Negative Covenants and Dividend Covenants. (a) Raritan agrees that from the date hereof to the Effective Time, except as set forth in Section 5.2 of the Raritan Disclosure Schedule or as otherwise approved by United in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to: (i) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documents; (ii) except for the issuance of Raritan Common Stock pursuant to the present terms of the outstanding Raritan Options and the United Stock Option and as disclosed in the Raritan Disclosure Schedule, change the number of shares of its authorized or issued common or preferred stock or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Raritan or any Raritan Subsidiary or any securities convertible into shares of such stock, or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any shares of such capital stock, other than Raritan's regular quarterly cash dividends in amounts not to exceed $0.15 per calendar quarter, with the dividend payment dates to be coordinated with United, it being the intention of the parties that the shareholders of Raritan receive dividends for any particular calendar quarter on either the Raritan Common Stock or the United Common Stock acquired in exchange therefor pursuant to the terms of this Agreement but not both; provided further, that nothing contained herein shall be deemed to affect the ability of the Bank to pay dividends on its capital stock to Raritan; (iii) grant any severance or termination pay (other than pursuant to agreements or policies of Raritan in effect on the date hereof and disclosed in the Raritan Disclosure Schedule or as agreed to by United in writing) to, or enter into or amend any employment agreement with, any of its directors, officers or employees, adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; or award any increase in compensation or benefits to its directors, officers or employees; (iv) sell or dispose of any substantial amount of assets or incur any significant liabilities other than in the ordinary course of business consistent with past practices and policies; (v) make any capital expenditures other than pursuant to binding commitments existing on the date hereof and expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to United; (vi) file any applications or make any contract with respect to branching or site location or relocation. (vii) agree to acquire in any manner whatsoever (other than to foreclose on collateral for a defaulted loan) any business or entity; (viii) make any material change in its accounting methods or practices, other than changes required in accordance with GAAP; (ix) take any action that would result in any of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective Time; or (x) agree to do any of the foregoing. (b) United agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to: (i) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in this Agreement not being satisfied; (ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code or as a pooling of interests for accounting purposes; (iii) consolidate with or merge with any other person or entity in which United is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United under this Agreement; or (iv) authorize or enter into any agreement or commitment to do any of the foregoing.
Appears in 3 contracts
Samples: Merger Agreement (United National Bancorp), Agreement and Plan of Merger (United National Bancorp), Merger Agreement (Raritan Bancorp Inc)
Negative Covenants and Dividend Covenants. (a) Raritan Ramapo agrees that from the date hereof to the Effective Time, except as set forth in Section 5.2 of the Raritan Disclosure Schedule or as otherwise approved by United Valley in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documents;
(ii) except for the issuance of Raritan Ramapo Common Stock pursuant to the present terms of the outstanding Raritan Ramapo Options and the United Valley Stock Option and as disclosed in the Raritan Ramapo Disclosure Schedule, change the number of shares of its authorized or issued common or preferred stock No Par Stock or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Raritan Ramapo or any Raritan Ramapo Subsidiary or any securities convertible into shares of such stock, or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any shares of such capital stock, other than Raritan's its regular quarterly cash dividends in amounts not to exceed dividend of $0.15 per calendar quarter, with the dividend payment dates to be coordinated with United, it being the intention of the parties that the shareholders of Raritan receive dividends for any particular calendar quarter on either the Raritan Common Stock or the United Common Stock acquired in exchange therefor pursuant to the terms of this Agreement but not both; provided further, that nothing contained herein shall be deemed to affect the ability of the Bank to pay dividends on its capital stock to Raritan0.04;
(iii) grant any severance or termination pay (other than pursuant to agreements or policies of Raritan Ramapo in effect on the date hereof and disclosed in the Raritan Ramapo Disclosure Schedule or as agreed to by United Valley in writing) to, or enter into or amend any employment agreement with, any of its directors, officers or employees, adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; or award any increase in compensation or benefits to its directors, officers or employees;
(iv) sell or dispose of any substantial amount of assets or incur any significant liabilities other than in the ordinary course of business consistent with past practices and policies;
(v) make any capital expenditures in excess of $100,000 other than pursuant to binding commitments existing on the date hereof and expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to UnitedValley;
(vi) file any applications or make any contract with respect to branching or site location or relocation.;
(vii) agree to acquire in any manner whatsoever (other than to foreclose on collateral for a defaulted loan) any business or entity;
(viii) make any material change in its accounting methods or practices, other than changes required in accordance with GAAP;
(ix) take any action that would result in any of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective Time; or
(x) agree to do any of the foregoing.
(b) United Valley agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan Ramapo in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in this Agreement not being satisfied;
(ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code or as a pooling of interests for accounting purposesCode;
(iii) consolidate with or merge with any other person or entity in which United Valley is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United Valley under this Agreement; or
(iv) authorize or enter into any agreement or commitment to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Ramapo Financial Corp), Merger Agreement (Valley National Bancorp)
Negative Covenants and Dividend Covenants. (a) Raritan Greater Community agrees that from the date hereof to the Effective Time, except as set forth in Section 5.2 of the Raritan Disclosure Schedule or as otherwise approved by United Valley in writing (and with respect to clauses (v), (viii) and (ix) below, which approval shall not be unreasonably delayed or withheld) or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documentsCharter Documents;
(ii) except for the issuance of Raritan Common Stock pursuant to the present terms of the outstanding Raritan Options and the United Stock Option and as disclosed in the Raritan Disclosure Schedule, change the number of shares of its authorized or issued common or preferred capital stock or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Raritan Greater Community or any Raritan Greater Community Subsidiary or any securities convertible into shares of such stock, or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any shares of such capital stock, other than Raritan's regular quarterly cash dividends except as set forth in amounts not to exceed $0.15 per calendar quarter, with the dividend payment dates to be coordinated with United, it being the intention of the parties that the shareholders of Raritan receive dividends for any particular calendar quarter on either the Raritan Common Stock or the United Common Stock acquired in exchange therefor pursuant to the terms of this Agreement but not both; provided further, that nothing contained herein shall be deemed to affect the ability of the Bank to pay dividends on its capital stock to RaritanGreater Community Disclosure Schedule;
(iii) grant any severance or termination pay (other than pursuant to agreements or policies of Raritan Greater Community in effect on the date hereof and disclosed in the Raritan Greater Community Disclosure Schedule or as agreed to by United Valley in writing) to, or enter into or amend any employment agreement with, any of its directors, officers or employees, adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; or award any increase in compensation or benefits to its directors, officers or employeesemployees except for increases in compensation to officers and employees in the usual and ordinary course of business consistent with past practice;
(iv) sell or dispose of any substantial amount of assets or incur any significant liabilities other than in the ordinary course of business consistent with past practices and policies, except as set forth in the Greater Community Disclosure Schedule;
(v) make any capital expenditures in excess of $200,000 in the aggregate other than pursuant to binding commitments existing on the date hereof and expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to UnitedValley, except as set forth in the Greater Community Disclosure Schedule;
(vi) file any applications or make any contract with respect to branching or site location or relocation.;
(vii) agree to acquire in any manner whatsoever (other than to foreclose realize upon on collateral for a defaulted loan) any business or entity;
(viii) make any new investments in securities other than investments in government, municipal or agency bonds having an average maturity or duration of less than five years;
(ix) make any material change in its accounting methods or practices, other than changes required in accordance with GAAP;
(ixx) take any action that would result in any of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective TimeTime or that would cause any of its conditions to Closing not to be satisfied; or
(xxi) agree to do any of the foregoing.
(b) United agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in this Agreement not being satisfied;
(ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or entity in which United is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United under this Agreement; or
(iv) authorize or enter into any agreement or commitment to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Greater Community Bancorp), Merger Agreement (Valley National Bancorp)
Negative Covenants and Dividend Covenants. (a) Raritan agrees that The Company, Gemini, Merger Sub and Uni-Pixel agree that, from the date hereof to the Effective TimeClosing Date, except as set forth in Section 5.2 of the Raritan Disclosure Schedule or as otherwise approved by United the Parties in writing writing, or as permitted or required by this Agreement, it they will not, nor will it permit any of its Subsidiaries to:
(a) (i) change any provision provisions of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documents;
their Governing Documents; (ii) except for the issuance of Raritan Common Stock pursuant to the present terms filing of the outstanding Raritan Options Certificate of Amendment with the Secretary of State of the State of Texas and the United Stock Option Secretary of State of the State of Delaware, the Bridge Note Conversion (as defined below), the Note Conversion Transaction (as defined below), the Trade Debt Conversion (as defined below), the Bridge Loan Agreement (as defined below) and the Cancellation (as disclosed in the Raritan Disclosure Scheduledefined below), change the number of shares of its their authorized capital stock or issued common or preferred issue any shares of capital stock or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the their authorized or issued capital stock of Raritan or any Raritan Subsidiary or any securities convertible into shares of such stock, or split, combine or reclassify any shares of its capital stock, or redeem or except as otherwise acquire any shares of such capital stock, or set forth herein; (iii) declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, ; or (iv) redeem or otherwise acquire any shares of such capital stock, other than Raritan's regular quarterly cash dividends in amounts not to exceed $0.15 per calendar quarter, with the dividend payment dates to be coordinated with United, it being the intention of the parties that the shareholders of Raritan receive dividends for any particular calendar quarter on either the Raritan Common Stock or the United Common Stock acquired in exchange therefor pursuant to the terms of this Agreement but not both; provided further, that nothing contained herein shall be deemed to affect the ability of the Bank to pay dividends on its capital stock to Raritan;
(iiib) grant any severance or termination pay (other than pursuant to agreements or policies of Raritan in effect on the date hereof and disclosed in the Raritan Disclosure Schedule or as agreed to by United in writing) ordinary course of business consistent with past practices and policies to, or enter into or amend any employment agreement with, any of its their directors, officers or employees, ; adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; or award any increase in compensation or benefits to its their directors, officers or employeesemployees except with respect to salary increases and bonuses for employees in the ordinary course of business and consistent with past practices and policies;
(ivc) sell or dispose of any substantial amount of assets or incur any significant liabilities other than in the ordinary course of business consistent with past practices and policies;
(vd) make any capital expenditures outside of the ordinary course of business other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to Unitedrepair;
(vie) file any applications or make any contract with respect to branching or site location or relocation.;
(viif) agree to acquire in any manner whatsoever (other than to foreclose on realize upon collateral for a defaulted loan) any business or entity;
(viiig) make any material change in its accounting methods or practices, other than changes required in accordance with GAAPgenerally accepted accounting principles;
(ixh) take make any action that would result in loan or loan commitment to any of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective Timetheir stockholders; or
(xi) agree to do any of the foregoing.
(b) United agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in this Agreement not being satisfied;
(ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or entity in which United is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United under this Agreement; or
(iv) authorize or enter into any agreement or commitment to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Uni-Pixel), Merger Agreement (Uni-Pixel)
Negative Covenants and Dividend Covenants. (a) Raritan Merchants agrees that from the date hereof to the Effective Time, except as set forth in Section 5.2 of the Raritan Disclosure Schedule or as otherwise approved by United Valley in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documents;
(ii) except for the issuance of Raritan Merchants Common Stock pursuant to the present terms of the outstanding Raritan Merchants Options and the United Valley Stock Option and as disclosed in the Raritan Merchants Disclosure Schedule, change the number of shares of its authorized or issued common or preferred stock Preferred Stock or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Raritan Merchants or any Raritan Merchants Subsidiary or any securities convertible into shares of such stock, or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any shares of such capital stock, other than Raritan's its regular quarterly cash dividends in amounts not to exceed dividend of $0.15 per calendar quarter, with the dividend payment dates to be coordinated with United, it being the intention of the parties that the shareholders of Raritan receive dividends for any particular calendar quarter on either the Raritan Common Stock or the United Common Stock acquired in exchange therefor pursuant to the terms of this Agreement but not both; provided further, that nothing contained herein shall be deemed to affect the ability of the Bank to pay dividends on its capital stock to Raritan0.125;
(iii) grant any severance or termination pay (other than pursuant to agreements or policies of Raritan Merchants in effect on the date hereof and disclosed in the Raritan Merchants Disclosure Schedule or as agreed to by United Valley in writing) to, or enter into or amend any employment agreement with, any of its directors, officers or employees, adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; or award any increase in compensation or benefits to its directors, officers or employees, except for increases in compensation to officers (other than those entering into the Non-Competition Agreements referenced in Section 5.15) and employees in the usual and ordinary course of business, not to exceed 5%;
(iv) sell or dispose of any substantial amount of assets or incur any significant liabilities other than in the ordinary course of business consistent with past practices and policies;
(v) make any capital expenditures in excess of $100,000 other than pursuant to binding commitments existing on the date hereof and expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to UnitedValley, except as set forth in Section 5.2 of the Merchants Disclosure Schedule;
(vi) file any applications or make any contract with respect to branching or site location or relocation.;
(vii) agree to acquire in any manner whatsoever (other than to foreclose on collateral for a defaulted loan) any business or entity;
(viii) make any material change in its accounting methods or practices, other than changes required in accordance with GAAP;
(ix) take any action that would result in any of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective TimeTime or that would cause any of its conditions to Closing not to be satisfied; or
(x) agree to do any of the foregoing.
(b) United Valley agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan Merchants in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in Article IV of this Agreement not being true and correct in any material respect at the Effective Time or that would cause any of its conditions to Closing not to be satisfied;
(ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or entity in which United Valley is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United Valley under this Agreement; or
(iviii) authorize or enter into any agreement or commitment to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Valley National Bancorp), Merger Agreement (Merchants New York Bancorp Inc)
Negative Covenants and Dividend Covenants. (a) Raritan 1st United agrees that from the date hereof to the Effective Time, except as set forth otherwise approved by Valley in Section 5.2 writing (such approval not to be unreasonably withheld, conditioned or delayed, it being agreed that such approval shall be deemed to have been given, in the case of subsections (viii), (xi) and (xii) below, if Valley has not responded to 1st United’s written request by the Raritan Disclosure Schedule close of business on the second (2nd) business day following receipt of such request, and, in the case of subsections (iv) and (v) below, if Valley has not responded to 1st United’s written request by the close of business on the fifth (5th) business day following receipt of such request), or as otherwise approved by United in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Significant Subsidiaries to:
(i) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documents1st United Charter Documents;
(ii) except for the issuance of Raritan Common Stock pursuant to the present terms of the outstanding Raritan Options and the United Stock Option and as disclosed in the Raritan Disclosure Schedule, change the number of shares of its authorized or issued common or preferred capital stock (other than the issuance of (A) capital stock in connection with the exercise of any 1st United Stock Options and (B) restricted stock immediately prior to the Effective Time for prorated annual bonuses of 1st United’s named executive officers) or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Raritan 1st United or any Raritan 1st United Subsidiary or any securities convertible into shares of such stock, or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any shares of such capital stock, other than Raritan's except for regular quarterly cash dividends in amounts not to exceed $0.15 per calendar quarter, with on the dividend payment dates to be coordinated with United, it being the intention of the parties that the shareholders of Raritan receive dividends for any particular calendar quarter on either the Raritan Common Stock or the 1st United Common Stock acquired not in exchange therefor pursuant to the terms excess of this Agreement but not both; provided further, that nothing contained herein shall $0.02 per share per quarter (as may be deemed to affect the ability of the Bank to pay dividends on its capital stock to Raritanincreased in accordance with Section 5.19 hereof) with record and payment dates consistent with past practice;
(iii) grant any severance or termination pay (other than pursuant to agreements or policies of Raritan in effect on the date hereof and disclosed in the Raritan Disclosure Schedule or as agreed to by United in writing) to, or enter into or amend any employment agreement with, any of its directors, officers or employees, adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; arrangement (other than amendments required to comply with applicable law and regulations) or award any increase in compensation or benefits to its directors, officers or employeesemployees except for increases in compensation to directors, officers and employees in the usual and ordinary course of business consistent with past practice;
(iv) sell or dispose of any substantial amount of assets with a market value greater than $100,000 or incur any significant liabilities liability with a principal balance greater than $100,000 other than in the ordinary course of business consistent with past practices and policies;
(vA) make any capital expenditures or (B) enter into any new service agreement or similar contract not terminable by 1st United within sixty (60) days and involving amounts in excess of $100,000 individually or $500,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to UnitedValley;
(vi) file any applications or make any contract with respect to branching or site location or relocation.;
(vii) agree to acquire in any manner whatsoever (other than to foreclose realize upon on collateral for a defaulted loan) any business or entity;
(viii) make any new investments in securities other than investments in government, municipal or agency bonds having a weighted average life or duration of not greater than five years;
(ix) make any material change in its accounting methods or practices, other than changes required in accordance with GAAPGAAP or any applicable regulatory accounting requirements;
(ixx) take any action that would result in any of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective TimeTime or that would result in any of its conditions to Closing set forth in Section 6.1 and 6.2 not to be satisfied;
(xi) make or commit to make any new loan or other extension of credit in an amount of $5,000,000 or more;
(xii) renew for a period in excess of one year any existing loan or other extension of credit which renewal would require 1st United to advance additional funds greater than $5,000,000, or increase by $5,000,000 or more the aggregate credit outstanding to any one borrower or to any group of affiliated borrowers, except such renewals or increases that are committed as of the date of this Agreement and identified on the 1st United Disclosure Schedule and residential mortgage loans made in the ordinary course of business in accordance with past practice;
(xiii) settle any claim, action or proceeding involving any liability of 1st United or any of its Subsidiaries for money damages in excess of $200,000 or involving any material restrictions upon the operations of 1st United or any of its Subsidiaries;
(xiv) make any investment or commitment to invest in real estate, other than investments related to maintenance of owned or leased real estate used by 1st United as of the date hereof, or in any real estate development project, other than real estate acquired in satisfaction of defaulted mortgage loans;
(xv) establish, or make any commitment relating to the establishment of, any new branch or other office facilities other than those for which all regulatory approvals have been obtained;
(xvi) elect or nominate to the Board of Directors of 1st United any person who is not a member of the Board of Directors of 1st United as of the date hereof; or
(xxvii) agree to do any of the foregoing.
(b) United Valley agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan 1st United in writing (such approval not to be unreasonably withheld, conditioned or delayed) or as permitted or required by this Agreement, it will notnot intentionally, nor will it permit any of its Significant Subsidiaries to:
to (i) amend the Valley Charter Documents in a manner that would require the approval of the shareholders of Valley or in any manner that adversely affects the rights of the shareholders of Valley (except for the Valley Charter Amendment), (ii) make any material change in its accounting methods or practices, other than changes required in accordance with GAAP or any applicable regulatory accounting requirements, (iii) take any intentional action that is intended or may reasonably be expected to would result in any of its representations and warranties conditions to Closing set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in this Agreement Section 6.1 and 6.3 not being satisfied;
(ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code satisfied or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or entity in which United is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United under this Agreement; or
(iv) authorize or enter into any agreement or commitment agree to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Valley National Bancorp), Merger Agreement (1st United Bancorp, Inc.)
Negative Covenants and Dividend Covenants. (a) Raritan State Bancorp agrees that from the date hereof to the Effective Time, except as set forth otherwise approved by Valley in Section 5.2 writing (such approval not to be unreasonably withheld, conditioned or delayed, it being agreed that such approval shall be deemed to have been given, in the case of subsections (viii), (xi) and (xii) below, if Valley has not responded to State Bancorp’s written request by the Raritan Disclosure Schedule close of business on the second (2nd) business day following receipt of such request, and, in the case of subsections (iv) and (v) below, if Valley has not responded to State Bancorp’s written request by the close of business on the fifth (5th) business day following receipt of such request), or as otherwise approved by United in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Significant Subsidiaries to:
(i) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documentsCharter Documents;
(ii) except for the issuance of Raritan Common Stock pursuant to the present terms of the outstanding Raritan Options and the United Stock Option and as disclosed in the Raritan Disclosure Schedule, change the number of shares of its authorized or issued common or preferred capital stock or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Raritan State Bancorp or any Raritan State Bancorp Subsidiary or any securities convertible into shares of such stock, or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any shares of such capital stockexcept (i) as disclosed in the State Bancorp Disclosure Schedule, other than Raritan's (ii) for regular quarterly cash dividends on the State Bancorp Common Stock not in amounts not to exceed excess of $0.15 0.05 per calendar quarter, share per quarter with the dividend record and payment dates consistent with past practice (for the avoidance of doubt, Valley agrees to be coordinated with United, it being the intention of the parties that the shareholders of Raritan receive dividends for pay any particular calendar quarter on either the Raritan Common Stock or the United Common Stock acquired in exchange therefor pursuant such dividend declared by State Bancorp prior to the terms of this Agreement but not both; Effective Time, provided further, that nothing contained herein shall be deemed the record date is on or prior to affect the ability of the Bank to pay dividends on its capital stock to RaritanEffective Time);
(iii) grant any severance or termination pay (other than pursuant to agreements or policies of Raritan in effect as set forth on the date hereof and disclosed in the Raritan State Bancorp Disclosure Schedule or as agreed whether pursuant to by United in writingexisting policies or other arrangements described therein) to, or enter into or amend any employment agreement with, any of its directors, officers or employees, adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; arrangement (other than amendments required to comply with applicable law and regulations) or award any increase in compensation or benefits to its directors, officers or employeesemployees except for increases in compensation to directors, officers and employees in the usual and ordinary course of business consistent with past practice or as set forth on the State Bancorp Disclosure Schedule;
(iv) sell or dispose of any substantial amount of assets with a market value greater than $100,000 or incur any significant liabilities liability with a principal balance greater than $100,000 other than the sale of OREO or non-performing loans and other than in the ordinary course of business consistent with past practices and policies, except as set forth in the State Bancorp Disclosure Schedule;
(vA) make any capital expenditures or (B) enter into any new service agreement or similar contract not terminable by State Bancorp within sixty (60) days and involving amounts in excess of $100,000 individually or $500,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to UnitedValley, except as set forth in the State Bancorp Disclosure Schedule;
(vi) file any applications or make any contract with respect to branching or site location or relocation., except as set forth on the State Bancorp Disclosure Schedule;
(vii) agree to acquire in any manner whatsoever (other than to foreclose realize upon on collateral for a defaulted loan) any business or entity;
(viii) make any new investments in securities other than investments in government, municipal or agency bonds or mortgage backed securities issued or backed by a government sponsored entity having a weighted average life or duration of not greater than ten years;
(ix) make any material change in its accounting methods or practices, other than changes required in accordance with GAAPGAAP or any applicable regulatory accounting requirements;
(ixx) take any action that would result in any of its conditions to Closing set forth in Section 6.1 and 6.2 not to be satisfied;
(xi) make or commit to make any new loan or other extension of credit in an amount of $2,500,000 or more except such loan initiations that are committed as of the representations and warranties contained in Article III date of this Agreement not being true and correct identified on the State Bancorp Disclosure Schedule and residential mortgage loans made in the ordinary course of business in accordance with past practice;
(xii) renew for a period in excess of one year any material respect at existing loan or other extension of credit which renewal would require State Bancorp to advance additional funds greater than $3,000,000 for commercial and industrial loans or $5,000,000 for commercial real estate loans, or would otherwise cause the Effective Timeaggregate credit outstanding to any one borrower to exceed $5,000,000 or to any group of affiliated borrowers to exceed $10,000,000, except such renewals or increases that are committed as of the date of this Agreement and identified on the State Bancorp Disclosure Schedule and residential mortgage loans made in the ordinary course of business in accordance with past practice; or
(xxiii) agree to do any of the foregoing.
(b) United Valley agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan State Bancorp in writing (such approval not to be unreasonably withheld, conditioned or delayed) or as permitted or required by this Agreement, it will not, nor will it permit any of its Significant Subsidiaries to:
(i) amend its Charter Documents in a manner that would require the approval of the shareholders of Valley or in any manner that adversely affects the rights of the shareholders of Valley;
(ii) make any material change in its accounting methods or practices, other than changes required in accordance with GAAP or any applicable regulatory accounting requirements;
(iii) take any action that is intended or may reasonably be expected to would result in any of its representations and warranties conditions to Closing set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in this Agreement Section 6.1 and 6.3 not being satisfied;
(ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or entity in which United is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United under this Agreementsatisfied; or
(iv) authorize or enter into any agreement or commitment agree to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Valley National Bancorp), Merger Agreement (State Bancorp Inc)
Negative Covenants and Dividend Covenants. (a) Raritan Xxxxx agrees that from the date hereof to the Effective Time, except as set forth in Section 5.2 of the Raritan Valley Disclosure Schedule or as otherwise approved by United Valley in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documents;
(ii) except for the issuance of Raritan Xxxxx Common Stock pursuant to the present terms of the outstanding Raritan Xxxxx Options and the United Valley Stock Option and as disclosed in the Raritan Xxxxx Disclosure Schedule, change the number of shares of its authorized or issued common or preferred stock or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Raritan Xxxxx or any Raritan Xxxxx Subsidiary or any securities convertible into shares of such stock, or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any shares of such capital stock, other than Raritan's regular quarterly cash dividends in amounts not to exceed $0.15 per calendar quarter, with the dividend payment dates to be coordinated with United, it being the intention of the parties that the shareholders of Raritan receive dividends for any particular calendar quarter on either the Raritan Common Stock or the United Common Stock acquired in exchange therefor pursuant to the terms of this Agreement but not both; provided further, that nothing contained herein shall be deemed to affect the ability of the Bank to pay dividends on its capital stock to Raritan;
(iii) grant any severance or termination pay (other than pursuant to agreements or policies of Raritan Xxxxx in effect on the date hereof and disclosed in the Raritan Xxxxx Disclosure Schedule or as agreed to by United Valley in writing) to, or enter into or amend any employment agreement with, any of its directors, officers or employees, adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; or award any increase in compensation or benefits to its directors, officers or employees;
(iv) sell or dispose of any substantial amount of assets or incur any significant liabilities other than in the ordinary course of business consistent with past practices and policies;
(v) make any capital expenditures in excess of $100,000 other than pursuant to binding commitments existing on the date hereof and expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to UnitedValley;
(vi) file any applications or make any contract with respect to branching or site location or relocation.
(vii) agree to acquire in any manner whatsoever (other than to foreclose on collateral for a defaulted loan) any business or entity;
(viii) make any material change in its accounting methods or practices, other than changes required in accordance with GAAP;
(ix) take any action that would result in any of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective Time; or
(x) agree to do any of the foregoing.
(b) United Valley agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan Xxxxx in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in this Agreement not being satisfied;
(ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or entity in which United Valley is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United Valley under this Agreement; or
(iv) authorize or enter into any agreement or commitment to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (Wayne Bancorp Inc /De/), Merger Agreement (Valley National Bancorp)
Negative Covenants and Dividend Covenants. (a) Raritan Shrewsbury agrees that from the date hereof to the Effective Time, except as set forth in Section 5.2 of the Raritan Disclosure Schedule or as otherwise approved by United Valley in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documentsCharter Documents;
(ii) except for the issuance of Raritan Common Stock pursuant to the present terms of the outstanding Raritan Options and the United Stock Option and as disclosed in the Raritan Disclosure Schedule, change the number of shares of its authorized or issued common or preferred capital stock or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Raritan Shrewsbury or any Raritan Shrewsbury Subsidiary or any securities convertible into shares of such stock, or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereofthereof)(except for dividends paid by Shrewsbury Capital Corporation to Shrewsbury Investment Corporation and to Shrewsbury Capital Corporation preferred stock shareholders) in respect of its capital stock, or redeem or otherwise acquire any shares of such capital stock, other than Raritan's regular except that Shrewsbury may declare quarterly cash and/or stock dividends in amounts not equal to exceed $0.15 per calendar quarterthose declared by Valley for Valley shareholders multiplied by 1.75 for each Shrewsbury share, with the dividend payment dates subject to be coordinated with United, it being the intention of the parties that the shareholders of Raritan receive dividends adjustment for any particular calendar quarter on either the Raritan stock split, stock dividend, stock combination, reclassification or similar transaction effected by Valley with respect to Valley Common Stock or between the United Common Stock acquired in exchange therefor pursuant to date hereof and the terms of this Agreement but not both; provided further, that nothing contained herein shall be deemed to affect the ability of the Bank to pay dividends on its capital stock to RaritanEffective Time;
(iii) grant any severance or termination pay (other than pursuant to agreements or policies of Raritan Shrewsbury in effect on the date hereof and disclosed in the Raritan Shrewsbury Disclosure Schedule or as agreed to by United Valley in writing) to, or enter into or amend any employment agreement with, any of its directors, officers or employees, adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; or award any increase in compensation or benefits to its directors, officers or employeesemployees except for increases in compensation to officers and employees in the usual and ordinary course of business consistent with past practice;
(iv) sell or dispose of any substantial amount of assets or incur any significant liabilities other than in the ordinary course of business consistent with past practices and policies;
(v) make any capital expenditures in excess of $100,000 in the aggregate other than pursuant to binding commitments existing on the date hereof and expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to UnitedValley, except as set forth in Section 5.2 of the Shrewsbury Disclosure Schedule;
(vi) file any applications or make any contract with respect to branching or site location or relocation.;
(vii) agree to acquire in any manner whatsoever (other than to foreclose realize upon on collateral for a defaulted loan) any business or entityentity or make any new investments in securities other than investments in government, municipal or agency bonds having an average maturity or duration of less than five years;
(viii) make any material change in its accounting methods or practices, other than changes required in accordance with GAAP;
(ix) take any action that would result in any of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective TimeTime or that would cause any of its conditions to Closing not to be satisfied;
(x) make or commit to make to make any new loan or other extension of credit in an amount of $500,000 or more, renew for a period in excess of one year any existing loan or other extension of credit in an amount of $500,000 or more, or increase by $500,000 or more the aggregate credit outstanding to any borrower or group of affiliated borrowers except such loan initiations, renewals or increases that are committed as of the date of this Agreement and identified on the Shrewsbury Disclosure Schedule and residential mortgage loans made in the ordinary course of business in accordance with past practice; or
(xxi) agree to do any of the foregoing.
(b) United Valley agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan Shrewsbury in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) to take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in Article IV of this Agreement not being satisfied;
(ii) take true and correct in any material respect at the Effective Time or that would cause any of its conditions to Closing not to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or entity in which United is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United under this Agreement; or
(iv) authorize or enter into any agreement or commitment to do any of the foregoingsatisfied.
Appears in 1 contract
Negative Covenants and Dividend Covenants. (a) Raritan Oritani agrees that from the date hereof to the Effective Time, except as set forth otherwise approved by Valley in Section 5.2 of the Raritan Disclosure Schedule writing (such approval not to be unreasonably withheld, conditioned or delayed) or as otherwise approved by United in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documentsOritani Charter Documents;
(ii) except for the issuance of Raritan Common Stock pursuant to the present terms of the outstanding Raritan Options and the United Stock Option and as disclosed in the Raritan Disclosure Schedule, change the number of shares of its authorized or issued common or preferred capital stock (other than the issuance of capital stock in connection with the exercise of any previously issued Oritani Stock Options) or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Raritan Oritani or any Raritan Oritani Subsidiary or any securities convertible into shares of such stock, stock or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any shares of such capital stock, other than Raritan's except for the regular quarterly cash dividends in amounts not dividend of $0.25 per share of Oritani Common Stock paid with respect to exceed $0.15 per calendar quarterthe quarter and year ended June 30, 2019, with the dividend record and payment dates consistent with past practice; provided that quarterly cash dividends declared and paid thereafter by Oritani shall equal $0.18 per share of Oritani Common Stock (and if Valley increases its regular quarterly cash dividend from that paid for the quarter immediately prior to the date of this Agreement, then the Oritani quarterly cash dividend shall be coordinated increased to an amount equal to the Exchange Ratio multiplied by the increase quarterly cash dividend); provided further that for each quarter beginning in the fourth calendar quarter of 2019 to the Effective Time, Oritani shall have a record and payment date for its quarterly cash dividend consistent with United, Valley’s record and payment date (it being the intention of the parties hereto that the shareholders holders of Raritan receive dividends for any particular calendar quarter on either the Raritan Oritani Common Stock shall not receive two dividends, or the United fail to receive one dividend, in any quarter with respect to their shares of Oritani Common Stock acquired and any shares of Valley Common Stock any such holder receives in exchange therefor pursuant to in the terms of this Agreement but not both; provided further, that nothing contained herein shall be deemed to affect the ability of the Bank to pay dividends on its capital stock to RaritanMerger);
(iii) repurchase any Oritani Common Stock except in connection with the exercise of any Oritani Stock Option or the vesting of Oritani Restricted Stock;
(iv) Except for retention payments paid pursuant to Section 5.13(e), (A) grant any severance or termination pay (other than severance or termination pay pursuant to agreements or policies of Raritan the Oritani Benefit Plans in effect effective on the date hereof and disclosed in the Raritan Disclosure Schedule or as agreed to by United in writingseverance pay consistent with past practice) to, or (B) enter into or amend any employment agreement with, any of its directors, officers or employees, adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; arrangement (other than amendments required to comply with applicable law and regulations) or award (C) grant any salary or wage increase or increase any employee benefit or pay any incentive, commission or bonus payments, or grant any equity compensation except (1) for normal increases in base compensation to employees, including officers, in the ordinary course of business consistent with past practice and pursuant to written policies currently in effect, provided that such increases shall not result in an annual increase in total annual cash compensation of more than 3% for any individual or benefits 3% in the aggregate for all employees of Oritani (provided, however, the 3% individual limit shall not apply to any employee whose annual compensation is less than $100,000), (2) to satisfy written contractual obligations existing as of the date of this Agreement and disclosed in the Oritani Disclosure Schedule, if any, and (3) for an annual bonus payment paid to any individual employee pursuant to written policies currently in effect and as to executive officers, as reflected in the Oritani Disclosure Schedules. Notwithstanding anything to the contrary contained in this Section 5.2(a), neither Oritani nor any of its directors, officers or employeesSubsidiaries shall provide compensation of any type to any “disqualified individual” to the extent such compensation would be expected to constitute an “excess parachute payment” as defined in Section 280G of the Code;
(ivv) sell or dispose of any substantial amount of assets with a market value greater than $300,000 or incur any significant liabilities liability with a principal balance greater than $300,000 other than sales of OREO and other than in the ordinary course of business consistent with past practices and policiespolicies or agree to a bulk sale of loans in excess of $25 million;
(vA) make any capital expenditures or (B) enter into any new service agreement or similar contract not terminable by Oritani within sixty (60) days and involving amounts in excess of $300,000 individually or $1,500,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to UnitedValley;
(vivii) file any applications or make any contract with respect to branching or site location or relocation.;
(viiviii) agree to acquire in any manner whatsoever (other than to foreclose realize upon on collateral for a defaulted loan) any business or entity;
(viiiix) make any new investments in securities other than investments in federal government or federal agency bonds having a weighted average life or duration of not greater than five years;
(x) make any material change in its accounting methods or practices, other than changes required in accordance with GAAPGAAP or any applicable regulatory accounting requirements;
(ixxi) take any action that would result in any of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective TimeTime or that would result in any of its conditions to Closing set forth in Section 6.1 and 6.2 not to be satisfied;
(xii) make or commit to make any new loan or other extension of credit in an amount of $15,000,000 or more;
(xiii) renew for a period in excess of one year any existing loan or other extension of credit which renewal would require Oritani to advance additional funds so that the aggregate outstanding balance of such renewed loan or other extension of credit would be greater than $15,000,000, or increase the outstanding balance of such renewed loan or other extension of credit to an amount in excess of $15,000,000 to any one borrower or to any group of affiliated borrowers, except such renewals or increases that are committed as of the date of this Agreement and identified on the Oritani Disclosure Schedule and residential mortgage loans made in the ordinary course of business consistent with past practice;
(xiv) settle any claim, action or proceeding involving any liability of Oritani or any of its Subsidiaries for money damages in excess of $600,000 or involving any material restrictions upon the operations of Oritani or any of its Subsidiaries;
(xv) make any investment or commitment to invest in real estate, other than investments related to maintenance of owned or leased real estate used by Oritani as of the date hereof, or in any real estate development project, other than real estate acquired in satisfaction of defaulted mortgage loans;
(xvi) establish, or make any commitment relating to the establishment of, any new branch or other office facilities other than those for which all regulatory approvals have been obtained;
(xvii) elect or nominate to the Board of Directors of Oritani any person who is not a member of the Board of Directors of Oritani as of the date hereof;
(xviii) other than deposits at market rates, obtain, extend or modify any new debt or financing with a maturity greater than eighteen (18) months; or
(xxix) agree to do any of the foregoing.
(b) United Valley agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan Oritani in writing (such approval not to be unreasonably withheld, conditioned or delayed) or as permitted or required by this Agreement, it will not, nor will it permit any of its Significant Subsidiaries to:
(i) change any provision of the Valley Charter Documents in a manner that would require the approval of the shareholders of Valley other than an increase in its authorized capital stock;
(ii) make any material change in its accounting methods or practices, other than changes required in accordance with GAAP or any applicable regulatory accounting requirements;
(iii) take any action that is intended would result in any of the representations and warranties contained in Article IV of this Agreement not being true and correct in any material respect at the Effective Time or may reasonably be expected to that would result in any of its representations and warranties conditions to Closing set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in this Agreement Section 6.1 and 6.3 not being to be satisfied;
(ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or entity in which United is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United under this Agreement; or
(iv) authorize or enter into any agreement or commitment agree to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement
Negative Covenants and Dividend Covenants. (a) Raritan agrees that from From the date hereof to the Effective Time, except as otherwise approved by HUBCO in writing, or as set forth in Section 5.2 of the Raritan PFC Disclosure Schedule or as otherwise approved by United in writing Schedule, or as permitted or required by this Agreement, it will not, neither PFC nor will it permit any of its Subsidiaries toBTH will:
(ia) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws By-laws or any similar governing documents;
(iib) except for the issuance of Raritan Common Stock pursuant to the present terms of the outstanding Raritan Options and the United Stock Option and as disclosed in the Raritan Disclosure Schedule, change the number of shares of its authorized or issued common capital stock (other than upon exercise of stock options or preferred stock warrants described on the PFC Disclosure Schedule in accordance with the terms thereof) or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the its authorized or issued capital stock of Raritan or any Raritan Subsidiary stock, or any securities convertible into shares of such stock, or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock; provided, however, that from the date hereof to the Effective Time, PFC may declare, set aside or redeem or otherwise acquire any shares of such capital stock, other than Raritan's regular quarterly pay cash dividends in amounts not to exceed $0.15 per calendar quarter, with the dividend payment dates to be coordinated with United, it being the intention share of the parties that the shareholders of Raritan receive dividends for any particular calendar quarter on either the Raritan PFC Common Stock aggregating (i) the cash dividends per share declared, set aside or paid by HUBCO during such period multiplied by 0.320 (the United Common Stock acquired in exchange therefor pursuant maximum Exchange Ratio) minus (ii) $0.01 (the amount per share required to redeem the terms of this Agreement but not bothPFC Rights); provided provided, further, that nothing contained herein the amount of any such dividends shall be deemed adjusted, if and to affect the ability extent necessary in the opinion of Arthxx Xxxexxxx, xxdependent accountants for HUBCO, so that the Bank to pay declaration, setting aside and payment of such dividends on its capital stock to Raritan;will not disqualify the Merger for pooling of interests accounting treatment.
(iiic) grant any severance or termination pay (other than pursuant to agreements written policies or policies contracts of Raritan PFC in effect on the date hereof and disclosed to HUBCO in the Raritan PFC Disclosure Schedule or as agreed to by United in writingSchedule) to, or enter into or amend any employment or severance agreement with, any of its directors, officers or employees, ; adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangementtype; or award any increase in compensation or benefits to its directors, officers or employees, except in each case as specified in Section 5.2 of the PFC Disclosure Schedule;
(ivd) sell or dispose of any substantial amount of assets or voluntarily incur any significant liabilities other than in the ordinary course of business consistent with past practices and policiespolicies or in response to substantial financial demands upon the business of PFC or BTH;
(ve) make any capital expenditures other than pursuant to binding commitments existing on the date hereof and hereof, expenditures necessary to maintain existing assets in good repair repair, and expenditures described in business plans or budgets previously furnished to UnitedHUBCO;
(vif) file any applications or make any contract with respect to branching or site location or relocation.;
(viig) agree to acquire in any manner whatsoever (other than to foreclose on realize upon collateral for a defaulted loan) any business or entityentity or make any new investments in securities other than investments in government or agency bonds having a maturity of less than five years;
(viiih) make any material change in its accounting methods or practices, other than changes required in accordance with GAAPgenerally accepted accounting principles or regulatory authorities;
(ixi) take any action that would result in any of the its representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective TimeTime or that would cause any of its conditions to Closing not to be satisfied;
(j) without first conferring with HUBCO, make or commit to make any new loan or other extension of credit in an amount of $3,000,000 or more, renew for a period in excess of one year any existing loan or other extension of credit in an amount of $3,000,000 or more, or increase by $3,000,000 or more the aggregate credit outstanding to any borrower or group of affiliated borrowers, except such loan initiations, renewals or increases that are committed as of the date of this Agreement and identified on the PFC Disclosure Schedule and residential mortgage loans made in the ordinary course of business in accordance with past practice; or
(xk) agree to do any of the foregoing.
(b) United agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in this Agreement not being satisfied;
(ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or entity in which United is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United under this Agreement; or
(iv) authorize or enter into any agreement or commitment to do any of the foregoing.
Appears in 1 contract
Negative Covenants and Dividend Covenants. (a) Raritan Vista agrees that from the date hereof to the Effective Time, except as set forth in Section 5.2 of the Raritan Vista Disclosure Schedule or as otherwise approved by United in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documents;
(ii) except for the issuance of Raritan Vista Common Stock pursuant to the present terms of the outstanding Raritan Vista Options and the United Stock Option and as disclosed in the Raritan Vista Disclosure Schedule, change the number of shares of its authorized or issued common or preferred stock or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Raritan Vista or any Raritan Vista Subsidiary or any securities convertible into shares of such stock, or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any shares of such capital stock, other than RaritanVista's regular quarterly cash dividends in amounts not to exceed $0.15 .16 per calendar quarter, with the dividend payment dates to be coordinated with United, it being the intention of the parties that the shareholders stockholders of Raritan Vista receive dividends for any particular calendar quarter on either the Raritan Vista Common Stock or the United Common Stock acquired in exchange therefor pursuant to the terms of this Agreement but not both; provided further, that nothing contained herein shall be deemed to affect the ability of the Bank to pay dividends on its capital stock to RaritanVista;
(iii) grant any severance or termination pay (other than pursuant to agreements or policies of Raritan Vista in effect on the date hereof and disclosed in the Raritan Vista Disclosure Schedule or as agreed to by United in writing) to, or enter into or amend any employment agreement with, any of its directors, officers or employees, adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; or, without the prior consent of United, which consent shall not be unreasonably withheld or delayed, award any increase in compensation or benefits to its directors, officers or employees;
(iv) sell or dispose of any substantial amount of assets or incur any significant liabilities other than in the ordinary course of business consistent with past practices and policies;
(v) make any capital expenditures other than pursuant to binding commitments existing on the date hereof and expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to United;
(vi) file any applications or make any contract with respect to branching or site location or relocation.
(vii) agree to acquire in any manner whatsoever (other than to foreclose on collateral for a defaulted loan) any business or entity;
(viii) make any material change in its accounting methods or practices, other than changes required in accordance with GAAP;
(ix) take any action that would result in any of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective Time; or
(x) agree to do any of the foregoing.
(b) United agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan Vista in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in this Agreement not being satisfied;
(ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or entity in which United is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United under this Agreement; or
(ivii) authorize or enter into any agreement or commitment to do any of the foregoing.
Appears in 1 contract
Negative Covenants and Dividend Covenants. (a) Raritan Oritani agrees that from the date hereof to the Effective Time, except as set forth otherwise approved by Valley in Section 5.2 of the Raritan Disclosure Schedule writing (such approval not to be unreasonably withheld, conditioned or delayed) or as otherwise approved by United in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documentsOritani Charter Documents;
(ii) except for the issuance of Raritan Common Stock pursuant to the present terms of the outstanding Raritan Options and the United Stock Option and as disclosed in the Raritan Disclosure Schedule, change the number of shares of its authorized or issued common or preferred capital stock (other than the issuance of capital stock in connection with the exercise of any previously issued Oritani Stock Options) or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Raritan Oritani or any Raritan Oritani Subsidiary or any securities convertible into shares of such stock, stock or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any shares of such capital stock, other than Raritan's except for the regular quarterly cash dividends in amounts not dividend of $0.25 per share of Oritani Common Stock paid with respect to exceed $0.15 per calendar quarterthe quarter and year ended June 30, 2019, with the dividend record and payment dates consistent with past practice; provided that quarterly cash dividends declared and paid thereafter by Oritani shall equal $0.18 per share of Oritani Common Stock (and if Valley increases its regular quarterly cash dividend from that paid for the quarter immediately prior to the date of this Agreement, then the Oritani quarterly cash dividend shall be coordinated increased to an amount equal to the Exchange Ratio multiplied by the increase quarterly cash dividend); provided further that for each quarter beginning in the fourth calendar quarter of 2019 to the Effective Time, Oritani shall have a record and payment date for its quarterly cash dividend consistent with United, Valley’s record and payment date (it being the intention of the parties hereto that the shareholders holders of Raritan receive dividends for any particular calendar quarter on either the Raritan Oritani Common Stock shall not receive two dividends, or the United fail to receive one dividend, in any quarter with respect to their shares of Oritani Common Stock acquired and any shares of Valley Common Stock any such holder receives in exchange therefor pursuant to in the terms of this Agreement but not both; provided further, that nothing contained herein shall be deemed to affect the ability of the Bank to pay dividends on its capital stock to RaritanMerger);
(iii) repurchase any Oritani Common Stock except in connection with the exercise of any Oritani Stock Option or the vesting of Oritani Restricted Stock;
(iv) Except for retention payments paid pursuant to Section 5.13(e), (A) grant any severance or termination pay (other than severance or termination pay pursuant to agreements or policies of Raritan the Oritani Benefit Plans in effect effective on the date hereof and disclosed in the Raritan Disclosure Schedule or as agreed to by United in writingseverance pay consistent with past practice) to, or (B) enter into or amend any employment agreement with, any of its directors, officers or employees, adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; arrangement (other than amendments required to comply with applicable law and regulations) or award (C) grant any salary or wage increase or increase any employee benefit or pay any incentive, commission or bonus payments, or grant any equity compensation except (1) for normal increases in base compensation to employees, including officers, in the ordinary course of business consistent with past practice and pursuant to written policies currently in effect, provided that such increases shall not result in an annual increase in total annual cash compensation of more than 3% for any individual or benefits 3% in the aggregate for all employees of Oritani (provided, however, the 3% individual limit shall not apply to any employee whose annual compensation is less than $100,000), (2) to satisfy written contractual obligations existing as of the date of this Agreement and disclosed in the Oritani Disclosure Schedule, if any, and (3) for an annual bonus payment paid to any individual employee pursuant to written policies currently in effect and as to executive officers, as reflected in the Oritani Disclosure Schedules. Notwithstanding anything to the contrary contained in this Section 5.2(a), neither Oritani nor any of its directors, officers or employeesSubsidiaries shall provide compensation of any type to any “disqualified individual” to the extent such compensation would be expected to constitute an “excess parachute payment” as defined in Section 280G of the Code;
(ivv) sell or dispose of any substantial amount of assets with a market value greater than $300,000 or incur any significant liabilities liability with a principal balance greater than $300,000 other than sales of OREO and other than in the ordinary course of business consistent with past practices and policiespolicies or agree to a bulk sale of loans in excess of $25 million;
(vvi) (A) make any capital expenditures or (B) enter into any new service agreement or similar contract not terminable by Oritani within sixty (60) days and involving amounts in excess of $300,000 individually or $1,500,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to UnitedValley;
(vivii) file any applications or make any contract with respect to branching or site location or relocation.;
(viiviii) agree to acquire in any manner whatsoever (other than to foreclose realize upon on collateral for a defaulted loan) any business or entity;
(viiiix) make any new investments in securities other than investments in federal government or federal agency bonds having a weighted average life or duration of not greater than five years;
(x) make any material change in its accounting methods or practices, other than changes required in accordance with GAAPGAAP or any applicable regulatory accounting requirements;
(ixxi) take any action that would result in any of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective TimeTime or that would result in any of its conditions to Closing set forth in Section 6.1 and 6.2 not to be satisfied;
(xii) make or commit to make any new loan or other extension of credit in an amount of $15,000,000 or more;
(xiii) renew for a period in excess of one year any existing loan or other extension of credit which renewal would require Oritani to advance additional funds so that the aggregate outstanding balance of such renewed loan or other extension of credit would be greater than $15,000,000, or increase the outstanding balance of such renewed loan or other extension of credit to an amount in excess of $15,000,000 to any one borrower or to any group of affiliated borrowers, except such renewals or increases that are committed as of the date of this Agreement and identified on the Oritani Disclosure Schedule and residential mortgage loans made in the ordinary course of business consistent with past practice;
(xiv) settle any claim, action or proceeding involving any liability of Oritani or any of its Subsidiaries for money damages in excess of $600,000 or involving any material restrictions upon the operations of Oritani or any of its Subsidiaries;
(xv) make any investment or commitment to invest in real estate, other than investments related to maintenance of owned or leased real estate used by Oritani as of the date hereof, or in any real estate development project, other than real estate acquired in satisfaction of defaulted mortgage loans;
(xvi) establish, or make any commitment relating to the establishment of, any new branch or other office facilities other than those for which all regulatory approvals have been obtained;
(xvii) elect or nominate to the Board of Directors of Oritani any person who is not a member of the Board of Directors of Oritani as of the date hereof;
(xviii) other than deposits at market rates, obtain, extend or modify any new debt or financing with a maturity greater than eighteen (18) months; or
(xxix) agree to do any of the foregoing.
(b) United Valley agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan Oritani in writing (such approval not to be unreasonably withheld, conditioned or delayed) or as permitted or required by this Agreement, it will not, nor will it permit any of its Significant Subsidiaries to:
(i) change any provision of the Valley Charter Documents in a manner that would require the approval of the shareholders of Valley other than an increase in its authorized capital stock;
(ii) make any material change in its accounting methods or practices, other than changes required in accordance with GAAP or any applicable regulatory accounting requirements;
(iii) take any action that is intended would result in any of the representations and warranties contained in Article IV of this Agreement not being true and correct in any material respect at the Effective Time or may reasonably be expected to that would result in any of its representations and warranties conditions to Closing set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in this Agreement Section 6.1 and 6.3 not being to be satisfied;
(ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or entity in which United is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United under this Agreement; or
(iv) authorize or enter into any agreement or commitment agree to do any of the foregoing.
Appears in 1 contract
Negative Covenants and Dividend Covenants. (a) Raritan agrees Faxxxxxxxx xgrees that from the date hereof to the Effective Time, except as set forth in Section 5.2 of the Raritan Disclosure Schedule or as otherwise approved by United in writing writing, or as permitted or required by this AgreementAgreement or as contained in the Faxxxxxxxx Xisclosure Schedule, it will not, nor will it permit any of its Subsidiaries to:
(ia) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documents;
(iib) except for the issuance of Raritan Common Stock pursuant to the present terms of the outstanding Raritan Options and the United Stock Option and as disclosed in the Raritan Disclosure Schedule, change the number of shares of its authorized capital stock or issued common issue any more shares of Faxxxxxxxx Common Stock (other than pursuant to the exercise of options granted under the Faxxxxxxxx Option Plans as of the date hereof) or preferred other capital stock or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Raritan or any Raritan Subsidiary Faxxxxxxxx or any securities convertible into shares of such stock, or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any shares of such capital stock, other than Raritan's regular quarterly cash dividends in amounts not to exceed $0.15 per calendar quarter, with the dividend payment dates to be coordinated with United, it being the intention of the parties that the shareholders of Raritan receive dividends for any particular calendar quarter on either the Raritan Common Stock or the United Common Stock acquired in exchange therefor pursuant to the terms of this Agreement but not both; provided further, that nothing contained herein shall be deemed to affect the ability of the Bank to pay dividends on its capital stock to Raritan;
(iiic) grant any severance or termination pay (other than pursuant to agreements or policies of Raritan in Faxxxxxxxx xn effect on the date hereof and disclosed to United in the Raritan Faxxxxxxxx Disclosure Schedule or as agreed to by United in writing) to, or enter into or amend any employment agreement with, any of its directors, officers or employees, ; adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; or award any increase in compensation or benefits to its directors, officers or employeesemployees except with respect to salary increases and bonuses for employees in the ordinary course of business and consistent with past practices and policies;
(ivd) sell or dispose of any substantial amount of assets or incur any significant liabilities other than in the ordinary course of business consistent with past practices and policies;
(ve) make any capital expenditures outside of the ordinary course of business other than pursuant to binding commitments existing on the date hereof and other than expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to Unitedrepair;
(vif) file any applications or make any contract with respect to branching or site location or relocation.;
(viig) agree to acquire in any manner whatsoever (other than to foreclose on realize upon collateral for a defaulted loan) any business or entity;
(viiih) make any material change in its accounting methods or practices, other than changes required in accordance with GAAP;
(ix) take any action that would result in any of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective Timegenerally accepted accounting principles; or
(xi) agree to do any of the foregoing.
(b) United agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in this Agreement not being satisfied;
(ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or entity in which United is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United under this Agreement; or
(iv) authorize or enter into any agreement or commitment to do any of the foregoing.
Appears in 1 contract
Negative Covenants and Dividend Covenants. (a) Raritan Bancshares agrees that from the date hereof to the Effective Time, except as set forth otherwise approved by Valley in Section 5.2 writing (such approval not to be unreasonably withheld, conditioned or delayed, it being agreed that such approval shall be deemed to have been given, in the case of subsections (viii), (xi) and (xii) below, if Valley has not responded to Bancshares’ written request by the Raritan Disclosure Schedule close of business on the second (2nd) business day following receipt of such request, and, in the case of subsections (iv) and (v) below, if Valley has not responded to Bancshares’ written request by the close of business on the fifth (5th) business day following receipt of such request) or as otherwise approved by United in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Significant Subsidiaries to:
(i) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documentsBancshares Charter Documents;
(ii) except for the issuance of Raritan Common Stock pursuant to the present terms of the outstanding Raritan Options and the United Stock Option and as disclosed in the Raritan Disclosure Schedule, change the number of shares of its authorized or issued common capital stock (other than the issuance of capital stock in connection with the exercise of any Bancshares Stock Options or preferred stock the conversion of the Bancshares Preferred Stock) or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Raritan Bancshares or any Raritan Bancshares Subsidiary or any securities convertible into shares of such stock, or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any shares of such capital stock, other than Raritan's regular quarterly cash dividends in amounts not to exceed $0.15 per calendar quarter, with the dividend payment dates to be coordinated with United, it being the intention of the parties that the shareholders of Raritan receive dividends for any particular calendar quarter on either the Raritan Common Stock or the United Common Stock acquired in exchange therefor pursuant to the terms of this Agreement but not both; provided further, that nothing contained herein shall be deemed to affect the ability of the Bank to pay dividends on its capital stock to Raritan;
(iii) grant any severance or termination pay (other than pursuant to agreements or policies of Raritan in effect on the date hereof and disclosed in the Raritan Disclosure Schedule or as agreed to by United in writing) to, or enter into or amend any employment agreement with, any of its directors, officers or employees, adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; arrangement (other than amendments required to comply with applicable law and regulations) or award any increase in compensation or benefits to its directors, officers or employeesemployees except for increases in compensation to directors, officers and employees in the usual and ordinary course of business consistent with past practice;
(iv) sell or dispose of any substantial amount of assets with a market value greater than $100,000 or incur any significant liabilities liability with a principal balance greater than $100,000 other than in the ordinary course of business consistent with past practices and policies;
(vA) make any capital expenditures or (B) enter into any new service agreement or similar contract not terminable by Bancshares within sixty (60) days and involving amounts in excess of $100,000 individually or $500,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to UnitedValley;
(vi) file any applications or make any contract with respect to branching or site location or relocation.;
(vii) agree to acquire in any manner whatsoever (other than to foreclose realize upon on collateral for a defaulted loan) any business or entity;
(viii) make any new investments in securities other than investments in government, municipal or agency bonds having a weighted average life or duration of not greater than five years;
(ix) make any material change in its accounting methods or practices, other than changes required in accordance with GAAPGAAP or any applicable regulatory accounting requirements;
(ixx) take any action that would result in any of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective TimeTime or that would result in any of its conditions to Closing set forth in Section 6.1 and 6.2 not to be satisfied;
(xi) make or commit to make any new loan or other extension of credit in an amount of $5,000,000 or more;
(xii) renew for a period in excess of one year any existing loan or other extension of credit which renewal would require Bancshares to advance additional funds greater than $5,000,000, or increase by $5,000,000 or more the aggregate credit outstanding to any one borrower or to any group of affiliated borrowers, except such renewals or increases that are committed as of the date of this Agreement and identified on the Bancshares Disclosure Schedule and residential mortgage loans made in the ordinary course of business in accordance with past practice;
(xiii) settle any claim, action or proceeding involving any liability of Bancshares or any of its Subsidiaries for money damages in excess of $200,000 or involving any material restrictions upon the operations of Bancshares or any of its Subsidiaries;
(xiv) make any investment or commitment to invest in real estate, other than investments related to maintenance of owned or leased real estate used by Bancshares as of the date hereof, or in any real estate development project, other than real estate acquired in satisfaction of defaulted mortgage loans;
(xv) establish, or make any commitment relating to the establishment of, any new branch or other office facilities other than those for which all regulatory approvals have been obtained;
(xvi) elect or nominate to the Board of Directors of Bancshares any person who is not a member of the Board of Directors of Bancshares as of the date hereof; or
(xxvii) agree to do any of the foregoing.
(b) United Valley agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan Bancshares in writing (such approval not to be unreasonably withheld, conditioned or delayed) or as permitted or required by this Agreement, it will notnot intentionally, nor will it permit any of its Significant Subsidiaries to:
to (i) amend the Valley Charter Documents in a manner that would require the approval of the shareholders of Valley or in any manner that adversely affects the rights of the shareholders of Valley, (ii) make any material change in its accounting methods or practices, other than changes required in accordance with GAAP or any applicable regulatory accounting requirements, (iii) take any intentional action that is intended or may reasonably be expected to would result in any of its representations and warranties conditions to Closing set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in this Agreement Section 6.1 and 6.3 not being satisfied;
(ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code satisfied or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or entity in which United is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United under this Agreement; or
(iv) authorize or enter into any agreement or commitment agree to do any of the foregoing.
Appears in 1 contract
Negative Covenants and Dividend Covenants. (a) Raritan NYNB agrees that from the date hereof to the Effective Time, except as set forth in Section 5.2 of the Raritan Disclosure Schedule or as otherwise approved by United Xxxxxx Valley in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
: (i) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documents;
Charter Documents; (ii) except for the issuance of Raritan NYNB Common Stock pursuant to the present terms of the outstanding Raritan Options and the United Stock Xxxxxx Valley Option Agreement and as disclosed in the Raritan NYNB Disclosure Schedule, change the number of shares of its authorized or issued common or preferred capital stock or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Raritan or any Raritan Subsidiary NYNB or any securities convertible into shares of such stock, or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any shares of such capital stock, other than Raritan's regular quarterly cash dividends in amounts not to exceed $0.15 per calendar quarter, with the dividend payment dates to be coordinated with United, it being the intention of the parties that the shareholders of Raritan receive dividends for any particular calendar quarter on either the Raritan Common Stock or the United Common Stock acquired in exchange therefor pursuant to the terms of this Agreement but not both; provided further, that nothing contained herein shall be deemed to affect the ability of the Bank to pay dividends on its capital stock to Raritan;
(iii) grant any severance or termination pay (other than pursuant to agreements or policies of Raritan NYNB in effect on the date hereof and disclosed in the Raritan NYNB Disclosure Schedule or as agreed to by United Xxxxxx Valley in writing) to, or enter into or amend any employment agreement with, any of its directors, officers or employees, adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; or award any increase in salary, bonus, compensation or benefits to its directors, officers or employees;
; (iv) sell or dispose of any substantial amount of assets or incur any significant liabilities in excess of $5,000 (other than deposits in the ordinary course of business consistent with past practices and policies;
practice), borrow any money (regardless of amount) with a repayment term of greater than 12 months or assume any brokered deposits, except in connection with the transactions contemplated by this Agreement; (v) make any capital expenditures in excess of $5,000 in the aggregate other than pursuant to binding commitments existing on the date hereof and expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to United;
Xxxxxx Valley, except as set forth in Section 5.2 of the NYNB Disclosure Schedule; (vi) file any applications or make any contract with respect to branching or site location or relocation.
, including, without limitation, leases or lease amendments for new or existing branch or office locations; (vii) agree to acquire in any manner whatsoever (other than to foreclose realize upon on collateral for a defaulted loan) any business or entity;
(viii) entity or make any material change new investments in its accounting methods or practices, securities other than changes required investments in accordance with GAAP;
(ix) take any action that would result in any government, municipal or agency bonds having a final maturity of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective Timeless than one year; or
(x) agree to do any of the foregoing.
(b) United agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Subsidiaries to:
(i) take any action that is intended or may reasonably be expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in this Agreement not being satisfied;
(ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or entity in which United is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United under this Agreement; or
(iv) authorize or enter into any agreement or commitment to do any of the foregoing.23
Appears in 1 contract
Negative Covenants and Dividend Covenants. (a) Raritan Bancorp agrees that from the date hereof to the Effective Time, except as set forth otherwise approved by Valley in Section 5.2 of the Raritan Disclosure Schedule writing (such approval not to be unreasonably withheld, conditioned or delayed) or as otherwise approved by United in writing or as permitted or required by this Agreement, it will not, nor will it permit any of its Significant Subsidiaries to:
(i) change any provision of its Certificate of Incorporation or Charter, as the case may be, or Bylaws or any similar governing documentsBancorp Charter Documents;
(ii) except for the issuance of Raritan Common Stock pursuant to the present terms of the outstanding Raritan Options and the United Stock Option and as disclosed in the Raritan Disclosure Schedule, change the number of shares of its authorized or issued common capital stock (other than the issuance of capital stock in connection with the exercise of any previously issued Bancorp Stock Options or preferred stock Bancorp Warrants or the settlement of previously granted Bancorp Restricted Stock Units) or issue or grant any option, warrant, call, commitment, subscription, right to purchase or agreement of any character relating to the authorized or issued capital stock of Raritan Bancorp or any Raritan Bancorp Subsidiary or any securities convertible into shares of such stock, stock or split, combine or reclassify any shares of its capital stock, or redeem or otherwise acquire any shares of such capital stock, or declare, set aside or pay any dividend, or other distribution (whether in cash, stock or property or any combination thereof) in respect of its capital stock, or redeem or otherwise acquire any shares of such capital stock, other than Raritan's except for regular quarterly cash dividends in amounts not to exceed $0.15 per calendar quarteron the Bancorp Common Stock with record, with the dividend payment dates to be coordinated and amounts consistent with United, it being the intention of the parties that the shareholders of Raritan receive dividends for any particular calendar quarter on either the Raritan Common Stock or the United Common Stock acquired in exchange therefor pursuant to the terms of this Agreement but not both; provided further, that nothing contained herein shall be deemed to affect the ability of the Bank to pay dividends on its capital stock to RaritanSection 5.21;
(iii) grant any severance or termination pay (other than severance or termination pay pursuant to agreements or policies of Raritan the Bancorp Benefit Plans in effect effective on the date hereof and disclosed in the Raritan Disclosure Schedule or as agreed to by United in writinghereof) to, or enter into or amend any employment agreement with, any of its directors, officers or employees, adopt any new employee benefit plan or arrangement of any type or amend any such existing benefit plan or arrangement; arrangement (other than amendments required to comply with applicable law and regulations) or award any increase in compensation or benefits to its directors, officers or employees) except for increases in compensation to directors, officers and employees not covered by the Bancorp Executive Change in Control Severance Plan (the “CIC Severance Plan”), in the usual and ordinary course of business consistent with past practice, provided, however, that Bancorp may pay at any time prior to Closing, bonuses payable in cash only (and not equity) based upon Bancorp’s 2017 performance and in accordance with the parameters set forth in the Bancorp Disclosure Schedule;
(iv) sell or dispose of any substantial amount of assets with a market value greater than $300,000 or incur any significant liabilities liability with a principal balance greater than $300,000 other than in the ordinary course of business consistent with past practices and policies;
(vA) make any capital expenditures or (B) enter into any new service agreement or similar contract not terminable by Bancorp within sixty (60) days and involving amounts in excess of $300,000 individually or $1,500,000 in the aggregate, other than pursuant to binding commitments existing on the date hereof and expenditures necessary to maintain existing assets in good repair and expenditures described in business plans or budgets previously furnished to UnitedValley;
(vi) file any applications or make any contract with respect to branching or site location or relocation.
(vii) agree to acquire in any manner whatsoever (other than to foreclose realize upon on collateral for a defaulted loan) any business or entity;
(vii) make any new investments in securities other than investments in federal government or federal agency bonds having a weighted average life or duration of not greater than five years;
(viii) make any material change in its accounting methods or practices, other than changes required in accordance with GAAPGAAP or any applicable regulatory accounting requirements;
(ix) take any action that would result in any of the representations and warranties contained in Article III of this Agreement not being true and correct in any material respect at the Effective TimeTime or that would result in any of its conditions to Closing set forth in Section 6.1 and 6.2 not to be satisfied;
(x) make or commit to make any new loan or other extension of credit in an amount of $5,000,000 or more;
(xi) renew for a period in excess of one year any existing loan or other extension of credit which renewal would require Bancorp to advance additional funds greater than $7,000,000, or increase by $7,000,000 or more the aggregate credit outstanding to any one borrower or to any group of affiliated borrowers, except such renewals or increases that are committed as of the date of this Agreement and identified on the Bancorp Disclosure Schedule and residential mortgage loans made in the ordinary course of business consistent with past practice;
(xii) settle any claim, action or proceeding involving any liability of Bancorp or any of its Subsidiaries for money damages in excess of $600,000 or involving any material restrictions upon the operations of Bancorp or any of its Subsidiaries;
(xiii) make any investment or commitment to invest in real estate, other than investments related to maintenance of owned or leased real estate used by Bancorp as of the date hereof, or in any real estate development project, other than real estate acquired in satisfaction of defaulted mortgage loans;
(xiv) establish, or make any commitment relating to the establishment of, any new branch or other office facilities other than those for which all regulatory approvals have been obtained;
(xv) elect or nominate to the Board of Directors of Bancorp any person who is not a member of the Board of Directors of Bancorp as of the date hereof;
(xvi) other than deposits at market rates, obtain, extend or modify any new debt or financing with a maturity greater than eighteen (18) months; or
(xxvii) agree to do any of the foregoing.
(b) United For purposes of Section 5.2(a), Valley’s approval shall be deemed to have been given if Bancorp has made a written request for permission to take any action otherwise prohibited by Section 5.2(a) and has provided Valley with information sufficient for Valley to make an informed decision with respect to such request, and Valley has failed to respond to such request within two (2) business days after Valley’s receipt of such request in the case of subsections (x) and (xi), and five (5) business days otherwise.
(c) Valley agrees that from the date hereof to the Effective Time, except as otherwise approved by Raritan Bancorp in writing (such approval not to be unreasonably withheld, conditioned or delayed) or as permitted or required by this Agreement, it will not, nor will it permit any of its Significant Subsidiaries to:
(i) change any provision of the Valley Charter Documents in a manner that would require the approval of the shareholders of Valley;
(ii) make any material change in its accounting methods or practices, other than changes required in accordance with GAAP or any applicable regulatory accounting requirements;
(iii) take any action that is intended would result in any of the representations and warranties contained in Article IV of this Agreement not being true and correct in any material respect at the Effective Time or may reasonably be expected to that would result in any of its representations and warranties conditions to Closing set forth in this Agreement being or becoming untrue in any material respect, or that may result in any condition, agreement or covenant set forth in this Agreement Section 6.1 and 6.3 not being to be satisfied;
(ii) take or cause to be taken any action which would disqualify the Merger as a tax free reorganization under Section 368 of the Code or as a pooling of interests for accounting purposes;
(iii) consolidate with or merge with any other person or entity in which United is not the surviving entity, or convey, transfer or lease its properties and assets substantially as an entirety to any person or entity unless such person or entity shall expressly assume the obligations of United under this Agreement; or
(iv) authorize or enter into any agreement or commitment agree to do any of the foregoing.
(d) For purposes of Section 5.2(c), Bancorp’s approval shall be deemed to have been given if Valley has made a written request for permission to take any action otherwise prohibited by Section 5.2(c) and has provided Bancorp with information sufficient for Bancorp to make an informed decision with respect to such request, and Bancorp has failed to respond to such request within two (2) business days after Bancorp’s receipt of such request.
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