Forbearances. Except as set forth on Schedule 5.2, as otherwise contemplated or permitted by this Agreement (including the Disclosure Schedules) and the Option Agreements or as referred to in any Star Reports or Firstar Reports publicly filed with the SEC prior to the date hereof, during the period from the date of this Agreement to the Effective Time, Firstar shall not and shall not permit its Subsidiaries to, without the prior written consent of Star (which consent shall not be unreasonably withheld), and Star shall not and shall not permit any of its Subsidiaries to, without the prior written consent of Firstar (which consent shall not be unreasonably withheld): (a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a wholly owned Subsidiary of such party to such party or another wholly owned Subsidiary of such party), except that (i) Star may pay quarterly cash dividends on Star Common Stock in an amount not to exceed the rate payable on such Star Common Stock as of the date hereof, and (ii) Firstar may pay quarterly cash dividends on Firstar Common Stock in an amount not to exceed the rate payable on such Firstar Common Stock as of the date hereof (together with any rate increase consistent with past practice); or (b) except as disclosed on such party's Disclosure Schedule, enter into or amend any employment, severance or similar agreement or arrangement with any director or officer or employee or collective bargaining agreement, or materially modify any of its Benefit Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except normal individual increases in compensation to employees consistent with past practice or (ii) as required by law or contract; or (c) authorize, recommend, propose, or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination, any acquisition or disposition of a material amount of assets, including mortgage servicing rights, loans or securities as well as any release or relinquishment of any material contract rights (except in the usual course of business consistent with past practices) provided, however, that the foregoing shall not prohibit internal reorganizations or consolidations involving existing Subsidiaries; or (d) except for transactions in the ordinary course of business consistent with past practice, enter into or terminate any material contract or agreement, or make any change in any of its material leases or contracts, other than renewals of contracts and leases without material adverse changes of terms; (e) settle any material claim, action or proceeding involving money damages, except in the ordinary course of business consistent with past practice; (f) propose or adopt any amendments to its articles of incorporation, association or other charter document or bylaws or code of regulations; or (g) issue, sell, grant, confer or award any of its Equity Securities or any debt securities having the right to vote on matters on which stockholders may vote or purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise (except for (i) shares of Firstar Common Stock or Star Common Stock, as applicable, issued upon exercise of Firstar Stock Options or Star Stock Options, respectively, outstanding on the date of this Agreement or issued in accordance with this paragraph (g), (ii) pursuant to the Option Agreements, (iii) any such transactions between a wholly-owned Subsidiary and its parent, (iv) in accordance with the Firstar and Star Stock Plans consistent with past practice, (v) as agent for stockholders reinvesting dividends pursuant to a dividend reinvestment plan in accordance with the terms thereof as in effect on the date of this Agreement, (vi) for the acquisition of Trust Account Shares and DPC Shares, (vii) with respect to Firstar, any repurchases of Firstar Common Stock to maintain a pool of up to 500,000 shares in the form of treasury shares for the purpose of reissuing upon the exercise of Firstar Stock Options, or (viii) in the ordinary course of business consistent with past practice (such party agreeing to promptly notify the other party of any such transactions)) or effect any stock split or adjust, combine, reclassify or otherwise change its equity capitalization as it existed on the date of this Agreement; or (h) solicit, encourage or authorize any individual, corporation or other entity to solicit or encourage from any third party any inquiries or proposals relating to the disposition of its business or assets, or the acquisition of its voting securities, or the merger of it or any of its Subsidiaries with any corporation or other entity other than as provided by this Agreement (and each party shall promptly notify the other of all of the relevant details relating to all inquiries and proposals which it may receive relating to any of such matters); or (i) take any action that would (i) materially adversely affect, impede or delay the consummation of the transactions contemplated by this Agreement and the Option Agreements or the ability of Star or Firstar to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement and the Option Agreements or to perform its covenants and agreements under this Agreement and the Option Agreements, (ii) prevent the Reincorporation Merger or the Second Step Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code or (iii) prevent the transactions contemplated hereby from qualifying as a "pooling of interests" for accounting and financial reporting purposes; or (j) other than in the ordinary course of business consistent with past practice and other than indebtedness of up to $800 million incurred by Firstar and its Subsidiaries to fund Firstar's purchase from Cargill Corporation of Cargill Leasing and to redeem Firstar's $100 million aggregate principal amount of 7.15% Notes due September 1, 2000, and indebtedness of up to $100 million under Firstar's bank facilities for liquidity purposes incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and indebtedness of Star or any of its wholly-owned Subsidiaries to Star or any of its wholly-owned Subsidiaries, on the one hand, or of Firstar or any of its wholly-owned Subsidiaries to Firstar or any of its wholly- owned Subsidiaries, on the other hand), assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements); or (k) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or (l) other than the sale of up to $250 million of treasury securities by Firstar and its Subsidiaries, materially restructure or materially change its investment securities portfolio, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported as of the date of the Agreement; or (m) except as required by applicable law or regulation, (i) implement or adopt, any material change in its interest rate and other risk management policies, procedures or practices, (ii) fail to follow in any material respect its existing policies or practices with respect to managing its exposure to interest rate and other risk or (iii) fail to use commercially reasonable means to avoid any material increase in its aggregate exposure to interest rate risk; or (n) take any action or make any determination the effect of which would result in the transactions contemplated by this Agreement constituting or being deemed to be a "Change in Control" within the meaning of the Firstar Supplemental Retirement Plan for Key Executives and the Firstar Corporation Pension Plan or (o) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Firstar Corp /Wi/)
Forbearances. Except as set forth on Schedule 5.2, as otherwise contemplated or permitted by this Agreement (including the Disclosure Schedules) and the Option Agreements or as referred to in any Star Reports or Firstar Reports publicly filed with the SEC prior to the date hereof, during the period from the date of this Agreement to the Effective Time, Firstar shall not and shall not permit its Subsidiaries to, without the prior written consent of Star (which consent shall not be unreasonably withheld), and Star shall not and shall not permit any of its Subsidiaries to, without the prior written consent of Firstar (which consent shall not be unreasonably withheld):
(a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a wholly owned Subsidiary of such party to such party or another wholly owned Subsidiary of such party), except that (i) Star may pay quarterly cash dividends on Star Common Stock in an amount not to exceed the rate payable on such Star Common Stock as of the date hereof, and (ii) Firstar may pay quarterly cash dividends on Firstar Common Stock in an amount not to exceed the rate payable on such Firstar Common Stock as of the date hereof (together with any rate increase consistent with past practice); or
(b) except as disclosed on such party's Disclosure Schedule, enter into or amend any employment, severance or similar agreement or arrangement with any director or officer or employee or collective bargaining agreement, or materially modify any of its Benefit Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except normal individual increases in compensation to employees consistent with past practice or (ii) as required by law or contract; or
(c) authorize, recommend, propose, or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination, any acquisition or disposition of a material amount of assets, including mortgage servicing rights, loans or securities as well as any release or relinquishment of any material contract rights (except in the usual course of business consistent with past practices) provided, however, that the foregoing shall not prohibit internal reorganizations or consolidations involving existing Subsidiaries; or
(d) except for transactions in the ordinary course of business consistent with past practice, enter into or terminate any material contract or agreement, or make any change in any of its material leases or contracts, other than renewals of contracts and leases without material adverse changes of terms;; or
(e) settle any material claim, action or proceeding involving money damages, except in the ordinary course of business consistent with past practice;; or
(f) propose or adopt any amendments to its articles of incorporation, association or other charter document or bylaws or code of regulations; or
(g) issue, sell, grant, confer or award any of its Equity Securities or any debt securities having the right to vote on matters on which stockholders may vote or purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise (except for (i) shares of Firstar Common Stock or Star Common Stock, as applicable, issued upon exercise of Firstar Stock Options or Star Stock Options, respectively, outstanding on the date of this Agreement or issued in accordance with this paragraph (g), (ii) pursuant to the Option Agreements, (iii) any such transactions between a wholly-owned Subsidiary and its parent, (iv) in accordance with the Firstar and Star Stock Plans consistent with past practice, (v) as agent for stockholders reinvesting dividends pursuant to a dividend reinvestment plan in accordance with the terms thereof as in effect on the date of this Agreement, (vi) for the acquisition of Trust Account Shares and DPC Shares, (vii) with respect to Firstar, any repurchases of Firstar Common Stock to maintain a pool of up to 500,000 shares in the form of treasury shares for the purpose of reissuing upon the exercise of Firstar Stock Options, or (viii) in the ordinary course of business consistent with past practice (such party agreeing to promptly notify the other party of any such transactions)) or effect any stock split or adjust, combine, reclassify or otherwise change its equity capitalization as it existed on the date of this Agreement; or
(h) solicit, encourage or authorize any individual, corporation or other entity to solicit or encourage from any third party any inquiries or proposals relating to the disposition of its business or assets, or the acquisition of its voting securities, or the merger of it or any of its Subsidiaries with any corporation or other entity other than as provided by this Agreement (and each party shall promptly notify the other of all of the relevant details relating to all inquiries and proposals which it may receive relating to any of such matters); or
(i) take any action that would (i) materially adversely affect, impede or delay the consummation of the transactions contemplated by this Agreement and the Option Agreements or the ability of Star or Firstar to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement and the Option Agreements or to perform its covenants and agreements under this Agreement and the Option Agreements, (ii) prevent the Reincorporation First Step Merger or the Second Step Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code or (iii) prevent the transactions contemplated hereby from qualifying as a "pooling of interests" for accounting and financial reporting purposes; or
(j) other than in the ordinary course of business consistent with past practice and other than indebtedness of up to $800 million incurred by Firstar and its Subsidiaries to fund Firstar's purchase from Cargill Corporation of Cargill Leasing and to redeem Firstar's $100 million xxxxxon aggregate principal amount of 7.15% Notes due September 1, 2000, and indebtedness of up to $100 million under Firstar's bank facilities for liquidity purposes incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and indebtedness of Star or any of its wholly-owned Subsidiaries to Star or any of its wholly-owned Subsidiaries, on the one hand, or of Firstar or any of its wholly-owned Subsidiaries to Firstar or any of its wholly- wholly-owned Subsidiaries, on the other hand), assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements); or
(k) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(l) other than the sale of up to $250 million of treasury securities by Firstar and its Subsidiaries, materially restructure or materially change its investment securities portfolio, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported as of the date of the Agreement; or
(m) except as required by applicable law or regulation, (i) implement or adopt, any material change in its interest rate and other risk management policies, procedures or practices, (ii) fail to follow in any material respect its existing policies or practices with respect to managing its exposure to interest rate and other risk or (iii) fail to use commercially reasonable means to avoid any material increase in its aggregate exposure to interest rate risk; or
(n) take any action or make any determination the effect of which would result in the transactions contemplated by this Agreement constituting or being deemed to be a "Change in Control" within the meaning of the Firstar Supplemental Retirement Plan for Key Executives and the Firstar Corporation Pension Plan Plan; or
(o) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Firstar Corp /Wi/)
Forbearances. Except as set forth on Schedule 5.2, as otherwise contemplated or permitted by this Agreement (including the Disclosure Schedules) and the Option Agreements or as referred to in any Star Reports or Firstar Reports publicly filed with the SEC prior to the date hereof, during the period from the date of this Agreement to the Effective Time, Firstar shall not and shall not permit its Subsidiaries to, without the prior written consent of Star (which consent shall not be unreasonably withheld), and Star shall not and shall not permit any of its Subsidiaries to, without the prior written consent of Firstar (which consent shall not be unreasonably withheld):
(a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a wholly owned Subsidiary of such party to such party or another wholly owned Subsidiary of such party), except that (i) Star may pay quarterly cash dividends on Star Common Stock in an amount not to exceed the rate payable on such Star Common Stock as of the date hereof, and (ii) Firstar may pay quarterly cash dividends on Firstar Common Stock in an amount not to exceed the rate payable on such Firstar Common Stock as of the date hereof (together with any rate increase consistent with past practice); or
(b) except as disclosed on such party's Disclosure Schedule, enter into or amend any employment, severance or similar agreement or arrangement with any director or officer or employee or collective bargaining agreement, or materially modify any of its Benefit Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except normal individual increases in compensation to employees consistent with past practice or (ii) as required by law or contract; or
(c) authorize, recommend, propose, or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination, any acquisition or disposition of a material amount of assets, including mortgage servicing rights, loans or securities as well as any release or relinquishment of any material contract rights (except in the usual course of business consistent with past practices) provided, however, that the foregoing shall not prohibit internal reorganizations or consolidations involving existing Subsidiaries; or
(d) except for transactions in the ordinary course of business consistent with past practice, enter into or terminate any material contract or agreement, or make any change in any of its material leases or contracts, other than renewals of contracts and leases without material adverse changes of terms;
(e) settle any material claim, action or proceeding involving money damages, except in the ordinary course of business consistent with past practice;
(f) propose or adopt any amendments to its articles of incorporation, association or other charter document or bylaws or code of regulations; or
(g) issue, sell, grant, confer or award any of its Equity Securities or any debt securities having the right to vote on matters on which stockholders may vote or purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise (except for (i) shares of Firstar Common Stock or Star Common Stock, as applicable, issued upon exercise of Firstar Stock Options or Star Stock Options, respectively, outstanding on the date of this Agreement or issued in accordance with this paragraph (g), (ii) pursuant to the Option Agreements, (iii) any such transactions between a wholly-owned Subsidiary and its parent, (iv) in accordance with the Firstar and Star Stock Plans consistent with past practice, (v) as agent for stockholders reinvesting dividends pursuant to a dividend reinvestment plan in accordance with the terms thereof as in effect on the date of this Agreement, (vi) for the acquisition of Trust Account Shares and DPC Shares, (vii) with respect to Firstar, any repurchases of Firstar Common Stock to maintain a pool of up to 500,000 shares in the form of treasury shares for the purpose of reissuing upon the exercise of Firstar Stock Options, or (viii) in the ordinary course of business consistent with past practice (such party agreeing to promptly notify the other party of any such transactions)) or effect any stock split or adjust, combine, reclassify or otherwise change its equity capitalization as it existed on the date of this Agreement; or
(h) solicit, encourage or authorize any individual, corporation or other entity to solicit or encourage from any third party any inquiries or proposals relating to the disposition of its business or assets, or the acquisition of its voting securities, or the merger of it or any of its Subsidiaries with any corporation or other entity other than as provided by this Agreement (and each party shall promptly notify the other of all of the relevant details relating to all inquiries and proposals which it may receive relating to any of such matters); or
(i) take any action that would (i) materially adversely affect, impede or delay the consummation of the transactions contemplated by this Agreement and the Option Agreements or the ability of Star or Firstar to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement and the Option Agreements or to perform its covenants and agreements under this Agreement and the Option Agreements, (ii) prevent the Reincorporation Merger or the Second Step Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code or (iii) prevent the transactions contemplated hereby from qualifying as a "pooling of interests" for accounting and financial reporting purposes; or
(j) other than in the ordinary course of business consistent with past practice and other than indebtedness of up to $800 million incurred by Firstar and its Subsidiaries to fund Firstar's purchase from Cargill Corporation of Cargill Leasing and to redeem Firstar's $100 million aggregate principal amount of 7.15% Notes due September 1, 2000, and indebtedness of up to $100 million under Firstar's bank facilities for liquidity purposes incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and indebtedness of Star or any of its wholly-owned Subsidiaries to Star or any of its wholly-owned Subsidiaries, on the one hand, or of Firstar or any of its wholly-owned Subsidiaries to Firstar or any of its wholly- wholly-owned Subsidiaries, on the other hand), assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements); or
(k) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(l) other than the sale of up to $250 million of treasury securities by Firstar and its Subsidiaries, materially restructure or materially change its investment securities portfolio, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported as of the date of the Agreement; or
(m) except as required by applicable law or regulation, (i) implement or adopt, any material change in its interest rate and other risk management policies, procedures or practices, (ii) fail to follow in any material respect its existing policies or practices with respect to managing its exposure to interest rate and other risk or (iii) fail to use commercially reasonable means to avoid any material increase in its aggregate exposure to interest rate risk; or
(n) take any action or make any determination the effect of which would result in the transactions contemplated by this Agreement constituting or being deemed to be a "Change in Control" within the meaning of the Firstar Supplemental Retirement Plan for Key Executives and the Firstar Corporation Pension Plan or
(o) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Star Banc Corp /Oh/)
Forbearances. Except as set forth on in Section 5.2 of the Subject Company Disclosure Schedule 5.2or Section 5.2 of the Parent Disclosure Schedule, as otherwise the case may be, as expressly contemplated or permitted by this Agreement (including the Disclosure Schedules) and the Option Agreements Agreement, or as referred to in any Star Reports required by applicable law, rule or Firstar Reports publicly filed with the SEC prior to the date hereofregulation, during the period from the date of this Agreement to the Effective Time, Firstar neither Parent nor Subject Company shall, and neither Parent nor Subject Company shall not and shall not permit its any of their respective Subsidiaries to, without the prior written consent of Star (which consent shall not be unreasonably withheld), and Star shall not and shall not permit any of its Subsidiaries to, without the prior written consent of Firstar (which consent shall not be unreasonably withheld):
other: (a) declareadjust, split, combine or reclassify any capital stock; set aside any record or payment dates for the payment of any dividends or distributions on its capital stock except in the ordinary and usual course of business consistent with past practice; make, declare or pay any dividends dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, or except as otherwise permitted by this paragraph (a) grant any stock appreciation rights or grant any individual, corporation or other distributions, directly or indirectly, in respect entity any right to acquire any shares of its capital stock (other than dividends from a wholly owned Subsidiary of such party to such party or another wholly owned Subsidiary of such party), except that for (i) Star may pay regular quarterly cash dividends on Star Subject Company Common Stock in an amount not to exceed the rate payable and on such Star Parent Common Stock at a rate equal to the rates paid by each of Subject Company and Parent, as of the case may be, during the fiscal quarter immediately preceding the date hereof, and as such rates may be increased, in the case of Parent only, in the ordinary course of business consistent with past practice; provided, however, that no dividend shall be paid by Subject Company on Subject Company Common Stock if Subject Company shall be required to borrow to do so; (ii) Firstar may pay in the case of Subject Company 8.30% Preferred Stock and Parent Preferred Stock, for regular quarterly or semiannual cash dividends on Firstar Common Stock thereon at the rates set forth in an amount not the applicable certificate of incorporation or certificate of designation for such securities; (iii) dividends paid by any of the wholly owned Subsidiaries of each of Parent and Subject Company to exceed Parent or Subject Company or any of their wholly owned Subsidiaries, respectively, provided that no such dividend shall cause Great Western Bank to cease to qualify as a "well capitalized" institution under 12 CFR Part 565; and (iv) in the rate payable on such Firstar Common Stock case of Parent only, the issuance of employee stock options and restricted stock consistent with past practices); or issue any additional shares of capital stock except (A) pursuant to the exercise of stock options outstanding as of the date hereof (together with any rate increase or, in the case of Parent only, issued after the date hereof in a manner consistent with past practice), (B) in the case of Parent only, the award of restricted shares of Parent Common Stock in a manner consistent with past practice, (C) pursuant to the Subject Company Rights Agreement, (D) pursuant to the Parent Rights Agreement, (E) pursuant to contracts or agreements in force at the date of this Agreement and set out in Section 5.2 of the Subject Company Disclosure Schedule and Section 5.2 of the Parent Disclosure Schedule, as the case may be, and (F) in connection with acquisitions and investments permitted by paragraph (c) hereof; or
(b) except as disclosed on such party's Disclosure Schedulesell, enter into transfer, mortgage, encumber or amend any employment, severance or similar agreement or arrangement with any director or officer or employee or collective bargaining agreement, or materially modify otherwise dispose of any of its Benefit Plans properties or grant assets to any salary individual, corporation or wage increase other entity (other than a direct or materially increase any employee benefit (including incentive or bonus paymentsindirect wholly owned Subsidiary), or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case that is material to such party, except normal individual increases (i) in compensation to employees the ordinary course of business consistent with past practice or (ii) pursuant to contracts or agreements in force at the date of this Agreement and set out in Section 5.2 of the Subject Company Disclosure Schedule or Section 5.2 of the Parent Disclosure Schedule, as required by law or contractthe case may be; or
(c) authorize, recommend, propose, or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination, any acquisition or disposition of a material amount of assets, including mortgage servicing rights, loans or securities as well as any release or relinquishment of any material contract rights (except in the usual course of business consistent with past practices) provided, however, that the foregoing shall not prohibit internal reorganizations or consolidations involving existing Subsidiaries; or
(d) except for transactions in the ordinary course of business consistent with past practice, make any material acquisition or investment either by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchases of any property or assets of any other individual, corporation or other entity other than a wholly owned Subsidiary thereof; provided, however, that subject to clause (iii) of Section 5.1, Parent may enter into an agreement or agreements for, and may consummate, business combination transactions with other companies provided that the aggregate amount of assets of such companies does not exceed $5,000,000,000; provided, further, however that, notwithstanding anything to the contrary contained herein, Parent shall not make any acquisition that would require it to register as a bank holding company under the Bank Holding Company Act of 1956, as amended; (d) in the case of the Subject Company, only enter into, renew or terminate any material contract or agreement, other than loans made in the ordinary course of business, that calls for aggregate annual payments of $500,000 and which is not either (i) terminable at will on 60 days or less notice without payment of a penalty or (ii) has a term of less than one year; or make any material change in any of its material leases or contracts, other than renewals of contracts and or leases for a term of one year or less without material materially adverse changes of terms;
to the terms thereof; (e) settle any material claim, action or proceeding involving money damages, except in the ordinary course case of business consistent with past practice;
(f) propose or adopt any amendments to its articles of incorporationSubject Company only, association or other charter document or bylaws or code of regulations; or
(g) issue, sell, grant, confer or award any of its Equity Securities or any debt securities having the right to vote on matters on which stockholders may vote or purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise (except for (i) shares of Firstar Common Stock or Star Common Stock, as applicable, issued upon exercise of Firstar Stock Options or Star Stock Options, respectively, outstanding on the date of this Agreement or issued in accordance with this paragraph (g), (ii) pursuant to the Option Agreements, (iii) any such transactions between a wholly-owned Subsidiary and its parent, (iv) in accordance with the Firstar and Star Stock Plans than general salary increases consistent with past practice, (v) as agent for stockholders reinvesting dividends pursuant to a dividend reinvestment plan in accordance with the terms thereof as in effect on the date of this Agreement, (vi) for the acquisition of Trust Account Shares and DPC Shares, (vii) with respect to Firstar, any repurchases of Firstar Common Stock to maintain a pool of up to 500,000 shares in the form of treasury shares for the purpose of reissuing upon the exercise of Firstar Stock Options, or (viii) in the ordinary course of business consistent with past practice (such party agreeing to promptly notify the other party of any such transactions)) or effect any stock split or adjust, combine, reclassify or otherwise change its equity capitalization as it existed on the date of this Agreement; or
(h) solicit, encourage or authorize any individual, corporation or other entity to solicit or encourage from any third party any inquiries or proposals relating to the disposition of its business or assets, or the acquisition of its voting securities, or the merger of it or any of its Subsidiaries with any corporation or other entity other than as provided by this Agreement (and each party shall promptly notify the other of all of the relevant details relating to all inquiries and proposals which it may receive relating to any of such matters); or
(i) take any action that would (i) materially adversely affect, impede or delay the consummation of the transactions contemplated by this Agreement and the Option Agreements or the ability of Star or Firstar to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement and the Option Agreements or to perform its covenants and agreements under this Agreement and the Option Agreements, (ii) prevent the Reincorporation Merger or the Second Step Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code or (iii) prevent the transactions contemplated hereby from qualifying as a "pooling of interests" for accounting and financial reporting purposes; or
(j) other than in the ordinary course of business consistent with past practice and other than indebtedness of up to $800 million incurred by Firstar and its Subsidiaries to fund Firstar's purchase from Cargill Corporation of Cargill Leasing and to redeem Firstar's $100 million aggregate principal amount of 7.15% Notes due September 1, 2000, and indebtedness of up to $100 million under Firstar's bank facilities for liquidity purposes incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and indebtedness of Star or any of its wholly-owned Subsidiaries to Star or any of its wholly-owned Subsidiaries, on the one hand, or of Firstar or any of its wholly-owned Subsidiaries to Firstar or any of its wholly- owned Subsidiaries, on the other hand), assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements); or
(k) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(l) other than the sale of up to $250 million of treasury securities by Firstar and its Subsidiaries, materially restructure or materially change its investment securities portfolio, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported as of the date of the Agreement; or
(m) except as required by applicable law or regulation, (i) implement or adopt, any material change in its interest rate and other risk management policies, procedures or practices, (ii) fail to follow increase in any material respect its existing policies the compensation or practices with respect to managing its exposure to interest rate and other risk or (iii) fail to use commercially reasonable means to avoid any material increase in its aggregate exposure to interest rate risk; or
(n) take any action or make any determination the effect fringe benefits of which would result in the transactions contemplated by this Agreement constituting or being deemed to be a "Change in Control" within the meaning of the Firstar Supplemental Retirement Plan for Key Executives and the Firstar Corporation Pension Plan or
(o) agree in writing or otherwise to take any of the foregoing actions.its employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party to, amend or commit itself to any pension, retirement, profit-sharing or
Appears in 1 contract
Forbearances. Except as set forth on Schedule 5.2, as otherwise contemplated or permitted by this Agreement (including the Disclosure Schedules) and the Option Agreements or as referred to in any Star Reports or Firstar Reports publicly filed with the SEC prior to the date hereof, during the period from the date of this Agreement to the Effective Time, Firstar shall not and shall not permit its Subsidiaries to, without the prior written consent of Star (which consent shall not be unreasonably withheld), and Star shall not and shall not permit any of its Subsidiaries to, without the prior written consent of Firstar (which consent shall not be unreasonably withheld):
(a) declare, set aside or pay any dividends or other distributions, directly or indirectly, in respect of its capital stock (other than dividends from a wholly owned Subsidiary of such party to such party or another wholly owned Subsidiary of such party), except that (i) Star may pay quarterly cash dividends on Star Common Stock in an amount not to exceed the rate payable on such Star Common Stock as of the date hereof, and (ii) Firstar may pay quarterly cash dividends on Firstar Common Stock in an amount not to exceed the rate payable on such Firstar Common Stock as of the date hereof (together with any rate increase consistent with past practice); or
(b) except as disclosed on such party's Disclosure Schedule, enter into or amend any employment, severance or similar agreement or arrangement with any director or officer or employee or collective bargaining agreement, or materially modify any of its Benefit Plans or grant any salary or wage increase or materially increase any employee benefit (including incentive or bonus payments), except normal individual increases in compensation to employees consistent with past practice or (ii) as required by law or contract; or
(c) authorize, recommend, propose, or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination, any acquisition or disposition of a material amount of assets, including mortgage servicing rights, loans or securities as well as any release or relinquishment of any material contract rights (except in the usual course of business consistent with past practices) provided, however, that the foregoing shall not prohibit internal reorganizations or consolidations involving existing Subsidiaries; or
(d) except for transactions in the ordinary course of business consistent with past practice, enter into or terminate any material contract or agreement, or make any change in any of its material leases or contracts, other than renewals of contracts and leases without material adverse changes of terms;; or
(e) settle any material claim, action or proceeding involving money damages, except in the ordinary course of business consistent with past practice;; or
(f) propose or adopt any amendments to its articles of incorporation, association or other charter document or bylaws or code of regulations; or
(g) issue, sell, grant, confer or award any of its Equity Securities or any debt securities having the right to vote on matters on which stockholders may vote or purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise (except for (i) shares of Firstar Common Stock or Star Common Stock, as applicable, issued upon exercise of Firstar Stock Options or Star Stock Options, respectively, outstanding on the date of this Agreement or issued in accordance with this paragraph (g), (ii) pursuant to the Option Agreements, (iii) any such transactions between a wholly-owned Subsidiary and its parent, (iv) in accordance with the Firstar and Star Stock Plans consistent with past practice, (v) as agent for stockholders reinvesting dividends pursuant to a dividend reinvestment plan in accordance with the terms thereof as in effect on the date of this Agreement, (vi) for the acquisition of Trust Account Shares and DPC Shares, (vii) with respect to Firstar, any repurchases of Firstar Common Stock to maintain a pool of up to 500,000 shares in the form of treasury shares for the purpose of reissuing upon the exercise of Firstar Stock Options, or (viii) in the ordinary course of business consistent with past practice (such party agreeing to promptly notify the other party of any such transactions)) or effect any stock split or adjust, combine, reclassify or otherwise change its equity capitalization as it existed on the date of this Agreement; or
(h) solicit, encourage or authorize any individual, corporation or other entity to solicit or encourage from any third party any inquiries or proposals relating to the disposition of its business or assets, or the acquisition of its voting securities, or the merger of it or any of its Subsidiaries with any corporation or other entity other than as provided by this Agreement (and each party shall promptly notify the other of all of the relevant details relating to all inquiries and proposals which it may receive relating to any of such matters); or
(i) take any action that would (i) materially adversely affect, impede or delay the consummation of the transactions contemplated by this Agreement and the Option Agreements or the ability of Star or Firstar to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement and the Option Agreements or to perform its covenants and agreements under this Agreement and the Option Agreements, (ii) prevent the Reincorporation First Step Merger or the Second Step Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code or (iii) prevent the transactions contemplated hereby from qualifying as a "pooling of interests" for accounting and financial reporting purposes; or
(j) other than in the ordinary course of business consistent with past practice and other than indebtedness of up to $800 million incurred by Firstar and its Subsidiaries to fund Firstar's purchase from Cargill Corporation of Cargill Leasing and to redeem Firstar's $100 million aggregate principal amount of 7.15% Notes due September 1, 2000, and indebtedness of up to $100 million under Firstar's bank facilities for liquidity purposes incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and indebtedness of Star or any of its wholly-owned Subsidiaries to Star or any of its wholly-owned Subsidiaries, on the one hand, or of Firstar or any of its wholly-owned Subsidiaries to Firstar or any of its wholly- wholly-owned Subsidiaries, on the other hand), assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements); or
(k) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(l) other than the sale of up to $250 million of treasury securities by Firstar and its Subsidiaries, materially restructure or materially change its investment securities portfolio, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported as of the date of the Agreement; or
(m) except as required by applicable law or regulation, (i) implement or adopt, any material change in its interest rate and other risk management policies, procedures or practices, (ii) fail to follow in any material respect its existing policies or practices with respect to managing its exposure to interest rate and other risk or (iii) fail to use commercially reasonable means to avoid any material increase in its aggregate exposure to interest rate risk; or
(n) take any action or make any determination the effect of which would result in the transactions contemplated by this Agreement constituting or being deemed to be a "Change in Control" within the meaning of the Firstar Supplemental Retirement Plan for Key Executives and the Firstar Corporation Pension Plan Plan; or
(o) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Star Banc Corp /Oh/)
Forbearances. Except as set forth on in Section 5.2 of the Subject Company Disclosure Schedule 5.2or Section 5.2 of the Parent Disclosure Schedule, as otherwise contemplated or permitted by this Agreement (including the Disclosure Schedules) and the Option Agreements or as referred to in any Star Reports or Firstar Reports publicly filed with the SEC prior to the date hereofcase may be, during the period from the date of this Agreement to the Effective TimeTime and, Firstar except as expressly contemplated or permitted by this Agreement or the Option Agreements or as required by applicable law, rule or regulation, neither Parent nor Subject Company shall, and neither Parent nor Subject Company shall not and shall not permit its any of their respective Subsidiaries to, without the prior written consent of Star (which consent shall not be unreasonably withheld), and Star shall not and shall not permit any of its Subsidiaries to, without the prior written consent of Firstar (which consent shall not be unreasonably withheld):other:
(a) declareadjust, set aside split, combine or reclassify any capital stock; make, declare or pay any dividends dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, or grant any stock appreciation rights or grant any individual, corporation or other distributions, directly or indirectly, in respect entity any right to acquire any shares of its capital stock (other than dividends from a wholly owned Subsidiary of such party to such party or another wholly owned Subsidiary of such party), except that (i) Star may pay for regular quarterly cash dividends on Star Subject Company Common Stock in an amount not to exceed the rate payable and on such Star Parent Common Stock at a rate equal to the rates recently paid by each of Subject Company and Parent, as the case may be, as such rates may be increased by either party in the ordinary course of business consistent with past practice and, in the case of Subject Company Preferred Stock and Parent Preferred Stock, for regular quarterly or semiannual cash dividends thereon at the rates set forth in the applicable certificate of incorporation or certificate of designation for such securities and except for dividends paid by any of the wholly owned Subsidiaries of each of Parent and Subject Company to Parent or Subject Company or any of their wholly owned Subsidiaries, respectively, and except for the issuance of employee stock options and restricted stock consistent with past practices); or issue any additional shares of capital stock except pursuant to (A) the exercise of stock options, PSPRs or risk event warrants outstanding as of the date hereof, and (iiB) Firstar may pay quarterly cash dividends on Firstar Common Stock in an amount not to exceed the rate payable on such Firstar Common Stock vesting of Performance Units outstanding as of the date hereof pursuant to Subject Company Stock Option Plans, (together with any rate increase consistent with past practice); orC) the conversion of shares of Parent Series 0000X Xxxxxxxxx Xxxxx, (X) the Subject Company Rights Agreement, (E) the Parent Rights Agreement, (F) the FirsTier Acquisition, (G) the Option Agreements and (H) acquisitions and investments permitted by paragraph (c) hereof;
(b) except as disclosed on such party's Disclosure Schedulesell, enter into transfer, mortgage, encumber or amend any employment, severance or similar agreement or arrangement with any director or officer or employee or collective bargaining agreement, or materially modify otherwise dispose of any of its Benefit Plans properties or grant assets to any salary individual, corporation or wage increase other entity other than a direct or materially increase indirect wholly owned Subsidiary, or cancel, release or assign any employee benefit (including incentive indebtedness to any such person or bonus payments)any claims held by any such person, in each case that is material to such party, except normal individual increases in compensation to employees consistent with past practice or (iii) as required by law or contract; or
(c) authorize, recommend, propose, or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination, any acquisition or disposition of a material amount of assets, including mortgage servicing rights, loans or securities as well as any release or relinquishment of any material contract rights (except in the usual ordinary course of business consistent with past practicespractice, (ii) providedpursuant to contracts or agreements in force at the date of this Agreement or (iii) pursuant to plans disclosed in writing prior to the execution of this Agreement to the other party;
(c) except for (i) transactions in the ordinary course of business consistent with past practice, howeveror (ii) acquisitions of an entity or business having assets not exceeding 10% of the consolidated assets of Subject Company or Parent, that the foregoing shall not prohibit internal reorganizations as applicable, on a pro forma basis giving effect to such transaction, make any material acquisition or consolidations involving existing Subsidiaries; orinvestment either by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchases of any property or assets of any other individual, corporation or other entity other than a wholly owned Subsidiary thereof;
(d) except for transactions in the ordinary course of business consistent with past practice, enter into or terminate any material contract or agreement, or make any change in any of its material leases or contracts, in each case that is material to such party, other than renewals of contracts and leases without material materially adverse changes of termsterms thereof;
(e) settle any material claim, action or proceeding involving money damages, except other than (i) in the ordinary course of business consistent with past practice, or (ii) in an aggregate amount not exceeding $10 million, increase in any material respect the compensation or fringe benefits of any of its employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party to, amend or commit itself to any material pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee or accelerate the vesting of any stock options or other stock-based compensation;
(f) propose authorize or adopt any amendments to its articles of incorporation, association or other charter document or bylaws or code of regulations; or
(g) issue, sell, grant, confer or award permit any of its Equity Securities officers, directors, employees or any debt securities having the right agents to vote on matters on which stockholders may vote or purchase, redeem, retire, repurchase, or exchange, or otherwise acquire or dispose of, directly or indirectly, any of its Equity Securities, whether pursuant to the terms of such Equity Securities or otherwise (except for (i) shares of Firstar Common Stock or Star Common Stock, as applicable, issued upon exercise of Firstar Stock Options or Star Stock Options, respectively, outstanding on the date of this Agreement or issued in accordance with this paragraph (g), (ii) pursuant to the Option Agreements, (iii) any such transactions between a wholly-owned Subsidiary and its parent, (iv) in accordance with the Firstar and Star Stock Plans consistent with past practice, (v) as agent for stockholders reinvesting dividends pursuant to a dividend reinvestment plan in accordance with the terms thereof as in effect on the date of this Agreement, (vi) for the acquisition of Trust Account Shares and DPC Shares, (vii) with respect to Firstar, any repurchases of Firstar Common Stock to maintain a pool of up to 500,000 shares in the form of treasury shares for the purpose of reissuing upon the exercise of Firstar Stock Options, or (viii) in the ordinary course of business consistent with past practice (such party agreeing to promptly notify the other party of any such transactions)) or effect any stock split or adjust, combine, reclassify or otherwise change its equity capitalization as it existed on the date of this Agreement; or
(h) indirectly solicit, encourage or authorize any individual, corporation or other entity to solicit initiate or encourage from any third party any inquiries or proposals relating to the disposition of its business or assetsto, or the acquisition making of its voting securitiesany proposal which constitutes, a Takeover Proposal (as defined below), or the merger of it recommend or endorse any of its Subsidiaries Takeover Proposal, or participate in any discussions or negotiations, or provide third parties with any corporation or other entity other than as provided by this Agreement (and each party shall promptly notify the other of all of the relevant details relating to all inquiries and proposals which it may receive nonpublic information, relating to any of such matters); or
(i) take any action that would (i) materially adversely affect, impede inquiry or delay the consummation of the transactions contemplated by this Agreement and the Option Agreements or the ability of Star or Firstar to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement and the Option Agreements or to perform its covenants and agreements under this Agreement and the Option Agreements, (ii) prevent the Reincorporation Merger or the Second Step Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code or (iii) prevent the transactions contemplated hereby from qualifying as a "pooling of interests" for accounting and financial reporting purposes; or
(j) other than in the ordinary course of business consistent with past practice and other than indebtedness of up to $800 million incurred by Firstar and its Subsidiaries to fund Firstar's purchase from Cargill Corporation of Cargill Leasing and to redeem Firstar's $100 million aggregate principal amount of 7.15% Notes due September 1, 2000, and indebtedness of up to $100 million under Firstar's bank facilities for liquidity purposes incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and indebtedness of Star or any of its wholly-owned Subsidiaries to Star or any of its wholly-owned Subsidiaries, on the one hand, or of Firstar or any of its wholly-owned Subsidiaries to Firstar or any of its wholly- owned Subsidiaries, on the other hand), assume, guarantee, endorse proposal or otherwise as an accommodation become responsible facilitate any effort or liable for the obligations of any other individual, corporation or other entity (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements); attempt to make or
(k) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(l) other than the sale of up to $250 million of treasury securities by Firstar and its Subsidiaries, materially restructure or materially change its investment securities portfolio, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported as of the date of the Agreement; or
(m) except as required by applicable law or regulation, (i) implement or adopt, any material change in its interest rate and other risk management policies, procedures or practices, (ii) fail to follow in any material respect its existing policies or practices with respect to managing its exposure to interest rate and other risk or (iii) fail to use commercially reasonable means to avoid any material increase in its aggregate exposure to interest rate risk; or
(n) take any action or make any determination the effect of which would result in the transactions contemplated by this Agreement constituting or being deemed to be a "Change in Control" within the meaning of the Firstar Supplemental Retirement Plan for Key Executives and the Firstar Corporation Pension Plan or
(o) agree in writing or otherwise to take any of the foregoing actions.
Appears in 1 contract
Forbearances. Except as set forth on in Section 5.2 of the Subject Company Disclosure Schedule 5.2or Section 5.2 of the Parent Disclosure Schedule, as otherwise contemplated or permitted by this Agreement (including the Disclosure Schedules) and the Option Agreements or as referred to in any Star Reports or Firstar Reports publicly filed with the SEC prior to the date hereofcase may be, during the period from the date of this Agreement to the Effective TimeTime and, Firstar except as expressly contemplated or permitted by this Agreement or the Option Agreements or as required by applicable law, rule or regulation, neither Parent nor Subject Company shall, and neither Parent nor Subject Company shall not and shall not permit its any of their respective Subsidiaries to, without the prior written consent of Star (which consent shall not be unreasonably withheld), and Star shall not and shall not permit any of its Subsidiaries to, without the prior written consent of Firstar (which consent shall not be unreasonably withheld):other:
(a) declareadjust, set aside split, combine or reclassify any capital stock; make, declare or pay any dividends dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock, or grant any stock appreciation rights or grant any individual, corporation or other distributions, directly or indirectly, in respect entity any right to acquire any shares of its capital stock (other than dividends from a wholly owned Subsidiary of such party to such party or another wholly owned Subsidiary of such party), except that (i) Star may pay for regular quarterly cash dividends on Star Subject Company Common Stock in an amount not to exceed the rate payable and on such Star Parent Common Stock at a rate equal to the rates recently paid by each of Subject Company and Parent, as the case may be, as such rates may be increased by either party in the ordinary course of business consistent with past practice and, in the case of Subject Company Preferred Stock and Parent Preferred Stock, for regular quarterly or semiannual cash dividends thereon at the rates set forth in the applicable certificate of incorporation or certificate of designation for such securities and except for dividends paid by any of the wholly owned Subsidiaries of each of Parent and Subject Company to Parent or Subject Company or any of their wholly owned Subsidiaries, respectively, and except for the issuance of employee stock options and restricted stock consistent with past practices); or issue any additional shares of capital stock except pursuant to (A) the exercise of stock options, PSPRs or risk event warrants outstanding as of the date hereof, and (iiB) Firstar may pay quarterly cash dividends on Firstar Common Stock in an amount not to exceed the rate payable on such Firstar Common Stock vesting of Performance Units outstanding as of the date hereof pursuant to Subject Company Stock Option Plans, (together with any rate increase consistent with past practice); orC) the conversion of shares of Parent Series 0000X Xxxxxxxxx Xxxxx, (X) the Subject Company Rights Agreement, (E) the Parent Rights Agreement, (F) the FirsTier Acquisition, (G) the Option Agreements and (H) acquisitions and investments permitted by paragraph (c) hereof;
(b) except as disclosed on such party's Disclosure Schedulesell, enter into transfer, mortgage, encumber or amend any employment, severance or similar agreement or arrangement with any director or officer or employee or collective bargaining agreement, or materially modify otherwise dispose of any of its Benefit Plans properties or grant assets to any salary individual, corporation or wage increase other entity other than a direct or materially increase indirect wholly owned Subsidiary, or cancel, release or assign any employee benefit (including incentive indebtedness to any such person or bonus payments)any claims held by any such person, in each case that is material to such party, except normal individual increases in compensation to employees consistent with past practice or (iii) as required by law or contract; or
(c) authorize, recommend, propose, or announce an intention to authorize, so recommend or propose, or enter into an agreement in principle with respect to, any merger, consolidation or business combination, any acquisition or disposition of a material amount of assets, including mortgage servicing rights, loans or securities as well as any release or relinquishment of any material contract rights (except in the usual ordinary course of business consistent with past practicespractice, (ii) providedpursuant to contracts or agreements in force at the date of this Agreement or (iii) pursuant to plans disclosed in writing prior to the execution of this Agreement to the other party;
(c) except for (i) transactions in the ordinary course of business consistent with past practice, howeveror (ii) acquisitions of an entity or business having assets not exceeding 10% of the consolidated assets of Subject Company or Parent, that the foregoing shall not prohibit internal reorganizations as applicable, on a pro forma basis giving effect to such transaction, make any material acquisition or consolidations involving existing Subsidiaries; orinvestment either by purchase of stock or securities, merger or consolidation, contributions to capital, property transfers, or purchases of any property or assets of any other individual, corporation or other entity other than a wholly owned Subsidiary thereof;
(d) except for transactions in the ordinary course of business consistent with past practice, enter into or terminate any material contract or agreement, or make any change in any of its material leases or contracts, in each case that is material to such party, other than renewals of contracts and leases without material materially adverse changes of termsterms thereof;
(e) settle any material claim, action or proceeding involving money damages, except other than (i) in the ordinary course of business consistent with past practice, or (ii) in an aggregate amount not exceeding $10 million, increase in any material respect the compensation or fringe benefits of any of its employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party to, amend or commit itself to any material pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee or accelerate the vesting of any stock options or other stock-based compensation;
(f) propose authorize or adopt any amendments to its articles of incorporation, association or other charter document or bylaws or code of regulations; or
(g) issue, sell, grant, confer or award permit any of its Equity Securities officers, directors, employees or agents to directly or indirectly solicit, initiate or encourage any debt securities having the right to vote on matters on which stockholders may vote or purchase, redeem, retire, repurchaseinquiries relating to, or exchangethe making of any proposal which constitutes, a Takeover Proposal (as defined below), or recommend or endorse any Takeover Proposal, or participate in any discussions or negotiations, or provide third parties with any nonpublic information, relating to any such inquiry or proposal or otherwise acquire facilitate any effort or dispose ofattempt to make or implement a Takeover Proposal, directly provided, however, that each of Parent and Subject Company may, and may authorize and permit its officers, directors, employees or indirectlyagents to, provide third parties with nonpublic information, otherwise facilitate any effort or attempt by any third party to make or implement a Takeover Proposal, recommend or endorse any Takeover Proposal with or by any third party, and participate in discussions and negotiations with any third party relating to any Takeover Proposal, if such party's Board of its Equity SecuritiesDirectors, whether pursuant after having consulted with and considered the advice of outside counsel, has reasonably determined in good faith that the failure to do so would cause the terms members of such Equity Securities Board of Directors to breach their fiduciary duties under applicable law. Subject Company will immediately cease and cause to be terminated any activities, discussions or otherwise (except for (i) shares of Firstar Common Stock or Star Common Stock, as applicable, issued upon exercise of Firstar Stock Options or Star Stock Options, respectively, outstanding on negotiations conducted prior to the date of this Agreement or issued with any parties other than Parent with respect to any of the foregoing. Each party shall immediately advise the other following the receipt by it of any Takeover Proposal and the details thereof, and advise the other of any developments with respect to such Takeover Proposal immediately upon the occurrence thereof. As used in accordance with this paragraph (g), (ii) pursuant to the Option Agreements, (iii) any such transactions between a wholly-owned Subsidiary and its parent, (iv) in accordance with the Firstar and Star Stock Plans consistent with past practice, (v) as agent for stockholders reinvesting dividends pursuant to a dividend reinvestment plan in accordance with the terms thereof as in effect on the date of this Agreement, (vi) for the acquisition of Trust Account Shares and DPC Shares"Takeover Proposal" shall mean, (vii) with respect to Firstarany person, any repurchases of Firstar Common Stock to maintain tender or exchange offer, proposal for a pool of up to 500,000 shares in the form of treasury shares for the purpose of reissuing upon the exercise of Firstar Stock Optionsmerger, or (viii) in the ordinary course of business consistent with past practice (such party agreeing to promptly notify the other party of any such transactions)) or effect any stock split or adjust, combine, reclassify or otherwise change its equity capitalization as it existed on the date of this Agreement; or
(h) solicit, encourage or authorize any individual, corporation consolidation or other entity to solicit business combination involving Subject Company or encourage from any third party any inquiries or proposals relating to the disposition of its business or assets, or the acquisition of its voting securities, or the merger of it Parent or any of its their respective Subsidiaries with or any corporation proposal or other entity offer to acquire in any manner a substantial equity interest in, or a substantial portion of the assets of, Subject Company or Parent or any of their respective Subsidiaries other than as provided by this Agreement (and each party shall promptly notify the other of all of the relevant details relating to all inquiries and proposals which it may receive relating to any of such matters); or
(i) take any action that would (i) materially adversely affect, impede or delay the consummation of the transactions contemplated or permitted by this Agreement and the Option Agreements or the ability of Star or Firstar to obtain any approval of any Regulatory Authority required for the transactions contemplated by this Agreement and the Option Agreements or to perform its covenants and agreements under this Agreement and the Option Agreements, (ii) prevent the Reincorporation Merger or the Second Step Merger from qualifying as a "reorganization" within the meaning of Section 368(a) of the Code or (iii) prevent the transactions contemplated hereby from qualifying as a "pooling of interests" for accounting and financial reporting purposes; or
(j) other than in the ordinary course of business consistent with past practice and other than indebtedness of up to $800 million incurred by Firstar and its Subsidiaries to fund Firstar's purchase from Cargill Corporation of Cargill Leasing and to redeem Firstar's $100 million aggregate principal amount of 7.15% Notes due September 1, 2000, and indebtedness of up to $100 million under Firstar's bank facilities for liquidity purposes incur any indebtedness for borrowed money (other than short-term indebtedness incurred to refinance short-term indebtedness and indebtedness of Star or any of its wholly-owned Subsidiaries to Star or any of its wholly-owned Subsidiaries, on the one hand, or of Firstar or any of its wholly-owned Subsidiaries to Firstar or any of its wholly- owned Subsidiaries, on the other hand), assume, guarantee, endorse or otherwise as an accommodation become responsible or liable for the obligations of any other individual, corporation or other entity (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements); or
(k) implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(l) other than the sale of up to $250 million of treasury securities by Firstar and its Subsidiaries, materially restructure or materially change its investment securities portfolio, through purchases, sales or otherwise, or the manner in which the portfolio is classified or reported as of the date of the Agreement; or
(m) except as required by applicable law or regulation, (i) implement or adopt, any material change in its interest rate and other risk management policies, procedures or practices, (ii) fail to follow in any material respect its existing policies or practices with respect to managing its exposure to interest rate and other risk or (iii) fail to use commercially reasonable means to avoid any material increase in its aggregate exposure to interest rate risk; or
(n) take any action or make any determination the effect of which would result in the transactions contemplated by this Agreement constituting or being deemed to be a "Change in Control" within the meaning of the Firstar Supplemental Retirement Plan for Key Executives and the Firstar Corporation Pension Plan or
(o) agree in writing or otherwise to take any of the foregoing actions.;
Appears in 1 contract
