Conduct of the Company’s Business. From and after the date hereof and prior to the Closing, the Company will conduct, and the Shareholders will cause the Company to conduct, its business and affairs only in the ordinary course, consistent in all material respects with prior practice. Without limiting the generality of the foregoing, prior to the Closing, the Company will not, and the Shareholders will cause the Company not to, without Parent's prior written approval or except as expressly provided for in this Agreement: (a) change its certificate or articles of incorporation or bylaws or merge or consolidate or obligate itself to do so with or into any other entity; (b) enter into any contract, agreement, commitment or other understanding or arrangement of a type which would have to be set forth in Part 2.10(a) of the Disclosure Schedule hereof; or (c) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Company Financial Statements (or the notes thereto), provided that in no event shall the Company repay any long-term indebtedness except to the extent required by the terms thereof; or (d) declare or pay any dividend or distribution on any of its shares of capital stock; or (e) perform, take any action or incur or permit to exist any acts, transactions, events or occurrences of the type described in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close of the Unaudited Interim Balance Sheet and prior to the date hereof. The Company and the Shareholders agree to use their best efforts consistent with past practice and policies to preserve intact the Company's present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Time.
Appears in 2 contracts
Samples: Merger Agreement (La Man Corporation), Merger Agreement (Papais Lou A)
Conduct of the Company’s Business. From and after Except as may be (w) required by Applicable Law or any Governmental Authority, (x) consented to by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), (y) required or explicitly permitted by the date hereof and prior to the Closingterms of this Agreement, or (z) set forth on Schedule 4.1, the Company will conduct, and the Shareholders will cause the Company to conduct, shall (i) conduct its business and affairs only in the ordinary course, consistent Ordinary Course of Business in all material respects with prior practicerespects, (ii) use commercially reasonable efforts to maintain and preserve intact its business organization and advantageous business relationships and (iii) take no action that is intended to or would reasonably be expected to materially adversely affect or materially delay the ability of the Company or Parent to obtain any of the Requisite Regulatory Approvals, to perform its covenants and agreements under this Agreement or to consummate the Merger. Without limiting the generality of the foregoing, prior to except as may be required by Applicable Law or any Governmental Authority, required or explicitly permitted by the Closingterms of this Agreement, or set forth on Schedule 4.1, the Company will not, and the Shareholders will cause the not permit any Company not Subsidiary to, without Parent's the prior written approval or except as expressly provided for in this Agreementconsent (including by electronic mail) of Parent:
(a) change its the articles or certificate or articles of incorporation or bylaws by-laws of the Company or merge the Insurance Subsidiary, the charter or consolidate by-laws of the Bank, or obligate itself to do so with or into the governing documents of any other entityCompany Subsidiary;
(b) enter into issue, sell, pledge, transfer, dispose of, redeem or encumber any contractequity securities, agreementeffect any split, commitment combination, subdivision, reclassification or redemption of any outstanding equity securities, or otherwise change its capitalization as it exists on the date of this Agreement, or issue, grant, or sell any options, equity appreciation or purchase rights, warrants, conversion rights or other understanding rights, securities or arrangement of a type which would have commitments obligating it to be set forth in Part 2.10(a) of the Disclosure Schedule hereof; orissue, sell or register any equity securities, or any securities or obligations convertible into, or exercisable or exchangeable for, any equity securities;
(c) payincrease the compensation of officers or key employees, discharge pay any bonuses except in the Ordinary Course of Business, or satisfy hire any claimsemployee with an annual salary in excess of $100,000;
(d) become a party to, liabilities establish, amend, commence participation in, terminate or obligations commit itself to the adoption of any Company Benefit Plan for the benefit of any Employee (absolute, accrued, asserted or unasserted, contingent or otherwisenewly hired employees), other than director or shareholder; accelerate the payment, discharge vesting of or satisfaction in the ordinary course lapsing of business consistent restrictions with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Company Financial Statements (or the notes thereto), provided that in no event shall the Company repay respect to any long-term indebtedness incentive compensation under any Company Benefit Plans; cause the funding of any rabbi trust or similar arrangement or take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan; or materially change any actuarial assumptions used to calculate funding obligations with respect to any Company Benefit Plan that is required by Applicable Law to be funded or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or any Applicable Law;
(e) (i) enter into any new credit or new lending relationships greater than $1,500,000 that would require an exception to the extent required Bank’s formal loan policy as in effect as of the date of this Agreement or that are not in strict compliance with the provisions of such loan policy; or (ii) other than incident to a reasonable loan restructuring, extend additional credit to any Person and any director or officer of, or any owner of a material interest in, such Person (any of the foregoing with respect to a Person being referred to as a “Borrowing Affiliate”) if such Person or such Borrowing Affiliate is the obligor under any indebtedness to the Company or any Company Subsidiary which constitutes a nonperforming loan or against any part of such indebtedness the Company or any Company Subsidiary has established loss reserves or any part of which has been charged-off by the terms thereof; orCompany or any Company Subsidiary;
(df) declare or pay any dividend dividends or distribution other distributions on any equity securities; provided, however, that, subject to Section 4.21, the Company shall be permitted to continue paying its regular declared and/or accrued quarterly dividend, which is currently $0.12 per share of Company Common Stock, in the Ordinary Course of Business;
(g) fail to use commercially reasonable efforts to maintain present insurance coverage in respect of their properties and businesses;
(h) incur or guarantee any indebtedness for borrowed money, except with respect to indebtedness to the Federal Home Loan Bank, trade payables and similar liabilities and obligations incurred in the Ordinary Course of Business;
(i) maintain an allowance for loan and lease losses which is not adequate in all material respects under the requirements of GAAP to provide for possible losses, net of recoveries relating to Loans previously charged off, on Loans and leases outstanding (excluding accrued interest receivable);
(j) enter into any employment, consulting or similar agreements that are not terminable by the Company or such Company Subsidiary, as applicable, on 30 days’ or fewer notice without penalty or obligation, or terminate the employment of any officer or other key employee of the Company or a Company Subsidiary thereof without first notifying Parent;
(k) take any action that would result in a termination, partial termination, curtailment, discontinuance of a Benefit Plan or merger of any Benefit Plan into another plan or trust;
(l) fail to file all Tax Returns in a timely manner, make any application for or consent to any extension of time for filing any Tax Return or any extension of the period of limitations applicable thereto, change any of its shares accounting methods for federal and state income tax purposes or make or change any material Tax elections;
(m) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or applicable regulatory accounting requirements;
(n) make any expenditure for fixed assets in excess of capital stock$100,000 for any single item, or $250,000 in the aggregate, or enter into leases of fixed assets having an annual rental in excess of $100,000 in the aggregate;
(o) incur any liabilities or obligations, make any commitments or disbursements, acquire (other than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, in each case in the Ordinary Course of Business) or dispose of any property or asset, make any contract or agreement, or engage in any transaction except in the Ordinary Course of Business consistent with prudent banking practices and the current policies of the Company and the Company Subsidiaries;
(p) amend or waive the material terms of, fail to do anything that will cause a breach by the Company or such Company Subsidiary of, or default by the Company or such Company Subsidiary under any Material Contract, any material restriction on the ability of the Company or such Company Subsidiary to conduct its business as it is presently being conducted, or any Contract or other binding obligation relating to any class of Company Capital Stock or rights associated therewith or any outstanding instrument of indebtedness;
(q) engage or agree to engage in any “covered transaction” within the meaning of Sections 23A or 23B of the Federal Reserve Act (without regard to the applicability of any exemptions contained in Section 23A), unless the Bank has complied with Sections 23A and 23B of the Federal Reserve Act;
(r) enter into any new line of business or materially change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by Applicable Law or requested by any Governmental Authority;
(s) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in an amount and for consideration not in excess of $100,000 and that would not (i) impose any material restriction on the business of the Company or such Company Subsidiary or (ii) create precedent for claims that is reasonably likely to be material to it;
(t) make application for the opening, relocation or closing of any, or open, relocate or close any, branch office, loan production office or other significant office or operations facility; or
(eu) performagree to take, take make any action commitment to take, or incur or permit to exist adopt any acts, transactions, events or occurrences resolutions of the type described Company Board in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close support of, any of the Unaudited Interim Balance Sheet and prior to the date hereof. The Company and the Shareholders agree to use their best efforts consistent with past practice and policies to preserve intact the Company's present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Timeactions prohibited by this Section 4.1.
Appears in 2 contracts
Samples: Merger Agreement (First Mid Bancshares, Inc.), Merger Agreement (First Mid Bancshares, Inc.)
Conduct of the Company’s Business. From and after Except as may be (w) required by Applicable Law or any Governmental Authority, (x) consented to by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), (y) required or explicitly permitted by the date hereof and prior to the Closingterms of this Agreement, or (z) set forth on Schedule 4.1, the Company will conduct, and the Shareholders will cause the Company to conduct, shall (i) conduct its business and affairs only in the ordinary course, consistent Ordinary Course of Business in all material respects with prior practicerespects, (ii) use commercially reasonable efforts to maintain and preserve intact its business organization and advantageous business relationships and (iii) take no action that is intended to or would reasonably be expected to materially adversely affect or materially delay the ability of the Company or Parent to obtain any of the Requisite Regulatory Approvals, to perform its covenants and agreements under this Agreement or to consummate the Merger. Without limiting the generality of the foregoing, prior to except as may be required by Applicable Law or any Governmental Authority, required or explicitly permitted by the Closingterms of this Agreement, or set forth on Schedule 4.1, the Company will not, and the Shareholders will cause the not permit any Company not Subsidiary to, without Parent's the prior written approval consent (including by electronic mail) of Parent which shall not be unreasonably withheld, conditioned or except as expressly provided for in this Agreementdelayed:
(a) change its the articles or certificate or articles of incorporation or bylaws by-laws of the Company or merge the Insurance Subsidiary, the charter or consolidate by-laws of the Bank, or obligate itself to do so with or into any other entitygoverning document;
(b) enter into issue, sell, pledge, transfer, dispose of, redeem or encumber any contractequity securities (except pursuant to the exercise of stock options outstanding as of the date hereof or pursuant to the surrender of shares to the Company or the withholding of shares by the Company to cover tax withholding obligations under the Company Stock Plans), agreementeffect any split, commitment combination, subdivision, reclassification or redemption of any outstanding equity securities, or otherwise change its capitalization as it exists on the date of this Agreement, or issue, grant, or sell any options, equity appreciation or purchase rights, warrants, conversion rights or other understanding rights, securities or arrangement of a type which would have commitments obligating it to be set forth in Part 2.10(a) of the Disclosure Schedule hereof; orissue, sell or register any equity securities, or any securities or obligations convertible into, or exercisable or exchangeable for, any equity securities;
(c) payincrease the compensation of officers or key employees, discharge pay any bonuses except in the Ordinary Course of Business, or satisfy hire any claimsemployee with an annual salary in excess of $100,000;
(d) become a party to, liabilities establish, amend, commence participation in, terminate or obligations commit itself to the adoption of any stock option plan or other stock-based compensation plan, compensation, severance, pension, consulting, non-competition, change in control, retirement, profit-sharing, welfare benefit, or other employee benefit plan or agreement or employment agreement with or for the benefit of any Employee (absolute, accrued, asserted or unasserted, contingent or otherwisenewly hired employees), other than director or stockholder; accelerate the payment, discharge vesting of or satisfaction in the ordinary course lapsing of business consistent restrictions with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Company Financial Statements (or the notes thereto), provided that in no event shall the Company repay respect to any long-term indebtedness incentive compensation under any Company Benefit Plans; cause the funding of any rabbi trust or similar arrangement or take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan; or materially change any actuarial assumptions used to calculate funding obligations with respect to any Company Benefit Plan that is required by Applicable Law to be funded or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or any Applicable Law;
(e) (i) enter into any new credit or new lending relationships greater than $750,000 that would require an exception to the extent required Bank’s formal loan policy as in effect as of the date of this Agreement or that are not in strict compliance with the provisions of such loan policy; or (ii) other than incident to a reasonable loan restructuring, extend additional credit to any Person and any director or officer of, or any owner of a material interest in, such Person (any of the foregoing with respect to a Person being referred to as a “Borrowing Affiliate”) if such Person or such Borrowing Affiliate is the obligor under any indebtedness to the Company or any Company Subsidiary which constitutes a nonperforming loan or against any part of such indebtedness the Company or any Company Subsidiary has established loss reserves or any part of which has been charged-off by the terms thereof; orCompany or any Company Subsidiary;
(df) declare or pay any dividends or other distributions on any equity securities; provided, however, that the Company shall be permitted to (i) continue paying its regular declared and/or accrued semi-annual dividend, which is currently $2.80 per share of Company Common Stock, in the Ordinary Course of Business, with any increase to such dividend amount being made consistent with the Company’s Ordinary Course of Business, (ii) declare the Special Dividend Per Share Amount, and (iii) declare and pay a dividend of up to of fifty percent of any cash death benefits received by the Bank (and subsequently distributed to the Company) pursuant to Bank owned life insurance following the death of an insured thereunder following the date of this Agreement and prior to the Closing Date;
(g) fail to use commercially reasonable efforts to maintain present insurance coverage in respect of their properties and businesses;
(h) incur or distribution guarantee any indebtedness for borrowed money, except with respect to indebtedness to the Federal Home Loan Bank, trade payables and similar liabilities and obligations incurred in the Ordinary Course of Business;
(i) maintain an allowance for loan and lease losses which is not adequate in all material respects under the requirements of GAAP to provide for possible losses, net of recoveries relating to Loans previously charged off, on Loans and leases outstanding (including accrued interest receivable);
(j) enter into any employment, consulting or similar agreements that are not terminable by the Company or such Company Subsidiary, as applicable, on 30 days’ or fewer notice without penalty or obligation, or terminate the employment of any officer thereof without first notifying Parent;
(k) take any action that would result in a termination, partial termination, curtailment, discontinuance of a Benefit Plan or merger of any Benefit Plan into another plan or trust;
(l) fail to file all Tax Returns in a timely manner, make any application for or consent to any extension of time for filing any Tax Return or any extension of the period of limitations applicable thereto, or change any of its shares accounting methods for federal and state income tax purposes or any material Tax elections;
(m) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or applicable regulatory accounting requirements;
(n) make any expenditure for fixed assets in excess of capital stock$100,000 for any single item, or $250,000 in the aggregate, or enter into leases of fixed assets having an annual rental in excess of $100,000 in the aggregate;
(o) incur any liabilities or obligations, make any commitments or disbursements, acquire (other than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, in each case in the Ordinary Course of Business) or dispose of any property or asset, make any contract or agreement, or engage in any transaction except in the Ordinary Course of Business consistent with prudent banking practices and the current policies of the Company and the Company Subsidiaries;
(p) amend or waive the material terms of, fail to do anything that will cause a breach by the Company or such Company Subsidiary of, or default by the Company or such Company Subsidiary under, or enter into, any Material Contract, any material restriction on the ability of the Company or such Company Subsidiary to conduct its business as it is presently being conducted, or any Contract or other binding obligation relating to any class of Company Capital Stock or rights associated therewith or any outstanding instrument of indebtedness;
(q) engage or agree to engage in any “covered transaction” within the meaning of Sections 23A or 23B of the Federal Reserve Act (without regard to the applicability of any exemptions contained in Section 23A), unless the Bank has complied with Sections 23A and 23B of the Federal Reserve Act;
(r) enter into any new line of business or materially change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by Applicable Law or requested by any Governmental Authority;
(s) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in an amount and for consideration not in excess of $100,000 and that would not (i) impose any material restriction on the business of the Company or such Company Subsidiary or (ii) create precedent for claims that is reasonably likely to be material to it;
(t) make application for the opening, relocation or closing of any, or open, relocate or close any, branch office, loan production office or other significant office or operations facility; or
(eu) performagree to take, take make any action commitment to take, or incur or permit to exist adopt any acts, transactions, events or occurrences resolutions of the type described Company Board in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close support of, any of the Unaudited Interim Balance Sheet and prior to the date hereof. The Company and the Shareholders agree to use their best efforts consistent with past practice and policies to preserve intact the Company's present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Timeactions prohibited by this Section 4.1.
Appears in 2 contracts
Samples: Merger Agreement (First Mid Illinois Bancshares Inc), Merger Agreement (First Mid Illinois Bancshares Inc)
Conduct of the Company’s Business. From and after Except as set forth on Schedule 5.1, between the date hereof and prior the Closing Date or the date, if any, on which this Agreement is earlier terminated pursuant to the ClosingSection 9.1 (“Pre-Closing Period”), the Company will conductshall, (a) carry on its operations in the Ordinary Course of Business, pay its debts and Taxes when due subject to good faith disputes over such debts or Taxes, pay or perform other material obligations when due, except when subject to good faith disputes over such obligations, and use all commercially reasonable efforts consistent with past practices and policies to preserve intact the Shareholders will cause Company’s current business organization, keep available the Company to conductservices of its current officers, employees and agents and preserve its relationships with customers, suppliers and others having business and affairs only in the ordinary courserelationships with it, consistent in all material respects with prior practice. Without limiting the generality of the foregoing, prior to the Closingend that the Company’s goodwill and ongoing business shall remain substantially the same at the Closing Date, and (b) promptly notify Buyer of any event or occurrence that will have or could reasonably be expected to have a Company Material Adverse Effect. In addition, during the Pre-Closing Period, the Company will notCompany, and the Shareholders will cause the Company not to, without Parent's prior written approval or except as expressly provided for in this Agreementset forth on Schedule 5.1 or as otherwise specifically permitted herein, or with Buyer’s prior consent, shall not:
(a) change amend its certificate or articles of incorporation or bylaws or merge or consolidate or obligate itself to do so with or into any other entityOrganizational Documents;
(b) enter into except for Closing Distributions, declare or pay any contractdividends or distributions on the Shares nor purchase, agreement, commitment redeem or other understanding or arrangement of a type which would have to be set forth in Part 2.10(a) otherwise acquire for consideration any of the Disclosure Schedule hereof; orShares;
(c) purchase, redeem, issue or sell any of its capital stock or otherwise change its capitalization as it exists on the date hereof, or issue, grant, or sell any options, equity appreciation or purchase rights, warrants, conversion rights or other rights, securities or commitments obligating it to issue or sell any of its capital stock, or any securities or obligations convertible into, or exercisable or exchangeable for, any of its securities;
(d) except for Closing Distribution, grant any profits interests or other interests in the revenues, earnings, cash flow or distributions of the Company;
(e) borrow or agree to borrow any funds or voluntarily incur, or assume or become subject to, whether directly or by way of guaranty or otherwise, any Liability, except obligations incurred in the Ordinary Course of Business;
(f) pay, discharge or satisfy any claims, liabilities claim or obligations Liability in excess of $50,000 (absolute, accrued, asserted in any one case) or unasserted, contingent or otherwise$100,000 (in the aggregate), other than the payment, discharge or satisfaction in the ordinary course Ordinary Course of Business of obligations reflected on or reserved against in the Company Balance Sheet, or incurred since the Balance Sheet Date in the Ordinary Course of Business or as contemplated hereby;
(g) except as required by Applicable Laws, adopt or amend in any material respect, any Contract or plan (including compensation, retention or severance arrangements) for the benefit of its employees;
(h) sell, mortgage, pledge or otherwise encumber or dispose of any of its assets that are material, individually or in the aggregate, to the Company’s business, except in the Ordinary Course of Business;
(i) acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets of, any business consistent or any other Person, or otherwise acquire any assets that are material, individually or in the aggregate, to the Company’s business, except in its Ordinary Course of Business;
(j) increase the following amounts payable or to become payable: (i) the salary of any officer of the Company, other than increases in the Ordinary Course of Business and not exceeding, in any case, five percent of the officer’s salary on the date hereof, (ii) any other compensation of its officers, including any increase in benefits under any bonus, insurance, pension or other benefit plan made for or with past any of those individuals, other than increases that are provided in the Ordinary Course of Business to broad categories of employees and do not discriminate in favor of the aforementioned individuals, and (iii) the compensation of any of its other employees, consultants or agents except in the Ordinary Course of Business;
(k) dispose of, permit to lapse, or otherwise fail to preserve the rights of the Company to use the Company Proprietary Rights or enter into any settlement regarding the breach or infringement of, any Company Proprietary Rights, or modify any existing rights with respect thereto, other than in the Ordinary Course of Business, and other than any such disposal, lapse, failure, settlement or modification that does not have and could not reasonably be expected to have a Company Material Adverse Effect;
(l) sell, or grant any right to exclusive use of, all or any part of the Company Proprietary Rights;
(m) enter into any contract or commitment or take any other action that is not in the Ordinary Course of Business or could reasonably be expected to have an adverse impact on the Transactions or that would have or could reasonably be expected to have a Company Material Adverse Effect;
(n) amend in any material respect any Company Contract, the amendment of which will have or could reasonably be expected to have a Company Material Adverse Effect;
(o) waive, release, transfer or permit to lapse any claim or right (i) that has a value, or involves payment or receipt by it, of more than $25,000 or (ii) the waiver, release, transfer or lapse of which would reasonably be expected to have a Company Material Adverse Effect;
(p) except for the Closing Distributions take any action that would materially decrease the Closing Net Working Capital by more than $4,000,000 below the Trigger Amount;
(q) make any change in any method of accounting or accounting practice other than changes required to be made so that the Company’s financial statements comply with GAAP;
(r) except in the Ordinary Course of Business, defer the payment of any expenses beyond the date such expenses are due;
(s) take any material act or omit to take any material act that is not in the Ordinary Course of Business in respect of the Company’s assets or Liabilities or is not in accordance with their terms, the Company’s course of liabilities reflected or reserved against in, or contemplated by, conduct in effect for the Company Financial Statements (or the notes thereto), provided that in no event shall the Company repay any long-term indebtedness except to the extent required by the terms thereof; orCompany’s current fiscal year;
(dt) declare except in the Ordinary Course of Business, change, alter or pay make any dividend employment Contract with Company personnel or distribution on any of its shares of capital stock; orconsultants;
(eu) performmake any investment in any Person or capital expenditure not in the Ordinary Course of Business;
(v) except for payment of normal compensation or reimbursement of expenses in the Ordinary Course of Business, enter into any transaction with any Seller or any Affiliate of any Seller;
(w) except in the Ordinary Course of Business or as may be in furtherance of the Transactions, enter into any transaction, sell any assets or knowingly or intentionally incur any Liability or make any payment in respect of any Liability; and
(x) agree or otherwise commit, whether in writing or otherwise, to take any action or incur or permit to exist any actsdescribed above in this Section 5.1. In addition, transactions, events or occurrences as of the type described Closing Date, the Company’s capital expenditures during the period commencing on October 1, 2010 and ending on the Closing Date will represent in clauses (c) through (q) the aggregate such percentage of Section 2.5 hereto which would $1,000,000 that the number of days that have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close of the Unaudited Interim Balance Sheet and prior lapsed from October 1, 2010 to the date hereof. The Company and the Shareholders agree to use their best efforts consistent with past practice and policies to preserve intact the Company's present business organizations, keep available the services Closing Date represents as a percentage of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Time365.
Appears in 1 contract
Samples: Share Purchase Agreement (Vse Corp)
Conduct of the Company’s Business. From and after Except as may be (w) required by Applicable Law or any Governmental Authority, (x) consented to by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), (y) required or explicitly permitted by the date hereof and prior to the Closingterms of this Agreement, or (z) set forth on Schedule 4.1, the Company will conduct, and the Shareholders will cause the Company to conduct, shall (i) conduct its business and affairs only in the ordinary course, consistent Ordinary Course of Business in all material respects with prior practicerespects, (ii) use commercially reasonable efforts to maintain and preserve intact its business organization and advantageous business relationships and (iii) take no action that is intended to or would reasonably be expected to materially adversely affect or materially delay the ability of the Company or Parent to obtain any of the Requisite Regulatory Approvals, to perform its covenants and agreements under this Agreement or to consummate the Merger. Without limiting the generality of the foregoing, prior to except as may be required by Applicable Law or any Governmental Authority, required or explicitly permitted by the Closingterms of this Agreement, the Company will not, and the Shareholders will cause the Company not toor set forth on Schedule 4.1, without Parent's the prior written approval consent (including by electronic mail) of Parent (which consent shall not be unreasonably withheld, conditioned or except as expressly provided for in this Agreement:delayed):
(a) no change its certificate or shall be made in the articles of incorporation or bylaws by-laws of the Company, the charter or merge by-laws of the Bank, or consolidate the certificate of trust or obligate itself to do so with or into any other entitytrust agreement of the Trust Subsidiary;
(b) enter into any contract, agreement, commitment or other understanding or arrangement of a type which would have to no change shall be set forth made in Part 2.10(a) the capitalization of the Disclosure Schedule hereof; orCompany or any Company Subsidiary, or any increase or decrease in the number of issued and outstanding shares of Company Common Stock;
(c) paythe compensation of officers or key employees of the Company or the Bank shall not be increased, discharge nor any bonuses paid except in the Ordinary Course of Business; nor shall either hire any employee with an annual salary in excess of $75,000;
(d) none of the Company or satisfy any claimsCompany Subsidiary shall become a party to, liabilities establish, amend, commence participation in, terminate or obligations commit itself to the adoption of any stock option plan or other stock-based compensation plan, compensation, severance, pension, consulting, non-competition, change in control, retirement, profit-sharing, welfare benefit, or other employee benefit plan or agreement or employment agreement with or for the benefit of any Company Employee (absolute, accrued, asserted or unasserted, contingent or otherwisenewly hired employees), other than director or stockholder; accelerate the payment, discharge vesting of or satisfaction in the ordinary course lapsing of business consistent restrictions with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Company Financial Statements (or the notes thereto), provided that in no event shall the Company repay respect to any long-term indebtedness except incentive compensation under any Company Benefit Plans; cause the funding of any rabbi trust or similar arrangement or take any action to fund or in any other way secure the extent payment of compensation or benefits under any Company Benefit Plan; or materially change any actuarial assumptions used to calculate funding obligations with respect to any Company Benefit Plan that is required by Applicable Law to be funded or change the terms thereof; or
(d) declare manner in which contributions to such plans are made or pay the basis on which such contributions are determined, except as may be required by GAAP or any dividend or distribution on any of its shares of capital stock; orApplicable Law;
(e) performno Loan in the amount of $2,000,000 or more to any borrower or related group of borrowers, and no renewal or restructuring of a Loan in the amount of $5,000,000 or more to any one borrower or related group of borrowers shall be made by the Bank except (i) after delivering written notice and a request for Parent’s written consent to take such action (including by electronic mail) to Jxxx Xxxxxx, Mxxxxxx Xxxxxx and Exxx XxXxx, including a complete loan package for such Loan, renewal or restructuring, in a form consistent with the Bank’s policies and practice, at least five Business Days prior to such Loan, renewal or restructuring, (ii) such Loan or renewal or restructuring of a Loan shall be made in the Ordinary Course of Business consistent with prudent banking practices, the Bank’s current loan policies and applicable rules and regulations or applicable Governmental Authorities with respect to amount, term, security and quality of such borrower or borrower's credit, and (iii) solely for the purpose of this Section 4.1(e), Parent’s written consent shall be deemed to have been given to the Company if Parent shall have failed to respond in any manner within four Business Days following receipt of the Company’s written notice and request for Parent’s written consent;
(f) no dividends or other distributions shall be declared or paid by the Company on any shares of Company Capital Stock; provided, however, that the Company shall be permitted to continue declaring and paying its regular quarterly dividend of $0.06 per share of Company Common Stock in the Ordinary Course of Business;
(g) no employment, consulting or similar agreements shall be entered into by the Company or any Company Subsidiary that are not terminable by the Company or such Company Subsidiary, as applicable, on 30 days’ or fewer notice without penalty or obligation, nor shall the Company or the Bank terminate the employment of any officer thereof without first notifying Parent;
(h) except as expressly provided in this Agreement, neither the Company nor the Bank shall take any action that would result in a termination, partial termination, curtailment, discontinuance of a Benefit Plan or incur merger of any Benefit Plan into another plan or permit trust;
(i) the Company and each Company Subsidiary, as applicable, shall file all material Tax Returns in a timely manner, shall not make any application for or consent to exist any acts, transactions, events extension of time for filing any Tax Return or occurrences any extension of the type described period of limitations applicable thereto and shall not change any of its accounting methods for federal and state income tax purposes;
(j) the Company and each Company Subsidiary shall not implement or adopt any change in clauses its accounting principles, practices or methods, other than as may be required by GAAP or applicable regulatory accounting requirements;
(ck) through none of the Company or any Company Subsidiary shall make any expenditure for fixed assets in excess of $50,000 for any single item, or $100,000 in the aggregate, or shall enter into leases of fixed assets having an annual rental in excess of $50,000 in the aggregate;
(l) none of the Company or any Company Subsidiary shall incur any liabilities or obligations, make any commitments or disbursements, acquire (other than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, in each case in the Ordinary Course of Business) or dispose of any property or asset, make any contract or agreement, or engage in any transaction except in the Ordinary Course of Business consistent with prudent banking practices and the current policies of the Company and the Company Subsidiaries;
(m) none of the Company or any Company Subsidiary shall amend the material terms of, fail to do anything that will cause a breach by the Company or such Company Subsidiary of, or default by the Company or such Company Subsidiary under, or enter into, any Material Contract, any material restriction on the ability of the Company or such Company Subsidiary to conduct its business as it is presently being conducted, or any Contract or other binding obligation relating to any class of Company Capital Stock or rights associated therewith or any outstanding instrument of indebtedness;
(n) the Bank shall not engage or agree to engage in any “covered transaction” within the meaning of Sections 23A or 23B of the Federal Reserve Act (without regard to the applicability of any exemptions contained in Section 23A) or any transaction of the kind referred to in Section 3.12, unless the Bank has complied with Sections 23A and 23B of the Federal Reserve Act;
(o) the Bank shall only purchase or invest in obligations of the government of the United States or agencies of the United States or state or local governments having maturities of not more than ten years and which municipal obligations have, at the time of purchase, been assigned a rating of A or better by Mxxxx’x Investors Service or by Standard and Poor’s
(p) none of the Company or any Company Subsidiary shall enter into any new line of business or materially change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by Applicable Law or requested by any Governmental Authority;
(q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close none of the Unaudited Interim Balance Sheet Company or any Company Subsidiary shall settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in an amount and prior for consideration not in excess of $100,000 and that would not (i) impose any material restriction on the business of the Company or such Company Subsidiary or (ii) create precedent for claims that is reasonably likely to be material to it;
(r) none of the date hereof. The Company or any Company Subsidiary shall make application for the opening, relocation or closing of any, or open, relocate or close any, branch office, loan production office or other significant office or operations facility; and
(s) the Company and the Shareholders Company Subsidiaries shall not agree to use their best efforts consistent with past practice and policies take, make any commitment to preserve intact take, or adopt any resolutions of the Company's present business organizationsCompany Board in support of, keep available any of the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Timeactions prohibited by this Section 4.1.
Appears in 1 contract
Samples: Merger Agreement (First Clover Leaf Financial Corp.)
Conduct of the Company’s Business. From and after Except (i) as set forth in Section 7.1 of the Company Disclosure Schedule, (ii) as otherwise expressly required by the terms of this Agreement or (iii) as required by applicable Law, from the date hereof and prior of this Agreement to the Closingearlier of the Closing and the termination of this Agreement in accordance with Article IX, Seller (A) shall (with respect to the Company will conductand its Subsidiaries), and the Shareholders will shall cause the Company and its Subsidiaries to conduct, (1) conduct the Company’s and its business and affairs Subsidiaries’ businesses only in the ordinary course, consistent in all material respects with prior practice. Without limiting the generality of the foregoing, prior to the Closing, the Company will not, and the Shareholders will cause the Company not to, without Parent's prior written approval or except as expressly provided for in this Agreement:
(a) change its certificate or articles of incorporation or bylaws or merge or consolidate or obligate itself to do so with or into any other entity;
(b) enter into any contract, agreement, commitment or other understanding or arrangement of a type which would have to be set forth in Part 2.10(a) of the Disclosure Schedule hereof; or
(c) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice in all material respects and (2) use commercially reasonable efforts to (x) keep intact their respective businesses and goodwill and (y) preserve their relationships with customers, suppliers, vendors, distributors, creditors, agents and others having business relationships with the Company and its Subsidiaries and keep available the services of present senior officers and key employees of the Company and its Subsidiaries and (B) shall not, after the Adjustment Time, make any dividends or distributions of Cash or incur any Indebtedness or Company Transaction Expenses, or take or fail to take any action with the intent of causing, or that would be reasonably expected to cause, components of the Final Purchase Price to change were such Final Purchase Price calculated as of the Closing instead of as of the Adjustment Time. In addition (and without limiting the generality of the foregoing), except (I) as set forth in Section 7.1 of the Company Disclosure Schedule, (II) as expressly required by the terms of this Agreement or (III) as required by applicable Law, from the date of this Agreement to the earlier of the Closing and the termination of this Agreement in accordance with their termsArticle IX, Seller shall (with respect to the Company and its Subsidiaries), and shall cause the Company and its Subsidiaries to not do any of liabilities reflected the following without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, delayed or reserved against inconditioned):
(a) (i) amend its certificate of incorporation or bylaws or similar governing instruments or (ii) issue, sell, transfer, or contemplated bygrant options, warrants or rights to purchase or subscribe to, enter into any arrangement or contract with respect to the issuance, transfer or sale of, or redeem or repurchase any capital stock or other securities of the Company Financial Statements or any of its Subsidiaries;
(b) other than as required pursuant to any Company Benefit Plan as in effect on the date hereof: (i) increase the compensation or the notes thereto), provided that in no event shall benefits of any current or former employee or other service provider of the Company repay any or its Subsidiaries other than in the ordinary course of business consistent with past practice with respect to such employees or service providers with a target annual compensation opportunity (base salary, target annual bonus and target long-term indebtedness incentive opportunity, if any), of less than $250,000; (ii) grant any (x) severance, termination pay, change in control, transaction or retention payments or benefits or (y) except as permitted by clause (i) immediately above, bonus or incentive compensation or other compensation or benefits; (iii) accelerate the vesting of or lapsing of restrictions with respect to any compensation or benefits; (iv) establish, adopt, enter into, materially amend or terminate any Company Benefit Plan or any collective bargaining or other labor agreement, other than to conduct its annual renewal and reenrollment of its broad-based health and welfare plans in the ordinary course of business consistent with past practice, or amend or waive any of its material rights under any Company Benefit Plan; (v) cause the funding of any rabbi trust or similar arrangement or take any action to fund or in any other way secure the payment of compensation or benefits; (vi) hire or promote any employee or other service provider who has or would have a target annual compensation opportunity of $250,000 or more; or (vii) terminate other than for cause the employment or service of any employee or other service provider with a target annual compensation opportunity of $250,000 or more;
(c) create, incur or assume any Indebtedness or issue any debt securities other than (i) Funded Indebtedness or (ii) other Indebtedness in an aggregate amount not to exceed $3,000,000;
(d) pledge, encumber or create or grant any Encumbrance on any of the material assets of the Company and its Subsidiaries (other than Permitted Encumbrances), other than as required by instruments of Indebtedness existing as of the date hereof or any Indebtedness incurred after the date hereof permitted in accordance with Section 7.1(b);
(e) make any non de minimis loans, advances or capital contributions to, or investments in, any other Person, other than loans or investments solely between or among the Company and its Subsidiaries;
(f) (i) make any change in accounting methods or practices or policies used by the Company and its Subsidiaries in the preparation of its financial statements, other than as required by GAAP (or any interpretation thereof), including pursuant to standards, guidelines and interpretations of the Financial Accounting Standards Board or any similar organization, (ii) change any policies, practices or procedures with respect to working capital or cash management, accrual of revenue, collection or accrual of accounts receivable, payment or accrual of expenses, accounts payable or other liabilities in a manner inconsistent with past practice, (iii) accelerate customer product delivery outside of normal purchase order practices, other than at the request of a customer in the ordinary course of business, or (iv) provide discounts for accelerated product delivery (other than time value of money discounts in accordance with the Company’s ordinary course accounting policies and consistent with past practice);
(g) other than as required by applicable Law, (i) make (other than in connection with filing Tax Returns in the ordinary course of business and consistent with past practice), change or revoke any material Tax election, (ii) adopt or change any accounting method with respect to Taxes, (iii) surrender any right to claim a refund of a material amount of Taxes, (iv) settle or compromise any Tax proceeding with respect to a material amount of Taxes, (v) file any material Tax Return in a manner inconsistent with past practice, except to the extent otherwise required by a change in Law or a “determination” within the terms thereof; ormeaning of Section 1313(a) of the Code (or any corresponding provision of state or local law), (vi) file any material amended Tax Return or claim any material tax refund or (vii) consent to any extension or waiver of the limitations period applicable to any material Tax claim or assessment;
(dh) declare acquire (whether by merging or pay consolidating with, or by purchasing assets or stock of, or by any dividend other manner), any business or distribution on Person or division thereof, other than purchases of assets in the ordinary course of business consistent with past practice;
(i) sell, assign, transfer, exclusively license, allow to expire or lapse or otherwise dispose of any of the properties, rights or assets of the Company and its Subsidiaries, other than (A) properties, rights or assets having a value not in excess of $2,000,000 in the aggregate and (B) sales of assets in the ordinary course of business consistent with past practice;
(j) commence (other than any collection action in the ordinary course of business consistent with past practice), waive, release, assign, settle or compromise any Action involving the Company or any of its shares Subsidiaries other than settlements or compromises of capital stocklitigation: (x)(i) where the amount paid for such settlement following the Closing does not exceed $200,000 individually or $2,000,000 in the aggregate; or(ii) do not impose any injunctive relief on the Company or any of its Subsidiaries and do not involve the admission of wrongdoing by the Company or any of its Subsidiaries or any of their respective officers, directors or employees; and (iii) do not relate to claims, litigations, investigations, suits, actions or proceedings brought by Governmental Entities, or (y) are Tax proceedings (it being understood that such Tax proceedings are subject to the restrictions contained in clause (g) above);
(ek) performmake or commit to make any capital expenditure, take any action capital addition or incur capital improvement (or permit series of related capital expenditures, capital additions or capital improvements) in excess of $150,000 individually or $1,000,000 in the aggregate, other than capital expenditures pursuant to exist any acts, transactions, events the capital budget previously made available to Purchaser or occurrences of (ii) deviate or fail to make expenditures at the type described times and in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties amounts set forth in Section 2.5 had the same occurred after capital budget previously made available to Purchaser, except in the close reasonable, good faith discretion of the Unaudited Interim Balance Sheet and prior Company’s management in the ordinary course of business consistent with past practice;
(l) (i) cancel, materially amend or modify in any manner adverse to the Company or terminate any Company Material Contract or Lease or waive, release or assign any material rights, claims or benefits under any Company Material Contract or Lease, or (ii) enter into any Contract that if in effect on the date hereof. The hereof would be a Company and Material Contract or Lease, in each case of (i) or (ii), other than in the Shareholders agree to use their best efforts ordinary course of business consistent with past practice and as would not be materially adverse to the Company and its Subsidiaries;
(m) (i) sell, assign, transfer or grant any license to any Company IP, except for non-exclusive licenses granted to customers in the ordinary course of business, or (ii) allow any Company Registered IP to lapse or go abandoned, other than at the end of its ordinary, non-extendible term;
(n) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any of the capital stock of the Company or any of its Subsidiaries or make any other change with respect to their capital structure;
(o) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation or recapitalization of the Company or any of its Subsidiaries;
(p) enter into any new line of business or abandon or discontinue any existing lines of business;
(q) terminate or permit the lapse of any insurance policies of the Company or any of its Subsidiaries;
(r) fail to preserve intact maintain in effect all material Permits;
(s) (i) enter into, renew, or modify any Affiliate Arrangements, or (ii) transfer any assets or liabilities between the Company and its Subsidiaries, on the one hand, and the Seller Group, on the other hand, other than as expressly contemplated by this Agreement;
(t) forgive, cancel or compromise any material debt or claim, or waive or release any right of material value to the Company or its Subsidiaries, other than invoice adjustments or other customer arrangements that are not material and are entered into in the ordinary course of business consistent with past practice;
(u) declare, set aside or pay (i) any non-cash dividend or non-cash distribution to a Person other than a wholly owned Subsidiary of the Company or (ii) any dividend or distribution with a payment date on or after the Closing Date, or enter into any agreement to repurchase any shares of common stock of the Company's present business organizations; or
(v) authorize any of, keep available or commit or agree to take, whether in writing or otherwise, any of, the services foregoing actions, or any act or omission that would result in any of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Timeforegoing.
Appears in 1 contract
Conduct of the Company’s Business. From and after Section 7.01 Conduct of Business Prior to the Effective Time. During the period from the date hereof and prior of this Agreement to the ClosingEffective Time and except as otherwise contemplated by this Agreement, the Company will conductshall, and the Shareholders will shall cause the Company to conduct, each of its Subsidiaries to:
(i) operate and conduct its business and affairs only in the usual, regular and ordinary course, consistent with past practice and prudent banking practices;
(ii) preserve intact the Company's and each of its Subsidiaries' corporate existence, business organization, assets, licenses, permits, authorizations, and business opportunities;
(iii) comply with all material contractual obligations applicable to business operations of the Company and/or its Subsidiaries;
(iv) maintain all of its properties and assets in good repair, order and condition, reasonable wear and tear excepted, and maintain the insurance coverages described in Section 5.18 or obtain comparable insurance coverages from reputable insurers, which, in respect to amounts, types and risks insured, are adequate for the business conducted by the Company and its Subsidiaries and consistent with the existing insurance coverages;
(v) in good faith and in a reasonable manner (a) cooperate with Sterling and Bancorporation in satisfying the conditions in this Agreement, (b) assist Sterling and Bancorporation in obtaining as promptly as possible all consents, approval, authorizations and rulings, whether regulatory, corporate or otherwise, as are necessary to carry out and consummate the transactions contemplated by this Agreement, (c) upon the written request of Sterling, furnish information concerning the Company and its Subsidiaries not previously provided to Sterling required for inclusion in any filings or applications that may be necessary in that regard, and (d) perform all acts and execute and deliver all documents necessary to cause the transactions contemplated by this Agreement to be consummated at the earliest date that is reasonably possible;
(vi) timely filing of all Reports required to be so filed by the Company or any of its Subsidiaries with any Regulatory Authority and to the extent permitted by applicable law, promptly thereafter deliver to Sterling copies of all such Reports required to be so filed;
(vii) comply in all material respects with prior practice. Without limiting the generality of the foregoingall applicable laws and regulations, prior to the Closing, the Company will not, domestic and the Shareholders will cause the Company not to, without Parent's prior written approval or except as expressly provided for in this Agreement:
(a) change its certificate or articles of incorporation or bylaws or merge or consolidate or obligate itself to do so with or into any other entityforeign;
(bviii) enter into any contract, agreement, commitment or other understanding or arrangement of a type which would have promptly give written notice to be set forth in Part 2.10(a) of the Disclosure Schedule hereof; or
(c) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Company Financial Statements (or the notes thereto), provided that in no event shall the Company repay any long-term indebtedness except to the extent required by the terms thereof; or
(d) declare or pay any dividend or distribution on any of its shares of capital stock; or
(e) perform, take any action or incur or permit to exist any acts, transactions, events or occurrences of the type described in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close of the Unaudited Interim Balance Sheet and prior to the date hereof. The Company and the Shareholders agree to use their best efforts consistent with past practice and policies to preserve intact Sterling upon the Company's present obtaining knowledge of any event or fact that would cause any of the representations or warranties of the Company contained in this Agreement to be untrue or misleading in any material respect or which would otherwise cause a Company Material Adverse Effect;
(ix) use its best efforts to maintain current customer relationship and preserve intact its business organizationsorganization, keep available employees, advantageous business relationships and retain the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective TimeEmployees.
Appears in 1 contract
Conduct of the Company’s Business. From and after the date hereof and prior to the Closing, the Company will conduct, and the Shareholders will cause the Company to conduct, its business and affairs only in the ordinary course, consistent in all material respects with prior practice. Without limiting the generality of the foregoing, prior to the Closing, the Company will not, and the Shareholders will cause the Company not to, without Parent's prior written approval or except as expressly provided for in this Agreement:
(a) change its certificate or articles of incorporation or bylaws or merge or consolidate or obligate itself to do so with or into any other entity;
(b) enter into any contract, agreement, commitment or other understanding or arrangement of a type which would have to be set forth in Part 2.10(a) of the Disclosure Schedule hereof; or
(c) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Company Financial Statements (or the notes thereto), provided PROVIDED that in no event shall the Company repay any long-term indebtedness except to the extent required by the terms thereof; or
(d) declare or pay any dividend or distribution on any of its shares of capital stock; or
(e) perform, take any action or incur or permit to exist any acts, transactions, events or occurrences of the type described in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close of the Unaudited Interim Balance Sheet and prior to the date hereof. The Company and the Shareholders agree to use their best efforts consistent with past practice and policies to preserve intact the Company's present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Time.
Appears in 1 contract
Samples: Merger Agreement (Long Terry J)
Conduct of the Company’s Business. From and after Except as set forth on Schedule 5.1, between the date hereof and prior the Closing Date or the date, if any, on which this Agreement is earlier terminated pursuant to the Closingits terms (“Pre-Closing Period”), the Company will conductshall, (a) carry on its business in the usual, regular and ordinary course in substantially the same manner as heretofore conducted, pay its debts and Taxes when due subject to good faith disputes over such debts or Taxes, pay or perform other material obligations when due, except when subject to good faith disputes over such obligations, and use all commercially reasonable efforts consistent with past practices and policies to preserve intact the Shareholders will cause Company’s current business organization, keep available the Company to conductservices of its current officers and employees and preserve its relationships with customers, its suppliers and others having business and affairs only in the ordinary courserelationships with it, consistent in all material respects with prior practice. Without limiting the generality of the foregoing, prior to the Closingend that the Company’s goodwill and ongoing business shall remain substantially the same at the Closing Date, and (b) promptly notify Buyer of any event or occurrence which will have or could reasonably be expected to have a Company Material Adverse Effect. In addition, during the Pre-Closing Period, the Company will notCompany, and the Shareholders will cause the Company not to, without Parent's prior written approval or except as expressly provided for in this Agreementset forth on Schedule 5.1 or with Buyer’s prior consent, shall not:
(a) change amend its certificate or articles of incorporation or bylaws or merge or consolidate or obligate itself to do so with or into any other entityOrganizational Documents;
(b) enter into declare or pay any contractdividends or distributions on the Interests nor purchase, agreement, commitment redeem or other understanding or arrangement of a type which would have to be set forth in Part 2.10(a) otherwise acquire for consideration any of the Disclosure Schedule hereof; orInterests or any other Company securities;
(c) issue or sell any of its Interests or otherwise change its capitalization as it exists on the date hereof, or issue, grant, or sell any options, equity appreciation or purchase rights, warrants, conversion rights or other rights, securities or commitments obligating it to issue or sell any of its Interests , or any securities or obligations convertible into, or exercisable or exchangeable for, any of its securities;
(d) grant any profits interests or other interests in the cash flow or distributions of the Company;
(e) borrow or agree to borrow any funds or voluntarily incur, or assume or become subject to, whether directly or by way of guaranty or otherwise, any Liability, except obligations incurred in the ordinary course of business consistent with past practices;
(f) pay, discharge or satisfy any claims, liabilities claim or obligations Liability in excess of $25,000 (absolute, accrued, asserted in any one case) or unasserted, contingent or otherwise$50,000 (in the aggregate), other than the payment, discharge or satisfaction in the ordinary course of business of obligations reflected on or reserved against in the Company Balance Sheet, or incurred since the Balance Sheet Date in the ordinary course of business consistent with past practice practices or in accordance connection with their termsthis Transaction;
(g) except as required by Applicable Laws, adopt or amend in any material respect, any agreement or plan (including severance arrangements) for the benefit of its employees;
(h) sell, mortgage, pledge or otherwise encumber or dispose of any of its assets which are material, individually or in the aggregate, to the business of the Company, except in the ordinary course of business consistent with past practices;
(i) acquire by merging or consolidating with, or by purchasing any equity interest in or a material portion of the assets of, any business or any other Person, or otherwise acquire any assets which are material, individually or in the aggregate, to the business of the Company, except in the ordinary course of business consistent with past practices;
(j) increase the following amounts payable or to become payable: (i) the salary of any member or manager of the Company, other than increases in the ordinary course of business consistent with past practices and not exceeding, in any case, five percent of the member’s or manager’s salary on the date hereof, (ii) any other compensation of its member or managers, including any increase in benefits under any bonus, insurance, pension or other benefit plan made for or with any of those individuals, other than increases that are provided in the ordinary course of business consistent with past practices to broad categories of employees and do not discriminate in favor of the aforementioned persons, and (iii) the compensation of any of its other employees, consultants or agents except in the ordinary course of business consistent with past practices;
(k) dispose of, permit to lapse, or otherwise fail to preserve the rights of the Company to use the Company Proprietary Rights or enter into any settlement regarding the breach or infringement of, any Company Proprietary Rights, or modify any existing rights with respect thereto, other than in the ordinary course of business consistent with past practices, and other than any such disposal, lapse, failure, settlement or modification that does not have and could not reasonably be expected to have a Company Material Adverse Effect;
(l) sell, or grant any right to exclusive use of, all or any part of the Company Proprietary Rights;
(m) enter into any contract or commitment or take any other action that is not in the ordinary course of its business or could reasonably be expected to have an adverse impact on the Transactions or that would have or could reasonably be expected to have a Company Material Adverse Effect;
(n) amend in any material respect any agreement to which the Company is a party the amendment of which will have or could reasonably be expected to have a Company Material Adverse Effect;
(o) waive, release, transfer or permit to lapse any claim or right (i) that has a value, or involves payment or receipt by it, of liabilities reflected more than $10,000 or reserved against in(ii) the waiver, release, transfer or contemplated by, lapse of which would have or could reasonably be expected to have a Company Material Adverse Effect;
(p) take any action that would materially decrease the Company Financial Statements Net Working Capital;
(q) make any change in any method of accounting or accounting practice other than changes required to be made so that the notes thereto), provided that in no event shall the Company repay any long-term indebtedness except to the extent required by the terms thereofCompany’s financial statements comply with GAAP; or
(dr) declare agree or pay any dividend otherwise commit, whether in writing or distribution on any of its shares of capital stock; or
(e) performotherwise, to take any action or incur or permit to exist any acts, transactions, events or occurrences of the type described above in clauses (c) through (q) of this Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close of the Unaudited Interim Balance Sheet and prior to the date hereof. The Company and the Shareholders agree to use their best efforts consistent with past practice and policies to preserve intact the Company's present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Time5.1.
Appears in 1 contract
Conduct of the Company’s Business. From The Company covenants and after agrees that, between the date hereof and prior to the ClosingEffective Date, except as expressly required or permitted by this Agreement or unless Parent shall otherwise agree in writing in advance, the Company will conductshall conduct and shall cause the businesses of each of its Subsidiaries to be conducted only in, and the Shareholders will cause Company and its Subsidiaries shall not take any action except in, the ordinary course of business and in a manner consistent with past practice and in compliance with applicable Laws. The Company shall use its best efforts to preserve intact the business organization and assets of the Company and each of its Subsidiaries, and to conductoperate, and cause each of its business Subsidiaries, and affairs only in unless reasonably requested otherwise by Parent, shall operate, according to plans and budgets provided to Parent, to keep available the ordinary course, consistent in all material respects with prior practice. Without limiting the generality services of the foregoingpresent officers, prior to the Closing, employees and consultants of the Company will notand each of its Subsidiaries, to maintain in effect Material Agreements and to preserve the present relationships of the Company and each of its Subsidiaries with advertisers, sponsors, customers, licensors, licensees, suppliers and other persons with which the Company or any of its Subsidiaries has business relations. By way of amplification and not limitation, neither the Company nor any of its Subsidiaries shall, between -35- the date hereof and the Shareholders will cause Effective Date, directly or indirectly do, or propose to do, any of the Company not to, following without Parent's the prior written approval or except as expressly provided for in this Agreementconsent of Parent:
(a) amend or otherwise change the Articles of Incorporation or By-laws of the Company or equivalent organizational document of any of its certificate Subsidiaries, reduce the stated capital of the Company, or articles alter through amalgamation, plan of incorporation arrangement, merger, consolidation, liquidation, reorganization, restructuring or bylaws or merge or consolidate or obligate itself to do so with or into in any other entityfashion the corporate structure or ownership of the Company or any of its Subsidiaries;
(b) enter into issue, grant, sell, transfer, deliver, pledge, promise, dispose of or encumber, or alter or modify the terms of rights or obligations under, any contractshares of capital stock of any class, agreementor any options, commitment warrants, convertible or exchangeable securities or other understanding rights of any kind to acquire any shares of capital stock or arrangement of a type which would have to be set forth in Part 2.10(a) any other ownership interest or Stock-Based Rights of the Disclosure Schedule Company or any of its Subsidiaries (except for the issuance of Common Shares issuable pursuant to Options or Warrants outstanding on the date hereof and in accordance with the terms thereof in effect as of the date hereof); oradopt, ratify or effectuate a shareholders' rights plan or agreement; or redeem, purchase or otherwise acquire, directly or indirectly, any of the capital stock of the Company or interest in or securities of any Subsidiary;
(c) declare, set aside or pay any dividend or other distribution (whether in cash, stock or property or any combination thereof) in respect of any of its capital stock (except that a wholly owned Subsidiary of the Company may declare and pay a dividend to its parent); split, combine or reclassify any of its capital stock, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for, shares of its capital stock; or amend the terms of, repurchase, redeem or otherwise acquire, or permit any Subsidiary to repurchase, redeem or otherwise acquire, any of its securities or any securities of its Subsidiaries; or propose to do any of the foregoing;
(d) sell, transfer, deliver, lease, license, sublicense, mortgage, pledge, encumber or otherwise dispose of (in whole or in part), or create, incur, assume or cause to be subjected to any Lien on, any of the assets of the Company or any of its Subsidiaries (including any Intellectual Property), except for (i) the sale of goods or licenses of Intellectual Property involving annual revenue, payments or liabilities of less than $100,000 or having a term of less than 60 days, (ii) dispositions of other immaterial assets, in either case, in the ordinary course of business and in a manner consistent with past practice, and (iii) as disclosed in Section 6.1(d) of the Company Disclosure Schedule; provided that any licensing of, or any creation, incurrence, assumption or subjection of any Lien on, any Intellectual Property shall not be permitted by clauses (i) or (ii);
(e) acquire (by amalgamation, plan of arrangement, merger, consolidation, acquisition of stock or assets or otherwise) or organize any corporation, limited liability company, unlimited liability company, partnership, joint venture, trust or other entity or person or any business organization or division thereof; incur or modify any indebtedness for borrowed money or issue any debt securities or any warrants or rights to acquire any debt security or assume, guarantee or endorse or otherwise become responsible for, the obligations of any person, or make any loans, advances or enter into any similar financial commitments;
(f) make any capital expenditures which are, in the aggregate, in excess of $100,000 for the Company and its Subsidiaries taken as a whole;
(g) hire or terminate any employee or consultant, except in the ordinary course of business consistent with past practice; except as disclosed in Section 6.1(g) of the Company Disclosure Schedule, modify the compensation or fringe benefits (including, without limitation, bonus) payable or to become payable to its officers or employees, or loan or advance any money or other asset or property to, or grant any bonus, severance or termination pay to, or enter into or amend any employment or severance agreement with, any director, officer or other employee or consultant of the Company or any of its Subsidiaries, or establish, adopt, enter into, terminate or amend any Employee Plan or any collective bargaining, bonus, profit sharing, thrift, compensation, stock option, stock purchase, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement, trust, fund, policy or arrangement for the benefit of any current or former directors, officers, employees or consultants;
(h) change any accounting policies or procedures (including procedures with respect to reserves, revenue recognition, payments of accounts payable and collection of accounts receivable) unless required by a change in applicable Law or GAAP used by it;
(i) other than as disclosed in Section 6.1(i) of the Company Disclosure Schedule, (A) enter into any agreement that would be a Material Agreement; (B) modify, amend in any material respect, transfer or terminate any Material Agreement or waive, release or assign any rights or claims thereto or thereunder; (C) enter into or extend any lease with respect to Real Property with any third party; (D) modify, amend or transfer in any way or terminate any License Agreement, standstill or confidentiality agreement with any third party, or waive, release or assign any rights or claims thereto or thereunder; or (E) enter into, modify or amend any contract to provide exclusive rights or obligations;
(j) make any material Tax election or change any material election relating to Taxes already made other than an election in the ordinary course of business consistent with the past practices of the Company or settle or compromise any federal, state, provincial, local or foreign income Tax liability or agree to an extension of a statute of limitations;
(k) pay, discharge, satisfy or settle any Litigation or waive, assign or release any material rights or claims except, in the case of Litigation, any Litigation which settlement would not: (A) impose any injunctive or similar Order on the Company or any of its Subsidiaries or restrict in any way the business of the Company or any of its Subsidiaries or (B) exceed $50,000 in cost, liability or value to the Company or any of its Subsidiaries. The Company and its Subsidiaries shall not pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction except in the ordinary course of business consistent with past practice in an amount or value not exceeding $100,000 in accordance with their terms, of liabilities reflected or reserved against the aggregate;
(l) engage in, enter into or contemplated bymodify or amend any contract, agreement, or other commitment (including any indebtedness) or other transaction with, directly or indirectly, any of the directors, officers, shareholders or Affiliates of the Company Financial Statements or any of its Subsidiaries, or any of their respective Affiliates or family members;
(m) fail to maintain in full force and effect all self-insurance and insurance, as the case may be, currently in effect;
(n) commence any proceeding for any voluntary liquidation, dissolution, or the notes thereto), provided that in no event shall winding up of the Company repay or any long-term indebtedness except of its material Subsidiaries, including but not limited to initiating any bankruptcy proceedings on its or any of its Subsidiary's behalf;
(o) take any action which would result in the extent required by Company or any of its Subsidiaries becoming liable for Tax under Part VI.1 of the terms thereofTax Act;
(p) take any action that accelerates the utilization of any net operating losses of the Company or its Subsidiaries; or
(dq) declare authorize, recommend, propose or pay any dividend or distribution on announce an intention to do any of its shares of capital stock; or
(e) performthe foregoing, take or agree or enter into or amend any action contract, agreement or incur or permit commitment to exist do any acts, transactions, events or occurrences of the type described foregoing or any other action that would or could reasonably be expected to result in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with any conditions to the representations and warranties Arrangement set forth in Section 2.5 had Article 5 not being satisfied or that would materially impair the same occurred after the close ability of the Unaudited Interim Balance Sheet and prior Company, Parent or the Acquiror to consummate the date hereof. The Company and Arrangement in accordance with the Shareholders agree to use their best efforts consistent with past practice and policies to preserve intact the Company's present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Timeterms hereof or materially delay such consummation.
Appears in 1 contract
Conduct of the Company’s Business. From and after the date hereof and prior to the Closing, the Company will conduct, and the Shareholders will cause the Company to conduct, its business and affairs only in the ordinary course, consistent in all material respects with prior practice. Without limiting the generality of the foregoing, prior to the Closing, the Company will not, and the Shareholders will cause the Company not to, without Parent's prior written approval or except as expressly provided for in this Agreement:
(a) change Seller agrees that, during the period from the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its certificate or articles of incorporation or bylaws or merge or consolidate or obligate itself to do so with or into any other entity;
terms, except (bi) enter into any contractas expressly contemplated by this Agreement, agreement(ii) as required by applicable Law, commitment or other understanding or arrangement of a type which would have to be (iii) as set forth in Part 2.10(a) Section 4.1 of the Company Disclosure Schedule hereof; or
Letter, (civ) payas set forth in, discharge in pursuit of or satisfy any claimsotherwise pursuant to the Separation Agreement (including the incurrence, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwiseuse of proceeds from and repayment of Indebtedness under the Travelport Facility), other than (v) as consented to by Buyer in writing (which consent shall not be unreasonably withheld or delayed), or (vi) in connection with the paymentprojects, discharge or satisfaction matters and actions described on Section 1.1 of the Company Disclosure Letter, Seller shall cause the Acquired Companies to conduct their respective businesses and operations in the ordinary course of business consistent and, subject to the foregoing, shall procure that the Acquired Companies shall not:
(i) authorize or effect any amendment to or change its Organizational Documents in any material respect (it being understood that any such change that would negatively affect the Debt Financing shall be deemed to be material);
(ii) issue or authorize the issuance of any Equity Interests, or grant any options, warrants, or other rights to purchase or obtain any of its Equity Interests or issue, sell or otherwise dispose of any of its Equity Interests, other than to an Acquired Company;
(iii) issue any note, bond, or other debt security, or create, incur, assume or guarantee any Indebtedness or any material capitalized lease obligation, in each case (A) in excess of $10,000,000 and other than Current Liabilities or (B) which would be adverse in any material respect to the Financing;
(iv) with past practice respect to Contracts that are not Specified Contracts, except in the ordinary course of business, enter into any Contract that, had it been entered into prior to the date hereof, would be a Company Contract, or materially amend, modify, terminate or cancel (1) any existing Company Contract or Contract with any Affiliate of the Company, other than the Separation Agreements or (2) any Contract that is, or had it been entered into prior to the date hereof would be, a Company Contract;
(v) enter into or materially amend, modify, terminate or cancel any Specified Contract unless such action is in accordance the ordinary course of business and either (1) such Specified Contract or amendment or modification thereof contains terms and conditions substantially similar, taken as a whole, to other Specified Contracts of a similar nature to which an Acquired Company is a party or (2) the relevant Acquired Company has reasonably consulted with their termsBuyer prior to entering into, amending, modifying, terminating or canceling such Specified Contract;
(vi) except in the ordinary course of business, sell, lease, license, transfer or otherwise dispose of any of the material property rights (including material Intellectual Property), assets or rights of the Acquired Companies, taken as a whole, other than distributions of cash to any Affiliate of Seller, and other than as required pursuant to existing contracts or commitments;
(vii) make any capital expenditure, or commitments therefor, in excess of the amounts set forth in the capital expenditure budget set forth in Section 4.1(a)(vii) of the Company Disclosure Letter the (“Capex Budget“);
(viii) cancel, compromise or settle any material Action, or intentionally waive or release any material rights, of liabilities reflected or reserved against inany Acquired Company;
(ix) adopt, enter into, amend, alter, or contemplated by, the Company Financial Statements terminate (or grant any waiver or consent under) any Company Plan or grant or agree to grant any increase in the notes thereto)wages, provided that salary, bonus or other compensation, remuneration or benefits of any executive-level employee of any Acquired Company, except as required under applicable Law, any existing Company Plan or any existing employment agreement;
(x) make any changes to their accounting principles or practices, other than as may be required by Law, GAAP or generally accepted accounting principles in no event shall the Company repay jurisdictions of incorporation of the relevant Acquired Company;
(xi) acquire (by merger, consolidation or acquisition of stock or assets) any long-term indebtedness except corporation, partnership or other business organization or division thereof or collection of assets constituting all or substantially all of a business or business unit or make any investment in any Person in excess of $15,000,000;
(xii) discontinue any business material to the extent required by the terms thereof; orAcquired Companies;
(dxiii) declare declare, set aside or pay any dividend or distribution on or in respect of any of its shares Equity Interests, other than any dividend or distribution paid prior to the Closing Date exclusively in cash, Equity Interests of capital stockany Acquired Company or a combination of Equity Interests of any Acquired Company and cash in the case of Equity Interests, to the extent distributed to the Company or a wholly-owned Subsidiary of the Company;
(xiv) change in any material respect the policies or practices of any Acquired Company with regard to the extension of discounts or credit to customers or collection of receivables from customers;
(xv) (A) make or change any material Tax election, file any amended Tax Return, or settle or compromise any proceeding with respect to any material Tax claim or assessment related to any Acquired Company, that, in each case, reasonably could increase Taxes of such Acquired Company after the Closing; or(B) surrender any right to claim a refund of material Taxes that would be for Buyer’s account under this Agreement; or (C) change any accounting method with respect to material Taxes, or enter into any closing agreement;
(xvi) except pursuant to the Separation Agreements, enter into or adopt a plan or agreement of recapitalization, reorganization, merger or consolidation or adopt a plan of complete or partial liquidation or dissolution;
(xvii) amend or modify any of the Separation Agreements in a manner adverse to Buyer or any of the Acquired Companies; and
(xviii) agree or otherwise commit to take any of the actions prohibited by the foregoing clauses (i) through (xvi) above.
(b) From and after the date hereof until the Closing, the Acquired Companies shall use commercially reasonable efforts to execute the Capex Budget for such period.
(c) At the Closing, the Acquired Companies shall have no less than $25,000,000 of cash and cash equivalents.
(d) Other than the right to consent or withhold consent with respect to the foregoing matters, nothing contained herein shall give Buyer any right to manage, control, direct or be involved in the management of Seller, the Company, or their respective Subsidiaries or businesses prior to the Closing.
(e) performNotwithstanding anything else to the contrary, take each Acquired Company shall be permitted to incur indebtedness to any action other Acquired Companies in connection with transferring cash or incur or permit cash equivalents among the Acquired Companies; provided, however, that Seller shall, and shall cause the Acquired Companies to, use reasonable best efforts to exist effect such transfers without incurring such indebtedness to the extent such other means of transfer do not result in costs to any acts, transactions, events or occurrences of the type described in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close Acquired Companies or otherwise adversely impact Seller or any of the Unaudited Interim Balance Sheet Acquired Companies. To the extent any such indebtedness is incurred and will remain outstanding following the Closing, the final maturity of such indebtedness shall not occur prior to a date which is less than ten and one-half (10.5) years following the date hereof. The Company and the Shareholders agree to use their best efforts consistent with past practice and policies to preserve intact the Company's present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective TimeClosing.
Appears in 1 contract
Conduct of the Company’s Business. From and after Section 7.1 Conduct of Business Prior to the Effective Time. During the period from the date hereof of this Agreement until the earlier of the Effective Time or the termination of this Agreement, and prior to the Closingexcept as otherwise contemplated by this Agreement, the Company will conductshall, and the Shareholders will shall cause the Company to conduct, each of its Subsidiaries to:
(i) operate and conduct its business and affairs only in the usual, regular and ordinary course, consistent with past practice and prudent banking practices;
(ii) preserve intact the Company's and each of its Subsidiaries' corporate existence, business organization, assets, licenses, permits, authorizations, and business opportunities;
(iii) comply with all material contractual obligations applicable to business operations of the Company and/or its Subsidiaries;
(iv) maintain all of its properties and assets in good repair, order and condition, reasonable wear and tear excepted, and maintain the insurance coverages described in Section 5.18 or obtain comparable insurance coverages from reputable insurers, which, in respect to amounts, types and risks insured, are adequate for the business conducted by the Company and its Subsidiaries and consistent with the existing insurance coverages;
(v) in good faith and in a reasonable manner (a) cooperate with Sterling in satisfying the conditions in this Agreement, (b) assist Sterling in obtaining as promptly as possible all consents, approvals, authorizations and rulings, whether regulatory, corporate or otherwise, as are necessary to carry out and consummate the transactions contemplated by this Agreement, (c) upon the written request of Sterling, furnish information concerning the Company and its Subsidiaries not previously provided to Sterling required for inclusion in any filings or applications that may be necessary in that regard, and (d) perform all acts and execute and deliver all documents necessary to cause the transactions contemplated by this Agreement to be consummated at the earliest date that is reasonably possible;
(vi) timely file all Reports required to be so filed by the Company or any of its Subsidiaries with any Regulatory Authority and to the extent permitted by applicable law, promptly thereafter deliver to Sterling copies of all such Reports required to be so filed;
(vii) comply in all material respects with prior practice. Without limiting all applicable laws and regulations, domestic and foreign;
(viii) promptly notify Sterling upon obtaining knowledge of any default, event of default or condition with which the generality passage of the foregoing, prior to the Closing, time or giving of notice would constitute a default or an event of default under the Company will not, Loan Documents and the Shareholders will cause promptly notify and provide copies to Sterling of any material written communications concerning the Company not to, without Parent's prior Loan Documents;
(ix) promptly give written approval or except as expressly provided for in this Agreement:
notice to Sterling of (a) any material change in its certificate business, operations or articles prospects, (b) any complaints, investigations or hearings (or communications indicating that the same may be contemplated) of incorporation any Regulatory Authority, (c) the institution or bylaws the threat of any material litigation against the Company, or merge (d) any event or consolidate condition that would cause any of the representations or obligate itself warranties of the Company contained in this Agreement to do so with be untrue or into misleading in any other entitymaterial respect or which would otherwise cause a Company Material Adverse Effect;
(bx) enter into any contract, agreement, commitment or other understanding or arrangement of a type which would have to be set forth in Part 2.10(a) of the Disclosure Schedule hereof; or
(c) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Company Financial Statements (or the notes thereto), provided that in no event shall the Company repay any long-term indebtedness except to the extent required by the terms thereof; or
(d) declare or pay any dividend or distribution on any of use its shares of capital stock; or
(e) perform, take any action or incur or permit to exist any acts, transactions, events or occurrences of the type described in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close of the Unaudited Interim Balance Sheet and prior to the date hereof. The Company and the Shareholders agree to use their best efforts consistent with past practice to maintain current customer relationship and policies to preserve intact the Company's present its business organizationsorganization, keep available employees, advantageous business relationships and retain the services of its present officers and key employees and preserve its relationships with customersemployees; and
(xi) promptly notify Sterling of the making, suppliers and others having business dealings with itrenegotiating, renewal, increase, extension or purchase of any loan, lease (credit equivalent), advance, credit enhancement or other extension of credit in an amount exceeding $300,000 but not exceeding $500,000 to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Timeany individual borrower.
Appears in 1 contract
Conduct of the Company’s Business. From and after Except as may be (w) required by Applicable Law or any Governmental Authority, (x) consented to by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), (y) required or explicitly permitted by the date hereof and prior to the Closingterms of this Agreement, or (z) set forth on Schedule 4.1, the Company will conduct, and the Shareholders will cause the Company to conduct, shall (i) conduct its business and affairs only in the ordinary course, consistent Ordinary Course of Business in all material respects with prior practicerespects, (ii) use commercially reasonable efforts to maintain and preserve intact its business organization and advantageous business relationships and (iii) take no action that is intended to or would reasonably be expected to materially adversely affect or materially delay the ability of the Company or Parent to obtain any of the Requisite Regulatory Approvals, to perform its covenants and agreements under this Agreement or to consummate the Merger. Without limiting the generality of the foregoing, prior to except as may be required by Applicable Law or any Governmental Authority, required or explicitly permitted by the Closingterms of this Agreement, or set forth on Schedule 4.1, the Company will not, and the Shareholders will cause the not permit any Company not Subsidiary to, without Parent's the prior written approval or except as expressly provided for in this Agreementconsent (including by electronic mail) of Parent:
(a) change its the articles or certificate or articles of incorporation or bylaws by-laws of the Company, the charter or by-laws of the Bank, or the certificate of organization or operating agreement or by-laws of any other Company Subsidiary, or any other governing document; provided, however, the Company shall use commercially reasonable efforts to cause Pine Valley to dissolve or merge or consolidate or obligate itself into the Company prior to do so with or into any other entitythe Closing;
(b) enter into issue, sell, pledge, transfer, dispose of, redeem or encumber any contractequity securities, agreementeffect any split, commitment combination, subdivision, reclassification or redemption of any outstanding equity securities, or otherwise change its capitalization as it exists on the date of this Agreement, or issue, grant, or sell any options, equity appreciation or purchase rights, warrants, conversion rights or other understanding rights, securities or arrangement of a type which would have commitments obligating it to be set forth in Part 2.10(a) of the Disclosure Schedule hereof; orissue, sell or register any equity securities, or any securities or obligations convertible into, or exercisable or exchangeable for, any equity securities;
(c) payincrease the compensation of officers or key employees, discharge pay any bonuses except in the Ordinary Course of Business, or satisfy hire any claimsemployee with an annual salary in excess of $100,000;
(d) become a party to, liabilities establish, amend, commence participation in, terminate or obligations commit itself to the adoption of any Company Benefit Plan for the benefit of any Employee (absolute, accrued, asserted or unasserted, contingent or otherwisenewly hired employees), other than director or shareholder; accelerate the payment, discharge vesting of or satisfaction in the ordinary course lapsing of business consistent restrictions with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Company Financial Statements (or the notes thereto), provided that in no event shall the Company repay respect to any long-term indebtedness incentive compensation under any Company Benefit Plans; cause the funding of any rabbi trust or similar arrangement or take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan; or materially change any actuarial assumptions used to calculate funding obligations with respect to any Company Benefit Plan that is required by Applicable Law to be funded or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or any Applicable Law;
(i) enter into any new credit or new lending relationships greater than $1,000,000 that would require an exception to the extent required Bank’s formal loan policy as in effect as of the date of this Agreement or that are not in strict compliance with the provisions of such loan policy; or (ii) other than incident to a reasonable loan restructuring, extend additional credit to any Person and any director or officer of, or any owner of a material interest in, such Person (any of the foregoing with respect to a Person being referred to as a “Borrowing Affiliate”) if such Person or such Borrowing Affiliate is the obligor under any indebtedness to the Company or any Company Subsidiary which constitutes a nonperforming loan or against any part of such indebtedness the Company or any Company Subsidiary has established loss reserves or any part of which has been charged-off by the terms thereof; orCompany or any Company Subsidiary;
(df) declare or pay any dividend dividends or distribution other distributions on any equity securities; provided, however, subject to Section 4.19, that the Company may pay customary, ordinary course dividends on shares of Company Common Stock following January 1, 2022 if the Closing shall not have occurred prior to the customary, ordinary course payment date for such dividends;
(g) fail to use commercially reasonable efforts to maintain present insurance coverage in respect of their properties and businesses;
(h) incur or guarantee any indebtedness for borrowed money, except with respect to indebtedness to the Federal Home Loan Bank, trade payables and similar liabilities and obligations incurred in the Ordinary Course of Business;
(i) maintain an allowance for loan and lease losses which is not adequate in all material respects under the requirements of GAAP to provide for possible losses, net of recoveries relating to Loans previously charged off, on Loans and leases outstanding (excluding accrued interest receivable);
(j) enter into any employment, consulting or similar agreements that are not terminable by the Company or such Company Subsidiary, as applicable, on 30 days’ or fewer notice without penalty or obligation, or terminate the employment of any officer or other key employee of the Company or a Company Subsidiary thereof without first notifying Parent;
(k) take any action that would result in a termination, partial termination, curtailment, discontinuance of a Benefit Plan or merger of any Benefit Plan into another plan or trust;
(l) fail to file all Tax Returns in a timely manner, make any application for or consent to any extension of time for filing any Tax Return or any extension of the period of limitations applicable thereto, change any of its shares accounting methods for federal and state income tax purposes or make or change any material Tax elections;
(m) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or applicable regulatory accounting requirements;
(n) make any expenditure for fixed assets in excess of capital stock$100,000 for any single item, or $250,000 in the aggregate, or enter into leases of fixed assets having an annual rental in excess of $100,000 in the aggregate;
(o) incur any liabilities or obligations, make any commitments or disbursements, acquire (other than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, in each case in the Ordinary Course of Business) or dispose of any property or asset, make any contract or agreement, or engage in any transaction except in the Ordinary Course of Business consistent with prudent banking practices and the current policies of the Company and the Company Subsidiaries;
(p) amend or waive the material terms of, fail to do anything that will cause a breach by the Company or such Company Subsidiary of, or default by the Company or such Company Subsidiary under, or enter into, any Material Contract, any material restriction on the ability of the Company or such Company Subsidiary to conduct its business as it is presently being conducted, or any Contract or other binding obligation relating to any class of Company Capital Stock or rights associated therewith or any outstanding instrument of indebtedness;
(q) engage or agree to engage in any “covered transaction” within the meaning of Sections 23A or 23B of the Federal Reserve Act (without regard to the applicability of any exemptions contained in Section 23A), unless the Bank has complied with Sections 23A and 23B of the Federal Reserve Act;
(r) enter into any new line of business or materially change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by Applicable Law or requested by any Governmental Authority;
(s) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in an amount and for consideration not in excess of $100,000 and that would not (i) impose any material restriction on the business of the Company or such Company Subsidiary or (ii) create precedent for claims that is reasonably likely to be material to it;
(t) make application for the opening, relocation or closing of any, or open, relocate or close any, branch office, loan production office or other significant office or operations facility; or
(eu) performagree to take, take make any action commitment to take, or incur or permit to exist adopt any acts, transactions, events or occurrences resolutions of the type described Company Board in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close support of, any of the Unaudited Interim Balance Sheet and prior to the date hereof. The Company and the Shareholders agree to use their best efforts consistent with past practice and policies to preserve intact the Company's present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Timeactions prohibited by this Section 4.1.
Appears in 1 contract
Conduct of the Company’s Business. From and after Section 7.01 Conduct of Business Prior to the Effective Time. During the period from the date hereof of this Agreement until the earlier of the Effective Time or the termination of this Agreement, and prior to the Closingexcept as otherwise contemplated by this Agreement, the Company will conductshall, and the Shareholders will shall cause the Company to conduct, each of its Subsidiaries to:
(i) operate and conduct its business and affairs only in the usual, regular and ordinary course, consistent with past practice and prudent banking practices;
(ii) preserve intact the Company's and each of its Subsidiaries' corporate existence, business organization, assets, licenses, permits, authorizations, and business opportunities;
(iii) comply with all material contractual obligations applicable to business operations of the Company and/or its Subsidiaries;
(iv) maintain all of its properties and assets in good repair, order and condition, reasonable wear and tear excepted, and maintain the insurance coverages described in Section 5.18 or obtain comparable insurance coverages from reputable insurers, which, in respect to amounts, types and risks insured, are adequate for the business conducted by the Company and its Subsidiaries and consistent with the existing insurance coverages;
(v) in good faith and in a reasonable manner (a) cooperate with Sterling in satisfying the conditions in this Agreement, (b) assist Sterling in obtaining as promptly as possible all consents, approvals, authorizations and rulings, whether regulatory, corporate or otherwise, as are necessary to carry out and consummate the transactions contemplated by this Agreement, (c) upon the written request of Sterling, furnish information concerning the Company and its Subsidiaries not previously provided to Sterling required for inclusion in any filings or applications that may be necessary in that regard, and (d) perform all acts and execute and deliver all documents necessary to cause the transactions contemplated by this Agreement to be consummated at the earliest date that is reasonably possible;
(vi) timely file all Reports required to be so filed by the Company or any of its Subsidiaries with any Regulatory Authority and to the extent permitted by applicable law, promptly thereafter deliver to Sterling copies of all such Reports required to be so filed;
(vii) comply in all material respects with prior practice. Without limiting all applicable laws and regulations, domestic and foreign;
(viii) promptly notify Sterling upon obtaining knowledge of any default, event of default or condition with which the generality passage of the foregoing, prior to the Closing, time or giving of notice would constitute a default or an event of default under the Company will not, Loan Documents and the Shareholders will cause promptly notify and provide copies to Sterling of any material written communications concerning the Company not to, without Parent's prior Loan Documents;
(ix) promptly give written approval or except as expressly provided for in this Agreement:
notice to Sterling of (a) any material change in its certificate business, operations or articles of incorporation or bylaws or merge or consolidate or obligate itself to do so with or into any other entity;
prospects, (b) enter into any contractcomplaints, agreement, commitment investigations or other understanding hearings (or arrangement of a type which would have to communications indicating that the same may be set forth in Part 2.10(acontemplated) of the Disclosure Schedule hereof; or
any Regulatory Authority, (c) pay, discharge the institution or satisfy the threat of any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than material litigation against the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against inCompany, or contemplated by, the Company Financial Statements (or the notes thereto), provided that in no event shall the Company repay any long-term indebtedness except to the extent required by the terms thereof; or
(d) declare any event or pay any dividend or distribution on condition that would cause any of its shares the representations or warranties of capital stockthe Company contained in this Agreement to be untrue or misleading in any material respect for which would otherwise cause a Company Material Adverse Effect; orand
(ex) perform, take any action or incur or permit to exist any acts, transactions, events or occurrences of the type described in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close of the Unaudited Interim Balance Sheet and prior to the date hereof. The Company and the Shareholders agree to use their its best efforts consistent with past practice to maintain current customer relationship and policies to preserve intact the Company's present its business organizationsorganization, keep available employees, advantageous business relationships and retain the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective TimeEmployees.
Appears in 1 contract
Conduct of the Company’s Business. From and after Except as may be (w) required by Applicable Law or any Governmental Authority, (x) consented to by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), (y) required or explicitly permitted by the date hereof and prior to the Closingterms of this Agreement, or (z) set forth on Schedule 4.1, the Company will conduct, and the Shareholders will cause the Company to conduct, shall (i) conduct its business and affairs only in the ordinary course, consistent Ordinary Course of Business in all material respects with prior practicerespects, (ii) use commercially reasonable efforts to maintain and preserve intact its business organization and advantageous business relationships and (iii) take no action that is intended to or would reasonably be expected to materially adversely affect or materially delay the ability of the Company or Parent to obtain any of the Requisite Regulatory Approvals, to perform its covenants and agreements under this Agreement or to consummate the Merger. Without limiting the generality of the foregoing, prior to except as may be required by Applicable Law or any Governmental Authority, required or explicitly permitted by the Closingterms of this Agreement, the Company will not, and the Shareholders will cause the Company not toor set forth on Schedule 4.1, without Parent's the prior written approval consent (including by electronic mail) of Parent (which consent shall not be unreasonably withheld, conditioned or except as expressly provided for in this Agreement:delayed):
(a) no change its certificate or shall be made in the articles of incorporation or bylaws by-laws of the Company, the charter or merge by-laws of the Bank, or consolidate the certificate of trust or obligate itself to do so with or into any other entitytrust agreement of the Trust Subsidiary;
(b) enter into any contract, agreement, commitment or other understanding or arrangement of a type which would have to no change shall be set forth made in Part 2.10(a) the capitalization of the Disclosure Schedule hereof; orCompany or any Company Subsidiary, or any increase or decrease in the number of issued and outstanding shares of Company Common Stock;
(c) paythe compensation of officers or key employees of the Company or the Bank shall not be increased, discharge nor any bonuses paid except in the Ordinary Course of Business; nor shall either hire any employee with an annual salary in excess of $75,000;
(d) none of the Company or satisfy any claimsCompany Subsidiary shall become a party to, liabilities establish, amend, commence participation in, terminate or obligations commit itself to the adoption of any stock option plan or other stock-based compensation plan, compensation, severance, pension, consulting, non-competition, change in control, retirement, profit-sharing, welfare benefit, or other employee benefit plan or agreement or employment agreement with or for the benefit of any Company Employee (absolute, accrued, asserted or unasserted, contingent or otherwisenewly hired employees), other than director or stockholder; accelerate the payment, discharge vesting of or satisfaction in the ordinary course lapsing of business consistent restrictions with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Company Financial Statements (or the notes thereto), provided that in no event shall the Company repay respect to any long-term indebtedness except incentive compensation under any Company Benefit Plans; cause the funding of any rabbi trust or similar arrangement or take any action to fund or in any other way secure the extent payment of compensation or benefits under any Company Benefit Plan; or materially change any actuarial assumptions used to calculate funding obligations with respect to any Company Benefit Plan that is required by Applicable Law to be funded or change the terms thereof; or
(d) declare manner in which contributions to such plans are made or pay the basis on which such contributions are determined, except as may be required by GAAP or any dividend or distribution on any of its shares of capital stock; orApplicable Law;
(e) performno Loan in the amount of $2,000,000 or more to any borrower or related group of borrowers, and no renewal or restructuring of a Loan in the amount of $5,000,000 or more to any one borrower or related group of borrowers shall be made by the Bank except (i) after delivering written notice and a request for Parent’s written consent to take such action (including by electronic mail) to Xxxx Xxxxxx, Xxxxxxx Xxxxxx and Xxxx XxXxx, including a complete loan package for such Loan, renewal or restructuring, in a form consistent with the Bank’s policies and practice, at least five Business Days prior to such Loan, renewal or restructuring, (ii) such Loan or renewal or restructuring of a Loan shall be made in the Ordinary Course of Business consistent with prudent banking practices, the Bank’s current loan policies and applicable rules and regulations or applicable Governmental Authorities with respect to amount, term, security and quality of such borrower or borrower's credit, and (iii) solely for the purpose of this Section 4.1(e), Parent’s written consent shall be deemed to have been given to the Company if Parent shall have failed to respond in any manner within four Business Days following receipt of the Company’s written notice and request for Parent’s written consent;
(f) no dividends or other distributions shall be declared or paid by the Company on any shares of Company Capital Stock; provided, however, that the Company shall be permitted to continue declaring and paying its regular quarterly dividend of $0.06 per share of Company Common Stock in the Ordinary Course of Business;
(g) no employment, consulting or similar agreements shall be entered into by the Company or any Company Subsidiary that are not terminable by the Company or such Company Subsidiary, as applicable, on 30 days’ or fewer notice without penalty or obligation, nor shall the Company or the Bank terminate the employment of any officer thereof without first notifying Parent;
(h) except as expressly provided in this Agreement, neither the Company nor the Bank shall take any action that would result in a termination, partial termination, curtailment, discontinuance of a Benefit Plan or incur merger of any Benefit Plan into another plan or permit trust;
(i) the Company and each Company Subsidiary, as applicable, shall file all material Tax Returns in a timely manner, shall not make any application for or consent to exist any acts, transactions, events extension of time for filing any Tax Return or occurrences any extension of the type described period of limitations applicable thereto and shall not change any of its accounting methods for federal and state income tax purposes;
(j) the Company and each Company Subsidiary shall not implement or adopt any change in clauses its accounting principles, practices or methods, other than as may be required by GAAP or applicable regulatory accounting requirements;
(ck) through none of the Company or any Company Subsidiary shall make any expenditure for fixed assets in excess of $50,000 for any single item, or $100,000 in the aggregate, or shall enter into leases of fixed assets having an annual rental in excess of $50,000 in the aggregate;
(l) none of the Company or any Company Subsidiary shall incur any liabilities or obligations, make any commitments or disbursements, acquire (other than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, in each case in the Ordinary Course of Business) or dispose of any property or asset, make any contract or agreement, or engage in any transaction except in the Ordinary Course of Business consistent with prudent banking practices and the current policies of the Company and the Company Subsidiaries;
(m) none of the Company or any Company Subsidiary shall amend the material terms of, fail to do anything that will cause a breach by the Company or such Company Subsidiary of, or default by the Company or such Company Subsidiary under, or enter into, any Material Contract, any material restriction on the ability of the Company or such Company Subsidiary to conduct its business as it is presently being conducted, or any Contract or other binding obligation relating to any class of Company Capital Stock or rights associated therewith or any outstanding instrument of indebtedness;
(n) the Bank shall not engage or agree to engage in any “covered transaction” within the meaning of Sections 23A or 23B of the Federal Reserve Act (without regard to the applicability of any exemptions contained in Section 23A) or any transaction of the kind referred to in Section 3.12, unless the Bank has complied with Sections 23A and 23B of the Federal Reserve Act;
(o) the Bank shall only purchase or invest in obligations of the government of the United States or agencies of the United States or state or local governments having maturities of not more than ten years and which municipal obligations have, at the time of purchase, been assigned a rating of A or better by Xxxxx’x Investors Service or by Standard and Poor’s
(p) none of the Company or any Company Subsidiary shall enter into any new line of business or materially change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by Applicable Law or requested by any Governmental Authority;
(q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close none of the Unaudited Interim Balance Sheet Company or any Company Subsidiary shall settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in an amount and prior for consideration not in excess of $100,000 and that would not (i) impose any material restriction on the business of the Company or such Company Subsidiary or (ii) create precedent for claims that is reasonably likely to be material to it;
(r) none of the date hereof. The Company or any Company Subsidiary shall make application for the opening, relocation or closing of any, or open, relocate or close any, branch office, loan production office or other significant office or operations facility; and
(s) the Company and the Shareholders Company Subsidiaries shall not agree to use their best efforts consistent with past practice and policies take, make any commitment to preserve intact take, or adopt any resolutions of the Company's present business organizationsCompany Board in support of, keep available any of the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Timeactions prohibited by this Section 4.1.
Appears in 1 contract
Samples: Merger Agreement (First Mid Illinois Bancshares Inc)
Conduct of the Company’s Business. From and after Section 7.01 Conduct of Business Prior to the Effective Time. During the period from the date hereof and prior of this Agreement to the ClosingEffective Time and except as otherwise contemplated by this Agreement, the Company will conductshall, and the Shareholders will shall cause the Company to conduct, each of its Subsidiaries to:
(i) operate and conduct its business and affairs only in the usual, regular and ordinary course, consistent with past practice and prudent banking practices;
(ii) preserve intact the Company's and each of its Subsidiaries' corporate existence, business organization, assets, licenses, permits, authorizations, and business opportunities;
(iii) comply with all material contractual obligations (including those related to payment obligations for borrowed money) applicable to business operations of the Company and/or its Subsidiaries;
(iv) maintain all of its properties and assets in good repair, order and condition, reasonable wear and tear excepted, and maintain the insurance coverages described in Section 5.18 or obtain comparable insurance coverages from reputable insurers, which, in respect to amounts, types and risks insured, are adequate for the business conducted by the Company and its Subsidiaries and consistent with the existing insurance coverages;
(v) in good faith and in a reasonable manner (a) cooperate with Sterling and Bancorporation in satisfying the conditions in this Agreement, (b) assist Sterling and Bancorporation in obtaining as promptly as possible all consents, approval, authorizations and rulings, whether regulatory, corporate or otherwise, as are necessary to carry out and consummate the transactions contemplated by this Agreement, (c) upon the written request of Sterling, furnish information concerning the Company and its Subsidiaries not previously provided to Sterling required for inclusion in any filings or applications that may be necessary in that regard, and (d) perform all acts and execute and deliver all documents necessary to cause the transactions contemplated by this Agreement to be consummated at the earliest date that is reasonably possible;
(vi) timely file all Reports required to be so filed by the Company or any of its Subsidiaries with any Regulatory Authority and to the extent permitted by applicable law, promptly thereafter deliver to Sterling copies of all such Reports required to be so filed;
(vii) comply in all material respects with prior practice. Without limiting the generality of the foregoingall applicable laws and regulations, prior to the Closing, the Company will not, domestic and the Shareholders will cause the Company not to, without Parent's prior written approval or except as expressly provided for in this Agreement:
(a) change its certificate or articles of incorporation or bylaws or merge or consolidate or obligate itself to do so with or into any other entityforeign;
(bviii) enter into any contract, agreement, commitment or other understanding or arrangement of a type which would have promptly give written notice to be set forth in Part 2.10(a) of the Disclosure Schedule hereof; or
(c) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Company Financial Statements (or the notes thereto), provided that in no event shall the Company repay any long-term indebtedness except to the extent required by the terms thereof; or
(d) declare or pay any dividend or distribution on any of its shares of capital stock; or
(e) perform, take any action or incur or permit to exist any acts, transactions, events or occurrences of the type described in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close of the Unaudited Interim Balance Sheet and prior to the date hereof. The Company and the Shareholders agree to use their best efforts consistent with past practice and policies to preserve intact Sterling upon the Company's present obtaining knowledge of any event or fact that would cause any of the representations or warranties of the Company contained in this Agreement to be untrue or misleading in any material respect or which would otherwise cause a Company Material Adverse Effect;
(ix) use its best efforts to maintain current customer relationship and preserve intact its business organizationsorganization, keep available employees, advantageous business relationships and retain the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective TimeEmployees.
Appears in 1 contract
Conduct of the Company’s Business. From and after the date hereof and prior to the Closing, the Company will conduct, and the Shareholders will cause the Company to conduct, its business and affairs only in the ordinary course, consistent in all material respects with prior practice. Without limiting the generality of the foregoing, prior to the Closing, the Company will not, and the Shareholders will cause the Company not to, without Parent's prior written approval or except as expressly provided for in this Agreement:
(a) change Seller agrees that, during the period from the date of this Agreement until the earlier of the Closing or the termination of this Agreement in accordance with its certificate or articles of incorporation or bylaws or merge or consolidate or obligate itself to do so with or into any other entity;
terms, except (bi) enter into any contractas expressly contemplated by this Agreement, agreement(ii) as required by applicable Law, commitment or other understanding or arrangement of a type which would have to be (iii) as set forth in Part 2.10(a) Section 4.1 of the Company Disclosure Schedule hereof; or
Letter, (civ) payas set forth in, discharge in pursuit of or satisfy any claimsotherwise pursuant to the Separation Agreement (including the incurrence, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwiseuse of proceeds from and repayment of Indebtedness under the Travelport Facility), other than (v) as consented to by Buyer in writing (which consent shall not be unreasonably withheld or delayed), or (vi) in connection with the paymentprojects, discharge or satisfaction matters and actions described on Section 1.1 of the Company Disclosure Letter, Seller shall cause the Acquired Companies to conduct their respective businesses and operations in the ordinary course of business consistent and, subject to the foregoing, shall procure that the Acquired Companies shall not:
(i) authorize or effect any amendment to or change its Organizational Documents in any material respect (it being understood that any such change that would negatively affect the Debt Financing shall be deemed to be material);
(ii) issue or authorize the issuance of any Equity Interests, or grant any options, warrants, or other rights to purchase or obtain any of its Equity Interests or issue, sell or otherwise dispose of any of its Equity Interests, other than to an Acquired Company;
(iii) issue any note, bond, or other debt security, or create, incur, assume or guarantee any Indebtedness or any material capitalized lease obligation, in each case (A) in excess of $10,000,000 and other than Current Liabilities or (B) which would be adverse in any material respect to the Financing;
(iv) with past practice respect to Contracts that are not Specified Contracts, except in the ordinary course of business, enter into any Contract that, had it been entered into prior to the date hereof, would be a Company Contract, or materially amend, modify, terminate or cancel (1) any existing Company Contract or Contract with any Affiliate of the Company, other than the Separation Agreements or (2) any Contract that is, or had it been entered into prior to the date hereof would be, a Company Contract;
(v) enter into or materially amend, modify, terminate or cancel any Specified Contract unless such action is in accordance the ordinary course of business and either (1) such Specified Contract or amendment or modification thereof contains terms and conditions substantially similar, taken as a whole, to other Specified Contracts of a similar nature to which an Acquired Company is a party or (2) the relevant Acquired Company has reasonably consulted with their termsBuyer prior to entering into, amending, modifying, terminating or canceling such Specified Contract;
(vi) except in the ordinary course of business, sell, lease, license, transfer or otherwise dispose of any of the material property rights (including material Intellectual Property), assets or rights of the Acquired Companies, taken as a whole, other than distributions of cash to any Affiliate of Seller, and other than as required pursuant to existing contracts or commitments;
(vii) make any capital expenditure, or commitments therefor, in excess of the amounts set forth in the capital expenditure budget set forth in Section 4.1(a)(vii) of the Company Disclosure Letter the (“Capex Budget”);
(viii) cancel, compromise or settle any material Action, or intentionally waive or release any material rights, of liabilities reflected or reserved against inany Acquired Company;
(ix) adopt, enter into, amend, alter, or contemplated by, the Company Financial Statements terminate (or grant any waiver or consent under) any Company Plan or grant or agree to grant any increase in the notes thereto)wages, provided that salary, bonus or other compensation, remuneration or benefits of any executive-level employee of any Acquired Company, except as required under applicable Law, any existing Company Plan or any existing employment agreement;
(x) make any changes to their accounting principles or practices, other than as may be required by Law, GAAP or generally accepted accounting principles in no event shall the Company repay jurisdictions of incorporation of the relevant Acquired Company;
(xi) acquire (by merger, consolidation or acquisition of stock or assets) any long-term indebtedness except corporation, partnership or other business organization or division thereof or collection of assets constituting all or substantially all of a business or business unit or make any investment in any Person in excess of $15,000,000;
(xii) discontinue any business material to the extent required by the terms thereof; orAcquired Companies;
(dxiii) declare declare, set aside or pay any dividend or distribution on or in respect of any of its shares Equity Interests, other than any dividend or distribution paid prior to the Closing Date exclusively in cash, Equity Interests of capital stockany Acquired Company or a combination of Equity Interests of any Acquired Company and cash in the case of Equity Interests, to the extent distributed to the Company or a wholly-owned Subsidiary of the Company;
(xiv) change in any material respect the policies or practices of any Acquired Company with regard to the extension of discounts or credit to customers or collection of receivables from customers;
(xv) (A) make or change any material Tax election, file any amended Tax Return, or settle or compromise any proceeding with respect to any material Tax claim or assessment related to any Acquired Company, that, in each case, reasonably could increase Taxes of such Acquired Company after the Closing; or(B) surrender any right to claim a refund of material Taxes that would be for Buyer’s account under this Agreement; or (C) change any accounting method with respect to material Taxes, or enter into any closing agreement;
(xvi) except pursuant to the Separation Agreements, enter into or adopt a plan or agreement of recapitalization, reorganization, merger or consolidation or adopt a plan of complete or partial liquidation or dissolution;
(xvii) amend or modify any of the Separation Agreements in a manner adverse to Buyer or any of the Acquired Companies; and
(xviii) agree or otherwise commit to take any of the actions prohibited by the foregoing clauses (i) through (xvi) above.
(b) From and after the date hereof until the Closing, the Acquired Companies shall use commercially reasonable efforts to execute the Capex Budget for such period.
(c) At the Closing, the Acquired Companies shall have no less than $25,000,000 of cash and cash equivalents.
(d) Other than the right to consent or withhold consent with respect to the foregoing matters, nothing contained herein shall give Buyer any right to manage, control, direct or be involved in the management of Seller, the Company, or their respective Subsidiaries or businesses prior to the Closing.
(e) performNotwithstanding anything else to the contrary, take each Acquired Company shall be permitted to incur indebtedness to any action other Acquired Companies in connection with transferring cash or incur or permit cash equivalents among the Acquired Companies; provided, however, that Seller shall, and shall cause the Acquired Companies to, use reasonable best efforts to exist effect such transfers without incurring such indebtedness to the extent such other means of transfer do not result in costs to any acts, transactions, events or occurrences of the type described in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close Acquired Companies or otherwise adversely impact Seller or any of the Unaudited Interim Balance Sheet Acquired Companies. To the extent any such indebtedness is incurred and will remain outstanding following the Closing, the final maturity of such indebtedness shall not occur prior to a date which is less than ten and one-half (10.5) years following the date hereof. The Company and the Shareholders agree to use their best efforts consistent with past practice and policies to preserve intact the Company's present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective TimeClosing.
Appears in 1 contract
Samples: Purchase Agreement (Cendant Corp)
Conduct of the Company’s Business. From and after Except as may be (w) required by Applicable Law or any Governmental Authority, (x) consented to by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), (y) required or explicitly permitted by the date hereof and prior to the Closingterms of this Agreement, or (z) set forth on Schedule 5.1, the Company will conduct, and the Shareholders will cause the Company to conduct, shall (i) conduct its business and affairs only in the ordinary course, consistent Ordinary Course of Business in all material respects with prior practicerespects, (ii) use commercially reasonable efforts to maintain and preserve intact its business organization and advantageous business relationships and (iii) take no action that is intended to or would reasonably be expected to materially adversely affect or materially delay the ability of the Company or Parent to obtain any of the Requisite Regulatory Approvals, to perform its covenants and agreements under this Agreement or to consummate the Merger. Notwithstanding the foregoing, Bank may sell assets in its investment portfolio as it determines in its discretion to fund the Special Dividend. Except in pursuant to the Merger contemplated by the terms of this Agreement, through the Effective Time, each Seller shall continue to own beneficially and of record, the number of shares of Company Common Stock set forth opposite its name on Company Disclosure Schedule 2.2, and except as set forth on Company Disclosure Schedule 5.1, free and clear of all claims, Encumbrances, proxies, or calls and continue to have good and marketable title to such shares of Company Common Stock and to have full legal right, power and authority to transfer such shares of Company Common Stock in the manner contemplated by this Agreement. Without limiting the generality of the foregoing, prior to except as may be required by Applicable Law or any Governmental Authority, required or explicitly permitted by the Closingterms of this Agreement, or set forth on Schedule 5.1, the Company will not, and the Shareholders will cause the not permit any Company not Subsidiary to, without Parent's the prior written approval consent (including by electronic mail) of Parent (which shall not be unreasonably withheld, conditioned or delayed) or except as expressly provided for in otherwise required by this Agreement:
(a) change its the articles or certificate or articles of incorporation or bylaws by-laws of the Company, the charter or merge by-laws of the Bank, or consolidate the certificate of organization or obligate itself to do so with operating agreement of any OREO Subsidiary, or into any other entitygoverning document;
(b) enter into issue, sell, pledge, transfer, dispose of, redeem or encumber any contractequity securities, agreementeffect any split, commitment combination, subdivision, reclassification or redemption of any outstanding equity securities, or otherwise change its capitalization as it exists on the date of this Agreement, or issue, grant, or sell any options, equity appreciation or purchase rights, warrants, conversion rights or other understanding rights, securities or arrangement of a type which would have commitments obligating it to be set forth in Part 2.10(a) of the Disclosure Schedule hereof; orissue, sell or register any equity securities, or any securities or obligations convertible into, or exercisable or exchangeable for, any equity securities;
(c) payincrease the compensation of officers or key employees, discharge pay any bonuses except in the Ordinary Course of Business, or satisfy hire any claimsemployee with an annual salary in excess of $100,000; provided that, liabilities for the avoidance of doubt: (i) the Company and the Company Subsidiaries may, from the date of this Agreement through Closing, accrue for and make payment under Company Benefit Plans and may make discretionary bonus payments, all within the Ordinary Course of Business, (ii) payments earned under the Bank’s 2020 Management Incentive Plan (the “2020 MIP”) will be made during 2021 prior to Closing and not after March 15, 2021, and (iii) the Bank may accrue up to $100,000 per full or obligations partial month from January 1, 2021 until Closing with respect to the Bank's 2021 Management Incentive Plan (absolutethe “2021 MIP”);
(d) become a party to, accruedestablish, asserted amend, commence participation in, terminate or unassertedcommit itself to the adoption of any stock option plan or other stock-based compensation plan, contingent compensation, severance, pension, consulting, non-competition, change in control, retirement, profit-sharing, welfare benefit, or otherwiseother employee benefit plan (including, for the avoidance of doubt, the 2021 MIP) or agreement or employment agreement with or for the benefit of any Employee (or newly hired employees), other than director or shareholder; accelerate the payment, discharge vesting of or satisfaction in the ordinary course lapsing of business consistent restrictions with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Company Financial Statements (or the notes thereto), provided that in no event shall the Company repay respect to any long-term incentive compensation under any Company Benefit Plans; cause the funding of any rabbi trust or similar arrangement or take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan; or materially change any actuarial assumptions used to calculate funding obligations with respect to any Company Benefit Plan that is required by Applicable Law to be funded or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or any Applicable Law;
(e) (i) enter into any new credit or new lending relationships greater than $1,000,000 that would require an exception as defined in the Bank’s formal loan policy as in effect as of the date of this Agreement; or (ii) other than incident to a reasonable loan restructuring, extend additional credit to any Person and any director or officer of, or any owner of a material interest in, such Person (any of the foregoing with respect to a Person being referred to as a “Borrowing Affiliate”) if such Person or such Borrowing Affiliate is the obligor under any indebtedness except to the extent required Company or any Company Subsidiary which constitutes a nonperforming loan or against any part of such indebtedness the Company or any Company Subsidiary has established loss reserves or any part of which has been charged-off by the terms thereof; orCompany or any Company Subsidiary;
(df) declare or pay any dividend dividends or distribution other distributions on any equity securities; provided, however, that the Bank shall be permitted to declare and pay dividends to the Company in the Ordinary Course of Business for Company operating expenses, and the Bank and the Company shall be permitted to declare and pay the Special Dividend;
(g) fail to use commercially reasonable efforts to maintain present insurance coverage in respect of their properties and businesses;
(h) incur or guarantee any indebtedness for borrowed money, except with respect to indebtedness to the Federal Home Loan Bank, trade payables and similar liabilities and obligations incurred in the Ordinary Course of Business;
(i) maintain an allowance for loan and lease losses which is not adequate in all material respects under the requirements of GAAP to provide for possible losses, net of recoveries relating to Loans previously charged off, on Loans and leases outstanding (excluding accrued interest receivable);
(j) enter into any employment, consulting or similar agreements that are not terminable by the Company or such Company Subsidiary, as applicable, on 30 days’ or fewer notice without penalty or obligation, or terminate the employment of any officer thereof without first notifying Parent;
(k) take any action that would result in a termination, partial termination, curtailment, discontinuance of a Benefit Plan or merger of any Benefit Plan into another plan or trust;
(l) fail to file any material Tax Returns in a timely manner (taking into account all applicable extensions), make any application for or consent to any extension of the period of limitations applicable to any material Tax Return, prepare or file any material Tax Return inconsistent with past practice or, on any such material Tax Return, take any position, make any election, or adopt any method that is inconsistent with positions taken, elections made or methods used in preparing or filing similar material Tax Returns in prior periods;
(m) implement or adopt any change in its shares accounting principles, practices or methods, other than as may be required by GAAP or applicable regulatory accounting requirements;
(n) make any expenditure for fixed assets in excess of capital stock$100,000 for any single item, or $250,000 in the aggregate, or enter into leases of fixed assets having an annual rental in excess of $100,000 in the aggregate;
(o) make any commitments or disbursements, acquire (other than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, in each case in the Ordinary Course of Business) or dispose of any property or asset, make any contract or agreement, or engage in any transaction except in the Ordinary Course of Business consistent with prudent banking practices and the current policies of the Company and the Company Subsidiaries;
(p) amend or waive the material terms of, fail to do anything that will cause a breach by the Company or such Company Subsidiary of, or default by the Company or such Company Subsidiary under, or enter into, any Material Contract, any material restriction on the ability of the Company or such Company Subsidiary to conduct its business as it is presently being conducted, or any Contract or other binding obligation relating to any class of Company Capital Stock or rights associated therewith or any outstanding instrument of indebtedness;
(q) engage or agree to engage in any “covered transaction” within the meaning of Sections 23A or 23B of the Federal Reserve Act (without regard to the applicability of any exemptions contained in Section 23A), unless the Bank has complied with Sections 23A and 23B of the Federal Reserve Act;
(r) enter into any new line of business or materially change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by Applicable Law or requested by any Governmental Authority;
(s) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in an amount and for consideration not in excess of $100,000 and that would not (i) impose any material restriction on the business of the Company or such Company Subsidiary or (ii) create precedent for claims that is reasonably likely to be material to it;
(t) make application for the opening, relocation or closing of any, or open, relocate or close any, branch office, loan production office or other significant office or operations facility; or
(eu) performagree to take, take make any action commitment to take, or incur or permit to exist adopt any acts, transactions, events or occurrences resolutions of the type described Company Board in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close support of, any of the Unaudited Interim Balance Sheet and prior to the date hereof. The Company and the Shareholders agree to use their best efforts consistent with past practice and policies to preserve intact the Company's present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Timeactions prohibited by this Section 5.1.
Appears in 1 contract
Conduct of the Company’s Business. From and after Except as may be (w) required by Applicable Law or any Governmental Authority, (x) consented to by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), (y) required or explicitly permitted by the date hereof and prior to the Closingterms of this Agreement, or (z) set forth on Schedule 4.1, the Company will conduct, and the Shareholders will cause the Company to conduct, shall (i) conduct its business and affairs only in the ordinary course, consistent Ordinary Course of Business in all material respects with prior practicerespects, (ii) use commercially reasonable efforts to maintain and preserve intact its business organization and advantageous business relationships and (iii) take no action that is intended to or would reasonably be expected to materially adversely affect or materially delay the ability of the Company or Parent to obtain any of the Requisite Regulatory Approvals, to perform its covenants and agreements under this Agreement or to consummate the Merger. Without limiting the generality of the foregoing, prior to except as may be required by Applicable Law or any Governmental Authority, required or explicitly permitted by the Closingterms of this Agreement, or set forth on Schedule 4.1, the Company will not, and the Shareholders will cause the not permit any Company not Subsidiary to, without Parent's the prior written approval consent (including by electronic mail) of Parent, which shall not be unreasonably withheld, conditioned or except as expressly provided for in this Agreementdelayed:
(a) change its the articles or certificate or articles of incorporation or bylaws by-laws of the Company or merge either Service Subsidiary, the charter or consolidate by-laws of the Bank, or obligate itself to do so with the certificate of trust or into trust agreement of the Trust Subsidiary, or any other entitygoverning document;
(b) enter into issue, sell, pledge, transfer, dispose of or encumber any contractequity securities, agreementeffect any split, commitment combination, subdivision, reclassification or redemption of any outstanding equity securities, or otherwise change its capitalization as it exists on the date of this Agreement, or issue, grant, or sell any options, equity appreciation or purchase rights, warrants, conversion rights or other understanding rights, securities or arrangement of a type which would have commitments obligating it to be set forth in Part 2.10(a) of the Disclosure Schedule hereof; orissue, sell or register any equity securities, or any securities or obligations convertible into, or exercisable or exchangeable for, any equity securities;
(c) payincrease the compensation of officers or key employees, discharge pay any bonuses except in the Ordinary Course of Business, or satisfy hire any claimsemployee with an annual salary in excess of $100,000;
(d) become a party to, liabilities establish, amend, commence participation in, terminate or obligations commit itself to the adoption of any stock option plan or other stock-based compensation plan, compensation, severance, pension, consulting, non-competition, change in control, retirement, profit-sharing, welfare benefit, or other employee benefit plan or agreement or employment agreement with or for the benefit of any Employee (absolute, accrued, asserted or unasserted, contingent or otherwisenewly hired employees), other than director or stockholder; accelerate the payment, discharge vesting of or satisfaction in the ordinary course lapsing of business consistent restrictions with past practice or in accordance with their terms, of liabilities reflected or reserved against in, or contemplated by, the Company Financial Statements (or the notes thereto), provided that in no event shall the Company repay respect to any long-term indebtedness incentive compensation under any Company Benefit Plans; cause the funding of any rabbi trust or similar arrangement or take any action to fund or in any other way secure the payment of compensation or benefits under any Company Benefit Plan; or materially change any actuarial assumptions used to calculate funding obligations with respect to any Company Benefit Plan that is required by Applicable Law to be funded or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP or any Applicable Law;
(e) (i) enter into any new credit or new lending relationships greater than $750,000 that would require an exception to the extent required Bank’s formal loan policy as in effect as of the date of this Agreement or that are not in strict compliance with the provisions of such loan policy; or (ii) other than incident to a reasonable loan restructuring, extend additional credit to any Person and any director or officer of, or any owner of a material interest in, such Person (any of the foregoing with respect to a Person being referred to as a “Borrowing Affiliate”) if such Person or such Borrowing Affiliate is the obligor under any indebtedness to the Company or any Company Subsidiary which constitutes a nonperforming loan or against any part of such indebtedness the Company or any Company Subsidiary has established loss reserves or any part of which has been charged-off by the terms thereof; orCompany or any Company Subsidiary;
(df) declare or pay any dividends or other distributions on any equity securities; provided, however, that the Company shall be permitted to continue paying its regular quarterly dividend of $0.11 per share of Company Common Stock in the Ordinary Course of Business;
(g) fail to use commercially reasonable efforts to maintain present insurance coverage in respect of their properties and businesses;
(h) incur or distribution guarantee any indebtedness for borrowed money, except with respect to indebtedness to the Federal Home Loan Bank, trade payables and similar liabilities and obligations incurred in the Ordinary Course of Business;
(i) maintain an allowance for loan and lease losses which is not adequate in all material respects under the requirements of GAAP to provide for possible losses, net of recoveries relating to Loans previously charged off, on Loans and leases outstanding (including accrued interest receivable);
(j) enter into any employment, consulting or similar agreements that are not terminable by the Company or such Company Subsidiary, as applicable, on 30 days’ or fewer notice without penalty or obligation, or terminate the employment of any officer thereof without first notifying Parent;
(k) take any action that would result in a termination, partial termination, curtailment, discontinuance of a Benefit Plan or merger of any Benefit Plan into another plan or trust;
(l) fail to file all Tax Returns in a timely manner, make any application for or consent to any extension of time for filing any Tax Return or any extension of the period of limitations applicable thereto, or change any of its shares accounting methods for federal and state income tax purposes or any material Tax elections;
(m) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or applicable regulatory accounting requirements;
(n) make any expenditure for fixed assets in excess of capital stock$100,000 for any single item, or $250,000 in the aggregate, or enter into leases of fixed assets having an annual rental in excess of $100,000 in the aggregate;
(o) incur any liabilities or obligations, make any commitments or disbursements, acquire (other than by way of foreclosures or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith, in each case in the Ordinary Course of Business) or dispose of any property or asset, make any contract or agreement, or engage in any transaction except in the Ordinary Course of Business consistent with prudent banking practices and the current policies of the Company and the Company Subsidiaries;
(p) amend or waive the material terms of, fail to do anything that will cause a breach by the Company or such Company Subsidiary of, or default by the Company or such Company Subsidiary under, or enter into, any Material Contract, any material restriction on the ability of the Company or such Company Subsidiary to conduct its business as it is presently being conducted, or any Contract or other binding obligation relating to any class of Company Capital Stock or rights associated therewith or any outstanding instrument of indebtedness;
(q) engage or agree to engage in any “covered transaction” within the meaning of Sections 23A or 23B of the Federal Reserve Act (without regard to the applicability of any exemptions contained in Section 23A), unless the Bank has complied with Sections 23A and 23B of the Federal Reserve Act;
(r) enter into any new line of business or materially change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies, except as required by Applicable Law or requested by any Governmental Authority;
(s) settle any action, suit, claim or proceeding against it, except for an action, suit, claim or proceeding that is settled in an amount and for consideration not in excess of $100,000 and that would not (i) impose any material restriction on the business of the Company or such Company Subsidiary or (ii) create precedent for claims that is reasonably likely to be material to it;
(t) make application for the opening, relocation or closing of any, or open, relocate or close any, branch office, loan production office or other significant office or operations facility; or
(eu) performagree to take, take make any action commitment to take, or incur or permit to exist adopt any acts, transactions, events or occurrences resolutions of the type described Company Board in clauses (c) through (q) of Section 2.5 hereto which would have been inconsistent with the representations and warranties set forth in Section 2.5 had the same occurred after the close support of, any of the Unaudited Interim Balance Sheet and prior to the date hereof. The Company and the Shareholders agree to use their best efforts consistent with past practice and policies to preserve intact the Company's present business organizations, keep available the services of its present officers and key employees and preserve its relationships with customers, suppliers and others having business dealings with it, to the end that its goodwill and ongoing businesses shall be unimpaired at the Effective Timeactions prohibited by this Section 4.1.
Appears in 1 contract
Samples: Merger Agreement (First Mid Illinois Bancshares Inc)
