Limitation on Conduct Prior. to Effective Time of the Merger. ----------------------------------------------------------- Between the date hereof and the Effective Time of the Merger, except as contemplated by this Agreement and subject to requirements of law and regulation, BCS agrees to conduct its business (and to cause BBC to conduct its business) in the ordinary course in substantially the manner heretofore conducted and in accordance with sound banking practices, and BCS and BBC shall not, without the prior written consent of GBB, which consent shall not be unreasonably withheld: 6.1.1. issue, sell or grant any BCS Stock (except pursuant to the exercise of BCS Options outstanding as of the date hereof), any other securities (including long term debt) of BCS or BBC, or any rights, stock appreciation rights, options or securities to acquire any BCS Stock, or any other securities (including long term debt) of BCS or BBC; 6.1.2. declare, set aside or pay any dividend or make any other distribution upon or split, combine or reclassify any shares of capital stock or other securities of BCS or BBC, provided, however, that subject to Section 6.11, BCS may pay to its shareholders its regular cash dividend in amounts and in a manner consistent with past practices; 6.1.3. purchase, redeem or otherwise acquire any capital stock or other securities of BCS or BBC or any rights, options, or securities to acquire any capital stock or other securities of BCS or BBC; 6.1.4. except as may be required to effect the transactions contemplated herein, amend its Articles of Incorporation or Bylaws; 6.1.5. grant any general or uniform increase in the rate of pay of employees or employee benefits; 6.1.6. grant any increase in salary, incentive compensation or employee benefits or pay any bonus to any Person or voluntarily accelerate the vesting of any employee benefits; 6.1.7. make any capital expenditure or commitments with respect thereto in excess of $50,000 in the aggregate, except for ordinary repairs, renewals and replacements; 6.1.8. compromise or otherwise settle or adjust any assertion or claim of a deficiency in taxes (or interest thereon or penalties in connection therewith), extend the statute of limitations with any tax authority or file any pleading in court in any tax litigation or any appeal from an asserted deficiency, or file or amend any federal, foreign, state or local tax return, or make any tax election; 6.1.9. grant, renew or commit to grant or renew any extension of credit if such extension of credit, together with all other credit then outstanding to the same Person and all Affiliated Persons, would exceed $200,000 on an unsecured basis, or $500,000 if secured by a lien on real estate or cash (consent shall be deemed granted if within one Business Day of written notice delivered to GBB's Chief Credit Officer, written notice of objection is not received by BCS); 6.1.10. change its tax or accounting policies and procedures or any method or period of accounting unless required by generally accepted accounting principles or a Governmental Entity; 6.1.11. grant or commit to grant any extension of credit or amend the terms of any such credit outstanding on the date hereof to any executive officer, director or holder of 10% or more of the outstanding BCS Stock, or any Affiliate of such Person, if such credit would exceed $25,000; 6.1.12. close any offices at which business is conducted or open any new offices; 6.1.13. adopt or enter into any new employment agreement or other employee benefit plan or arrangement or amend or modify any employment agreement or employee benefit plan or arrangement of any such type except for such amendments as are required by law; 6.1.14. initiate, solicit or encourage (including by way of furnishing information or assistance), or take any other action to facilitate, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Competing Transaction (as such term is defined below), or negotiate with any person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of its or BBC's officers, directors or employees or any investment banker, financial advisor, attorney, accountant or any other representative retained by it or any of its Affiliates to take any such action, and BCS shall promptly notify GBB (orally and in writing) of all of the relevant details relating to all inquiries and proposals which it may receive relating to any of such matters. For purposes of this Agreement, "Competing Transaction" shall mean any of the following involving BCS or BBC: any merger, consolidation, share exchange or other business combination; a sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets of BCS or BBC representing 10% or more of the consolidated assets of BCS; a sale of shares of capital stock (or securities convertible or exchangeable into or otherwise evidencing, or any agreement or instrument evidencing, the right to acquire capital stock), representing 10% or more of the voting power of BCS or BBC; a tender offer or exchange offer for at least 10% of the outstanding shares of BCS; a solicitation of proxies in opposition to approval of the Merger by BCS's shareholders; or a public announcement of an unsolicited bona fide proposal, plan, or intention to do any of the foregoing. Notwithstanding any other provision in this Section 6.1.14 or elsewhere in this Agreement, the obligations of BCS in this Agreement are subject to, upon advice of counsel, the continuing fiduciary duties of the Board of Directors of BCS to the shareholders of BCS; provided, however, that nothing herein shall prohibit GBB from terminating this Agreement pursuant to Section 13.1.8 hereof.
Appears in 2 contracts
Samples: Merger Agreement (Bay Commercial Services), Merger Agreement (Greater Bay Bancorp)
Limitation on Conduct Prior. to Effective Time of the Merger. ----------------------------------------------------------- Between the date hereof and the Effective Time of the Merger, except as contemplated by this Agreement and subject to requirements of law and regulation, BCS BOP agrees to conduct its business (and to cause BBC to conduct its business) in the ordinary course in substantially the manner heretofore conducted and in accordance with sound banking practices, and BCS and BBC BOP shall not, without the prior written consent of GBB, which consent GBB shall not be unreasonably withheldwithhold or delay:
6.1.1. (a) issue, sell or grant any BCS BOP Stock (except pursuant to the exercise of BCS BOP Options outstanding as of the date hereof), any other securities (including long term debt) of BCS or BBCBOP, or any rights, stock appreciation rights, options or securities to acquire any BCS BOP Stock, or any other securities (including long term debt) of BCS or BBCBOP;
6.1.2. (b) declare, set aside or pay any dividend or make any other distribution upon or split, combine or reclassify any shares of capital stock or other securities of BCS or BBCBOP, provided, however, that subject to Section 6.116.10, BCS BOP may pay to its shareholders its regular cash dividend in amounts and in a manner consistent with past practices;
6.1.3. (c) purchase, redeem or otherwise acquire any capital stock or other securities of BCS or BBC BOP or any rights, options, or securities to acquire any capital stock or other securities of BCS or BBCBOP;
6.1.4. (d) except as may be required to effect the transactions contemplated herein, amend its Articles of Incorporation or Bylaws;
6.1.5. (e) grant any general or uniform increase in the rate of pay of employees or employee benefits;
6.1.6. (f) grant any increase in salary, incentive compensation or employee benefits or pay any bonus to any Person or voluntarily accelerate the vesting of any employee benefits;
6.1.7. (g) make any capital expenditure or commitments with respect thereto in excess of $50,000 in the aggregate, except for ordinary repairs, renewals and replacements;
6.1.8. (h) compromise or otherwise settle or adjust any assertion or claim of a deficiency in taxes (or interest thereon or penalties in connection therewith), extend the statute of limitations with any tax authority or file any pleading in court in any tax litigation or any appeal from an asserted deficiency, or file or amend any federal, foreign, state or local tax return, or make any tax election;
6.1.9. (i) grant, renew or commit to grant or renew any extension of credit if such extension of credit, together with all other credit then outstanding to the same Person and all Affiliated Persons, would exceed $200,000 500,000 on an unsecured basis, or $500,000 1,000,000 if secured by a lien on real estate or cash (consent shall be deemed granted if within one two Business Day Days of written notice notice, together with all relevant documents, delivered to GBB's Chief Credit Officer, written notice of objection is not received by BCSBOP);
6.1.10. (j) change its tax or accounting policies and procedures or any method or period of accounting unless required by generally accepted accounting principles or a Governmental Entity;
6.1.11. (k) grant or commit to grant any extension of credit or amend the terms of any such credit outstanding on the date hereof to any executive officer, director or holder of 10% or more of the outstanding BCS BOP Stock, or any Affiliate of such Person, if such credit would exceed $25,00050,000;
6.1.12. (l) close any offices at which business is conducted or open any new offices;
6.1.13. (m) adopt or enter into any new employment agreement or other employee benefit plan or arrangement or amend or modify any employment agreement or employee benefit plan or arrangement of any such type except for such amendments as are required by law;
6.1.14. (n) initiate, solicit or encourage (including by way of furnishing information or assistance), or take any other action to facilitate, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Competing Transaction (as such term is defined below), or negotiate with any person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of its or BBC's officers, directors or employees or any investment banker, financial advisor, attorney, accountant or any other representative retained by it or any of its Affiliates to take any such action, and BCS BOP shall promptly notify GBB (orally and in writing) of all of the relevant details relating to all inquiries and proposals which it may receive relating to any of such matters. For purposes of this Agreement, "Competing Transaction" shall mean any of the following involving BCS or BBCBOP: any merger, consolidation, share exchange or other business combination; a sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets of BCS or BBC BOP representing 10% or more of the consolidated assets of BCSBOP; a sale of shares of capital stock (or securities convertible or exchangeable into or otherwise evidencing, or any agreement or instrument evidencing, the right to acquire capital stock), representing 10% or more of the voting power of BCS or BBCBOP; a tender offer or exchange offer for at least 10% of the outstanding shares of BCSBOP; a solicitation of proxies in opposition to approval of the Merger by BCSBOP's shareholders; or a public announcement of an unsolicited bona fide proposal, plan, or intention to do any of the foregoing. BOP will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties (other than GBB) conducted heretofore with respect to any of the foregoing. BOP shall take the necessary steps to inform promptly the appropriate individuals or entities referred to above of the obligations undertaken in this Section. BOP agrees that it shall notify GBB immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with BOP. BOP also agrees that it shall promptly request each other person, other than GBB, that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring BOP to return all confidential information heretofore furnished to such person by or on behalf of BOP and enforce any such confidentiality agreements. Notwithstanding any other provision in this Section 6.1.14 or elsewhere in this Agreement6.1(n), the obligations of BCS nothing in this Agreement are subject shall prevent BOP from (i) engaging in any discussions or negotiations with, or providing any information to, upon advice any Person in response to an unsolicited bona fide written proposal concerning a Competing Transaction by any such Person or (ii) recommending such an unsolicited bona fide written proposal concerning a Competing Transaction to the holders of counselBOP Stock if and only if, prior to participating in any of the continuing fiduciary duties of foregoing, (A) the Board of Directors of BCS BOP concludes in good faith that the Competing Transaction, if consummated, would result in a transaction more favorable to holders of BOP Stock than the shareholders of BCS; provided, however, that nothing herein shall prohibit GBB from terminating transaction contemplated by this Agreement pursuant (any such more favorable Competing Transaction being referred to Section 13.1.8 hereof.in this Agreement as a "Superior Proposal"); (B) the Board of Directors of BOP determines in good faith based upon the advice of outside counsel that participating in any such action is necessary for it to act in a manner not inconsistent with its fiduciary duties under applicable law; and (C) at least forty-eight (48) hours prior to providing any information or data to any person or entering into discussions or negotiations with any Person, the Board of Directors of BOP notifies GBB of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with BOP;
Appears in 1 contract
Limitation on Conduct Prior. to Effective Time of the Merger. ----------------------------------------------------------- Between the date hereof and the Effective Time of the Merger, except as contemplated by this Agreement and subject to requirements of law and regulation, BCS SJNB agrees to conduct its business (and to cause BBC the SJNB Subsidiaries to conduct its businesstheir respective businesses) in the ordinary course in substantially the manner heretofore conducted and in accordance with sound banking practices, and BCS SJNB and BBC the SJNB Subsidiaries shall not, without the prior written consent of GBB, which consent GBB shall not be unreasonably withheldwithhold or delay:
6.1.1. (a) issue, sell or grant any BCS SJNB Stock (except pursuant to the exercise of BCS SJNB Stock Options outstanding as of the date hereof), any other securities (including long term debt) of BCS SJNB or BBCthe SJNB Subsidiaries, or any rights, stock appreciation rights, options or securities to acquire any BCS SJNB Stock, or any other securities (including long term debt) of BCS SJNB or BBCthe SJNB Subsidiaries, other than SJNB Stock Options to newly hired employees of SJNB or the SJNB Subsidiaries consistent with past practice;
6.1.2. (b) declare, set aside or pay any dividend or make any other distribution upon or split, combine or reclassify any shares of capital stock or other securities of BCS SJNB or BBCthe SJNB Subsidiaries, provided, however, that subject to Section 6.116.10, BCS SJNB may pay to its shareholders its regular cash dividend in amounts and in a manner consistent with past practices;
6.1.3. (c) purchase, redeem or otherwise acquire any capital stock or other securities of BCS SJNB or BBC the SJNB Subsidiaries or any rights, options, or securities to acquire any capital stock or other securities of BCS SJNB or BBCthe SJNB Subsidiaries;
6.1.4. (d) except as may be required to effect the transactions contemplated herein, amend its Articles of Incorporation or Association, as the case may be, or Bylaws;
6.1.5. (e) grant any general or uniform increase in the rate of pay of employees or employee benefits;
6.1.6. (f) grant any increase in salary, incentive compensation or employee benefits or pay any bonus to any Person or voluntarily accelerate the vesting of any employee benefits, other than payments of bonuses consistent with past practice pursuant to plans in effect on the date hereof and disclosed in the SJNB Disclosure Letter and increases in salary consistent with past practice to Persons eligible for such salary increases on the anniversary dates of their employment, provided that the percentage increase in salaries for all such Persons shall not exceed 4% on average;
6.1.7. (g) make any capital expenditure or commitments with respect thereto in excess of $50,000 in the aggregate, except for ordinary repairs, renewals and replacements;
6.1.8. (h) compromise or otherwise settle or adjust any assertion or claim of a deficiency in taxes (or interest thereon or penalties in connection therewith), extend the statute of limitations with any tax authority or file any pleading in court in any tax litigation or any appeal from an asserted deficiency, or file or amend any federal, foreign, state or local tax return, or make any tax electionelection that is inconsistent with SJNB's current tax election practices;
6.1.9. grant, renew (i) grant or commit to grant or renew any extension of credit if such extension of credit, together with all other credit then outstanding to the same Person and all Affiliated Persons, would exceed $200,000 on an unsecured basis2,000,000, except that the grant, renewal or $500,000 if secured by a lien on real estate commitment to grant or cash renew any Classified Credits (as defined herein) shall be subject to GBB's prior written consent, which will not be unreasonably withheld or delayed (consent shall be deemed granted if within one two Business Day Days of written notice notice, together with all relevant documents, delivered to GBB's Chief Credit Officer, written notice of objection is not received by BCSSJNB);
6.1.10. (j) change its tax or accounting policies and procedures or any method or period of accounting unless required by generally accepted accounting principles or a Governmental Entity;
6.1.11. (k) grant or commit to grant any extension of credit or amend the terms of any such credit outstanding on the date hereof to any executive officer, director or holder of 10% or more of the outstanding BCS SJNB Stock, or any Affiliate of such Person, if such credit would exceed $25,000;
6.1.12. (l) close any offices at which business is conducted or open any new offices;
6.1.13. (m) adopt or enter into any new employment agreement or other employee benefit plan or arrangement or amend or modify any employment agreement or employee benefit plan or arrangement of any such type except for such amendments as are required by law;
6.1.14. (n) initiate, solicit or encourage (including by way of furnishing information or assistance), or take any other action to facilitate, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Competing Transaction (as such term is defined below), or negotiate with any person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of its or BBC's the SJNB Subsidiaries' officers, directors or employees or any investment banker, financial advisor, attorney, accountant or any other representative retained by it or any of its Affiliates (the "Representatives") to take any such action, and BCS SJNB will use its commercially reasonable efforts to cause the Representatives not to take any such action, and SJNB shall promptly notify GBB (orally and in writing) of all of the relevant details relating to all inquiries and proposals which it may receive relating to any of such matters. For purposes of this Agreement, "Competing Transaction" shall mean any of the following involving BCS SJNB or BBCthe SJNB Subsidiaries: any merger, consolidation, share exchange or other business combination; a sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets of BCS SJNB or BBC the SJNB Subsidiaries representing 1025% or more of the consolidated assets of BCSSJNB; a sale of shares of capital stock (or securities convertible or exchangeable into or otherwise evidencing, or any agreement or 44 instrument evidencing, the right to acquire capital stock), representing 1025% or more of the voting power of BCS SJNB or BBCthe SJNB Subsidiaries; a tender offer or exchange offer for at least 1025% of the outstanding shares of BCS; a solicitation of proxies in opposition to approval of the Merger by BCS's shareholdersSJNB; or a public announcement of an unsolicited bona fide proposal, plan, or intention to do any of the foregoing. SJNB and the SJNB Subsidiaries will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties (other than GBB) conducted heretofore with respect to any of the foregoing. SJNB and the SJNB Subsidiaries shall take the necessary steps to inform promptly the appropriate individuals or entities referred to above of the obligations undertaken in this Section. SJNB shall notify GBB within one Business Day of the receipt of any such inquiries, proposals or offers, the request for any such information, or the initiation or continuation of any such negotiations or discussions with SJNB and the SJNB Subsidiaries. SJNB shall promptly request each other person, other than GBB, that has, since April 5, 2001, executed a confidentiality agreement in connection with its consideration of entering into a business combination with SJNB and the SJNB Subsidiaries to return all confidential information heretofore furnished to such person by or on behalf of SJNB and the SJNB Subsidiaries and enforce any such confidentiality agreements. Notwithstanding any other provision in this Section 6.1.14 or elsewhere in this Agreement6.1(n), the obligations of BCS nothing in this Agreement are subject shall prevent SJNB from (i) engaging in any discussions or negotiations with, or providing any information to, upon advice any Person in response to an unsolicited bona fide written proposal concerning a Competing Transaction by any such Person or (ii) recommending such an unsolicited bona fide written proposal concerning a Competing Transaction to the holders of counselSJNB Stock if and only if, prior to participating in any of the continuing fiduciary duties of foregoing, (A) the Board of Directors of BCS SJNB concludes in good faith that the Competing Transaction, if consummated, would result, or has a reasonable likelihood of resulting, in a transaction more favorable to holders of SJNB Stock than the transaction contemplated by this Agreement (any such more favorable Competing Transaction being referred to in this Agreement as a "Superior Proposal"); (B) the Board of Directors of SJNB determines in good faith (following consultation with outside counsel) that failure to do so is, or would be reasonably likely to be, inconsistent with its fiduciary duties under applicable law; and (C) at least forty-eight (48) hours prior to providing any information or data to any person or entering into discussions or negotiations with any Person, the Board of Directors of SJNB notifies GBB of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with SJNB and the SJNB Subsidiaries. Nothing in this Section 6.1(n) shall prohibit SJNB or its Board of Directors from taking and disclosing to the SJNB shareholders of BCS; provideda position with respect to a Competing Transaction to the extent required under the Exchange Act or from making such disclosure to the SJNB shareholders which, howeverafter consultation with outside counsel, that nothing herein shall prohibit GBB from terminating this Agreement pursuant to Section 13.1.8 hereof.the Board determines is otherwise required under applicable law;
Appears in 1 contract
Limitation on Conduct Prior. to Effective Time of the Merger. ----------------------------------------------------------- Between the date hereof and the Effective Time of the Merger, except as contemplated by this Agreement and subject to requirements of law and regulation, BCS BSC agrees to conduct its business (and to cause BBC to conduct its business) in the ordinary course in substantially the manner heretofore conducted and in accordance with sound banking practices, and BCS and BBC BSC shall not, without the prior written consent of GBB, which consent GBB shall not be unreasonably withheldwithhold or delay:
6.1.1. (a) issue, sell or grant any BCS BSC Stock (except pursuant to the exercise of BCS BSC Options outstanding as of the date hereof), any other securities (including long term debt) of BCS or BBCBSC, or any rights, stock appreciation rights, options or securities to acquire any BCS BSC Stock, or any other securities (including long term debt) of BCS or BBCBSC;
6.1.2. (b) declare, set aside or pay any dividend or make any other distribution upon or split, combine or reclassify any shares of capital stock or other securities of BCS or BBCBSC, provided, however, that subject to Section 6.116.10, BCS BSC may pay to its shareholders its regular cash dividend in amounts and in a manner consistent with past practices;
6.1.3. (c) purchase, redeem or otherwise acquire any capital stock or other securities of BCS or BBC BSC or any rights, options, or securities to acquire any capital stock or other securities of BCS or BBCBSC;
6.1.4. (d) except as may be required to effect the transactions contemplated herein, amend its Articles of Incorporation or Bylaws;
6.1.5. (e) grant any general or uniform increase in the rate of pay of employees or employee benefits;
6.1.6. (f) grant any increase in salary, incentive compensation or employee benefits or pay any bonus to any Person or voluntarily accelerate the vesting of any employee benefits; provided, however, that, in the event GBB determines to terminate the BSC 401(k) Plan, BSC may make a matching contribution to the BSC 401(k) Plan immediately prior to such termination in an amount equal to the pro rata portion of the projected annual matching contribution, which in any case shall be consistent with past practices;
6.1.7. (g) make any capital expenditure or commitments with respect thereto in excess of $50,000 in the aggregate, except for ordinary repairs, renewals and replacements;
6.1.8. (h) compromise or otherwise settle or adjust any assertion or claim of a deficiency in taxes (or interest thereon or penalties in connection therewith), extend the statute of limitations with any tax authority or file any pleading in court in any tax litigation or any appeal from an asserted deficiency, or file or amend any federal, foreign, state or local tax return, or make any tax election;
6.1.9. (i) grant, renew or commit to grant or renew any extension of credit if such extension of credit, together with all other credit then outstanding to the same Person and all Affiliated Persons, would exceed $200,000 500,000 on an unsecured basis, or $500,000 1,000,000 if secured by a lien on real estate or cash (consent shall be deemed granted if within one two Business Day Days of written notice notice, together with all relevant documents, delivered to GBB's Chief Credit Officer, written notice of objection is not received by BCSBSC);
6.1.10. (j) change its tax or accounting policies and procedures or any method or period of accounting unless required by generally accepted accounting principles or a Governmental Entity;
6.1.11. (k) grant or commit to grant any extension of credit or amend the terms of any such credit outstanding on the date hereof to any executive officer, director or holder of 10% or more of the outstanding BCS BSC Stock, or any Affiliate of such Person, if such credit would exceed $25,00050,000;
6.1.12. (l) close any offices at which business is conducted or open any new offices;
6.1.13. (m) adopt or enter into any new employment agreement or other employee benefit plan or arrangement or amend or modify any employment agreement or employee benefit plan or arrangement of any such type except for such amendments as are required by law;
6.1.14. (n) initiate, solicit or encourage (including by way of furnishing information or assistance), or take any other action to facilitate, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Competing Transaction (as such term is defined below), or negotiate with any person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of its or BBC's officers, directors or employees or any investment banker, financial advisor, attorney, accountant or any other representative retained by it or any of its Affiliates to take any such action, and BCS BSC shall promptly notify GBB (orally and in writing) of all of the relevant details relating to all inquiries and proposals which it may receive relating to any of such matters. For purposes of this Agreement, "Competing Transaction" shall mean any of the following involving BCS or BBCBSC: any merger, consolidation, share exchange or other business combination; a sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets of BCS or BBC BSC representing 10% or more of the consolidated assets of BCSBSC; a sale of shares of capital stock (or securities convertible or exchangeable into or otherwise evidencing, or any agreement or instrument evidencing, the right to acquire capital stock), representing 10% or more of the voting power of BCS or BBCBSC; a tender offer or exchange offer for at least 10% of the outstanding shares of BCSBSC; a solicitation of proxies in opposition to approval of the Merger by BCSBSC's shareholders; or a public announcement of an unsolicited bona fide proposal, plan, or intention to do any of the foregoing. BSC will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties (other than GBB) conducted heretofore with respect to any of the foregoing. BSC shall take the necessary steps to inform promptly the appropriate individuals or entities referred to above of the obligations undertaken in this Section. BSC agrees that it shall notify GBB immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with BSC. BSC also agrees that it shall promptly request each other person, other than GBB, that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring BSC to return all confidential information heretofore furnished to such person by or on behalf of BSC and enforce any such confidentiality agreements. Notwithstanding any other provision in this Section 6.1.14 or elsewhere in this Agreement6.1(n), the obligations of BCS nothing in this Agreement are subject shall prevent BSC from (i) engaging in any discussions or negotiations with, or providing any information to, upon advice any Person in response to an unsolicited bona fide written proposal concerning a Competing Transaction by any such Person or (ii) recommending such an unsolicited bona fide written proposal concerning a Competing Transaction to the holders of counselBSC Stock if and only if, prior to participating in any of the continuing fiduciary duties of foregoing, (A) the Board of Directors of BCS BSC concludes in good faith that the Competing Transaction, if consummated, would result in a transaction more favorable to holders of BSC Stock than the shareholders of BCS; provided, however, that nothing herein shall prohibit GBB from terminating transaction contemplated by this Agreement pursuant (any such more favorable Competing Transaction being referred to Section 13.1.8 hereof.in this Agreement as a "Superior Proposal"); (B) the Board of Directors of BSC determines in good faith based upon the advice of outside counsel that participating in any such action is necessary for it to act in a manner not inconsistent with its fiduciary duties under applicable law; and (C) at least forty-eight (48) hours prior to providing any information or data to any person or entering into discussions or negotiations with any Person, the Board of Directors of BSC notifies GBB of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with BSC;
Appears in 1 contract
Limitation on Conduct Prior. to Effective Time of the Merger. ----------------------------------------------------------- Between the date hereof and the Effective Time of the Merger, except as contemplated by this Agreement and subject to requirements of law and regulation, BCS Coast agrees to conduct its business (and to cause BBC CCB to conduct its business) in the ordinary course in substantially the manner heretofore conducted and in accordance with sound banking practices, and BCS Coast and BBC CCB shall not, without the prior written consent of GBB, which consent GBB shall not be unreasonably withheldwithhold or delay:
6.1.1. (a) issue, sell or grant any BCS Coast Stock (except pursuant to the exercise of BCS Coast Options outstanding as of the date hereof), any other securities (including long term debt) of BCS Coast or BBCCCB, or any rights, stock appreciation rights, options or securities to acquire any BCS Coast Stock, or any other securities (including long term debt) of BCS Coast or BBCCCB;
6.1.2. (b) declare, set aside or pay any dividend or make any other distribution upon or split, combine or reclassify any shares of capital stock or other securities of BCS Coast or BBCCCB, provided, however, that subject to Section 6.116.10, BCS Coast may pay to its shareholders its regular cash dividend in amounts and in a manner consistent with past practices;
6.1.3. (c) purchase, redeem or otherwise acquire any capital stock or other securities of BCS Coast or BBC CCB or any rights, options, or securities to acquire any capital stock or other securities of BCS Coast or BBCCCB;
6.1.4. (d) except as may be required to effect the transactions contemplated herein, amend its Articles of Incorporation or Bylaws;
6.1.5. (e) grant any general or uniform increase in the rate of pay of employees or employee benefits;
6.1.6. (f) grant any increase in salary, incentive compensation or employee benefits or pay any bonus to any Person or voluntarily accelerate the vesting of any employee benefits; except that Coast and CCB may grant such increases and pay bonuses to employees at the vice president level or below in a manner and in amounts consistent with past practices without obtaining GBB's prior written consent;
6.1.7. (g) make any capital expenditure or commitments with respect thereto in excess of $50,000 in the aggregate, except for ordinary repairs, renewals and replacements;
6.1.8. (h) compromise or otherwise settle or adjust any assertion or claim of a deficiency in taxes (or interest thereon or penalties in connection therewith), extend the statute of limitations with any tax authority or file any pleading in court in any tax litigation or any appeal from an asserted deficiency, or file or amend any federal, foreign, state or local tax return, or make any tax election;
6.1.9. (i) grant, renew or commit to grant or renew any extension of credit if such extension of credit, together with all other credit then outstanding to the same Person and all Affiliated Persons, would exceed $200,000 500,000 on an unsecured basis, or $500,000 1,000,000 if secured by a lien on real estate or cash and if such real estate secured extension of credit is in compliance with Coast's or CCB's underwriting guidelines in effect on the date hereof (consent shall be deemed granted if within one two Business Day Days of written notice notice, together with a copy of the applicable loan write-up report and any other relevant documents, delivered to GBB's Chief Credit Officer, written notice of objection is not received by BCSCoast);
6.1.10. (j) change its tax or accounting policies and procedures or any method or period of accounting unless required by generally accepted accounting principles or a Governmental Entity;
6.1.11. (k) grant or commit to grant any extension of credit or amend the terms of any such credit outstanding on the date hereof to any executive officer, director or holder of 10% or more of the outstanding BCS Coast Stock, or any Affiliate of such Person, if such credit would exceed $25,00050,000;
6.1.12. (l) close any offices at which business is conducted or open any new offices;
6.1.13. (m) adopt or enter into any new employment agreement or other employee benefit plan or arrangement or amend or modify any employment agreement or employee benefit plan or arrangement of any such type except for such amendments as are required by law;
6.1.14. (n) initiate, solicit or encourage (including by way of furnishing information or assistance), or take any other action to facilitate, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Competing Transaction (as such term is defined below), or negotiate with any person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of its or BBCCCB's officers, directors or employees or any investment banker, financial advisor, attorney, accountant or any other representative retained by it or any of its Affiliates to take any such action, and BCS Coast shall promptly notify GBB (orally and in writing) of all of the relevant details relating to all inquiries and proposals which it may receive relating to any of such matters. For purposes of this Agreement, "Competing Transaction" shall mean any of the following involving BCS Coast or BBCCCB: any merger, consolidation, share exchange or other business combination; a sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets of BCS Coast or BBC CCB representing 10% or more of the consolidated assets of BCSCoast; a sale of shares of capital stock (or securities convertible or exchangeable into or otherwise evidencing, or any agreement or instrument evidencing, the right to acquire capital stock), representing 10% or more of the voting power of BCS Coast or BBCCCB; a tender offer or exchange offer for at least 10% of the outstanding shares of BCSCoast; a solicitation of proxies in opposition to approval of the Merger by BCSCoast's shareholders; or a public announcement of an unsolicited bona fide proposal, plan, or intention to do any of the foregoing. Coast and CCB will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties (other than GBB) conducted heretofore with respect to any of the foregoing. Coast and CCB shall take the necessary steps to inform promptly the appropriate individuals or entities referred to above of the obligations undertaken in this Section. Coast and CCB agree that they shall notify GBB immediately if any such inquiries, proposals or offers are received by, any such information is requested from, or any such negotiations or discussions are sought to be initiated or continued with Coast and CCB. Coast and CCB also agree that they shall promptly request each other person, other than GBB, that has heretofore executed a confidentiality agreement in connection with its consideration of acquiring Coast and CCB to return all confidential information heretofore furnished to such person by or on behalf of Coast and CCB and enforce any such confidentiality agreements. Notwithstanding any other provision in this Section 6.1.14 or elsewhere in this Agreement6.1(n), the obligations of BCS nothing in this Agreement are subject shall prevent Coast from (i) engaging in any discussions or negotiations with, or providing any information to, upon advice any Person in response to an unsolicited bona fide written proposal concerning a Competing Transaction by any such Person or (ii) recommending such an unsolicited bona fide written proposal concerning a Competing Transaction to the holders of counselCoast Stock if and only if, prior to participating in any of the continuing fiduciary duties of foregoing, (A) the Board of Directors of BCS Coast concludes in good faith that the Competing Transaction, if consummated, would result in a transaction more favorable to holders of Coast Stock than the shareholders of BCS; provided, however, that nothing herein shall prohibit GBB from terminating transaction contemplated by this Agreement pursuant (any such more favorable Competing Transaction being referred to Section 13.1.8 hereof.in this Agreement as a "Superior Proposal"); (B) the Board of Directors of Coast determines in good faith based upon the advice of outside counsel that participating in any such action is necessary for it to act in a manner not inconsistent with its fiduciary duties under applicable law; and (C) at least forty-eight (48) hours prior to providing any information or data to any person or entering into discussions or negotiations with any Person, the Board of Directors of Coast notifies GBB of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with Coast and CCB;
Appears in 1 contract
Limitation on Conduct Prior. to Effective Time of the Merger. ----------------------------------------------------------- Between the date hereof and the Effective Time of the Merger, except as contemplated by this Agreement and subject to requirements of law and regulation, BCS SJNB agrees to conduct its business (and to cause BBC the SJNB Subsidiaries to conduct its businesstheir respective businesses) in the ordinary course in substantially the manner heretofore conducted and in accordance with sound banking practices, and BCS SJNB and BBC the SJNB Subsidiaries shall not, without the prior written consent of GBB, which consent GBB shall not be unreasonably withheldwithhold or delay:
6.1.1. (a) issue, sell or grant any BCS SJNB Stock (except pursuant to the exercise of BCS SJNB Stock Options outstanding as of the date hereof), any other securities (including long term debt) of BCS SJNB or BBCthe SJNB Subsidiaries, or any rights, stock appreciation rights, options or securities to acquire any BCS SJNB Stock, or any other securities (including long term debt) of BCS SJNB or BBCthe SJNB Subsidiaries, other than SJNB Stock Options to newly hired employees of SJNB or the SJNB Subsidiaries consistent with past practice;
6.1.2. (b) declare, set aside or pay any dividend or make any other distribution upon or split, combine or reclassify any shares of capital stock or other securities of BCS SJNB or BBCthe SJNB Subsidiaries, provided, however, that subject to Section 6.116.10, BCS SJNB may pay to its shareholders its regular cash dividend in amounts and in a manner consistent with past practices;
6.1.3. (c) purchase, redeem or otherwise acquire any capital stock or other securities of BCS SJNB or BBC the SJNB Subsidiaries or any rights, options, or securities to acquire any capital stock or other securities of BCS SJNB or BBCthe SJNB Subsidiaries;
6.1.4. (d) except as may be required to effect the transactions contemplated herein, amend its Articles of Incorporation or Association, as the case may be, or Bylaws;
6.1.5. (e) grant any general or uniform increase in the rate of pay of employees or employee benefits;
6.1.6. (f) grant any increase in salary, incentive compensation or employee benefits or pay any bonus to any Person or voluntarily accelerate the vesting of any employee benefits, other than payments of bonuses consistent with past practice pursuant to plans in effect on the date hereof and disclosed in the SJNB Disclosure Letter and increases in salary consistent with past practice to Persons eligible for such salary increases on the anniversary dates of their employment, provided that the percentage increase in salaries for all such Persons shall not exceed 4% on average;
6.1.7. (g) make any capital expenditure or commitments with respect thereto in excess of $50,000 in the aggregate, except for ordinary repairs, renewals and replacements;
6.1.8. (h) compromise or otherwise settle or adjust any assertion or claim of a deficiency in taxes (or interest thereon or penalties in connection therewith), extend the statute of limitations with any tax authority or file any pleading in court in any tax litigation or any appeal from an asserted deficiency, or file or amend any federal, foreign, state or local tax return, or make any tax electionelection that is inconsistent with SJNB's current tax election practices;
6.1.9. grant, renew (i) grant or commit to grant or renew any extension of credit if such extension of credit, together with all other credit then outstanding to the same Person and all Affiliated Persons, would exceed $200,000 on an unsecured basis2,000,000, except that the grant, renewal or $500,000 if secured by a lien on real estate commitment to grant or cash renew any Classified Credits (as defined herein) shall be subject to GBB's prior written consent, which will not be unreasonably withheld or delayed (consent shall be deemed granted if within one two Business Day Days of written notice notice, together with all relevant documents, delivered to GBB's Chief Credit Officer, written notice of objection is not received by BCSSJNB);
6.1.10. (j) change its tax or accounting policies and procedures or any method or period of accounting unless required by generally accepted accounting principles or a Governmental Entity;
6.1.11. (k) grant or commit to grant any extension of credit or amend the terms of any such credit outstanding on the date hereof to any executive officer, director or holder of 10% or more of the outstanding BCS SJNB Stock, or any Affiliate of such Person, if such credit would exceed $25,000;
6.1.12. (l) close any offices at which business is conducted or open any new offices;
6.1.13. (m) adopt or enter into any new employment agreement or other employee benefit plan or arrangement or amend or modify any employment agreement or employee benefit plan or arrangement of any such type except for such amendments as are required by law;
6.1.14. (n) initiate, solicit or encourage (including by way of furnishing information or assistance), or take any other action to facilitate, any inquiries or the making of any proposal which constitutes, or may reasonably be expected to lead to, any Competing Transaction (as such term is defined below), or negotiate with any person in furtherance of such inquiries or to obtain a Competing Transaction, or agree to or endorse any Competing Transaction, or authorize or permit any of its or BBC's the SJNB Subsidiaries' officers, directors or employees or any investment banker, financial advisor, attorney, accountant or any other representative retained by it or any of its Affiliates (the "Representatives") to take any such action, and BCS SJNB will use its commercially reasonable efforts to cause the Representatives not to take any such action, and SJNB shall promptly notify GBB (orally and in writing) of all of the relevant details relating to all inquiries and proposals which it may receive relating to any of such matters. For purposes of this Agreement, "Competing Transaction" shall mean any of the following involving BCS SJNB or BBCthe SJNB Subsidiaries: any merger, consolidation, share exchange or other business combination; a sale, lease, exchange, mortgage, pledge, transfer or other disposition of assets of BCS SJNB or BBC the SJNB Subsidiaries representing 1025% or more of the consolidated assets of BCSSJNB; a sale of shares of capital stock (or securities convertible or exchangeable into or otherwise evidencing, or any agreement or instrument evidencing, the right to acquire capital stock), representing 1025% or more of the voting power of BCS SJNB or BBCthe SJNB Subsidiaries; a tender offer or exchange offer for at least 1025% of the outstanding shares of BCS; a solicitation of proxies in opposition to approval of the Merger by BCS's shareholdersSJNB; or a public announcement of an unsolicited bona fide proposal, plan, or intention to do any of the foregoing. SJNB and the SJNB Subsidiaries will immediately cease and cause to be terminated any existing activities, discussions or negotiations with any parties (other than GBB) conducted heretofore with respect to any of the foregoing. SJNB and the SJNB Subsidiaries shall take the necessary steps to inform promptly the appropriate individuals or entities referred to above of the obligations undertaken in this Section. SJNB shall notify GBB within one Business Day of the receipt of any such inquiries, proposals or offers, the request for any such information, or the initiation or continuation of any such negotiations or discussions with SJNB and the SJNB Subsidiaries. SJNB shall promptly request each other person, other than GBB, that has, since April 5, 2001, executed a confidentiality agreement in connection with its consideration of entering into a business combination with SJNB and the SJNB Subsidiaries to return all confidential information heretofore furnished to such person by or on behalf of SJNB and the SJNB Subsidiaries and enforce any such confidentiality agreements. Notwithstanding any other provision in this Section 6.1.14 or elsewhere in this Agreement6.1(n), the obligations of BCS nothing in this Agreement are subject shall prevent SJNB from (i) engaging in any discussions or negotiations with, or providing any information to, upon advice any Person in response to an unsolicited bona fide written proposal concerning a Competing Transaction by any such Person or (ii) recommending such an unsolicited bona fide written proposal concerning a Competing Transaction to the holders of counselSJNB Stock if and only if, prior to participating in any of the continuing fiduciary duties of foregoing, (A) the Board of Directors of BCS SJNB concludes in good faith that the Competing Transaction, if consummated, would result, or has a reasonable likelihood of resulting, in a transaction more favorable to holders of SJNB Stock than the transaction contemplated by this Agreement (any such more favorable Competing Transaction being referred to in this Agreement as a "Superior Proposal"); (B) the Board of Directors of SJNB determines in good faith (following consultation with outside counsel) that failure to do so is, or would be reasonably likely to be, inconsistent with its fiduciary duties under applicable law; and (C) at least forty-eight (48) hours prior to providing any information or data to any person or entering into discussions or negotiations with any Person, the Board of Directors of SJNB notifies GBB of such inquiries, proposals or offers received by, any such information requested from, or any such discussions or negotiations sought to be initiated or continued with SJNB and the SJNB Subsidiaries. Nothing in this Section 6.1(n) shall prohibit SJNB or its Board of Directors from taking and disclosing to the SJNB shareholders of BCS; provideda position with respect to a Competing Transaction to the extent required under the Exchange Act or from making such disclosure to the SJNB shareholders which, howeverafter consultation with outside counsel, that nothing herein shall prohibit GBB from terminating this Agreement pursuant to Section 13.1.8 hereof.the Board determines is otherwise required under applicable law;
Appears in 1 contract
