Ordinary Conduct of Business. Except as otherwise expressly permitted by this Agreement, the Company will, and will cause its Subsidiaries (including the Company Bank) to, from the date of this Agreement to the Closing, conduct its business in the ordinary course in substantially the same manner as presently conducted and make reasonable commercial efforts consistent with past practices to preserve its relationships with other Persons. Additionally, except as otherwise contemplated by this Agreement or as set forth on Section 6.1(a) of the Company's Disclosure Schedule, the Company will not, and it will not permit its Subsidiaries (including the Company Bank) to, do any of the following without the prior written consent of the Buyer: (i) amend its governing documents; (ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver any stock or stock options or other equity equivalents of any class or any other of its securities (other than the issuance of any Company Shares pursuant to the exercise of options set forth on Section 4.3 of the Company's Disclosure Schedule), or amend any of the terms of any securities outstanding as of the date hereof; (iii) (A) split, combine or reclassify any shares of its capital stock, (B) 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 (C) redeem or otherwise acquire any of its securities; (iv) (A) incur or assume any long-term debt or issue any long-term debt securities, other than advances from the Federal Home Loan Bank having a maturity of one year or less, certificates of deposit and repurchase agreements with respect to instruments sold by the Company or its Subsidiaries, all in the ordinary course of business, or, except under existing lines of credit and in amounts not Material to it, incur or assume any short-term debt other than in the ordinary course of business, (B) other than in the ordinary course of business consistent with past practice assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (C) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course and consistent with past practice up to an amount with respect to any borrower or guarantor that would not result in the credit exposure to such borrower or guarantor increasing by more than $750,000, pledge or otherwise encumber shares of its capital stock, or (D) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon, other than Liens permitted by the proviso clause in the definition of Liens and Liens created or existing in the ordinary course of business consistent with past practice; (v) except as required by Law or as contemplated herein, adopt or amend any Benefit Plan; (vi) grant to any director or executive officer or employee any stock options or increase in his or her compensation (except compensation increases for employees who are vice presidents or below in the ordinary course of business consistent with past practice) or pay or agree to pay to any such Person other than in the ordinary course of business any bonus, severance or termination payment, specifically including any such payment that becomes payable upon the termination of such Person by it or Buyer after the Closing; (vii) enter into or amend any employment Contract; (viii) acquire, sell, lease or dispose of any assets outside the ordinary course of business, or any other assets that in the aggregate are Material to it, or acquire any Person (or division thereof), any equity interest therein or the assets thereof outside the ordinary course of business; (ix) change or modify any of the accounting principles or practices used by it or revalue in any Material respect any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices or as required by GAAP or any Regulatory Authority; (A) enter into, cancel or modify any Contract (other than loans, advances, capital contributions or investments permitted by subclause (iv)(C) of this Section 6.1) other than in the ordinary course of business consistent with past practices, but not in any event involving an amount in excess of $10,000; (B) authorize or make any capital expenditure or expenditures (other than expenditures for maintenance, repair and replacement of Company Assets), that, individually or in the aggregate, are in excess of $10,000; or (C) enter into or amend any Contract with respect to any of the foregoing; (xi) pay, discharge or satisfy, cancel, waive or modify any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in or contemplated by the Company Financial Statements, or incurred in the ordinary course of business consistent with past practices; (xii) settle or compromise any pending or threatened suit, action or claim relating to the transactions contemplated hereby; (xiii) take, or agree in writing or otherwise to take, any action that would make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect or result in any of the conditions set forth in this Agreement not being satisfied; or (xiv) agree, whether in writing or otherwise, to do any of the foregoing.
Appears in 2 contracts
Samples: Merger Agreement (High Street Corp), Merger Agreement (Capital Bank Corp)
Ordinary Conduct of Business. Except as otherwise expressly permitted by this Agreement, the Company will, and will cause its Subsidiaries (including the Company Bank) to, from the date of this Agreement to the Closing, conduct its business in the ordinary course in substantially the same manner as presently conducted and make reasonable commercial efforts consistent with past practices to preserve its relationships with other Persons. Additionally, except as otherwise contemplated by this Agreement or as set forth on Section 6.1(a) of the Company's Disclosure Schedule, the Company will not, and it will not permit its Subsidiaries (including the Company Bank) to, do any of the following without the prior written consent of the Buyer:
(i) amend its governing documents;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver any stock or stock options or other equity equivalents of any class or any other of its securities (other than the issuance of any Company Shares pursuant to the exercise of options Company Options set forth on in Section 4.3 of the Company's Disclosure Schedule4.3), or amend any of the terms of any securities outstanding as of the date hereof;
(iii) (A) split, combine or reclassify any shares of its capital stock, (B) 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 stockstock (except for regular quarterly cash dividends paid in accordance with past practice at the rate of $0.10 per share per annum, including the payment of any quarterly portion thereof as is necessary to prevent the Company's shareholders from failing to receive a quarterly dividend from the Company during any particular calendar quarter), or (C) redeem or otherwise acquire any of its securities;
(iv) (A) incur or assume any long-term debt or issue any long-term debt securities, other than advances from the Federal Home Loan Bank having a maturity of one year or less, certificates of deposit and repurchase agreements with respect to instruments sold by the Company or its Subsidiaries, all in the ordinary course of business, securities or, except under existing lines of credit and in amounts not Material to it, incur or assume any short-term debt other than in the ordinary course of business, (B) other than in the ordinary course of business consistent with past practice assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (C) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course and consistent with past practice up to an aggregate loan amount with respect to any borrower or guarantor that would not result per Person of $2,500,000 in the credit exposure case of loans to such borrower Persons who had a lending relationship with Company Bank as of March 31, 2005 or guarantor increasing by more than $750,0001,000,000 in the case of loans to Persons who did not have a lending relationship with Company Bank as of March 31, 2005, (D) pledge or otherwise encumber xxxxxxxxx xxxxxxer shares of its capital stock, or (DE) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon, other than Liens permitted by the proviso clause in the definition of Liens and Liens created or existing in the ordinary course of business consistent with past practice;
(v) except as required by Law or as contemplated herein, adopt or amend any Benefit Plan;
(vi) grant to any director or executive director, officer or employee (A) any options to purchase shares of capital stock options of the Company or (B) an increase in his or her compensation (except compensation increases for employees who are vice presidents or below in the ordinary course of business consistent with past practice) or ), or, except as otherwise contemplated herein, pay or agree to pay to any such Person person other than in the ordinary course of business consistent with past practice any bonus, severance or termination payment, specifically including any such payment that becomes payable upon the termination of such Person person by it or the Buyer after the Closing;
(vii) except as otherwise contemplated herein, enter into or amend any employment ContractContract (including any termination agreement), except that any automatic renewals contained in currently existing contracts and agreements shall be allowed and compensation payable under employment Contracts may be increased in the ordinary course of business consistent with past practice;
(viii) acquire, sell, lease or dispose of any assets outside the ordinary course of business, or any other assets that in the aggregate are Material to it, or acquire any Person (or division thereof), any equity interest therein or the assets thereof outside the ordinary course of business;
(ix) change or modify any of the accounting principles or practices used by it or revalue in any Material respect any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices or as required by GAAP or any Regulatory Authority;
(A) except as otherwise contemplated herein, enter into, cancel or modify any Contract (other than loans, advances, capital contributions or investments permitted by subclause (iv)(C) of this Section 6.16.1(a)) other than in the ordinary course of business consistent with past practices, but not in any event involving an amount in excess of $10,00020,000; (B) authorize or make any capital expenditure or expenditures (other than expenditures for maintenance, repair and replacement of Company Assets), that, individually or in the aggregate, are in excess of $10,00025,000; or (C) enter into or amend any Contract with respect to any of the foregoing;
(xi) pay, discharge or satisfy, cancel, waive or modify any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in or contemplated by the Company Financial Statements, or incurred in the ordinary course of business consistent with past practices;
(xii) settle or compromise any pending or threatened suit, action or claim relating to the transactions contemplated herebyin excess of $25,000;
(xiii) merge, combine or consolidate with another Person;
(xiv) make any material change in its accounting or tax policies or procedures, except as required by applicable Law or to comply with GAAP;
(xv) take, or agree in writing or otherwise to take, any action that would make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect or result in any of the conditions set forth in this Agreement not being satisfied; or
(xivxvi) agree, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Capital Bank Corp)
Ordinary Conduct of Business. Except as otherwise expressly permitted by this Agreement, the Company will, and will cause its Subsidiaries (including the Company Bank) to, from the date of this Agreement to the Closing, conduct its business in the ordinary course in substantially the same manner as presently conducted and make reasonable commercial efforts consistent with past practices to preserve its relationships with other Persons. Additionally, except as otherwise contemplated by this Agreement or as set forth on Section 6.1(a) of the Company's Disclosure Schedule, the Company will not, and it will not permit its Subsidiaries (including the Company Bank) to, do any of the following without the prior written consent of the Buyer:
(i) amend its governing documents;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver any stock or stock options or other equity equivalents of any class or any other of its securities (other than the issuance of any Company Shares pursuant to the exercise of options Company Options set forth on in Section 4.3 of the Company's Disclosure Schedule4.3), or amend any of the terms of any securities outstanding as of the date hereof;
(iii) (A) split, combine or reclassify any shares of its capital stock, (B) 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 stockstock (except for regular quarterly cash dividends paid in accordance with past practice at the rate of $0.10 per share per annum, including the payment of any quarterly portion thereof as is necessary to prevent the Company's shareholders from failing to receive a quarterly dividend from the Company during any particular calendar quarter), or (C) redeem or otherwise acquire any of its securities;
(iv) (A) incur or assume any long-term debt or issue any long-term debt securities, other than advances from the Federal Home Loan Bank having a maturity of one year or less, certificates of deposit and repurchase agreements with respect to instruments sold by the Company or its Subsidiaries, all in the ordinary course of business, securities or, except under existing lines of credit and in amounts not Material to it, incur or assume any short-term debt other than in the ordinary course of business, (B) other than in the ordinary course of business consistent with past practice assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (C) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course and consistent with past practice up to an aggregate loan amount with respect to any borrower or guarantor that would not result per Person of $2,500,000 in the credit exposure case of loans to such borrower Persons who had a lending relationship with Company Bank as of March 31, 2005 or guarantor increasing by more than $750,0001,000,000 in the case of loans to Persons who did not have a lending relationship with Company Bank as of March 31, 2005, (D) pledge or otherwise encumber shares of its capital stockxxxxxxx xxxxx, or xx (DE) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon, other than Liens permitted by the proviso clause in the definition of Liens and Liens created or existing in the ordinary course of business consistent with past practice;
(v) except as required by Law or as contemplated herein, adopt or amend any Benefit Plan;
(vi) grant to any director or executive director, officer or employee (A) any options to purchase shares of capital stock options of the Company or (B) an increase in his or her compensation (except compensation increases for employees who are vice presidents or below in the ordinary course of business consistent with past practice) or ), or, except as otherwise contemplated herein, pay or agree to pay to any such Person person other than in the ordinary course of business consistent with past practice any bonus, severance or termination payment, specifically including any such payment that becomes payable upon the termination of such Person person by it or the Buyer after the Closing;
(vii) except as otherwise contemplated herein, enter into or amend any employment ContractContract (including any termination agreement), except that any automatic renewals contained in currently existing contracts and agreements shall be allowed and compensation payable under employment Contracts may be increased in the ordinary course of business consistent with past practice;
(viii) acquire, sell, lease or dispose of any assets outside the ordinary course of business, or any other assets that in the aggregate are Material to it, or acquire any Person (or division thereof), any equity interest therein or the assets thereof outside the ordinary course of business;
(ix) change or modify any of the accounting principles or practices used by it or revalue in any Material respect any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices or as required by GAAP or any Regulatory Authority;
(A) except as otherwise contemplated herein, enter into, cancel or modify any Contract (other than loans, advances, capital contributions or investments permitted by subclause (iv)(C) of this Section 6.16.1(a)) other than in the ordinary course of business consistent with past practices, but not in any event involving an amount in excess of $10,00020,000; (B) authorize or make any capital expenditure or expenditures (other than expenditures for maintenance, repair and replacement of Company Assets), that, individually or in the aggregate, are in excess of $10,00025,000; or (C) enter into or amend any Contract with respect to any of the foregoing;
(xi) pay, discharge or satisfy, cancel, waive or modify any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in or contemplated by the Company Financial Statements, or incurred in the ordinary course of business consistent with past practices;
(xii) settle or compromise any pending or threatened suit, action or claim relating to the transactions contemplated herebyin excess of $25,000;
(xiii) merge, combine or consolidate with another Person;
(xiv) make any material change in its accounting or tax policies or procedures, except as required by applicable Law or to comply with GAAP;
(xv) take, or agree in writing or otherwise to take, any action that would make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect or result in any of the conditions set forth in this Agreement not being satisfied; or
(xivxvi) agree, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Ordinary Conduct of Business. Except as otherwise expressly permitted ---------------------------- by this Agreement, the Company will, and will cause its Subsidiaries subsidiaries (including the Company Bank) to, from the date of this Agreement to the Closing, conduct its business in the ordinary course in substantially the same manner as presently conducted and make reasonable commercial efforts consistent with past practices to preserve its relationships with other Persons. Additionally, except as otherwise contemplated by this Agreement or as set forth on Section 6.1(a7.1(a) of ------------- the Company's Disclosure Schedule, the Company will not, and it will not permit its Subsidiaries subsidiaries (including the Company Bank) to, to do any of the following without the prior written consent of the Buyer:
(i) amend its governing documents;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver any stock or stock options or other equity equivalents of any class or any other of its securities (other than the issuance of any Company Shares pursuant to the exercise of options set forth on Section 4.3 5.3 of the ----------- Company's Disclosure Schedule), or amend any of the terms of any securities outstanding as of the date hereof;
(iii) (A) split, combine or reclassify any shares of its capital stock, (B) 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 (C) redeem or otherwise acquire any of its securities;any
(iv) (A) incur or assume any long-term debt or issue any long-term debt securities, securities other than advances from the Federal Home Loan Bank having a maturity of one year or less, certificates of deposit and repurchase agreements with respect to instruments sold by the Company or its Subsidiaries, all in the ordinary course of business, business consistent with past practice or, except under existing lines of credit and in amounts not Material to it, incur or assume any short-term debt other than in the ordinary course of business, (B) other than in the ordinary course of business consistent with past practice assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (C) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course and consistent with past practice up to an amount with respect to any borrower or guarantor that would not result in the credit exposure to such borrower or guarantor increasing by more than per loan relationship of $750,0001.0 million, pledge or otherwise encumber shares of its capital stock, or (D) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon, other than Liens permitted by the proviso clause in the definition of Liens and Liens created or existing in the ordinary course of business consistent with past practice;.
(v) except as required by Law or as contemplated herein, adopt or amend any Benefit Plan;
(vi) grant to any director or executive officer or employee any stock options or increase in his or her compensation (except compensation increases for employees who are vice presidents or below in the ordinary course of business consistent with past practice) or pay or agree to pay to any such Person Person, other than in the ordinary course of business consistent with past practice, any bonus, severance or termination payment, specifically including any such payment that becomes payable upon the termination of such Person by it or Buyer after the Closing;
(vii) enter into or amend any employment ContractContract (including any termination agreement);
(viii) acquire, sell, dispose of, acquire or lease or dispose of any assets Assets outside the ordinary course of business, or any other assets that in the aggregate are Material to it, or acquire any Person (or division thereof), any equity interest therein or the assets thereof outside the ordinary course of businessbusiness consistent with past practice;
(ix) change or modify any of the accounting principles or practices used by it or revalue in any Material respect any of its assetsAssets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices or as required by GAAP or any Regulatory Authoritybusiness;
(Ax) enter into, cancel or modify any Contract (other than loans, advances, capital contributions contributions, certificates of deposit or investments permitted by subclause (iv)(C) of this Section 6.17.1(a)(iv)) other than in the ordinary course of business consistent with past practicespractice, but not in any event involving an amount in excess of $10,000; (B) authorize 25,000 of payments in any twelve-month period per Contract, or make any capital expenditure or expenditures (other than expenditures for maintenance, repair and replacement of Company Assets), that, individually or in the aggregate, are in excess of $10,000; or (C) enter into or amend any Contract with respect to any of the foregoing;
(xi) make or authorize to make any capital expenditure or expenditures other than in the ordinary course of business consistent with past practice, but not in any event involving an aggregate amount in excess of $100,000;
(xii) make or authorize to make any charitable contributions or pledges to make contributions other than in the ordinary course of business consistent with past practice, but not in any event involving an amount per contribution or pledge in excess of $5,000 or $25,000 in the aggregate.
(xiii) pay, discharge or satisfy, cancel, waive or modify any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise)Liabilities, other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in or contemplated by the Company Financial Statements, or incurred in the ordinary course of business consistent with past practices;
(xiixiv) settle or compromise any Material pending or threatened suit, action or claim Litigation relating to the transactions contemplated hereby;
(xiiixv) take, or agree in writing or otherwise to take, any action that would make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect or result in any of the conditions set forth in this Agreement not being satisfied;
(xvi) make any election with respect to Taxes without the prior consent of the Buyer; or
(xivxvii) agree, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Ordinary Conduct of Business. Except as otherwise expressly permitted by this Agreement, the Company will, and will cause its Subsidiaries (including the Company Bank) to, from the date of this Agreement to the Closing, conduct its business in the ordinary course in substantially the same manner as presently conducted and make reasonable commercial efforts consistent with past practices to preserve its relationships with other Persons. Additionally, except as otherwise contemplated by this Agreement or as set forth on Section 6.1(a) of the Company's ’s Disclosure Schedule, the Company will not, and it will not permit its Subsidiaries (including the Company Bank) to, do any of the following without the prior written consent of the BuyerParent:
(i) amend its governing documentsarticles of incorporation or bylaws;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver any stock or stock options or other equity equivalents of any class or any other of its securities (other than the issuance of any Company Shares pursuant to the exercise of options set forth on Company Options described in Section 4.3 of the Company's Disclosure Scheduleor Company Warrants described in Section 4.3), or amend any of the terms of any securities outstanding as of the date hereof;
(iii) (A) split, combine or reclassify any shares of its capital stock, (B) 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 (C) redeem or otherwise acquire any of its securities;
(iv) (A) incur or assume any long-term debt or issue any long-term debt securities, other than advances from the Federal Home Loan Bank having a maturity of one year or less, certificates of deposit and repurchase agreements with respect to instruments sold by the Company or its Subsidiaries, all in the ordinary course of business, securities or, except under existing lines of credit and in amounts not Material to it, incur or assume any short-term debt other than in the ordinary course of business, (B) other than in the ordinary course of business consistent with past practice assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (C) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course and consistent with past practice up practice, (D) make any loan in excess of $50,000, (E) make any loan to finance the purchase of an amount with respect to any borrower automobile or guarantor that would not result in the credit exposure to such borrower or guarantor increasing by more than $750,000other vehicle, (F) pledge or otherwise encumber shares of its capital stock, or (DG) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon, other than Liens permitted by the proviso clause in the definition of Liens and Liens created or existing in the ordinary course of business consistent with past practice;
(v) except as required by Law or as contemplated herein, adopt or amend any Benefit Plan;
(vi) grant to any director or executive director, officer or employee (A) any options to purchase shares of capital stock options of the Company or (B) an increase in his or her compensation (except compensation increases for employees who are vice presidents or below in the ordinary course of business consistent with past practice) ), or pay or agree to pay to any such Person person other than in the ordinary course of business any bonus, severance or termination payment, specifically including any such payment that becomes payable upon the termination of such Person person by it or Buyer the Parent after the Closing;
(vii) enter into or amend any employment ContractContract (including any termination agreement), except that any automatic renewals contained in currently existing contracts and agreements shall be allowed and compensation payable under employment Contracts may be increased in the ordinary course of business consistent with past practice;
(viii) acquire, sell, lease or dispose of any assets outside the ordinary course of business, or any other assets that in the aggregate are Material to it, or acquire any Person (or division thereof), any equity interest therein or the assets thereof outside the ordinary course of business;
(ix) change or modify any of the accounting principles or practices used by it or revalue in any Material respect any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices or as required by GAAP or any Regulatory Authority;
(x) (A) enter into, cancel or modify any Contract (other than loans, advances, capital contributions or investments permitted by subclause (iv)(C) of this Section 6.16.1(a)) other than (in the case of cancellation) any Contract which may be cancelled without penalty and (in all cases) in the ordinary course of business consistent with past practices, but not in any event involving an amount in excess of $10,000; (B) authorize or make any capital expenditure or expenditures (other than expenditures for maintenance, repair and replacement of Company Assets), that, individually or in the aggregate, are in excess of $10,000; or (C) enter into or amend any Contract with respect to any of the foregoing;
(xi) pay, discharge or satisfy, cancel, waive or modify any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in or contemplated by the Company Financial Statements, or incurred in the ordinary course of business consistent with past practices;
(xii) settle or compromise any pending or threatened suit, action or claim relating to the transactions contemplated hereby;
(xiii) merge, combine or consolidate with another Person;
(xiv) create or acquire any Subsidiary;
(xv) take, or agree in writing or otherwise to take, any action that would make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect or result in any of the conditions set forth in this Agreement not being satisfied; or
(xivxvi) agree, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Ordinary Conduct of Business. Except as otherwise expressly permitted or contemplated by this Agreement, the Company will, and will cause its Subsidiaries (including the Company Bank) to, from the date of this Agreement to the Closing, conduct its business in the ordinary course in substantially the same manner as presently conducted and make reasonable commercial efforts consistent with past practices to preserve its relationships with other Persons. Additionally, except as otherwise contemplated by this Agreement or as set forth on Section 6.1(a) of the Company's Disclosure Schedule, the Company will not, and it will not permit its Subsidiaries (including the Company Bank) to, do any of the following without the prior written consent of the BuyerParent, which consent will not be withheld unreasonably:
(i) amend its governing documentsarticles of incorporation or bylaws;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver any stock or stock options or other equity equivalents of any class or any other of its securities (other than the issuance of any Company Shares pursuant to the exercise of options set forth on Company Options described in Section 4.3 of the Company's Disclosure Schedule4.3), or amend any of the terms of any securities outstanding as of the date hereofCompany Shares;
(iii) (A) split, combine or reclassify any shares of its capital stockCompany Shares, (B) 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 stockCompany Shares, or (C) redeem or otherwise acquire any of its securitiesCompany Shares;
(iv) (A) incur or assume any long-term debt or issue any long-term debt securities, other than advances from the Federal Home Loan Bank having a maturity of one year or less, certificates of deposit and repurchase agreements with respect to instruments sold by the Company or its Subsidiaries, all in the ordinary course of business, securities or, except under existing lines of credit and in amounts not Material to it, incur or assume any short-term debt other than in the ordinary course of business, (B) other than in the ordinary course of business consistent with past practice assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (C) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course and of business consistent with past practice up practice, (D) make any loan to an amount with respect to any borrower finance or guarantor that would not result refinance the purchase of a single-family, owner-occupied residence located within Moore County, North Carolina, in the credit exposure to such borrower excess of $400,000, or guarantor increasing by more than makx xxx other loan in excess of $750,000, pledge or otherwise encumber shares of its capital stock250,000, or (DE) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon, other than Liens permitted by the proviso clause in the definition of Liens and Liens created or existing in the ordinary course of business consistent with past practice;
(v) except as required by Law or as contemplated herein, adopt or amend any Benefit Plan;
(vi) grant to any director or executive director, officer or employee (A) any stock options to purchase Company Shares or (B) an increase in his or her compensation (except compensation increases for employees who are vice presidents or below in the ordinary course of business consistent with past practice) ), or pay or agree to pay to any such Person person other than in the ordinary course of business any bonus, severance or termination payment, specifically including any such payment that becomes payable upon the termination of such Person person by it or Buyer the Parent after the Closing;
(vii) enter into or amend any employment ContractContract (including any termination agreement), except for any automatic renewals contained in currently existing Contracts and increases in compensation payable under employment Contracts in the ordinary course of business consistent with past practice;
(viii) acquire, sell, lease or dispose of any assets outside the ordinary course of business, or any other assets that in the aggregate are Material to it, or acquire any Person (or division thereof), any equity interest therein or the assets thereof outside the ordinary course of business;
(ix) make any Material change in its accounting or modify any of the accounting principles tax policies or practices used procedures, except as required by it applicable Law or to comply with GAAP, or revalue in any Material respect any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices or as required by GAAP GAAP, applicable Law or any Regulatory Authority;
(A) enter into, cancel or modify any Contract (other than loans, advances, capital contributions or investments permitted by subclause (iv)(C) of this Section 6.16.1(a)) other than (in the case of cancellation) any Contract which may be cancelled without penalty and (in all cases) in the ordinary course of business consistent with past practices, but not in any event involving an amount in excess of $10,000; or (B) with the prior written approval of John W. Bullard, authorize or make any capital expenditure txxx xx xx xxxxxs of $25,000, or expenditures (other than expenditures for maintenancewithout the prior written approval of John W. Bullard, repair and replacement of Company Assets), that, individually authorize or in the aggregate, are in excess make any capital expenditurx xxxx xx xx xxcess of $10,000; , or (C) enter into or amend any Contract with respect to any of the foregoing;
(xi) except in the ordinary course of business consistent with past practice, pay, discharge or satisfy, cancel, waive or modify any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities ) not reflected or reserved against in or contemplated by the Company Financial Statements, or incurred in the ordinary course of business consistent with past practices;
(xii) settle or compromise any pending or threatened suit, action or claim relating to the transactions contemplated hereby;
(xiii) takemerge, combine or agree in writing consolidate with another Person;
(xiv) create or otherwise to take, acquire any action that would make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect or result in any of the conditions set forth in this Agreement not being satisfiedSubsidiary; or
(xivxv) agree, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Ordinary Conduct of Business. Except as otherwise expressly permitted contemplated by this Agreement, the Company FirstBancorporation will, and will cause its each of the Subsidiaries (including the Company Bank) to, from the date of this Agreement to the Closing, conduct its business in the ordinary course in substantially the same manner as presently conducted and will make reasonable commercial efforts consistent with past practices to preserve its relationships with other Persons. Additionally, except as otherwise contemplated by this Agreement or as set forth on Section 6.1(a) of the Company's Disclosure ScheduleSCHEDULE 7.1(a), the Company FirstBancorporation will not, and nor will it will not permit its any of the Subsidiaries (including the Company Bank) to, do any of the following without the prior written consent of the BuyerFNC:
(i) amend its governing documentsarticles of incorporation, articles of association or bylaws;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver any stock or stock stock, options or other equity equivalents of any class or any other of its securities (other than the issuance of any Company Shares shares of FirstBancorporation Stock pursuant to the exercise of options set forth FirstBancorporation Options outstanding on Section 4.3 the date of the Company's Disclosure Schedulethis Agreement), or amend any of the terms of any securities outstanding as of the date hereof;
(iii) (A) split, combine or reclassify any shares of its capital stock, (B) 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 (C) redeem or otherwise acquire any of its securities;
(iv) (A) incur or assume any long-term debt or issue any long-term debt securities, other than advances from the Federal Home Loan Bank having a maturity of one year or less, certificates of deposit and repurchase agreements with respect to instruments sold by the Company or its Subsidiaries, all in the ordinary course of business, securities or, except under existing lines of credit and in amounts not Material material to it, incur or assume any short-term debt other than in the ordinary course of business, (B) other than in the ordinary course of business consistent with past practice assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (C) make any loans, advances or capital contributions to, or investments in, any other PersonPerson that, individually or in the aggregate, are greater than $10,000, or any new loan, loan renewal or advance to any Person or its Affiliates that, individually or in the aggregate, is greater than $350,000 other than in those loans, renewals or advances for which FirstBancorporation or any Subsidiary has committed to make as of the ordinary course and consistent with past practice up date hereof (provided that any consent of FNC to an amount with respect to make any borrower such loan, loan renewal or guarantor that would advance shall not result in the credit exposure to such borrower or guarantor increasing by more than $750,000be unreasonably withheld), (D) pledge or otherwise encumber shares of its capital stock, stock or (DE) mortgage or pledge any of its assetsAssets, tangible or intangible, or create or suffer to exist any Lien thereupon, other than Liens permitted by the proviso clause in the definition of Liens and Liens created or existing in the ordinary course of business consistent with past practiceexcept for Permitted Liens;
(v) except as required by Law or as contemplated herein, adopt or amend any Benefit Plan;
(vi) grant to any director or executive senior officer or employee any stock options or increase in his or her compensation (except or grant to any employee an increase in his or her compensation increases for employees who are vice presidents or below other than in the ordinary course of business consistent with past practice) , or pay or agree to pay to any such Person other than in the ordinary course of business person any bonus, severance or termination paymentpayment except in accordance with this Agreement, specifically including any such payment that becomes payable by virtue of the Merger or upon the termination of such Person by it or Buyer person after the Closing;
(vii) enter into or amend any employment Contract;
(viii) (A) acquire, sell, lease or dispose of any assets material Assets outside the ordinary course of business, (B) enter into any Contract or any other assets that in the aggregate are Material to it, or acquire any Person (or division thereof), any equity interest therein or the assets thereof transaction outside the ordinary course of businessbusiness consistent with past practice, or (C) acquire, lease, dispose or agree to acquire, lease or dispose of any Real Property;
(ixA) voluntarily change or modify any of the accounting principles or practices used by it or (B) revalue in any Material material respect any of its assetsAssets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices or as required by GAAP or any Regulatory Authoritybusiness;
(A) acquire any Person (or division thereof), any equity interest therein or the assets thereof; (B) enter into, cancel or modify any Contract (other than loans, advances, capital contributions or investments permitted by subclause (iv)(C) of this Section 6.1) other than in the ordinary course of business consistent with past practices, but not in any event involving an amount in excess of $10,000; (BC) enter into, cancel or modify any Material Contract (provided that any consent of FNC to renew a Material Contract shall not be unreasonably withheld); (D) authorize or make any new capital expenditure or expenditures (other than expenditures for maintenance, repair and replacement of Company Assets), that, individually or in the aggregate, are in excess of $10,00010,000 (provided that any consent of FNC to authorize such expenditure or expenditures shall not be unreasonably withheld); or (CE) enter into or amend any Contract with respect to any of the foregoing;
(xi) pay, discharge or satisfy, cancel, waive or modify any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in or contemplated by the Company Financial StatementsStatements or on SCHEDULE 5.20, or incurred in the ordinary course of business consistent with past practicespractices or in connection with this Agreement and the Merger;
(xii) settle or compromise any pending or threatened suit, action or claim relating to the transactions contemplated hereby;
(xiii) take, or agree in writing or otherwise to take, any action that would make any of the representations or warranties of the Company it contained in this Agreement untrue or incorrect in any material respect or would result in any of the conditions set forth in this Agreement not being satisfied; or
(xiv) agree, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Ordinary Conduct of Business. Except as otherwise expressly permitted by this Agreement, the Company will, and will cause its Subsidiaries (including the Company Bank) to, from the date of this Agreement to the Closing, conduct its business in the ordinary course in substantially the same manner as presently conducted and make reasonable commercial efforts consistent with past practices to preserve its relationships with other Persons. Additionally, except as otherwise contemplated by this Agreement or as set forth on Section 6.1(a) of the Company's Disclosure Schedule, the Company will not, and it will not permit its Subsidiaries (including the Company Bank) to, do any of the following without the prior written consent of the Buyer:
(i) amend its governing documents;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver any stock or stock options or other equity equivalents of any class or any other of its securities (other than the issuance of any Company Shares pursuant to the exercise of options set forth on Section 4.3 of the Company's Disclosure Schedule), or amend any of the terms of any securities outstanding as of the date hereof;
(iii) (A) split, combine or reclassify any shares of its capital stock, (B) 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 stockstock (except for regular quarterly cash dividends paid in accordance with past practice at the rate of $0.115 per share, including the payment of any quarterly dividend in the amount of $0.115 per share as is necessary to prevent the Company's shareholders from failing to receive a quarterly dividend from either the Company or the Buyer during any particular calendar quarter and except for the dividend described in Section 8.1(i)), or (C) redeem or otherwise acquire any of its securities;
(iv) (A) incur or assume any long-term debt or issue any long-term debt securities, other than advances from the Federal Home Loan Bank having a maturity of one year or less, certificates of deposit and repurchase agreements with respect to instruments sold by the Company or its Subsidiaries, all in the ordinary course of business, securities or, except under existing lines of credit and in amounts not Material to it, incur or assume any short-term debt other than in the ordinary course of businessbusiness and except as may be necessary to allow payment of the dividend described in Section 8.1(i), (B) other than in the ordinary course of business consistent with past practice assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (C) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course and consistent with past practice up to an amount with respect to any borrower or guarantor that would not result in the credit exposure to such borrower or guarantor increasing by more than per loan of $750,000250,000, pledge or otherwise encumber shares of its capital stock, or (D) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon, other than Liens permitted by the proviso clause in the definition of Liens and Liens created or existing in the ordinary course of business consistent with past practice;
(v) except as required by Law or as contemplated herein, adopt or amend any Benefit Plan;
(vi) grant to any director or executive officer or employee any stock options or increase in his or her compensation (except compensation increases for employees who are vice presidents or below in the ordinary course of business consistent with past practice) or pay or agree to pay to any such Person person other than in the ordinary course of business any bonus, severance or termination payment, specifically including any such payment that becomes payable upon the termination of such Person person by it or Buyer after the Closing; provided, however, that Company may establish a paid "stay plan" in an amount not to exceed $45,000 in the aggregate, the distribution of which will be jointly agreed upon by the Buyer and the Company;
(vii) enter into or amend any employment ContractContract (including any termination agreement), except that any automatic renewals contained in currently existing contracts and agreements shall be allowed and compensation payable under employment Contracts may be increased in the ordinary course of business consistent with past practice;
(viii) acquire, sell, lease or dispose of any assets outside the ordinary course of business, or any other assets that in the aggregate are Material to it, or acquire any Person (or division thereof), any equity interest therein or the assets thereof outside the ordinary course of business;
(ix) change or modify any of the accounting principles or practices used by it or revalue in any Material respect any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices or as required by GAAP or any Regulatory Authority;
(A) enter into, cancel or modify any Contract (other than loans, advances, capital contributions or investments permitted by subclause (iv)(C) of this Section 6.1) other than in the ordinary course of business consistent with past practices, but not in any event involving an amount in excess of $10,000; (B) authorize or make any capital expenditure or expenditures (other than expenditures for maintenance, repair and replacement of Company Assets), that, individually or in the aggregate, are in excess of $10,000; or (C) enter into or amend any Contract with respect to any of the foregoing;
(xi) pay, discharge or satisfy, cancel, waive or modify any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in or contemplated by the Company Financial Statements, or incurred in the ordinary course of business consistent with past practices;
(xii) settle or compromise any pending or threatened suit, action or claim relating to the transactions contemplated hereby;
(xiii) take, or agree in writing or otherwise to take, any action that would make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect or result in any of the conditions set forth in this Agreement not being satisfied; or
(xiv) agree, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Samples: Merger Agreement (Capital Bank Corp)
Ordinary Conduct of Business. Except as otherwise expressly permitted by this Agreement, the Company will, and will cause each of its Subsidiaries (including the Company Bank) subsidiaries to, from the date of this Agreement to the Closing, conduct its business in the ordinary course in substantially the same manner as presently conducted and make reasonable commercial efforts consistent with past practices to preserve its relationships with other Persons. Additionally, except as otherwise contemplated by this Agreement or as set forth on Section 6.1(a) of the Company's ’s Disclosure Schedule, the Company will not, and it will not permit its Subsidiaries (including the Company Bank) subsidiaries to, do any of the following without the prior written consent of the Buyer, which consent will not be unreasonably withheld or delayed:
(i) amend its governing documents;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver any stock or stock options (including the grant of reload options in connection with the exercise of existing stock options) or other equity equivalents of any class or any other of its securities (other than the issuance of any Company Shares pursuant to the exercise of options set forth on Section 4.3 of the Company's Disclosure Schedule)securities, or amend any of the terms of any securities outstanding as of the date hereof; provided that nothing in this Section 6.1(a)(ii) shall preclude the holders of Company stock options that have vested in accordance with their terms and the terms of the plan or plans under which such stock options were issued from exercising such stock options for the purchase of Company common stock, and provided further that any such permitted exercise shall not result in the grant of any reload options;
(iii) (A) split, combine or reclassify any shares of its capital stock, (B) 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 stockstock,(except for regular quarterly cash dividends paid in accordance with past practice at the rate of $0.64 per share per annum, including the payment of any quarterly portion thereof as is necessary to prevent the Company’s shareholders from failing to receive a quarterly dividend from either the Company or the Buyer during any particular calendar quarter), or (C) redeem or otherwise acquire any of its securities;
(iv) (A) incur or assume any long-term or short-term debt or issue any long-term debt securities, other than advances from the Federal Home Loan Bank having a maturity of one year or less, certificates of deposit and repurchase agreements with respect to instruments sold by the Company or its Subsidiaries, all in the ordinary course of business, or, except under existing lines of credit and in amounts not Material to it, incur or assume any short-term debt securities other than in the ordinary course of business, business consistent with past practice or (B) other than in the ordinary course of business consistent with past practice assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (C) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course and consistent with past practice up practice, but in any event not to exceed an amount with respect to any borrower or guarantor that would not result in the credit exposure to such borrower or guarantor increasing by more than per loan of $750,000400,000, pledge or otherwise encumber shares of its capital stock, or (D) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon, other than Liens permitted by the proviso clause in the definition of Liens and Liens created or existing in the ordinary course of business consistent with past practicepractice or (E) prepay or accelerate amortization of any outstanding Company ESOP indebtedness;
(v) except as required by Law or as contemplated herein, adopt or amend any Benefit Plan;
(vi) except as provided in Section 6.2(c), grant to any director or executive officer or employee any stock options or increase in his or her compensation (except compensation increases for employees who are vice presidents or below pay or agree to pay to any such person other than in the ordinary course of business consistent with past practice) or pay or agree to pay to any such Person other than in the ordinary course of business practices any bonus, severance severance, change of control or termination payment, specifically including any such payment that becomes payable upon the termination of such Person by it or Buyer after the Closing;
(vii) enter into or amend any employment Contract;
(viii) acquire, sell, lease or dispose of any assets outside the ordinary course of business, or any other assets that in the aggregate are Material to it, or acquire any Person (or division thereof), any equity interest therein or the assets thereof outside the ordinary course of businessbusiness consistent with past practice;
(ix) change or modify any of the accounting principles or practices used by it or revalue in any Material respect any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices or as required by GAAP or any Regulatory AuthorityGAAP;
(A) enter into, cancel or modify any Contract (other than loans, advances, capital contributions or investments permitted by subclause (iv)(C) of this Section 6.1) other than in the ordinary course of business consistent with past practices, but not in any event involving an amount in excess of $10,000; (B) authorize or make any capital expenditure or expenditures (other than expenditures for maintenance, repair and replacement of Company Assets), that, individually or in the aggregate, are in excess of $10,00025,000; or (C) enter into or amend any Contract with respect to any of the foregoing;
(xi) pay, discharge or satisfy, cancel, waive or modify any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in or contemplated by the Company Financial Statements, or incurred in the ordinary course of business consistent with past practices;
(xii) settle or compromise any pending or threatened suit, action or claim relating to in an amount greater than $10,000 per claim or $50,000 in the transactions contemplated herebyaggregate;
(xiii) take, or agree in writing or otherwise to take, any action that would make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect or result in any of the conditions set forth in this Agreement not being satisfied; or
(xiv) agree, whether in writing or otherwise, to do any of the foregoing.
Appears in 1 contract
Ordinary Conduct of Business. Except as otherwise expressly permitted by this Agreement, the Company will, and will cause its Subsidiaries subsidiaries (including the Company Bank) to, from the date of this Agreement to the Closing, conduct its business in the ordinary course in substantially the same manner as presently conducted and make reasonable commercial efforts consistent with past practices to preserve its relationships with other Persons. Additionally, except as otherwise contemplated by this Agreement or as set forth on Section 6.1(a7.1(a) of the Company's Disclosure Schedule, the Company will not, and it will not permit its Subsidiaries subsidiaries (including the Company Bank) to, to do any of the following without the prior written consent of the Buyer:
(i) amend end its governing documents;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver any stock or stock options or other equity equivalents of any class or any other of its securities (other than the issuance of any Company Shares pursuant to the exercise of options set forth on Section 4.3 5.3 of the Company's Disclosure Schedule), or amend any of the terms of any securities outstanding as of the date hereof;
(iii) (A) split, combine or reclassify any shares of its capital stock, (B) 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 (C) redeem or otherwise acquire any of its securitiessecurities (other than the acceptance of any Company Shares as payment of the exercise price in connection with the exercise of options set forth on Section 5.3 of the Company's Disclosure Schedule);
(iv) (A) incur or assume any long-term debt or issue any long-term debt securities, securities other than advances from the Federal Home Loan Bank having a maturity of one year or less, certificates of deposit and repurchase agreements with respect to instruments sold by the Company or its Subsidiaries, all in the ordinary course of business, business consistent with past practice or, except under existing lines of credit and in amounts not Material to it, incur or assume any short-term debt other than in the ordinary course of business, (B) other than in the ordinary course of business consistent with past practice assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (C) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course and consistent with past practice up to an amount with respect to any borrower or guarantor that would not result in the credit exposure to such borrower or guarantor increasing by more than per loan relationship of $750,0001.0 million, pledge or otherwise encumber shares of its capital stock, or (D) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon, other than Liens permitted by the proviso clause in the definition of Liens and Liens created or existing in the ordinary course of business consistent with past practice;.
(v) except as required by Law or as contemplated herein, adopt or amend any Benefit PlanPlan other than usual and customary renewals;
(vi) grant to any director or executive officer or employee any stock options or increase in his or her compensation (except compensation increases for employees who are vice presidents or below in the ordinary course of business consistent with past practice) or pay or agree to pay to any such Person Person, other than in the ordinary course of business consistent with past practice, any bonus, severance or termination payment, specifically including any such payment that becomes payable upon the termination of such Person by it or Buyer after the Closing;
(vii) enter into or amend any employment ContractContract (including any termination agreement);
(viii) acquire, sell, dispose of, acquire or lease or dispose of any assets Assets outside the ordinary course of business, or any other assets that in the aggregate are Material to it, or acquire any Person (or division thereof), any equity interest therein or the assets thereof outside the ordinary course of businessbusiness consistent with past practice;
(ix) except as required by GAAP or regulatory authorities, change or modify any of the accounting principles or practices used by it or revalue in any Material respect any of its assetsAssets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices or as required by GAAP or any Regulatory Authoritybusiness;
(Ax) enter into, cancel or modify any Contract (other than loans, advances, capital contributions contributions, certificates of deposit or investments permitted by subclause (iv)(C) of this Section 6.17.1(a)(iv)) other than in the ordinary course of business consistent with past practicespractice, but not in any event involving an amount in excess of $10,000; (B) authorize 25,000 of payments in any twelve-month period per Contract, or make any capital expenditure or expenditures (other than expenditures for maintenance, repair and replacement of Company Assets), that, individually or in the aggregate, are in excess of $10,000; or (C) enter into or amend any Contract with respect to any of the foregoing;
(xi) make or authorize to make any capital expenditure or expenditures other than in the ordinary course of business consistent with past practice, but not in any event involving an aggregate amount in excess of $25,000;
(xii) make or authorize to make any charitable contributions or pledges to make contributions other than in the ordinary course of business consistent with past practice, but not in any event involving an amount per contribution or pledge in excess of $5,000 or $15,000 in the aggregate.
(xiii) pay, discharge or satisfy, cancel, waive or modify any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise)Liabilities, other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in or contemplated by the Company Financial Statements, or incurred in the ordinary course of business consistent with past practices;
(xiixiv) settle or compromise any Material pending or threatened suit, action or claim Litigation relating to the transactions contemplated hereby;
(xiiixv) take, or agree in writing or otherwise to take, any action that would make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect or result in any of the conditions set forth in this Agreement not being satisfied; or;
(xivxvi) make any election with respect to Taxes without the prior consent of the Buyer;
(xvii) agree, whether in writing or otherwise, to do any of the foregoing; or
(xviii) during the period commencing on August 18, 2003 and ending at the Effective Time, the Company shall not (A) declare, set aside or pay any dividends or make any distributions with respect to its capital stock which in the aggregate exceed $178,000 (collectively the "Interim Distributions"), or (B) redeem, purchase or otherwise acquire any Company Shares.
Appears in 1 contract
Ordinary Conduct of Business. Except as otherwise expressly permitted by this Agreement, the Company will, and each will cause its Subsidiaries subsidiaries (including the Company Bank) to, from the date of this Agreement to the Closing, conduct its business in the ordinary course in substantially the same manner as presently conducted and make reasonable commercial efforts consistent with past practices to preserve its relationships with other Persons. Additionally, except as otherwise contemplated by this Agreement or as set forth on Section 6.1(aSECTION 7.1(A) of the Company's Disclosure Schedule, the Company will not, and it will not permit its Subsidiaries subsidiaries (including the Company Bank) to, do any of the following without the prior written consent of the Buyer:
(i) amend its governing documents;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver any stock or stock options or other equity equivalents of any class or any other of its securities (other than the issuance of any Company Shares pursuant to the exercise of options set forth on Section 4.3 SECTION 5.3 of the Company's Disclosure Schedule), or amend any of the terms of any securities outstanding as of the date hereof;
(iii) (A) split, combine or reclassify any shares of its capital stock, (B) 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 stockstock (except for regular quarterly cash dividends paid in accordance with past practice at the rate of $0.68 per share per annum, including the payment of any quarterly portion thereof as is necessary to prevent the Company's shareholders from failing to receive a quarterly dividend from either the Company or the Buyer during any particular calendar quarter, or (C) redeem or otherwise acquire any of its securitiessecurities (other than the acceptance of any Company Shares as payment of the exercise price in connection with the exercise of options set forth on SECTION 5.3 of the Company's Disclosure Schedule);
(iv) (A) incur or assume any long-term debt or issue any long-term debt securities, securities other than advances from the Federal Home Loan Bank having a maturity of one year or less, certificates of deposit and repurchase agreements with respect to instruments sold by the Company or its Subsidiaries, all in the ordinary course of business, business consistent with past practice or, except under existing lines of credit and in amounts not Material to it, incur or assume any short-term debt other than in the ordinary course of business, (B) other than in the ordinary course of business consistent with past practice assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (C) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course and consistent with past practice up to an amount with respect to any borrower or guarantor that would not result in the credit exposure to such borrower or guarantor increasing by more than per loan of $750,000400,000, pledge or otherwise encumber shares of its capital stock, or (DE) mortgage or pledge any of its assets, tangible or intangible, or create or suffer to exist any Lien thereupon, other than Liens permitted by the proviso clause in the definition of Liens and Liens created or existing in the ordinary course of business consistent with past practice;
(v) except as required by Law or as contemplated herein, adopt or amend any Benefit Plan;
(vi) grant to any director or executive officer or employee any stock options or increase in his or her compensation (except compensation increases for employees who are vice presidents or below in the ordinary course of business consistent with past practice) or pay or agree to pay to any such Person other than in the ordinary course of business any bonus, severance or termination payment, specifically including any such payment that becomes payable upon the termination of such Person by it or Buyer after the Closing;
(vii) enter into or amend any employment Contract;
(viii) acquire, sell, lease or dispose of any assets outside the ordinary course of business, or any other assets that in the aggregate are Material to it, or acquire any Person (or division thereof), any equity interest therein or the assets thereof outside the ordinary course of business;
(ix) change or modify any of the accounting principles or practices used by it or revalue in any Material respect any of its assets, including without limitation writing down the value of inventory or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices or as required by GAAP or any Regulatory Authority;
(A) enter into, cancel or modify any Contract (other than loans, advances, capital contributions or investments permitted by subclause (iv)(C) of this Section 6.1) other than in the ordinary course of business consistent with past practices, but not in any event involving an amount in excess of $10,000; (B) authorize or make any capital expenditure or expenditures (other than expenditures for maintenance, repair and replacement of Company Assets), that, individually or in the aggregate, are in excess of $10,000; or (C) enter into or amend any Contract with respect to any of the foregoing;
(xi) pay, discharge or satisfy, cancel, waive or modify any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in or contemplated by the Company Financial Statements, or incurred in the ordinary course of business consistent with past practices;
(xii) settle or compromise any pending or threatened suit, action or claim relating to the transactions contemplated hereby;
(xiii) take, or agree in writing or otherwise to take, any action that would make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect or result in any of the conditions set forth in this Agreement not being satisfied; or
(xiv) agree, whether in writing or otherwise, to do any of the foregoing.proviso
Appears in 1 contract
Ordinary Conduct of Business. Except as otherwise expressly permitted by this Agreement, the Company will, and will cause its Subsidiaries (including the Company Bank) subsidiaries to, from the date of this Agreement to the Closing, conduct its business in the ordinary course in substantially the same manner as presently conducted and make reasonable commercial efforts consistent with past practices to preserve its relationships with other Persons. Additionally, except as otherwise contemplated by this Agreement or as set forth on Section 6.1(aSECTION 6.1(A) of the Company's Disclosure Schedule, the Company will not, and it will not permit its Subsidiaries (including the Company Bank) subsidiaries to, do any of the following without the prior written consent of the Buyer:
(i) amend its governing documents;
(ii) authorize for issuance, issue, sell, deliver or agree or commit to issue, sell or deliver any stock or stock options or other equity equivalents of any class or any other of its securities (other than the issuance of any Company Shares pursuant to the exercise of options set forth on Section SECTION 4.3 of the Company's Disclosure Schedule), or amend any of the terms of any securities outstanding as of the date hereof;
(iii) (A) split, combine or reclassify any shares of its capital stock, (B) 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 (C) redeem or otherwise acquire any of its securitiessecurities (other than the acceptance of any Company Shares as payment of the exercise price in connection with the exercise of options set forth on SECTION 4.3 of the Company's Disclosure Schedule);
(iv) (A) incur or assume any long-term or short-term debt or issue any long-term debt securities, other than advances from the Federal Home Loan Bank having a maturity of one year or less, certificates of deposit and repurchase agreements with respect to instruments sold by the Company or its Subsidiaries, all in the ordinary course of business, or, except under existing lines of credit and in amounts not Material to it, incur or assume any short-term debt securities other than in the ordinary course of business, business consistent with past practice or (B) other than in the ordinary course of business consistent with past practice assume, guarantee, endorse or otherwise become liable or responsible (whether directly, contingently or otherwise) for the obligations of any other Person, (C) make any loans, advances or capital contributions to, or investments in, any other Person, other than in the ordinary course and consistent with past practice up practice, but in any event not to exceed an amount with respect to any borrower or guarantor that would not result in the credit exposure to such borrower or guarantor increasing by more than per loan of $750,000400,000, pledge or otherwise encumber shares of its capital stock, or (DE) mortgage or pledge any of its assets, tangible or intangible, Assets or create or suffer to exist any Lien thereupon, other than Liens permitted by the proviso clause in the definition of Liens and Liens created or existing in the ordinary course of business consistent with past practice;
(v) except as required by Law or as contemplated herein, adopt or amend any Benefit Plan;
(vi) grant to any director or executive officer or employee any stock options or increase in his or her compensation (except compensation increases for employees who are vice presidents or below in the ordinary course of business consistent with past practice) or pay or agree to pay to any such Person person other than in the ordinary course of business any bonus, severance severance, change of control or termination payment, specifically including any such payment that becomes payable upon the termination of such Person by it or Buyer after the Closing;
(vii) enter into or amend any employment Contract;
(viii) acquire, sell, lease or dispose of any assets Assets outside the ordinary course of business, or any other assets Assets that in the aggregate are Material to it, or acquire any Person (or division thereof), any equity interest therein or the assets Assets thereof outside the ordinary course of businessbusiness consistent with past practice;
(ix) change or modify any of the accounting principles or practices used by it or revalue in any Material respect any of its assetsAssets, including without limitation writing down the value of inventory any asset or writing off notes or accounts receivable other than in the ordinary course of business consistent with past practices or as required by GAAP or any Regulatory AuthorityGAAP;
(Ax) enter into, cancel or modify any Contract (other than loans, advances, advances or capital contributions or investments permitted by subclause (iv)(Ccontributions) of this Section 6.1) other than except in the ordinary course of business consistent with past practices, but not in any event involving an amount in excess of $10,000; ;
(Bxi) authorize or make any capital expenditure or expenditures (other than expenditures for maintenance, repair and replacement of Company Assets), that, individually or in the aggregate, are in excess of $10,000; or (C) enter into or amend any Contract with respect to any of the foregoing;
(xixii) pay, discharge or satisfy, cancel, waive or modify any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction in the ordinary course of business of liabilities reflected or reserved against in or contemplated by the Company Financial Statements, or incurred in the ordinary course of business consistent with past practices;
(xiixiii) settle or compromise any pending or threatened suit, action or claim relating to in an amount greater than $10,000 per claim or $50,000 in the transactions contemplated herebyaggregate;
(xiiixiv) take, or agree in writing or otherwise to take, any action that would make any of the representations or warranties of the Company contained in this Agreement untrue or incorrect or result in any of the conditions set forth in this Agreement not being satisfied; or
(xivxv) agree, whether in writing or otherwise, to do any of the foregoing.
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