinary course of business shall include, but shall not be limited to, creation of deposit liabilities, entry into repurchase agreements or reverse repurchase agreements, purchases or sales of federal funds, Federal Home Loan Bank advances, and sales of certificates of deposit); or
(bg) change Grant any increase in compensation or amend its Articles of Incorporation or By-Laws or propose any such change or amendment;
benefits (c) offer, issue, authorize or sell any shares of the capital stock or other securities (such term as used in this subsection shall includeincluding, without limitation, debt securitiesany grants or awards under Sun’s 1998 Stock Incentive Plan, 1998 Independent Directors Stock Option Plan and 1998 Employee Stock Purchase Plan) to any of ProMed Pomona of any kind whatsoeveris employees or officers, except as required by Applicable Law, and except for the scheduled increases in salary or acquire directly or indirectlypayments made pursuant to incentive compensation plans specifically identified on Schedule 5.3(g) to this Agreement, by redemption or otherwise, any such capital stock, reclassify or split-up any such capital stock, declare or pay any dividends thereon in cash, securities or other property, or make any other distribution with respect thereto, or grant or enter into any stock options, warrants, or other rights which are to acquire securities of ProMed Pomona or enter into any other contracts or commitments of any kind with respect to the issuance of additional shares of capital stock or other securities of ProMed Pomona;
(d) (i) borrow or agree to borrow any funds, whether directly or by way of guaranty or otherwise, or (ii) except be granted in the ordinary course of business and consistent with past practicepractices; except as required by Applicable Law, incur, enter into any severance agreements with any of its officers or assume employees; grant any material increase in fees or become subject other increases in new compensation or other benefits to any obligation director; effect any change in retirement for any class of its employees or liability (absolute officers, unless such change is required by Applicable Law; or contingent);
(e) paypay any bonuses, dischargeincluding retention bonuses, waivebut excluding payments made pursuant to incentive compensation plans, satisfy, compromise or adjust to any claim, liability or obligation (absolute, accrued, contingent or otherwise) of an amount persons in excess of $10,000, other than as contemplated by this Agreement or occurring 150,000 for all bonuses paid in the ordinary course of business and consistent with past practice;
(f) prepay any obligation having a fixed maturity of more than 90 days from the date such obligation was incurred other than as contemplated by this Agreement or occurring in the ordinary course of business and consistent with past practice;
(g) permit or allow any of its property or assets (real, personal or mixed, tangible or intangible) to be subjected to any mortgage, pledge, lien or other encumbrance except in the ordinary course of business and consistent with past practiceaggregate;
(h) cancel Amend any debts existing employment or waive other contract between it and any claims director, officer or rights of substantial value employee to increase the compensation or sellbenefits payable thereunder; or enter into any employment or other contract with any director, transferofficer or employee that Sun or the Sun Subsidiary, as applicable, does not have the unconditional right to terminate without liability (other than liability for services already rendered), at any time on or otherwise dispose of any of its properties or assets, except in after the ordinary course of its business and consistent with past practiceEffective Time;
(i) dispose Adopt any new employee benefit plan or terminate or make any material change in or to any existing employee benefit plan other than any change that is required by Applicable Law or that, in the opinion of counsel, is necessary or advisable to maintain the tax-qualified status of any rights to the use of any patent, trademark, service xxxx, trade name or copyright, or dispose of or disclose to any person any trade secret, formula, process or know-how not theretofore a matter of public knowledge, except in the ordinary course of business and consistent with past practicesuch plan;
(j) grant Enter into any general increase new service contracts, purchase or sale agreements or lease agreements providing for annual payments in the compensation excess of officers or employees (including any such increase pursuant $100,000 that are material to any bonus, pension, profit sharing or other plan or commitment) Sun or any increase Sun Subsidiary except for the sale of collateral for customer loans in the compensation (including salary and bonus) payable or to become payable to any officer except in the ordinary course of business and consistent with past practicedefault;
(k) appoint Make any capital expenditure exceeding $200,000 except for budgeted expenses in connection with the previously announced or remove from office budgeted openings of a new branch location;
(l) Knowingly take any officers action that is intended or may reasonably be expected to result in any of ProMed Pomona other than as contemplated by its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article 7 not being satisfied, or in violation of any provision of this Agreement;
(lm) make any payment to or sellChange its methods of accounting in effect at December 31, transfer or lease any properties or assets to, or enter into any agreement or arrangement with, any of the officers or directors of ProMed Pomona or any other affiliate thereof2003, except as required by changes in the ordinary course of business and consistent with past practice;
(m) enter into any contract, commitment or transaction not in the usual and ordinary course of its business, other than transactions contemplated by, or referred to generally accepted accounting principles as concurred in, this Agreementin writing, by Sun’s independent auditors (a copy of which shall be provided to Omega) or regulatory accounting principles or the SEC;
(n) changeExcept as required by Applicable Law, knowingly take or initiate a change of, cause to be taken any action that could reasonably be expected to jeopardize or delay the receipt of any of the banking, safe deposit Banking Approvals or power of attorney arrangements effective as of the date hereof, except for changes required Governmental Approvals or which would reasonably be expected to result in the signatories on the accounts of ProMed Pomona, provided such changes are contemplated by this Agreement and ProMed Pomona shall have given Group and Group Subsidiary prior written notice of any such change in signatories and Group and Group Subsidiary approves sameBanking Approval or required Governmental Approval containing a condition that is determined by Omega to be unduly burdensome;
(o) write down Fail to use its best efforts to keep in full force and effect its insurance and bonds in such amounts as are reasonable to cover such risks customary in relation to the value character and location of any inventory (including write-downs by reason its properties and the nature of shrinkage or xxxx-down) or write off as uncollectible any notes or accounts receivable, except for immaterial write-downs of inventory or accounts receivable in the ordinary course of its business and consistent with past practicein any event at least equal in scope and amount of coverage of insurance and bonds now carried;
(p) mergeFail to notify Omega promptly of its receipt of any letter, consolidatenotice or other communication, reorganize whether written or liquidate ProMed Pomonaoral, from any Governmental Authority advising it of any investigation (other than normal bank regulatory examinations) or that such Governmental Authority is contemplating issuing, requiring, or requesting any agreement, memorandum of understanding, or similar undertaking, order or directive;
(q) file a voluntary petition on behalf Fail promptly to notify Omega of ProMed Pomona under (i) the U.S. Bankruptcy Code commencement or threat of any Proceeding involving any material amount of taxes against Sun or any other bankruptcy Sun Subsidiary or insolvency law (ii) the receipt by Sun or any Sun Subsidiary of any deficiency or audit notices or reports in respect of any material deficiencies asserted by any federal, state, local or other law for relief of debtorstax authority;
(r) changeFail to maintain and keep its properties in good repair and condition, amend or terminate a Material Contract constituting an affiliate agreement under Section 2.14 except as contemplated by this Agreement or with the written consent of Group for depreciation due to ordinary wear and Group Subsidiary; ortear;
(s) agree or commit, whether Engage in writing or otherwise, to do any of the foregoing. Notwithstanding the foregoing, ProMed Pomona may at any time prior to the Closing Date, (i) pay the Stay Bonuses described in Section 5.3 and (ii) distribute cash to any or all of the ProMed Pomona Shareholders provided such distribution shall not cause ProMed Pomona to violate the covenant set forth in Section 4.4 or any other representation, warranty, covenant or agreement provided hereinoff-balance sheet hedge transaction.
Appears in 1 contract
Samples: Merger Agreement (Sun Bancorp Inc)
