Forbearances of Company. During the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.2 of the Company Disclosure Schedule or as expressly required by this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, do any of the following, without the prior written consent of Parent: (a) (i) create, incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (except to the extent committed to prior to the date hereof and set forth in Section 5.2(a) of the Company Disclosure Schedule) or (ii) incur any capital expenditures (other than capital expenditures incurred pursuant to contracts or commitments in force on the date of this Agreement); (b) (i) adjust, split, combine or reclassify, or purchase, redeem or otherwise acquire, any capital stock, (ii) make, declare or pay any dividend or distribution (except for dividends paid in the ordinary course of business by any Subsidiary (whether or not wholly-owned) of Company to Company or any wholly owned Subsidiary of Company) or make any other distribution on any shares of its capital stock or redeem, purchase or otherwise acquire any securities or obligations convertible into or exchangeable for any shares of its capital stock, (iii) grant any stock appreciation rights, restricted stock units or other equity-based compensation or grant to any individual, corporation or other entity any right to acquire any shares of its capital stock, (iv) issue any additional shares of capital stock of Company or sell, transfer, mortgage, encumber or otherwise dispose of any capital stock in any Company Subsidiary or (v) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock; (c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or other entity other than a direct or indirect wholly-owned Company Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except (i) in the ordinary course of business consistent with past practice to third parties who are not Affiliates of Company or (ii) pursuant to contracts or agreements in force at the date of this Agreement that are set forth in Section 5.2(c) of the Company Disclosure Schedule; (d) (i) acquire any business entity, whether by stock purchase, merger, consolidation or otherwise, or (ii) make any other investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation, limited partnership or other entity; (e) grant any Company Stock Options, restricted shares, awards based on the value of Company’s capital stock or other equity-based award with respect to shares of the Company Common Stock under any of the Company Stock Plans or otherwise, or grant any individual, corporation or other entity any right to acquire any shares of its capital stock; (f) except as required under applicable law or the terms of any Company Benefit Plan existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors, officers or employees of Company or its Subsidiaries, other than increases in annual base salary at times and in amounts in the ordinary course of business consistent with past practice, which shall not exceed 3% in the aggregate or 4% for any individual to employees at a level below vice president (in each case, on an annualized basis), (ii) pay or commit to pay any severance, bonus, retirement or retention amounts to any of the current or former directors, officers or employees of Company or its Subsidiaries (iii) become a party to, establish, amend, commence participation in, terminate or commit itself to the adoption of any stock option plan or other stock-based compensation plan, compensation, severance, pension, retirement, profit-sharing, welfare benefit, nonqualified deferred compensation plan, or other employee benefit plan or agreement or employment agreement with or for the benefit of any of the current or former directors, officers or employees of Company or its Subsidiaries (or newly hired employees), (iv) accelerate the vesting or payment or cause to be funded or otherwise secure the payment of any compensation and/or benefits, (v) amend, extend, renew or enter into any collective bargaining agreement or Company Benefit Plan or make any material determinations not in the ordinary course of business consistent with past practice under any Company Benefit Plan, (vi) hire or terminate the employment of any employee who has (in the case of employees to be terminated) or would have (in the case of employees to be hired) target total compensation (cash and target equity) of $65,000 or more, or (vii) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan 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; (g) settle any claim, action or proceeding other than claims, actions or proceedings in the ordinary course of business consistent with past practice involving solely money damages not in excess of $25,000 individually or $100,000 in the aggregate, or waive or release any material rights or claims other than in the ordinary course of business consistent with past practice; (h) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of any other liabilities in the ordinary course of business and consistent with past practice; (i) (i) change its methods of accounting (or the manner in which it accrues for liabilities) in on the Balance Sheet Date, except as required by changes in GAAP as concurred in by its independent auditors or (ii) except as may be required by GAAP and other than in the ordinary course of business consistent with past practice, revalue in any material respect any of its assets, including writing-off notes or accounts receivable; (j) make, change or revoke any Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim, audit, assessment or dispute or surrender any right to claim a refund of Taxes; (k) adopt or implement any amendment to its Charter or any changes to its bylaws or comparable organizational documents; (l) materially restructure or materially change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported; (m) enter into, amend in any material respect or terminate any contract of the sort required to be disclosed pursuant to Section 3.16, or waive, release, compromise or assign any material rights or claims under any such contract, other than in the ordinary course of business consistent with past practice; provided that in no event shall Company or any Company Subsidiary enter into any contract of the sort required to be disclosed pursuant to Section 3.16(a) (iii), (iv), (vi), (viii), (x), (xi) or (xii) or that calls for aggregate annual payments of $50,000 or more unless terminable on 30 days or less notice without payment of any penalty or premium; (n) change in any material respect its policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing, or buying or selling rights to service, loans, except as required by applicable Law, regulation or policies imposed by any Governmental Entity; (o) except for Loans or commitments for Loans that have previously been approved by the Company prior to the date of this Agreement, make or acquire any Loan or issue a commitment (or renew or extend an existing commitment) for any Loan relationship aggregating in excess of $5,000,000, or amend or modify in any material respect any existing Loan relationship, that would result in total credit exposure to the applicable borrower (and its affiliates) in excess of $5,000,000; (p) 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, regulation or policies imposed by any Governmental Entity; (q) file any application, or otherwise take any action, to establish, relocate or terminate the operation of any banking office of Company or any Company Subsidiary; (r) take any action that is intended or would be reasonably likely to result in any of the conditions set forth in Article VII not being satisfied or prevent or materially delay the consummation of the transactions contemplated hereby, except, in every case, as may be required by applicable law; or (s) agree to, or make any commitment to, take any of the actions prohibited by this Section 5.2.
Appears in 3 contracts
Samples: Merger Agreement (Capital Bank Financial Corp.), Merger Agreement (Capital Bank Financial Corp.), Merger Agreement (Southern Community Financial Corp)
Forbearances of Company. During the period from the date of this Agreement to the Effective TimeClosing Date, except as set forth in Section 5.2 of the Company Disclosure Schedule or as expressly required by this Agreement, the Sellers shall not permit Company or any of its Subsidiaries to do, and Company shall not, not and shall not permit any of its Subsidiaries toto do, do any of the following, without the prior written consent of ParentBuyer:
(a) (i) create, create or incur any indebtedness for borrowed moneymoney (other than acceptance of deposits, purchases of Federal funds, sales of certificates of deposit, issuances of commercial paper and entering into repurchase agreements, each in the ordinary course of business consistent with past practice, including with respect to prices, terms and conditions), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (except to the extent committed to prior to the date hereof and set forth in Section 5.2(a) of the Company Disclosure Schedule) or (ii) incur any capital expenditures (other than capital expenditures incurred pursuant to contracts or commitments in force on the date of this Agreement);
(b) (i) adjust, split, combine or reclassify, or purchase, redeem or otherwise acquire, reclassify any capital stockstock or other equity interest, (ii) set any record or payment dates for the payment of any dividends or distributions on its capital stock or other equity interest or make, declare or pay any dividend or distribution (except for dividends paid in the ordinary course of business by any direct or indirect wholly owned Company Subsidiary (whether or not wholly-owned) of Company to Company or any other direct or indirect wholly owned Subsidiary of CompanyCompany Subsidiary) or make any other distribution on any shares of its capital stock or other equity interest or redeem, purchase or otherwise acquire any securities or obligations convertible into or exchangeable for any shares of its capital stockstock or other equity interest, (iii) grant any stock appreciation rights, restricted stock units or other equity-based compensation or grant to any individual, corporation or other entity any right to acquire any shares of its capital stock, (iv) issue or commit to issue any additional shares of capital stock of Company or sell, lease, transfer, mortgage, encumber or otherwise dispose of any capital stock in any Company Subsidiary or (v) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock;
(c) sell, lease, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or other entity Person other than a direct or indirect wholly-wholly owned Company Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except (i) subject to paragraph (l) of this Section 5.2, sales of Loans and sales of investment securities in the ordinary course of business consistent with past practice to third parties who are not Affiliates of Company or (ii) pursuant to as expressly required by contracts or agreements in force at the date of this Agreement that are set forth in Section 5.2(c) of the Company Disclosure Schedule;
(d) (i) acquire direct or indirect control over any business entityor Corporate Entity, whether by stock purchase, merger, consolidation or otherwise, otherwise or (ii) make any other investment either by purchase of stock or securities, contributions to capital, property transfers, transfers or purchase of any property or assets of any other individual, corporation, limited partnership or other entityPerson;
(e) grant any Company Stock Options, restricted shares, options or any other awards based on the value of Company’s capital stock or other equity-based award with respect to shares of the Company Common Stock under any of the Company Stock Plans or otherwiseStock, or grant any individual, corporation or other entity Person any right to acquire any shares of its capital stock;
(f) except as required under applicable law Law or the terms of any Company Benefit Plan existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors, officers or employees of Company or its Subsidiaries, other than increases in annual base salary at times and in amounts in the ordinary course of business consistent with past practice, which shall not exceed 3% in the aggregate or 4% for any individual to employees at a level below vice president (in each case, on an annualized basis), (ii) pay or commit to pay any severance, bonus, retirement or retention amounts not otherwise due to any of the current or former directors, officers or employees of Company or its Subsidiaries Subsidiaries, (iii) become a party to, establish, amend, commence participation in, terminate or commit itself to the adoption of any stock option plan or other stock-based compensation plan, compensation, severance, pension, retirement, profit-sharing, welfare benefit, nonqualified deferred compensation plan, or other employee benefit plan or agreement or employment agreement with or for the benefit of any of the current or former directors, officers or employees of Company or its Subsidiaries (or newly hired employees), (iv) accelerate the vesting or payment or cause to be funded or otherwise secure the payment of any compensation and/or benefits, (v) amend, extend, renew or enter into any collective bargaining agreement or Company Benefit Plan or make any material determinations not in the ordinary course of business consistent with past practice under any Company Benefit Plan, (vi) hire or terminate the employment of any employee who has (in the case of employees to be terminated) or would have (in the case of employees to be hired) target total compensation (cash and target equity) of $65,000 50,000 or more, more or (vii) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan 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;
(g) (i) settle any claim, action or proceeding other than claims, actions or proceedings in the ordinary course of business consistent with past practice involving solely money damages not in excess of $25,000 individually or $100,000 75,000 in the aggregate, or waive waive, compromise, assign, cancel or release any material rights or claims other than in or (ii) agree or consent to the ordinary course issuance of any injunction, decree, order or judgment restricting or otherwise affecting its business consistent with past practiceor operations;
(h) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than than, subject to paragraph (g) of this Section 5.2, the payment, discharge or satisfaction of any other liabilities in the ordinary course of business and consistent with past practice;
(i) (i) make any change its in accounting methods or systems of internal accounting controls (or the manner in which it accrues for liabilities) in on the Balance Sheet Date), except as required by changes in GAAP as concurred in by Squar, Milner, Peterson, Miranda & Xxxxxxxxxx, LLP, its independent auditors auditors, or (ii) except as may be required by GAAP and other than in the ordinary course of business consistent with past practice, revalue in any material respect any of its assets, including writing-writing off notes or accounts receivable;
(j) make, change or revoke any Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim, audit, assessment or dispute or surrender any right to claim a refund of Taxes;
(k) adopt or implement any amendment to any of its Charter or any changes to its bylaws or comparable organizational documentsOrganizational Documents;
(l) materially restructure or materially change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported, or invest in any mortgage-backed or mortgage-related securities which would be considered “high-risk” securities under applicable regulatory pronouncements;
(m) enter into, modify, amend in any material respect or terminate any contract of the sort required to be disclosed pursuant to Section 3.16, or waive, release, compromise or assign any material rights or claims under any such contract2.14, other than in the ordinary course of business consistent with past practice; provided provided, that in no event shall Company or any Company Subsidiary enter into into, modify, amend or terminate any contract of the sort required to be disclosed pursuant to Section 3.16(a) (iii2.14(a)(iii), (iv), (vi), (viiiix), (x), (xi) or (xii) or that calls for aggregate annual payments of $50,000 75,000 or more unless terminable on 30 days or less notice without payment of any penalty or premiummore;
(n) change in any material respect the credit policies and collateral eligibility requirements and standards of Company;
(o) fail to use reasonable best efforts to take any action that is required by a Company Regulatory Agreement, or take any action that violates a Company Regulatory Agreement;
(p) except as required by applicable law, regulation or policies imposed by any Governmental Entity, enter into any new line of business or change in any material respect its lending, investment, underwriting, risk and asset liability management, interest rate or fee pricing with respect to depository accounts, hedging and other material banking and operating policies or practices, including policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing, or buying or selling rights to service, loans, except as required by applicable Law, regulation or policies imposed by any Governmental EntityLoans;
(oq) except for Loans permit the commencement of any construction of new structures or commitments for Loans that have previously been approved by facilities upon, or purchase or lease any real property in respect of any branch or other facility, or file any application, or otherwise take any action, to establish, relocate or terminate the operation of any banking office of Company or any Company Subsidiary;
(r) make, or commit to make, any capital expenditures in excess of $10,000 individually or $50,000 in the aggregate, other than as disclosed in Company’s capital expenditure budget set forth in Section 5.2(r) of the Company prior to the date of this AgreementDisclosure Schedule;
(s) without previously notifying and consulting with Buyer, make or acquire any Loan or issue a commitment (or renew or extend an existing commitment), except to the extent approved by Bank and committed to, in each case prior to the date hereof and set forth in Section 5.2(a) of the Company Disclosure Schedule, for any Loan relationship aggregating in excess of $5,000,000200,000, or amend or modify in any material respect any existing Loan relationship, that would result in total credit exposure to the applicable borrower (and its affiliates) in excess of $5,000,000200,000; provided, that no such notification and consultation shall be required for any residential mortgage loan or commitment with respect to which neither the applicable Loan relationship nor the credit exposure would exceed $1.5 million that (1) is originated by the Mission Hills Mortgage Bankers division of Bank (and not by other business operations or units of Bank) in the ordinary course of business consistent with past practice and (2) satisfies all requirements, guidelines, policies and procedures of the program guidelines and other policies of the applicable third-party purchaser of such Loan or commitment and all requirements and guidelines of Company’s and Bank’s “Product Risk Assessment Profile” and other policies in effect for the applicable Loan program type; provided, further, that for any such residential mortgage loan or commitment with respect to which either the applicable Loan relationship or the credit exposure would exceed $729,750, such loan or commitment must be affirmatively approved in advance of funding by Len Israel or his designated corporate officer;
(pt) enter into issue any new line broadly distributed communication of business or materially change its lendinga general nature to customers without the prior approval of Buyer (which shall not be unreasonably withheld), investment, underwriting, risk and asset liability management and other banking and operating policies except as required by applicable Law, regulation Law or policies imposed by any Governmental Entityfor communications in the ordinary course of business consistent with past practice that do not relate to the Stock Purchase or other transactions contemplated hereby;
(q) file any application, or otherwise take any action, to establish, relocate or terminate the operation of any banking office of Company or any Company Subsidiary;
(ru) take any action that is intended to, would or would be reasonably likely to result in any of the conditions set forth in Article VII not being satisfied or prevent or materially delay the consummation of the transactions contemplated hereby, except, in every case, as may be required by applicable lawLaw; or
(sv) agree to, or make any commitment to, take take, or adopt any resolutions of board of directors of Company in support of, any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Samples: Stock Purchase Agreement (First Pactrust Bancorp Inc)
Forbearances of Company. During the period from the date of this Agreement to the Effective TimeClosing Date, except as set forth in Section 5.2 of the Company Disclosure Schedule or as expressly required by this Agreement, the Sellers shall not permit Company or any of its Subsidiaries to do, and Company shall not, not and shall not permit any of its Subsidiaries toto do, do any of the following, without the prior written consent of ParentBuyer:
(a) (i) create, create or incur any indebtedness for borrowed money, or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (except to the extent committed to prior to the date hereof and set forth in Section 5.2(a) of the Company Disclosure Schedule) or (ii) incur any capital expenditures (each case other than capital expenditures incurred pursuant in the ordinary course of business consistent with past practice or in an amount and on terms approved by Parent in its sole discretion and required to contracts or commitments effect the distribution described in force on the date proviso of this AgreementSection 5.2(d);
(b) sell, lease, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any Person other than a direct or indirect wholly owned Company Subsidiary, other than in the ordinary course of business consistent with past practice;
(i) acquire direct or indirect control over any business or Corporate Entity, whether by stock purchase, merger, consolidation or otherwise or (ii) make any other investment either by purchase of stock or securities, contributions to capital, property transfers or purchase of any property or assets of any other Person;
(d) (i) adjust, split, combine or reclassify, or purchase, redeem or otherwise acquire, reclassify any capital stockstock or other equity interest, (ii) set any record or payment dates for the payment of any dividends or distributions on its capital stock or other equity interest or make, declare or pay any dividend or distribution (except for dividends paid in the ordinary course of business by any direct or indirect wholly owned Company Subsidiary (whether or not wholly-owned) of Company to Company or any other direct or indirect wholly owned Subsidiary of Company) Company Subsidiary), or make any other distribution on any shares of its capital stock or other equity interest or redeem, purchase or otherwise acquire any securities or obligations convertible into or exchangeable for any shares of its capital stockstock or other equity interest, provided that Company may distribute to the Sellers an amount equal to the shareholders’ equity of Company immediately prior to the Closing (as set forth in the books and records of Company prepared in good faith and in accordance with GAAP) if following such distribution Company will have shareholders’ equity of no less than zero at the Closing, (iii) grant any stock appreciation rights, restricted stock units or other equity-based compensation or grant to any individual, corporation or other entity any right to acquire any shares of its capital stock, (iv) issue or commit to issue any additional shares of capital stock of Company or sell, lease, transfer, mortgage, encumber or otherwise dispose of any capital stock in any Company Subsidiary or (v) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or other entity other than a direct or indirect wholly-owned Company Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except (i) in the ordinary course of business consistent with past practice to third parties who are not Affiliates of Company or (ii) pursuant to contracts or agreements in force at the date of this Agreement that are set forth in Section 5.2(c) of the Company Disclosure Schedule;
(d) (i) acquire any business entity, whether by stock purchase, merger, consolidation or otherwise, or (ii) make any other investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation, limited partnership or other entity;
(e) grant any Company Stock Options, restricted shares, awards based on the value of Company’s capital stock or other equity-based award with respect to shares of the Company Common Stock under any of the Company Stock Plans or otherwise, or grant any individual, corporation or other entity any right to acquire any shares of its capital stock;
(f) except as required under applicable law Law or the terms of any Company Benefit Plan existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors, officers or employees of Company or its Subsidiaries, other than increases in annual base salary at times and in amounts in the ordinary course of business consistent with past practice, which shall not exceed 3% in the aggregate or 4% for any individual to employees at a level below vice president (in each case, on an annualized basis), (ii) pay or commit to pay any severance, bonus, retirement or retention amounts not otherwise due to any of the current or former directors, officers or employees of Company or its Subsidiaries Subsidiaries, (iii) become a party to, establish, amend, commence participation in, terminate or commit itself to the adoption of any stock option plan or other stock-based compensation plan, compensation, severance, pension, retirement, profit-sharing, welfare benefit, nonqualified deferred compensation plan, or other employee benefit plan or agreement or employment agreement with or for the benefit of any of the current or former directors, officers or employees of Company or its Subsidiaries (or newly hired employees), (iv) accelerate the vesting or payment or cause to be funded or otherwise secure the payment of any compensation and/or benefits, (v) amend, extend, renew or enter into any collective bargaining agreement or Company Benefit Plan or make any material determinations not in the ordinary course of business consistent with past practice under any Company Benefit Plan, (vi) hire or terminate the employment of any employee who has (in the case of employees to be terminated) or would have (in the case of employees to be hired) target total compensation (cash and target equity) of $65,000 100,000 or more, more or (vii) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan 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;
(gi) settle any claim, action or proceeding other than claimsor waive, actions or proceedings in the ordinary course of business consistent with past practice involving solely money damages not in excess of $25,000 individually or $100,000 in the aggregatecompromise, or waive assign, cancel or release any material rights or claims other than in or (ii) agree or consent to the ordinary course issuance of any injunction, decree, order or judgment restricting or otherwise affecting its business consistent with past practiceor operations;
(hg) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the paymentthan, discharge or satisfaction of any other liabilities subject to Section 5.2(f), in the ordinary course of business and consistent with past practice;
(i) (i) make any change its in accounting methods or systems of internal accounting controls (or the manner in which it accrues for liabilities) in on the Balance Sheet Date), except as required by changes in GAAP as concurred in by its independent auditors auditors, or (ii) except as may be required by GAAP and other than in the ordinary course of business consistent with past practice, revalue in any material respect any of its assets, including writing-writing off notes or accounts receivable;
(ji) make, change or revoke any Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim, audit, assessment or dispute or surrender any right to claim a refund of Taxes;
(kj) enter into any new line of business or adopt or implement any amendment to any of its Charter or any changes to its bylaws or comparable organizational documentsOrganizational Documents;
(l) materially restructure or materially change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(mk) enter into, modify, amend in any material respect or terminate any contract of the sort required to be disclosed pursuant to Section 3.16, or waive, release, compromise or assign any material rights or claims under any such contract2.14, other than in the ordinary course of business consistent with past practice; provided provided, that in no event shall Company or any Company Subsidiary enter into into, modify, amend or terminate any contract of the sort required to be disclosed pursuant to Section 3.16(a) (iii2.14(a)(iii), (iv), (vi), (viiivii), (x), (xi) or (xiixiii) or that calls for aggregate annual payments of $50,000 75,000 or more unless terminable on 30 days or less notice without payment of any penalty or premiummore;
(nl) change in any material respect its policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicingmake, or buying or selling rights commit to servicemake, loans, except as required by applicable Law, regulation or policies imposed by any Governmental Entity;
(o) except for Loans or commitments for Loans that have previously been approved by the Company prior to the date of this Agreement, make or acquire any Loan or issue a commitment (or renew or extend an existing commitment) for any Loan relationship aggregating capital expenditures in excess of $5,000,00010,000 individually or $50,000 in the aggregate, or amend or modify other than in any material respect any existing Loan relationship, that would result in total credit exposure to the applicable borrower (and its affiliates) in excess of $5,000,000;
(p) enter into any new line ordinary course of business consistent with past practice or materially change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies except as required by applicable Law, regulation or policies imposed by any Governmental Entity;
(q) file any application, or otherwise take any action, to establish, relocate or terminate the operation of any banking office of Company or any Company Subsidiary;
(r) take any action that is intended or would be reasonably likely to result disclosed in any of the conditions Company’s capital expenditure budget set forth in Article VII not being satisfied or prevent or materially delay the consummation Section 5.2(l) of the transactions contemplated hereby, except, in every case, as may be required by applicable lawCompany Disclosure Schedule; or
(sm) agree to, or make any commitment to, take take, or adopt any resolutions of board of directors of Company in support of, any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Forbearances of Company. During the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.2 of the Company Disclosure Schedule or as expressly required by this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, do any of the following, without the prior written consent of Parent, do any of the following:
(a) (i) create, create or incur any indebtedness for borrowed moneymoney (other than acceptance of deposits, purchases of Federal funds, overnight Federal Home Loan Bank borrowings, sales of certificates of deposit, issuances of commercial paper and entering into repurchase agreements, each in the ordinary course of business consistent with past practice, including with respect to prices, terms and conditions) or (ii) assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (except to except, in the extent committed to prior to the date hereof and set forth in Section 5.2(a) case of the Company Disclosure Schedule) or this clause (ii), in connection with presentation of items for collection (e.g., personal or business checks) incur in the ordinary course of business consistent with past practice; provided that, Company shall consult with Parent in good faith with respect to any capital expenditures sales of brokered or internet certificates of deposit with a term that exceeds six (other than capital expenditures incurred pursuant to contracts or commitments in force on the date of this Agreement);6) months.
(b) (i) adjust, split, combine or reclassify, or purchase, redeem or otherwise acquire, reclassify any capital stockstock or other equity interest, (ii) set any record or payment dates for the payment of any dividends or distributions on its capital stock or other equity interest or make, declare or pay any dividend or distribution (except for dividends paid in the ordinary course of business by any direct or indirect wholly owned Company Subsidiary (whether or not wholly-owned) of Company to Company or any other direct or indirect wholly owned Subsidiary of CompanyCompany Subsidiary) or make any other distribution on any shares of its capital stock or other equity interest or redeem, purchase or otherwise acquire any securities or obligations convertible into or exchangeable for any shares of its capital stockstock or other equity interest, (iii) grant any stock appreciation rights, options, restricted stock, restricted stock units units, awards based on the value of Company’s capital stock or other equity-based compensation or grant to any individual, corporation or other entity any right to acquire any shares of its capital stock, (iv) except upon the exercise of Company Stock Options outstanding as of the date hereof, issue or commit to issue any additional shares of capital stock of Company or sell, lease, transfer, mortgage, encumber or otherwise dispose of any capital stock in any Company Subsidiary or (v) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock;
(c) sell, lease, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or other entity Person other than a direct or indirect wholly-wholly owned Company Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except (i) in the ordinary course of business consistent with past practice to third parties who are not Affiliates of Company or (ii) pursuant to contracts or agreements in force at the date of this Agreement that are set forth in Section 5.2(c) of the Company Disclosure Schedule;
(d) (i) acquire direct or indirect control over any business entityor Corporate Entity, whether by stock purchase, merger, consolidation or otherwise, or (ii) make any other investment either by purchase of stock or securities, contributions to capital, property transfers, transfers or purchase of any property or assets of any other individualPerson, corporationexcept, limited partnership in either instance, in connection with a foreclosure of collateral or other entityconveyance of such collateral in lieu of foreclosure taken in connection with collection of a Loan in the ordinary course of business consistent with past practice and with respect to Loans made to third parties who are not Affiliates of Company;
(e) grant any Company Stock Options, restricted shares, awards based on the value of Company’s capital stock or other equity-based award with respect to shares of the Company Common Stock under any of the Company Stock Plans or otherwise, or grant any individual, corporation or other entity any right to acquire any shares of its capital stock;
(f) except as required under applicable law Law or the terms of any Company Benefit Plan existing as of the date hereofhereof or as otherwise expressly contemplated by this Agreement, (i) increase in any manner the compensation enter into, adopt or benefits of any of the current or former directors, officers or employees of Company or its Subsidiaries, other than increases in annual base salary at times and in amounts in the ordinary course of business consistent with past practice, which shall not exceed 3% in the aggregate or 4% for any individual to employees at a level below vice president (in each case, on an annualized basis), (ii) pay or commit to pay any severance, bonus, retirement or retention amounts to any of the current or former directors, officers or employees of Company or its Subsidiaries (iii) become a party to, establish, amendterminate, commence participation in, or agree to enter into, adopt or terminate or commit itself to the adoption of commence participation in, any stock option plan or other stock-based compensation employee benefit plan, compensation, severance, pension, retirement, profit-sharing, welfare benefit, nonqualified deferred compensation plan, program or other employee benefit plan or agreement or employment agreement with or policy for the benefit or welfare of any of the current or former directorsemployee, officers officer, director or employees consultant of Company or any of its Subsidiaries, (ii) amend any employee benefit plan, program or policy for the benefit or welfare of any current or former employee, officer, director or consultant of Company or any of its Subsidiaries in a manner that would result in any increase in cost to Parent, Company or any of their respective Subsidiaries, (iii) increase or newly hired employeesagree to increase the compensation or benefits payable to any such individual (including the payment of any amounts to any such individual not otherwise due), (iv) accelerate enter into any new, amend or commence participation in any existing collective bargaining agreement or similar agreement with respect to Company or any of its Subsidiaries, (v) cause the vesting funding of any rabbi trust or payment similar arrangement or cause take any action to be funded fund or otherwise in any other way secure the payment of compensation or benefits under any compensation and/or benefitsCompany Benefit Plan, (vvi) amend, extend, renew grant any awards or enter into accelerate the vesting of or lapsing of restrictions with respect to any collective bargaining agreement stock-based compensation or other long-term incentive compensation under any Company Benefit Plan Plans or make (vii) (A) hire, transfer or promote any material determinations not employee of Company or any of its Subsidiaries (or with respect to hiring, who will become an employee of Company or any of its Subsidiaries), who has (or with respect to hiring, will have) target annual compensation of $50,000 or more or (B) terminate the employment of any employee other than a termination of employment for cause in the ordinary course of business consistent with past practice under (provided that Company shall consult with Parent prior to making any Company Benefit Plan, (vi) hire or terminate the employment of any employee who has (in the case of employees to be terminated) or would have (in the case of employees to be hired) target total compensation (cash and target equity) of $65,000 or more, or (vii) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan 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 GAAPtermination);
(gf) (i) settle any claim, action or proceeding other than claims, actions or proceedings in the ordinary course of business consistent with past practice involving solely money damages not in excess of $25,000 100,000 individually or $100,000 200,000 in the aggregate, or waive waive, compromise, assign, cancel or release any material rights or claims other than in or (ii) agree or consent to the ordinary course issuance of any injunction, decree, order or judgment restricting or otherwise affecting its business consistent with past practiceor operations;
(hg) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the paymentthan, discharge or satisfaction of any other liabilities subject to Section 5.2(f), in the ordinary course of business and consistent with past practice;
(i) (i) make any change its in accounting methods or systems of internal accounting controls (or the manner in which it accrues for liabilities) in on the Balance Sheet Date), except as required by changes in GAAP as concurred in by Xxxxxxx & Xxxxxxx, LLC, its independent auditors or (ii) except as may be required by GAAP and other than in the ordinary course of business consistent with past practice, revalue in any material respect any of its assets, including writing-off notes or accounts receivable;
(ji) except as may be required by a change in applicable Law, make, change or revoke any Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any amended material amendment with respect to a Tax Return, enter into any closing agreement with respect to Taxes, or settle any material Tax claim, audit, assessment or dispute or surrender any right to claim a refund of a material amount of Taxes;
(kj) adopt or implement any amendment to its Charter articles of incorporation or any changes to its bylaws or comparable organizational documents;
(li) materially restructure or materially change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported, (ii) invest in any mortgage-backed or mortgage related securities which would be considered “high-risk” securities under applicable regulatory pronouncements or (iii) without previously notifying and consulting with Parent (through Parent’s Treasurer or such other representative as may be designated by Parent), purchase or otherwise acquire any debt security with a remaining term as of the date of such purchase or acquisition of greater than fifteen (15) years for Company’s own account or any Company Subsidiary’s own account;
(ml) enter into, modify, amend in any material respect or terminate any contract of the sort required to be disclosed pursuant to Section 3.16, or waive, release, compromise or assign any material rights or claims under any such contract3.14, other than in the ordinary course of business consistent with past practice; provided that in no event shall Company or any Company Subsidiary enter into into, modify, amend or terminate any contract of the sort required to be disclosed pursuant to Section 3.16(a) (iii3.14(a)(iii), (iv), (vi), (viiivii), (ix), (x), (xi) or (xiixi);
(m) or that calls for aggregate annual payments except as may be required by a Regulatory Agency, change in any material respect the credit policies and collateral eligibility requirements and standards of $50,000 or more unless terminable on 30 days or less notice without payment of any penalty or premiumCompany;
(n) fail to use reasonable best efforts to take any action that is required by a Company Regulatory Agreement, or knowingly take any action that violates a Company Regulatory Agreement;
(o) except as required by applicable Law, regulation or policies imposed by any Governmental Entity, enter into any new line of business or change in any material respect its lending, investment, underwriting, risk and asset liability management, interest rate or fee pricing with respect to depository accounts, hedging and other material banking and operating policies or practices, including policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing, or buying or selling rights to service, loans, except as required by applicable Law, regulation or policies imposed by any Governmental Entity;
(o) except for Loans or commitments for Loans that have previously been approved by the Company prior to the date of this Agreement, make or acquire any Loan or issue a commitment (or renew or extend an existing commitment) for any Loan relationship aggregating in excess of $5,000,000, or amend or modify in any material respect any existing Loan relationship, that would result in total credit exposure to the applicable borrower (and its affiliates) in excess of $5,000,000Loans;
(p) enter into permit the commencement of any construction of new line structures or facilities upon, or purchase or lease any real property in respect of business any branch or materially change its lendingother facility, investment, underwriting, risk and asset liability management and other banking and operating policies except as required by applicable Law, regulation or policies imposed by any Governmental Entity;
(q) file any application, or otherwise take any action, to establish, relocate or terminate the operation of any banking office of Company or any Company Subsidiary;
(q) make, or commit to make, any capital expenditures in excess of $50,000 in the aggregate, other than as disclosed in Company’s capital expenditure budget set forth in Section 5.2(q) of the Disclosure Schedule;
(r) without previously notifying and consulting with Parent (through Parent’s Chief Credit Officer, Chief Executive Officer or such other representative as may be designated by Parent), make or acquire any Loan or issue a commitment (or renew or extend an existing commitment), except to the extent approved by Company and committed to, in each case prior to the date hereof and set forth in 5.2(r) of the Disclosure Schedule, for any Loan relationship having total credit exposure to the applicable borrower (and its Affiliates), as calculated for applicable loan-to-one borrower regulatory limitations, in excess of $500,000, or amend, renew, restructure or modify in any material respect any existing Loan relationship, that would result in total credit exposure to the applicable borrower (and its Affiliates), as calculated for applicable loan-to-one borrower regulatory limitations, in excess of $500,000;
(s) take any action that is intended to, would or would be reasonably likely to result in any of the conditions set forth in Article VII not being satisfied or prevent or materially delay the consummation of the transactions contemplated hereby, except, in every case, as may be required by applicable lawLaw;
(t) take any action, or knowingly fail to take any action, which action or failure to act prevents or impedes, or could reasonably be expected to prevent or impede, the Merger from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code; or
(su) agree to, or make any commitment to, take take, or adopt any resolutions of the board of directors of Company in support of, any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Forbearances of Company. During the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.2 of the Company Disclosure Schedule or and except as expressly required or permitted by this Agreement or the Company Option Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, do any of the following, without the prior written consent of Parent:
(a) (i) create, incur any indebtedness for borrowed moneymoney (other than (A) short-term indebtedness incurred (x) to refinance existing short-term indebtedness, (y) pursuant to lines of credit and credit facilities existing on the date of this Agreement, or (z) otherwise in the ordinary course of business consistent with past practice, and (B) indebtedness of Company or any of its Subsidiaries owed to Company or any of its other wholly-owned Subsidiaries), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan loan, advance or advance capital contribution (except other than to Company or any of its wholly-owned Subsidiaries and other than in the extent committed to prior to the date hereof and set forth in Section 5.2(a) ordinary course of the Company Disclosure ScheduleCompany's investment banking business consistent with past practice) or (ii) incur make or commit to make any capital expenditures (other than in excess of $2,500,000 for any single or related group of capital expenditures incurred pursuant to contracts or commitments in force on the date of this Agreement)expenditures;
(b) (i) adjust, split, combine or reclassify, or purchase, redeem or otherwise acquire, reclassify any of its capital stock, ; (ii) make, declare declare, set aside or pay any dividend or distribution (except for dividends paid in the ordinary course of business by any Subsidiary (whether or not wholly-owned) owned Subsidiaries of Company to Company or to any wholly other of its wholly-owned Subsidiary of CompanySubsidiaries) or make any other distribution on on, or directly or indirectly (other than in connection with the surrender of Company Common Stock as full or partial payment of the exercise price or withholding tax in connection with the exercise of Company Options under the Company Stock Plans) redeem, purchase or otherwise acquire, any shares of its capital stock or redeemany securities or obligations 37 33 convertible into or exchangeable for any shares of its capital stock; (iii) grant any individual, purchase corporation or other entity any right to acquire any shares of its capital stock or any stock appreciation or similar rights except as permitted by Section 5.2(i); (iv) issue or authorize the issuance of, deliver, sell, transfer, pledge or otherwise acquire encumber any additional shares of capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (iii) grant any stock appreciation rights, restricted stock units or other equity-based compensation or grant to any individual, corporation or other entity any right to acquire any shares of its capital stock, (iv) issue any additional shares of capital stock than the issuance of Company or sell, transfer, mortgage, encumber or otherwise dispose Common Stock pursuant to the exercise of any capital stock options disclosed in any Section 3.2 of the Company Subsidiary Disclosure Schedule as being outstanding on the date of this Agreement and granted pursuant to the Company Stock Plans; or (v) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any material portion of its properties or assets assets, including, without limitation, capital stock in any Subsidiaries of Company, to any individual, corporation or other entity other than a direct or indirect wholly-owned Company Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except in the ordinary course of business consistent with past practice;
(id) except for transactions in connection with underwriting activities in the ordinary course of business consistent with past practice to third parties who are not Affiliates of Company or (ii) pursuant to contracts or agreements and portfolio investments by Investment Subsidiaries in force at the date of this Agreement that are set forth in Section 5.2(c) of the Company Disclosure Schedule;
(d) (i) acquire any business entityaccordance with their applicable investment guidelines, whether by stock purchase, merger, consolidation or otherwise, or (ii) make any other material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation, limited partnership or other entity, other than an investment in a wholly-owned Subsidiary of Company;
(e) grant any Company Stock Optionsacquire or agree to acquire by merging or consolidating with, restricted shares, awards based on or by purchasing a substantial portion of the value of Company’s capital stock or other equity-based award with respect to shares of the Company Common Stock under any of the Company Stock Plans or otherwiseassets of, or grant by any individualother manner, corporation any business or any corporation, partnership, joint venture, association or other entity any right to acquire any shares of its capital stockbusiness organization or division thereof;
(f) except as required under applicable law acquire or the terms of any Company Benefit Plan existing as of the date hereof, (i) increase agree to acquire voting or non-voting equity securities or similar ownership interests in any manner the compensation person (other than a Subsidiary) in an amount (when combined with any voting or benefits of any of the current non-voting equity securities or former directors, officers or employees of similar interests already owned by Company or its Subsidiaries) exceeding 4.9% of any class of voting securities or interests or 24.9% of the total equity of any such person, other than increases in annual base salary at times and in amounts securities or other similar ownership interests acquired in the ordinary course of Company's or its Subsidiaries' underwriting, dealing or market-making business consistent with past practice; 38 34
(g) commence, which shall not exceed 3% undertake or engage in the aggregate any new line of business;
(h) enter into or 4% for terminate any individual to employees at a level below vice president (material lease, contract or agreement, or make any change in each case, on an annualized basis), (ii) pay or commit to pay any severance, bonus, retirement or retention amounts to any of the current its existing material leases, contracts or former directors, officers or employees of Company or its Subsidiaries agreements;
(iiii) become a party to, establishenter into, amend, commence participation inmodify or renew any employment, terminate consulting, severance or commit itself to the adoption of similar agreements or arrangements with any stock option plan or other stock-based compensation plandirector, compensationofficer, severanceconsultant, pension, retirement, profit-sharing, welfare benefit, nonqualified deferred compensation planindependent contractor, or other employee benefit plan of or agreement with respect to Company or employment agreement with or for the benefit of any of the current its Subsidiaries, or former directorsgrant any salary, officers wage or employees of Company or its Subsidiaries (or newly hired employees)bonus increase, except, (iv1) accelerate the vesting or payment or cause for normal individual increases in compensation to be funded or otherwise secure the payment of any compensation and/or benefits, (v) amend, extend, renew or enter into any collective bargaining agreement or Company Benefit Plan or make any material determinations not employees in the ordinary course of business consistent with past practice under any Company Benefit Plan(subject, (vi) hire or terminate the employment of any employee who has (in the case of employees executive officers of Company and others whose combined annual salary and bonus exceed $500,000, to be terminatedprior consultation with Parent), (2) or would have for other changes that are required by applicable law, (in 3) to satisfy contractual obligations existing as of the case date of employees to be hiredthis Agreement, (4) target total compensation (cash and target equity) of $65,000 or morefor employment arrangements for, or (vii) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan or change the manner in which contributions to such plans are made or the basis on which such contributions are determinedgrants of awards to, except as may be required by GAAP;
(g) settle any claim, action or proceeding other than claims, actions or proceedings newly hired employees in the ordinary course of business consistent with past or previously announced practice involving solely money damages not in excess of $25,000 individually or $100,000 (subject, in the aggregatecase of executive officers of Company and others whose combined annual salary and target bonus would exceed $500,000, to prior consultation with Parent), or waive (5) for payment of bonuses by Company to its employees in respect of its 1999 fiscal year, or release (ii) enter into, establish, adopt or amend (except (1) as may be required by applicable law, (2) to satisfy contractual obligations existing as of the date of this Agreement or (3) as otherwise provided by this Agreement) any material rights pension, retirement, stock option, stock purchase, savings, profit sharing, deferred compensation, consulting, bonus, group insurance or claims other than employee benefit, incentive or welfare contract, plan or arrangement, or any trust agreement (or similar arrangement) related thereto in respect of any director, officer, consultant, independent contractor, or employee of or with respect to Company or any of its Subsidiaries, or, except as otherwise provided by this Agreement, take any action to accelerate the ordinary course vesting, exercisability, payment or funding of business consistent with past practiceCompany Options, restricted stock or other compensation or benefits;
(hj) pay, discharge or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than except for the payment, discharge or satisfaction of any other current liabilities or obligations, in the ordinary course of business and consistent accordance with past practice;
(i) (i) change its methods of accounting (or the manner in which it accrues for liabilities) in on the Balance Sheet Datetheir terms, except as required by changes in GAAP as concurred in by its independent auditors or (ii) except as may be required by GAAP and other than in the ordinary course of business consistent with past practice, revalue or waive, release, grant, or transfer any rights of material value or modify or change any existing license, lease, contract or other document in any manner that would be material respect to Company and its Subsidiaries; 39 35
(k) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement), other than settlements or compromises of litigation where the amount paid does not exceed $250,000 for any single litigation matter or related group of litigation matters (provided such settlement or compromise agreements do not involve any non-monetary obligations on the part of Company or any of its assetsSubsidiaries other than, including writingin the case of litigation not involving any Governmental Entity or other Regulatory Agency, immaterial non-off notes or accounts receivablemonetary obligations);
(jl) makechange any accounting principle used by it, except for such changes as may be required to be implemented following the date of this Agreement pursuant to generally accepted accounting principles or rules and regulations of the SEC promulgated following the date hereof, as concurred in by Company's independent auditors;
(m) change or revoke any Tax election, change an any annual Tax accounting period, adopt or change any method of Tax accounting methodin any material respect, file any material amended Tax Returnreturn, enter into any closing agreement with respect relating to Taxesany material Tax, settle any material Tax claimclaim or assessment, audit, assessment or dispute or surrender any right to claim a material Tax refund or consent to any extension or waiver of Taxesthe limitations period applicable to any material Tax claim or assessment;
(kn) adopt or implement any amendment to its Charter charter or any changes to its bylaws or other comparable organizational documents, or enter into any plan of consolidation, merger or reorganization with any person other than a wholly-owned Subsidiary of Company;
(lo) materially restructure or materially change its investment securities portfolio portfolio, its hedging strategy or its gap position, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(m) enter into, amend in any material respect reported or terminate any contract of materially alter the sort required to be disclosed pursuant to Section 3.16, credit or waive, release, compromise or assign any material rights or claims under any such contract, other than in the ordinary course of business consistent risk concentrations associated with past practice; provided that in no event shall Company or any Company Subsidiary enter into any contract of the sort required to be disclosed pursuant to Section 3.16(a) (iii), (iv), (vi), (viii), (x), (xi) or (xii) or that calls for aggregate annual payments of $50,000 or more unless terminable on 30 days or less notice without payment of any penalty or premium;
(n) change in any material respect its policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing, or buying or selling rights to service, loans, except as required by applicable Law, regulation or policies imposed by any Governmental Entity;
(o) except for Loans or commitments for Loans that have previously been approved by the Company prior to the date of this Agreement, make or acquire any Loan or issue a commitment (or renew or extend an existing commitment) for any Loan relationship aggregating in excess of $5,000,000, or amend or modify in any material respect any existing Loan relationship, that would result in total credit exposure to the applicable borrower (market-making and its affiliates) in excess of $5,000,000other investment banking businesses;
(p) enter into any new line adopt a plan of business complete or materially change its lendingpartial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, investmentrestructuring, underwriting, risk and asset liability management and other banking and operating policies except as required by applicable Law, regulation recapitalization or policies imposed by any Governmental Entityreorganization;
(q) file any application, or otherwise take any action, to establish, relocate or terminate the operation of any banking office of Company or any Company Subsidiary;
(r) take any action that is intended or would reasonably be reasonably likely expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII or to the Offer set forth in Annex I not being satisfied or prevent or materially delay the consummation in a violation of the transactions contemplated herebyany 40 36 provision of this Agreement, except, in every each case, as may be required by applicable law; or
(sr) agree to, or make any commitment to, take take, or authorize, any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Forbearances of Company. During the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.2 of the Company Disclosure Schedule or as expressly required by this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, do any of the following, without the prior written consent of Parent, do any of the following:
(a) (i) create, create or incur any indebtedness for borrowed moneymoney (other than acceptance of deposits, purchases of Federal funds, overnight Federal Home Loan Bank borrowings, sales of certificates of deposit, issuances of commercial paper and entering into repurchase agreements, each in the ordinary course of business consistent with past practice, including with respect to prices, terms and conditions) or (ii) assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (except to except, in the extent committed to prior to the date hereof and set forth in Section 5.2(a) case of the Company Disclosure Schedule) or this clause (ii), in connection with presentation of items for collection (e.g., personal or business checks)in the ordinary course of business consistent with past practice; provided that, Company shall consult with Parent in good faith with respect to any sales of brokered or internet certificates of deposit with a term that exceeds six (6) incur any capital expenditures (other than capital expenditures incurred pursuant to contracts or commitments in force on the date of this Agreement);months.
(b) (i) adjust, split, combine or reclassify, or purchase, redeem or otherwise acquire, reclassify any capital stockstock or other equity interest, (ii) set any record or payment dates for the payment of any dividends or distributions on its capital stock or other equity interest or make, declare or pay any dividend or distribution (except for dividends paid in the ordinary course of business by any direct or indirect wholly owned Company Subsidiary (whether or not wholly-owned) of Company to Company or any other direct or indirect wholly owned Subsidiary of CompanyCompany Subsidiary) or make any other distribution on any shares of its capital stock or other equity interest or redeem, purchase or otherwise acquire any securities or obligations convertible into or exchangeable for any shares of its capital stockstock or other equity interest, (iii) grant any stock appreciation rights, options, restricted stock, restricted stock units units, awards based on the value of Company’s capital stock or other equity-based compensation or grant to any individual, corporation or other entity any right to acquire any shares of its capital stock, (iv) except upon the exercise of Company Stock Options outstanding as of the date hereof, issue or commit to issue any additional shares of capital stock of Company or sell, lease, transfer, mortgage, encumber or otherwise dispose of any capital stock in any Company Subsidiary or (v) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or other entity other than a direct or indirect wholly-owned Company Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except (i) in the ordinary course of business consistent with past practice to third parties who are not Affiliates of Company or (ii) pursuant to contracts or agreements in force at the date of this Agreement that are set forth in Section 5.2(c) of the Company Disclosure Schedule;
(d) (i) acquire any business entity, whether by stock purchase, merger, consolidation or otherwise, or (ii) make any other investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation, limited partnership or other entity;
(e) grant any Company Stock Options, restricted shares, awards based on the value of Company’s capital stock or other equity-based award with respect to shares of the Company Common Stock under any of the Company Stock Plans or otherwise, or grant any individual, corporation or other entity any right to acquire any shares of its capital stock;
(f) except as required under applicable law or the terms of any Company Benefit Plan existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors, officers or employees of Company or its Subsidiaries, other than increases in annual base salary at times and in amounts in the ordinary course of business consistent with past practice, which shall not exceed 3% in the aggregate or 4% for any individual to employees at a level below vice president (in each case, on an annualized basis), (ii) pay or commit to pay any severance, bonus, retirement or retention amounts to any of the current or former directors, officers or employees of Company or its Subsidiaries (iii) become a party to, establish, amend, commence participation in, terminate or commit itself to the adoption of any stock option plan or other stock-based compensation plan, compensation, severance, pension, retirement, profit-sharing, welfare benefit, nonqualified deferred compensation plan, or other employee benefit plan or agreement or employment agreement with or for the benefit of any of the current or former directors, officers or employees of Company or its Subsidiaries (or newly hired employees), (iv) accelerate the vesting or payment or cause to be funded or otherwise secure the payment of any compensation and/or benefits, (v) amend, extend, renew or enter into any collective bargaining agreement or Company Benefit Plan or make any material determinations not in the ordinary course of business consistent with past practice under any Company Benefit Plan, (vi) hire or terminate the employment of any employee who has (in the case of employees to be terminated) or would have (in the case of employees to be hired) target total compensation (cash and target equity) of $65,000 or more, or (vii) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan 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;
(g) settle any claim, action or proceeding other than claims, actions or proceedings in the ordinary course of business consistent with past practice involving solely money damages not in excess of $25,000 individually or $100,000 in the aggregate, or waive or release any material rights or claims other than in the ordinary course of business consistent with past practice;
(h) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of any other liabilities in the ordinary course of business and consistent with past practice;
(i) (i) change its methods of accounting (or the manner in which it accrues for liabilities) in on the Balance Sheet Date, except as required by changes in GAAP as concurred in by its independent auditors or (ii) except as may be required by GAAP and other than in the ordinary course of business consistent with past practice, revalue in any material respect any of its assets, including writing-off notes or accounts receivable;
(j) make, change or revoke any Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim, audit, assessment or dispute or surrender any right to claim a refund of Taxes;
(k) adopt or implement any amendment to its Charter or any changes to its bylaws or comparable organizational documents;
(l) materially restructure or materially change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(m) enter into, amend in any material respect or terminate any contract of the sort required to be disclosed pursuant to Section 3.16, or waive, release, compromise or assign any material rights or claims under any such contract, other than in the ordinary course of business consistent with past practice; provided that in no event shall Company or any Company Subsidiary enter into any contract of the sort required to be disclosed pursuant to Section 3.16(a) (iii), (iv), (vi), (viii), (x), (xi) or (xii) or that calls for aggregate annual payments of $50,000 or more unless terminable on 30 days or less notice without payment of any penalty or premium;
(n) change in any material respect its policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing, or buying or selling rights to service, loans, except as required by applicable Law, regulation or policies imposed by any Governmental Entity;
(o) except for Loans or commitments for Loans that have previously been approved by the Company prior to the date of this Agreement, make or acquire any Loan or issue a commitment (or renew or extend an existing commitment) for any Loan relationship aggregating in excess of $5,000,000, or amend or modify in any material respect any existing Loan relationship, that would result in total credit exposure to the applicable borrower (and its affiliates) in excess of $5,000,000;
(p) 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, regulation or policies imposed by any Governmental Entity;
(q) file any application, or otherwise take any action, to establish, relocate or terminate the operation of any banking office of Company or any Company Subsidiary;
(r) take any action that is intended or would be reasonably likely to result in any of the conditions set forth in Article VII not being satisfied or prevent or materially delay the consummation of the transactions contemplated hereby, except, in every case, as may be required by applicable law; or
(s) agree to, or make any commitment to, take any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Forbearances of Company. During the period from the date of this ----------------------- Agreement to the Effective Time, except as set forth in Section 5.2 of the Company Disclosure Schedule or and except as expressly required or permitted by this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, do any of the following, without the prior written consent of Parent, which consent shall not be unreasonably withheld:
(a) (i) create, incur any indebtedness for borrowed moneymoney (other than (A) short-term indebtedness incurred to refinance existing short-term indebtedness and (B) indebtedness of Company or any of its Subsidiaries owed to Company or any of its other wholly owned Subsidiaries), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan loan, advance or advance capital contribution (except other than to the extent committed to prior to the date hereof and set forth in Section 5.2(a) Company or any of the Company Disclosure Scheduleits wholly owned Subsidiaries) or (ii) incur make or commit to make any capital expenditures (other than net of governmental grants received) in excess of $100,000 for any single or related group of capital expenditures incurred pursuant to contracts expenditures, or commitments $500,000 in force on the date of this Agreement)aggregate for all capital expenditures;
(b) (i) adjust, split, combine or reclassify, or purchase, redeem or otherwise acquire, reclassify any of its capital stock, ; (ii) make, declare declare, set aside or pay any dividend or distribution (except for dividends paid in the ordinary course of business by any Subsidiary (whether or not wholly-owned) wholly owned Subsidiaries of Company to Company or to any other of its wholly owned Subsidiary of CompanySubsidiaries) or make any other distribution on on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or redeemany securities or obligations convertible into or exchangeable for any shares of its capital stock; (iii) grant any individual, purchase corporation or other entity any right to acquire any shares of its capital stock or any stock appreciation or similar rights except as permitted by Section 5.2(i); (iv) issue or authorize the issuance of, deliver, sell, transfer, pledge or otherwise acquire encumber any additional shares of capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, (iii) grant any stock appreciation rights, restricted stock units or other equity-based compensation or grant to any individual, corporation or other entity any right to acquire any shares of its capital stock, (iv) issue any additional shares of capital stock than the issuance of Company Common Stock pursuant to the exercise of stock options or sell, transfer, mortgage, encumber or otherwise dispose warrants disclosed in Section 3.2 of any capital stock in any the Company Subsidiary Disclosure Schedule as being outstanding on the date of this Agreement and granted pursuant to the Company Stock Plans; or (v) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets assets, including, without limitation, capital stock in any Company Subsidiary, to any individual, corporation or other entity other than a direct or indirect wholly-wholly owned Company Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except (i) in the ordinary course of business consistent with past practice to third parties who are not Affiliates of Company or (ii) pursuant to contracts or agreements in force at the date of this Agreement that are set forth in Section 5.2(c) of the Company Disclosure Schedulepractice;
(d) (i) acquire any business entity, whether by stock purchase, merger, consolidation or otherwise, or (ii) make any other investment material investment, either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation, limited partnership or other entity, other than an investment in a wholly owned Subsidiary of Company;
(e) grant any Company Stock Optionsacquire or agree to acquire by merging or consolidating with, restricted shares, awards based on or by purchasing a substantial portion of the value of Company’s capital stock or other equity-based award with respect to shares of the Company Common Stock under any of the Company Stock Plans or otherwiseassets of, or grant by any individualother manner, corporation any business or any corporation, partnership, joint venture, association or other entity any right to acquire any shares of its capital stockbusiness organization or division thereof;
(f) except as required under applicable law acquire or the terms agree to acquire voting or non-voting equity securities or similar ownership interests in any person (other than a Subsidiary);
(g) commence, undertake or engage in any new line of business;
(h) enter into or terminate any Company Benefit Plan material lease, contract or agreement, or make any change in any of its existing as material leases, contracts or agreements; enter into any contract, arrangement, commitment or understanding of the date hereoftypes described in clause (iii), (v) or (vi) of Section 3.14; or enter into any contract, agreement, arrangement or understanding involving payments or receipts by Company or any of its Subsidiaries in excess of $100,000 over the term thereof;
(i) increase in any manner or accelerate the compensation or benefits of any of the current present or former directorsdirector, officers officer, consultant, independent contractor or employees employee of Company or its Subsidiaries, other than Subsidiaries (except for increases in annual base salary at times and in amounts or wages in the ordinary course of business consistent with past practice, which shall not exceed 3% in the aggregate or 4% for any individual to employees at a level below vice president (in each case, on an annualized basis), (ii) grant any severance or termination pay or commit to pay any severance, bonus, retirement or retention amounts to any of the current present or former directorsdirector, officers officer, consultant, independent contractor or employees employee of Company or its Subsidiaries , (iii) become a party to, establish, amend, commence participation in, terminate loan or commit itself to the adoption of advance any stock option plan money or other stock-based compensation plan, compensation, severance, pension, retirement, profit-sharing, welfare benefit, nonqualified deferred compensation plan, or other employee benefit plan or agreement or employment agreement with or for the benefit of property to any of the current present or former directorsdirector, officers officer, consultant, independent contractor or employees employee of Company or its Subsidiaries (or newly hired employees)Subsidiaries, (iv) accelerate establish, adopt, enter into, amend or terminate any Employee Plan or any plan, agreement, program, policy, trust, fund or other arrangement that would be an Employee Plan if it were in existence as of the vesting date of this Agreement or payment or cause to be funded or otherwise secure the payment of any compensation and/or benefits, (v) amend, extend, renew or enter into amend any collective bargaining agreement or term of a Company Benefit Plan or make any material determinations not in the ordinary course of business consistent with past practice under any Company Benefit Plan, (vi) hire or terminate the employment of any employee who has (in the case of employees to be terminated) or would have (in the case of employees to be hired) target total compensation (cash and target equity) of $65,000 or more, or (vii) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan 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;Option.
(g) settle any claim, action or proceeding other than claims, actions or proceedings in the ordinary course of business consistent with past practice involving solely money damages not in excess of $25,000 individually or $100,000 in the aggregate, or waive or release any material rights or claims other than in the ordinary course of business consistent with past practice;
(hj) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than except for the payment, discharge or satisfaction of any other current liabilities or obligations, in the ordinary course of business and consistent accordance with past practice;
(i) (i) change its methods of accounting (or the manner in which it accrues for liabilities) in on the Balance Sheet Datetheir terms, except as required by changes in GAAP as concurred in by its independent auditors or (ii) except as may be required by GAAP and other than in the ordinary course of business consistent with past practicepractice or payments, revalue discharges or satisfaction of liabilities where the amount paid does not exceed $25,000 for any single matter or related group of matters, or waive, release, grant, or transfer any rights of value or modify or change any existing license, lease, contract or other document in any material respect manner that would be materially adverse to Company and its Subsidiaries;
(k) settle or compromise any litigation (whether or not commenced prior to the date of this Agreement), other than settlements or compromises of litigation where the amount paid does not exceed $25,000 for any single litigation matter or related group of litigation matters (provided such settlement or compromise agreements do not involve any non-monetary obligations on the part of Company or any of its assets, including writing-off notes or accounts receivableSubsidiaries);
(jl) makechange any accounting principle used by it, except for such changes as may be required to be implemented following the date of this Agreement pursuant to generally accepted accounting principles or rules and regulations of the SEC promulgated following the date hereof, as concurred in by Company's independent auditors;
(m) make or change or revoke any Tax election, change an any annual Tax accounting period, adopt or change any method of Tax accounting methodaccounting, file any amended Tax Return, enter into any closing agreement with respect relating to Taxesany Tax, settle any Tax claimclaim or assessment, audit, assessment or dispute or surrender any right to claim a Tax refund or consent to any extension or waiver of Taxesthe limitations period applicable to any Tax claim or assessment;
(kn) adopt or implement any amendment to its Charter certificate of incorporation or any changes to its bylaws or other comparable organizational documents;
(l) materially restructure or materially change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(m) enter into, amend in any material respect or terminate any contract of the sort required to be disclosed pursuant to Section 3.16, or waive, release, compromise or assign any material rights or claims under any such contract, other than in the ordinary course of business consistent with past practice; provided that in no event shall Company or any Company Subsidiary enter into any contract plan of the sort required to be disclosed pursuant to Section 3.16(a) (iii)consolidation, (iv), (vi), (viii), (x), (xi) merger or (xii) or that calls for aggregate annual payments reorganization with any person other than a wholly owned Subsidiary of $50,000 or more unless terminable on 30 days or less notice without payment of any penalty or premium;
(n) change in any material respect its policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing, or buying or selling rights to service, loans, except as required by applicable Law, regulation or policies imposed by any Governmental EntityCompany;
(o) except adopt a plan of complete or partial liquidation or resolutions providing for Loans or commitments for Loans that have previously been approved by the Company prior to the date of this Agreementauthorizing such a liquidation or a dissolution, make restructuring, recapitalization or acquire any Loan or issue a commitment (or renew or extend an existing commitment) for any Loan relationship aggregating in excess of $5,000,000, or amend or modify in any material respect any existing Loan relationship, that would result in total credit exposure to the applicable borrower (and its affiliates) in excess of $5,000,000reorganization;
(p) 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, regulation or policies imposed by any Governmental Entity;
(q) file any application, or otherwise take any action, to establish, relocate or terminate the operation of any banking office of Company or any Company Subsidiary;
(r) take any action that is intended or would may reasonably be reasonably likely expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or in any of the conditions to the Merger set forth in Article VII not being satisfied or prevent or materially delay the consummation in a violation of the transactions contemplated herebyany provision of this Agreement, except, in every each case, as may be required by applicable law; or
(sq) agree to, or make any commitment to, take take, or authorize, any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Forbearances of Company. During the period from the date of this Agreement June 1, 2018, to the Effective TimeTime or the earlier termination of this Agreement, except as set forth in Section 5.2 of the Company Disclosure Schedule or Schedule, as expressly required or permitted by this AgreementAgreement or as may be required by applicable Law, the Company has not done and shall notnot do, and has not and shall not permit any of its Subsidiaries toto do, do any of the following, without the prior written consent of Parent:Parent (such consent not to be unreasonably conditioned, withheld or delayed):
(a) (i) create, incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (except to the extent committed to prior to the date hereof and set forth in Section 5.2(a) of the Company Disclosure Schedule) or (ii) incur any capital expenditures (other than capital expenditures incurred pursuant to contracts or commitments in force on the date of this Agreement);
(b) (i) adjust, split, combine or reclassify, or purchase, redeem or otherwise acquire, reclassify any capital stockstock or other equity interest, (ii) set any record or payment dates for the payment of any dividends or distributions on its capital stock or other equity interest or make, declare or pay any dividend or distribution (except for dividends paid in the ordinary course of business by any direct or indirect wholly owned Company Subsidiary (whether or not wholly-owned) of Company to Company or any other direct or indirect wholly owned Subsidiary of CompanyCompany Subsidiary) or make any other distribution on any shares of its capital stock or other equity interest or redeem, purchase or otherwise acquire any securities or obligations convertible into or exchangeable for any shares of its capital stockstock or other equity interest, or (iii) grant any stock appreciation rights, restricted stock units or other equity-based compensation or grant to any individual, corporation or other entity any right to acquire any shares of its capital stock, (iv) issue any additional shares of capital stock of Company or sell, transfer, mortgage, encumber or otherwise dispose of any capital stock in any Company Subsidiary or (v) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stockSubsidiary;
(cb) sell, lease, transfer, mortgage, encumber or otherwise dispose of any material portion of its properties or assets to any individual, corporation or other entity Person other than a direct or indirect wholly-wholly owned Company Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except (i) in the ordinary course of business consistent with past practice to third parties who are not Affiliates of Company or (ii) pursuant to as expressly required by contracts or agreements in force at the date as of this Agreement that are set forth in Section 5.2(c) of the Company Disclosure ScheduleJune 1, 2018;
(d) (i) acquire any business entity, whether by stock purchase, merger, consolidation or otherwise, or (ii) make any other investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation, limited partnership or other entity;
(e) grant any Company Stock Options, restricted shares, awards based on the value of Company’s capital stock or other equity-based award with respect to shares of the Company Common Stock under any of the Company Stock Plans or otherwise, or grant any individual, corporation or other entity any right to acquire any shares of its capital stock;
(fc) except as required under applicable law or the terms of any Company Benefit Plan existing as of the date hereof, (i) increase in any manner the compensation or benefits of any of the current or former directors, officers or employees of Company or its Subsidiaries, other than increases in annual base salary at times and in amounts in the ordinary course of business business, (i) enter into, adopt, amend or terminate any material Company Benefit Plan, (ii) increase the compensation or benefits payable to any executive officer or director of Company, other than annual base compensation raises in the ordinary course of business, consistent with past practice, which shall not exceed 3% in the aggregate or 4% for any individual to employees at a level below vice president (in each case, on an annualized basis), (ii) pay or commit to pay any severance, bonus, retirement or retention amounts to any of the current or former directors, officers or employees of Company or its Subsidiaries (iii) become a party to, establish, amend, commence participation in, terminate or commit itself to the adoption of any stock option plan or other stock-based compensation plan, compensation, severance, pension, retirement, profit-sharing, welfare benefit, nonqualified deferred compensation plan, or other employee benefit plan or agreement or employment agreement with or for the benefit of any of the current or former directors, officers or employees of Company or its Subsidiaries (or newly hired employees), (iv) accelerate the vesting or payment or cause to be funded or otherwise secure the payment of any compensation and/or benefits, (v) amend, extend, renew or enter into any new, or amend any existing, collective bargaining agreement or similar agreement with respect to Company Benefit Plan or make any material determinations not in the ordinary course of business consistent with past practice under any Company Benefit Plan, (vi) hire or terminate the employment of any employee who has (in the case of employees to be terminated) or would have (in the case of employees to be hired) target total compensation (cash and target equity) of $65,000 or moreSubsidiary, or (viiiv) change fund any actuarial rabbi trust or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan 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 GAAPsimilar arrangement;
(gd) settle any claim, action or proceeding other than claims, actions unless: (i) the amount payable by Company or proceedings any of its Subsidiaries in the ordinary course of business consistent with past practice involving solely money damages connection therewith would not in excess of exceed $25,000 1,000,000 individually or $100,000 5,000,000 in the aggregate, in each case, in excess of the amounts of (1) any proceeds received from any insurance policies in connection with such settlement or waive compromise and (2) the amount of such settlement or release any material rights or claims other than compromise specifically reserved for in the ordinary course Company Financial Statements (including the notes thereto); and (ii) such settlement does not contain any restrictions upon Company or any of its Subsidiaries that would have a material effect on the business consistent with past practiceor reputation of Company or any of its Subsidiaries;
(he) pay, discharge make any change in financial accounting methods or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of any other liabilities in the ordinary course of business and consistent with past practice;
(i) (i) change its methods of material financial accounting (or the manner in which it accrues for liabilities) in on the Balance Sheet Datepolicies, except as required by changes in GAAP as concurred in by or any Governmental Entity having jurisdiction over Company and its independent auditors or (ii) except as may be required by GAAP and other than in the ordinary course of business consistent with past practice, revalue in any material respect any of its assets, including writing-off notes or accounts receivableSubsidiaries;
(jf) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material method of Tax accounting methodaccounting, file any amended Tax Return, enter into any closing agreement with any Tax Authority in respect to of material Taxes, or settle any Tax claim, audit, assessment or dispute or surrender any right with respect to claim a refund material amount of TaxesTaxes in excess of the amounts reserved therefor on the financial statements of Company and its Subsidiaries;
(kg) adopt or implement any material amendment to its Charter certificate of incorporation or any material changes to its bylaws or comparable organizational documents;
(lh) materially restructure or materially change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reportedenter into any material new line of business;
(mi) enter into, amend in any material respect or terminate any contract of the sort required to be disclosed pursuant to Section 3.16make, or waivecommit to make, release, compromise or assign any material rights or claims under any such contract, other than in the ordinary course of business consistent with past practice; provided that in no event shall Company or any Company Subsidiary enter into any contract of the sort required to be disclosed pursuant to Section 3.16(a) (iii), (iv), (vi), (viii), (x), (xi) or (xii) or that calls for aggregate annual payments of $50,000 or more unless terminable on 30 days or less notice without payment of any penalty or premium;
(n) change in any material respect its policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing, or buying or selling rights to service, loans, except as required by applicable Law, regulation or policies imposed by any Governmental Entity;
(o) except for Loans or commitments for Loans that have previously been approved by the Company prior to the date of this Agreement, make or acquire any Loan or issue a commitment (or renew or extend an existing commitment) for any Loan relationship aggregating capital expenditures in excess of $5,000,0001,000,000, individually or amend in the aggregate; or
(j) delay payment of a material obligation otherwise due, except as contemplated or modify in any material respect any existing Loan relationship, that would result in total credit exposure to permitted by the applicable borrower (and its affiliates) in excess of $5,000,000Contract providing for such obligation;
(pk) enter into reduce any new line of business or coverage under, materially change its lending, investment, underwriting, risk and asset liability management and other banking and operating policies except as required by applicable Law, regulation or policies imposed by any Governmental Entity;
(q) file any applicationamend, or otherwise take any action, to establish, relocate or terminate the operation of any banking office of Company or any Company Subsidiary;
(r) take any action that is intended or would be reasonably likely to result in materially modifies, any of the conditions set forth in Article VII not being satisfied or prevent or materially delay the consummation of the transactions contemplated hereby, except, in every case, as may be required by applicable lawCompany Policy; or
(sl) agree to, or make any commitment to, to take any of the actions prohibited by this Section 5.2. Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the operations of Company or any of its Subsidiaries or the business of Company or any of its Subsidiaries prior to the Closing. Prior to the Closing, Company and its Subsidiaries shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their operations.
Appears in 1 contract
Forbearances of Company. During the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.2 of the Company Disclosure Schedule or as expressly required by this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, do any of the following, without the prior written consent of Parent:Park Sterling (which consent shall not be unreasonably withheld or delayed):
(a) (i) create, create or incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individualPerson, corporation or other entity, or make any loan or advance than (except to A) the extent committed to prior to creation of deposit liabilities in the date hereof ordinary course of business consistent with past practice and set forth in Section 5.2(a(B) advances from the Federal Home Loan Bank of the Company Disclosure Schedule) Atlanta with a maturity of not more than one year or (ii) incur any capital expenditures (expenditures, other than capital expenditures incurred pursuant necessary to contracts or commitments maintain existing assets in force on the date of this Agreement)good repair;
(b) (i) adjust, split, combine or reclassify, or purchase, redeem or otherwise acquire, any capital stock, (ii) make, declare or pay any dividend or distribution (except for dividends paid in the ordinary course of business by any wholly owned Subsidiary (whether or not wholly-owned) of the Company to the Company or any wholly owned Subsidiary of the Company) or make any other distribution on any shares of its capital stock or redeem, purchase or otherwise acquire any securities or obligations convertible into or exchangeable for any shares of its capital stock, (iii) grant any stock appreciation rights, restricted stock units or other equity-based compensation or grant to any individual, corporation or other entity any right to acquire any shares of its capital stock, (iv) issue any additional shares of capital stock of the Company or sell, transfer, mortgage, encumber or otherwise dispose of any capital stock in any Company Subsidiary or (viv) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or other entity Person other than a direct or indirect wholly-wholly owned Company Subsidiary, or cancel, release or assign any indebtedness to any such person Person or any claims held by any such personPerson, except (i) the sale, transfer or disposal of other real estate owned in the ordinary course of business consistent with past practice to third parties who are not Affiliates of Company or (ii) pursuant to contracts or agreements in force at the date of this Agreement that are set forth in Section 5.2(c) of the Company Disclosure Schedulepractice;
(d) (i) acquire any business entity, whether by stock purchase, merger, consolidation or otherwise, or (ii) make any other investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation, limited partnership or other entityPerson;
(e) propose or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
(f) grant any Company Stock Options, restricted shares, awards based on the value of the Company’s capital stock or other equity or equity-based award with respect to shares of the Company Common Stock under any of the Company Stock Plans or otherwise, or grant any individual, corporation or other entity Person any right to acquire any shares of its capital stock;
(fg) except as required under applicable law Law or the terms of any Company Benefit Plan existing as of the date hereofhereof and that has been Previously Disclosed, (i) increase in any manner the compensation (including incentive compensation opportunities) or benefits of any of the current or former directors, officers or employees of the Company or its Subsidiaries, other than except for increases in salary to non-executive officer employees with annual base salary at times and salaries of less than $50,000 in amounts such amount as in the ordinary course of business consistent with past practice, which shall not but in no event to exceed 32.5% in the aggregate or 4% for any individual to employees at a level below vice president (in each case, on an annualized individual basis or $50,000 on an aggregate annual basis), (ii) pay or commit to pay any severance, bonus, retirement retirement, consulting or retention amounts to any of the current or former directors, officers or employees of the Company or its Subsidiaries Subsidiaries, (iii) become a party to, establish, amend, commence participation in, terminate or commit itself to the adoption of any stock option plan or other stockequity or equity-based compensation plan, compensation, severance, pension, retirement, profit-sharing, welfare benefit, nonqualified deferred compensation plan, or other employee benefit plan or agreement or employment agreement with or for the benefit of any of the current or former directors, officers or employees of the Company or its Subsidiaries (or newly hired employees), (iv) accelerate the vesting or payment or cause to be funded or otherwise secure the payment of any compensation and/or benefits, (v) amend, extend, renew or enter into any collective bargaining agreement or Company Benefit Plan or make any material determinations not in the ordinary course of business consistent with past practice under any Company Benefit Plan, (vi) hire or terminate (other than a termination of employment for cause) the employment of any employee who has (in the case of employees to be terminated) or would have (in the case of employees to be hired) target total compensation (cash and target equity) of $65,000 35,000 or more, or (vii) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan 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;
(gh) settle any claim, action or proceeding other than claims, actions or proceedings in the ordinary course of business consistent with past practice involving solely money damages not in excess of $25,000 individually or $100,000 in the aggregate, or waive or release any material rights or claims other than in the ordinary course of business consistent with past practice;
(hi) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of any other liabilities in the ordinary course of business and consistent with past practice;
(i) (i) change its methods of accounting (or the manner in which it accrues for liabilities) in on the Balance Sheet Date), except as required by changes in GAAP as concurred in by its independent auditors or (ii) except as may be required by GAAP and other than in the ordinary course of business consistent with past practiceGAAP, revalue in any material respect any of its assets, including writing-off notes or accounts receivable;
(jk) make, change or revoke any Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim, audit, assessment or dispute or surrender any right to claim a refund of Taxes;
(kl) adopt or implement any amendment to its Charter or any changes to its bylaws or comparable organizational documents;
(lm) materially restructure or materially change its investment securities portfolio, derivatives portfolio or its gap position, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(mn) amend, breach, terminate or allow to lapse any Authorization, other than amendments required by applicable Law or policies imposed by any Governmental Entity;
(o) whether orally or in writing, (i) enter into, amend in any material respect or terminate any contract of the sort required to be disclosed pursuant to Section 3.16, 3.15 or (ii) waive, release, compromise or assign any material rights or claims under any such contract, other than in the ordinary course of business consistent with past practice; provided that in no event shall Company or any Company Subsidiary enter into any contract of the sort required to be disclosed pursuant to Section 3.16(a) (iii), (iv), (vi), (viii), (x), (xi) or (xii) or that calls for aggregate annual payments of $50,000 or more unless terminable on 30 days or less notice without payment of any penalty or premium;
(n) change in any material respect its policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing, or buying or selling rights to service, loans, except as required by applicable Law, regulation or policies imposed by any Governmental Entity;
(o) except for Loans or commitments for Loans that have previously been approved by the Company prior to the date of this Agreement, make or acquire any Loan or issue a commitment (or renew or extend an existing commitment) for any Loan relationship aggregating in excess of $5,000,000, or amend or modify in any material respect any existing Loan relationship, that would result in total credit exposure to the applicable borrower (and its affiliates) in excess of $5,000,000;
(p) enter into with respect to any new line Loan 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, regulation or policies imposed by any Governmental Entity;
(q) file any application, or otherwise take any action, to establish, relocate or terminate the operation of any banking office of Company or any of its Subsidiaries that as of or after December 31, 2013 was classified by the Company Subsidiary;
(r) take or the Bank or any action that is intended or would be reasonably likely to result in any of the conditions set forth in Article VII not being satisfied or prevent or materially delay the consummation of the transactions contemplated hereby, except, in every case, as may be required by applicable law; or
(s) agree to, or make any commitment to, take any of the actions prohibited by this Section 5.2.regulatory
Appears in 1 contract
Forbearances of Company. During the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.2 of the Company Disclosure Schedule or as expressly required by this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, do any of the following, without the prior written consent of Parent:Park Sterling (which consent shall not be unreasonably withheld or delayed):
(a) (i) create, create or incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individualPerson, corporation or other entity, or make any loan or advance than (except to A) the extent committed to prior to creation of deposit liabilities in the date hereof ordinary course of business consistent with past practice and set forth in Section 5.2(a(B) advances from the Federal Home Loan Bank of the Company Disclosure Schedule) Atlanta with a maturity of not more than one year or (ii) incur any capital expenditures (expenditures, other than capital expenditures incurred pursuant necessary to contracts or commitments maintain existing assets in force on the date of this Agreement)good repair;
(b) (i) adjust, split, combine or reclassify, or purchase, redeem or otherwise acquire, any capital stock, (ii) make, declare or pay any dividend or distribution (except for dividends paid in the ordinary course of business by any wholly owned Subsidiary (whether or not wholly-owned) of the Company to the Company or any wholly owned Subsidiary of the Company) or make any other distribution on any shares of its capital stock or redeem, purchase or otherwise acquire any securities or obligations convertible into or exchangeable for any shares of its capital stock, (iii) grant any stock appreciation rights, restricted stock units or other equity-based compensation or grant to any individual, corporation or other entity any right to acquire any shares of its capital stock, (iv) issue any additional shares of capital stock of the Company or sell, transfer, mortgage, encumber or otherwise dispose of any capital stock in any Company Subsidiary or (viv) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock;
(c) sell, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or other entity Person other than a direct or indirect wholly-wholly owned Company Subsidiary, or cancel, release or assign any indebtedness to any such person Person or any claims held by any such personPerson, except (i) the sale, transfer or disposal of other real estate owned in the ordinary course of business consistent with past practice to third parties who are not Affiliates of Company or (ii) pursuant to contracts or agreements in force at the date of this Agreement that are set forth in Section 5.2(c) of the Company Disclosure Schedulepractice;
(d) (i) acquire any business entity, whether by stock purchase, merger, consolidation or otherwise, or (ii) make any other investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation, limited partnership or other entityPerson;
(e) propose or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization;
(f) grant any Company Stock Options, restricted shares, awards based on the value of the Company’s capital stock or other equity or equity-based award with respect to shares of the Company Common Stock under any of the Company Stock Plans or otherwise, or grant any individual, corporation or other entity Person any right to acquire any shares of its capital stock;
(fg) except as required under applicable law Law or the terms of any Company Benefit Plan existing as of the date hereofhereof and that has been Previously Disclosed, (i) increase in any manner the compensation (including incentive compensation opportunities) or benefits of any of the current or former directors, officers or employees of the Company or its Subsidiaries, other than except for increases in salary to non-executive officer employees with annual base salary at times and salaries of less than $50,000 in amounts such amount as in the ordinary course of business consistent with past practice, which shall not but in no event to exceed 32.5% in the aggregate or 4% for any individual to employees at a level below vice president (in each case, on an annualized individual basis or $50,000 on an aggregate annual basis), (ii) pay or commit to pay any severance, bonus, retirement retirement, consulting or retention amounts to any of the current or former directors, officers or employees of the Company or its Subsidiaries Subsidiaries, (iii) become a party to, establish, amend, commence participation in, terminate or commit itself to the adoption of any stock option plan or other stockequity or equity-based compensation plan, compensation, severance, pension, retirement, profit-sharing, welfare benefit, nonqualified deferred compensation plan, or other employee benefit plan or agreement or employment agreement with or for the benefit of any of the current or former directors, officers or employees of the Company or its Subsidiaries (or newly hired employees), (iv) accelerate the vesting or payment or cause to be funded or otherwise secure the payment of any compensation and/or benefits, (v) amend, extend, renew or enter into any collective bargaining agreement or Company Benefit Plan or make any material determinations not in the ordinary course of business consistent with past practice under any Company Benefit Plan, (vi) hire or terminate (other than a termination of employment for cause) the employment of any employee who has (in the case of employees to be terminated) or would have (in the case of employees to be hired) target total compensation (cash and target equity) of $65,000 35,000 or more, or (vii) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan 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;
(gh) settle any claim, action or proceeding other than claims, actions or proceedings in the ordinary course of business consistent with past practice involving solely money damages not in excess of $25,000 individually or $100,000 in the aggregate, or waive or release any material rights or claims other than in the ordinary course of business consistent with past practice;
(hi) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction of any other liabilities in the ordinary course of business and consistent with past practice;
(i) (i) change its methods of accounting (or the manner in which it accrues for liabilities) in on the Balance Sheet Date), except as required by changes in GAAP as concurred in by its independent auditors or (ii) except as may be required by GAAP and other than in the ordinary course of business consistent with past practiceGAAP, revalue in any material respect any of its assets, including writing-off notes or accounts receivable;
(jk) make, change or revoke any Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any amended Tax Return, enter into any closing agreement with respect to Taxes, settle any Tax claim, audit, assessment or dispute or surrender any right to claim a refund of Taxes;
(kl) adopt or implement any amendment to its Charter or any changes to its bylaws or comparable organizational documents;
(lm) materially restructure or materially change its investment securities portfolio, derivatives portfolio or its gap position, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported;
(mn) amend, breach, terminate or allow to lapse any Authorization, other than amendments required by applicable Law or policies imposed by any Governmental Entity;
(o) whether orally or in writing, (i) enter into, amend in any material respect or terminate any contract of the sort required to be disclosed pursuant to Section 3.16, 3.15 or (ii) waive, release, compromise or assign any material rights or claims under any such contract, other than in ;
(p) with respect to any Loan of the ordinary course of business consistent with past practice; provided that in no event shall Company or any of its Subsidiaries that as of or after December 31, 2013 was classified by the Company Subsidiary or the Bank or any regulatory examiner as “Other Loans Specially Mentioned,” “Special Mention,” “Substandard,” “Doubtful,” “Loss,” “Classified,” “Criticized,” “Credit Risk Assets,” “Concerned Loans,” “Watch List” or words of similar import, and that would result in total credit exposure to the applicable borrower (and its Affiliates) in excess of $200,000, whether orally or in writing, (i) enter into into, amend in any respect or terminate any contract of the sort required related to be disclosed pursuant to Section 3.16(a) (iii), (iv), (vi), (viii), (x), (xi) such Loan or (xiiii) waive, release, compromise or that calls for aggregate annual payments assign any rights or claims under any such contract; provided, however, that, if Park Sterling shall not have disapproved in writing any request to take action prohibited under this clause (p) within five business days after receipt of $50,000 or more unless terminable on 30 days or less notice without payment of any penalty or premiumsuch request from the Company, such request shall be deemed to have been approved by Park Sterling;
(nq) change in any material respect its policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing, or buying or selling rights to service, loansLoans, except as required by applicable Law, regulation or policies imposed by any Governmental Entity;
(or) except for Loans or commitments for Loans that have previously been approved by the Company prior to the date of this Agreement, make or acquire any Loan or issue a commitment (or renew or extend an existing commitment) for any Loan relationship aggregating in excess of $5,000,000200,000, or amend or modify in any material respect any existing Loan relationship, that would result in total credit exposure to the applicable borrower (and its affiliatesAffiliates) in excess of $5,000,000200,000;
(ps) alter materially its interest rate or fee pricing policies with respect to depository accounts of the Bank or waive any material fees with respect thereto;
(t) engage in any Related Party Transaction;
(u) 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, regulation or policies imposed by any Governmental Entity;
(qv) file any application, or otherwise take any action, to establish, relocate or terminate the operation of any banking office of the Company or any Company Subsidiary;
(rw) take any action that is intended or would be reasonably likely to result in any of the conditions set forth in Article ARTICLE VII not being satisfied or prevent or materially delay the consummation of the transactions contemplated hereby, except, in every case, as may be required by applicable lawLaw; or
(sx) agree to, or make any commitment to, take any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Samples: Merger Agreement (Provident Community Bancshares, Inc.)
Forbearances of Company. During In furtherance and not in limitation of Section 5.1, during the period from the date of this Agreement to the Effective Time, except as set forth in Section 5.2 of the Company Disclosure Schedule or as expressly required by this Agreement, the Company shall not, and shall not permit any of its Subsidiaries to, do any of the following, without the prior written consent of Parent:Parent (which consent shall not be unreasonably withheld or delayed):
(a) other than in the ordinary course of business consistent with past practice (i) create), create or incur any indebtedness for borrowed money, or (ii) assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (except to the extent committed to prior to the date hereof and set forth in Section 5.2(a) of the Company Disclosure Schedule) or (ii) incur any capital expenditures (other than capital expenditures incurred pursuant to contracts or commitments in force on the date of this Agreement);
(b) (i) adjust, split, combine or reclassify, or purchase, redeem or otherwise acquire, reclassify any capital stockstock or other equity interest, (ii) set any record or payment dates for the payment of any dividends or distributions on its capital stock or other equity interest or make, declare or pay any dividend or distribution (except for (A) dividends paid in the ordinary course of business by any direct or indirect wholly owned Company Subsidiary (whether or not wholly-owned) of Company to Company or any other direct or indirect wholly owned Company Subsidiary of Companyor (B) quarterly cash dividends on the Company Preferred Stock in accordance with the terms thereof with record and payment dates consistent with past practice, provided that no quarterly dividend will be declared with respect to the quarter in which the Effective Time occurs unless the Effective Time is after the record date for such quarter) or make any other distribution on any shares of its capital stock or other equity interest or redeem, purchase or otherwise acquire any securities or obligations convertible into or exchangeable for any shares of its capital stockstock or other equity interest, (iii) grant any stock appreciation rights, restricted stock units or other equity-based compensation or grant to any individual, corporation or other entity any right to acquire any shares of its capital stock, (iv) issue or commit to issue any additional shares of capital stock of Company or sell, lease, transfer, mortgage, encumber or otherwise dispose of any capital stock in any Company Subsidiary or (v) enter into any agreement, understanding or arrangement with respect to the sale or voting of its capital stock;
(c) sell, lease, transfer, mortgage, encumber or otherwise dispose of any of its properties or assets to any individual, corporation or other entity Person other than a direct or indirect wholly-wholly owned Company Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, except (i) in the ordinary course of business consistent with past practice to third parties who are not Affiliates of Company or (ii) pursuant to contracts or agreements in force at the date of this Agreement that are set forth in Section 5.2(c) of the Company Disclosure ScheduleCompany;
(d) (i) acquire direct or indirect control over any business entityor Corporate Entity, whether by stock purchase, merger, consolidation or otherwise, otherwise or (ii) make any other material investment either by purchase of stock or securities, contributions to capital, property transfers, transfers or purchase of any property or assets of any other individual, corporation, limited partnership corporation or other entity, except, in either case, in connection with a foreclosure of collateral or conveyance of such collateral in lieu of foreclosure taken in connection with collection of a Loan in the ordinary course of business consistent with past practice and with respect to Loans made to third parties who are not Affiliates of Company;
(e) grant any Company Stock Options, restricted shares, awards based on the value of Company’s capital stock or other equity-based award with respect to shares of the Company Common Stock under any of the Company Stock Plans or otherwise, or grant any individual, corporation or other entity any right to acquire any shares of its capital stock;
(f) except as required under applicable law Law or the terms of any Company Benefit Plan existing as of the date hereof, hereof (i) enter into, adopt or terminate any employee benefit plan, program or policy for the benefit or welfare of any current or former employee, officer, director or consultant of Company or any of its Subsidiaries, (ii) amend any employee benefit plan, program or policy for the benefit or welfare of any current or former employee, officer, director or consultant of Company or any of its Subsidiaries in a manner that would result in any material increase in any manner cost, (iii) increase the compensation or benefits of payable to any of the current employee, officer, director or former directors, officers or employees consultant of Company or its Subsidiaries, other than increases in annual base salary at times and in amounts in the ordinary course of business consistent with past practice, which shall not exceed 3% in the aggregate or 4% for any individual to employees at a level below vice president (in each case, on an annualized basis), (ii) pay or commit to pay any severance, bonus, retirement or retention amounts to any of the current or former directors, officers or employees of Company or its Subsidiaries (iii) become a party to, establish, amend, commence participation in, terminate other than any annual salary or commit itself to the adoption of any stock option plan or other stock-based compensation plan, compensation, severance, pension, retirement, profit-sharing, welfare benefit, nonqualified deferred compensation plan, or other employee benefit plan or agreement or employment agreement with or for the benefit of any of the current or former directors, officers or employees of Company or its Subsidiaries (or newly hired employees), (iv) accelerate the vesting or payment or cause to be funded or otherwise secure the payment of any compensation and/or benefits, (v) amend, extend, renew or enter into any collective bargaining agreement or Company Benefit Plan or make any material determinations not wage increases in the ordinary course of business consistent with past practice under of not more than 5% per annum), (iv) grant or accelerate the vesting of any equity-based awards for the benefit of any such individual, (v) enter into any new, or amend any existing, collective bargaining agreement or similar agreement with respect to Company Benefit Planor any of its Subsidiaries, (vi) provide any funding for any rabbi trust or similar arrangement or (vii) hire or terminate the employment of any employee of Company or any of its Subsidiaries who has (in the case of employees to be terminated) or would have (in the case of employees to be hired) target total annual compensation (cash and target equity) of greater than $65,000 or more, or (vii) change any actuarial or other assumptions used to calculate funding obligations with respect to any Company Benefit Plan 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 GAAP100,000;
(gf) (i) settle any claim, action or proceeding other than claims, actions or proceedings in the ordinary course of business consistent with past practice involving solely money damages not in excess of $25,000 150,000 individually or $100,000 250,000 in the aggregate, or waive waive, compromise, assign, cancel or release any material rights or claims other than in or (ii) agree or consent to the ordinary course of business consistent with past practice;
(h) pay, discharge or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction issuance of any other liabilities in the ordinary course of injunction, decree, order or judgment restricting or otherwise affecting its business and consistent with past practiceor operations;
(i) (i) make any change its in accounting methods or systems of internal accounting controls (or the manner in which it accrues for liabilities) in on the Balance Sheet Date), except as required by changes in GAAP as concurred in by its Company’s independent auditors or (ii) except as may be required by GAAP and other than in the ordinary course of business consistent with past practice, revalue in any material respect any of its assets, including writing-off notes or accounts receivable;
(jh) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any Tax accounting method, file any material amended Tax Return, enter into settle or compromise any closing agreement with respect to material liability for Taxes, settle any Tax claim, audit, assessment or dispute or surrender any right to claim a refund of a material amount of Taxes, in each case, if such action would have an adverse effect on the Company and the Company Subsidiaries that is material;
(ki) adopt or implement any amendment to its Charter articles of incorporation or any changes to its bylaws or comparable organizational documents;
(lj) materially restructure or materially change its investment securities portfolio or its gap position, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported, or invest in any mortgage-backed or mortgage-related securities which would be considered “high-risk” securities under applicable regulatory pronouncements;
(mk) enter into, modify, amend in any material respect or terminate any contract of the sort required to be disclosed pursuant to Section 3.16, or waive, release, compromise or assign any material rights or claims under any such contract3.14(a), other than in the ordinary course of business consistent with past practice; provided that in no event shall Company practice or any Company Subsidiary enter into any contract of the sort required to be disclosed pursuant to Section 3.16(a) (iii), (iv), (vi), (viii), (x), (xi) or (xii) or that calls for aggregate annual payments the terms of $50,000 or more unless terminable on 30 days or less notice without payment of any penalty or premiumsuch contracts;
(nl) change in any material respect its policies and practices with respect to underwriting, pricing, originating, acquiring, selling, servicing, or buying or selling rights to service, loans, except as required by applicable Law, regulation or policies imposed by any Governmental Entity;
(o) except for Loans or commitments for Loans that have previously been approved by the Company prior to the date of this Agreement, make or acquire any Loan or issue a commitment (or renew or extend an existing commitment) for any Loan relationship aggregating in excess of $5,000,000, or amend or modify in any material respect any existing Loan relationship, that would result in total credit exposure to the applicable borrower (and its affiliates) in excess of $5,000,000;
(p) enter into any new line of business business;
(m) make, or materially change its lendingcommit to make, investmentany capital expenditures in excess of $100,000 individually or $250,000 in the aggregate, underwritingother than as disclosed in Company’s capital expenditure budget set forth in Section 5.2(m) of the Disclosure Schedule;
(n) open or close any branch office (or file any application to do so), risk or acquire or sell or agree to acquire or sell, any branch office or any deposit liabilities;
(o) foreclose upon or otherwise acquire any commercial real property in excess of $500,000 prior to receipt and asset liability management and other banking and operating policies except as required authorization by applicable Law, regulation or policies imposed by Parent of a Phase I environmental review thereof;
(p) establish any Governmental Entitynew Subsidiary;
(q) file any application, or otherwise fail to use commercially reasonable efforts to take any action, to establish, relocate or terminate the operation of any banking office of Company or action that is required by any Company SubsidiaryRegulatory Agreement;
(r) take any action that is intended to, would or would be reasonably likely to result in any of the conditions set forth in Article VII not being satisfied or prevent or materially delay the consummation of the transactions contemplated hereby, except, in every case, as may be required by applicable lawLaw; or
(s) agree to, or make any commitment to, take any of the actions prohibited by this Section 5.2.
Appears in 1 contract
