Forbearances. During the period from the date of this Agreement to the Effective Time, except as expressly contemplated or permitted by this Agreement, neither CDXX nor PENSAT shall, and neither CDXX nor PENSAT shall permit any of their respective Subsidiaries to, without the prior written consent of the other party to this Agreement: (a) For PENSAT and its subsidiaries: other than indebtedness, guarantees, endorsements or accommodations incurred to finance ongoing operations, refinance short-term indebtedness and indebtedness of PENSAT or any of its wholly-owned Subsidiaries to PENSAT or any of its Subsidiaries, incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements); (b) For CDXX and its subsidiaries: incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance; (c) Adjust, split, combine or reclassify any capital stock; (d) Make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (A) in the case of PENSAT, for regular cash dividends on its preferred stock or convert Preferred Stock or other equity interest into Common stock for the purposes of this merger (B) dividends paid by any of the Subsidiaries of each of CDXX and PENSAT to CDXX or PENSAT or any of their Subsidiaries, respectively, and (C) the acceptance of shares of PENSAT Common Stock or CDXX Common Stock, as the case may be, as payment for the exercise price of stock warrants or stock option plans or for withholding taxes incurred in connection with the exercise of stock warrants or options or the vesting of restricted stock, in each case in accordance with past practice and the terms of the applicable award agreements; (e) Grant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stock; or (f) Issue any additional shares of capital stock except (i) pursuant to the exercise of stock warrants or options outstanding as of the date hereof, (ii) pursuant to any conversions of debt or other obligations, or (iii) in the case of PENSAT, in the ordinary course of business; (g) Sell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any individual, corporation or other entity other than a Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than in the ordinary course of business or pursuant to contracts or agreements in force at the date of this Agreement; (h) Except for transactions in the ordinary course of business or pursuant to contracts or agreements in force at the date of or permitted by this Agreement, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity other than a Subsidiary thereof; (i) Except for transactions in the ordinary course of business, terminate, or waive any material provision of, any PENSAT Contract or CDXX Contract, as the case may be, or make any change in any instrument or agreement governing the terms of any of its securities, or material lease or contract, other than normal renewals of contracts and leases without material adverse changes of terms; (j) Increase in any manner the compensation or fringe Benefits of any of its employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee other than in the ordinary course of business; (k) Settle any material claim, action or proceeding involving money damages, except in the ordinary course of business; (l) Knowingly take any action that would prevent or impede the Merger from qualifying (i) for "Reverse Merger" accounting treatment or (ii) as a reorganization within the meaning of Section 368 of the Code; (m) Amend its articles of incorporation, its bylaws or comparable governing documents, or any Takeover or similarly restrictive provisions of such party's organizational documents; (n) Take any action that is intended or expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VII not being satisfied or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable law; (o) Implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or (p) Agree to take, make any commitment to take, or adopt any resolutions of its board of directors in support of, any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Sources: Merger Agreement (CDX Com Inc)
Forbearances. During the period from the date of this Agreement to the Effective TimeTime or earlier termination of this Agreement, except as set forth in the First Midwest Disclosure Schedule or the Old National Disclosure Schedule, as expressly contemplated or permitted by this AgreementAgreement or as required by law (including the Pandemic Measures), neither CDXX First Midwest nor PENSAT Old National shall, and neither CDXX First Midwest nor PENSAT Old National shall permit any of their respective Subsidiaries to, without the prior written consent of the other party to this Agreement:Agreement (such consent not to be unreasonably withheld, conditioned or delayed):
(a) For PENSAT and its subsidiaries: other than indebtedness(i) federal funds borrowings and Federal Home Loan Bank borrowings, guaranteesin each case with a maturity not in excess of six (6) months and (ii) deposits or other customary banking products such as letters of credit, endorsements or accommodations incurred to finance ongoing operationsin each case in the ordinary course of business, refinance short-term incur any indebtedness and for borrowed money (other than indebtedness of PENSAT First Midwest or any of its wholly-owned Subsidiaries to PENSAT First Midwest or any of its wholly-owned Subsidiaries, incur on the one hand, or of Old National or any indebtedness for borrowed moneyof its wholly-owned Subsidiaries to Old National or any of its wholly-owned Subsidiaries, on the other hand), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements);
(bi) For CDXX and its subsidiaries: incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(c) Adjustadjust, split, combine or reclassify any capital stock;
(dii) Makemake, declare declare, pay or pay set a record date for any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or other equity or voting securities or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) or exchangeable into or exchangeable exercisable for any shares of its capital stock (except or other equity or voting securities, except, in each case, (A) in the case of PENSAT, for regular quarterly cash dividends on its preferred stock or convert Preferred Stock or other equity interest into by First Midwest at a rate not in excess of $0.14 per share of First Midwest Common stock for the purposes of this merger Stock, (B) regular quarterly cash dividends by Old National at a rate not in excess of $0.14 per share of Old National Common Stock, (C) dividends paid by any of the Subsidiaries of each of CDXX First Midwest and PENSAT Old National to CDXX First Midwest or PENSAT Old National or any of their wholly-owned Subsidiaries, respectively, (D) in the case of First Midwest, dividends provided for and paid on shares of First Midwest Series A Preferred Stock and First Midwest Series C Preferred Stock in accordance with the terms of such First Midwest Series A Preferred Stock and First Midwest Series C Preferred Stock, respectively, (CE) regular distributions on outstanding trust preferred securities in accordance with their terms or (F) the acceptance of shares of PENSAT First Midwest Common Stock or CDXX Old National Common Stock, as the case may be, as payment for the exercise price of stock warrants or stock option plans options or for withholding taxes Taxes incurred in connection with the exercise of stock warrants or options or the vesting or settlement of restricted stockequity compensation awards, in each case case, in accordance with past practice and the terms of the applicable award agreements;
(eiii) Grant grant any stock options, stock appreciation rights rights, performance shares, restricted stock units, performance stock units, phantom stock units, restricted shares or other equity-based awards or interests, or grant any individual, corporation or other entity person any right to acquire any shares of its capital stockstock or other equity or voting securities of First Midwest or Old National or any of their respective Subsidiaries; or
(fiv) Issue issue, sell, transfer, encumber or otherwise permit to become outstanding any additional shares of capital stock or voting securities or equity interests or securities convertible (whether currently convertible or convertible only after the passage of time of the occurrence of certain events) or exchangeable into, or exercisable for, any shares of its capital stock or other equity or voting securities, including any securities of First Midwest or Old National or their respective Subsidiaries, or any options, warrants, or other rights of any kind to acquire any shares of capital stock or other equity or voting securities, including any securities of First Midwest or Old National or their respective Subsidiaries, except (i) pursuant to the exercise of stock warrants options or options outstanding as the vesting or settlement of the date hereof, (ii) pursuant to any conversions of debt or other obligations, or (iii) equity compensation awards in the case of PENSAT, in the ordinary course of businessaccordance with their terms;
(gc) Sellsell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any individual, corporation or other entity other than a wholly-owned Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than in the ordinary course of business business, or pursuant to contracts or agreements in force at the date of this Agreement;
(h) Except for transactions in the ordinary course of business or pursuant to contracts or agreements in force at the date of or permitted by this Agreement, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity other than a Subsidiary thereof;
(i) Except for transactions in the ordinary course of business, terminate, or waive any material provision of, any PENSAT Contract or CDXX Contract, as the case may be, or make any change in any instrument or agreement governing the terms of any of its securities, or material lease or contract, other than normal renewals of contracts and leases without material adverse changes of terms;
(j) Increase in any manner the compensation or fringe Benefits of any of its employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee other than in the ordinary course of business;
(k) Settle any material claim, action or proceeding involving money damages, except in the ordinary course of business;
(l) Knowingly take any action that would prevent or impede the Merger from qualifying (i) for "Reverse Merger" accounting treatment or (ii) as a reorganization within the meaning of Section 368 of the Code;
(m) Amend its articles of incorporation, its bylaws or comparable governing documents, or any Takeover or similarly restrictive provisions of such party's organizational documents;
(n) Take any action that is intended or expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VII not being satisfied or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable law;
(o) Implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(p) Agree to take, make any commitment to take, or adopt any resolutions of its board of directors in support of, any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement to the Effective TimeTime or earlier termination of this Agreement, except as set forth in the Parent Disclosure Schedule (with respect to the Parent Parties) or the Company Disclosure Schedule (with respect to Company), as expressly contemplated or permitted by this AgreementAgreement or as required by law (including any Pandemic Measures), neither CDXX the Parent Parties nor PENSAT Company shall, and neither CDXX nor PENSAT shall permit any of cause their respective Subsidiaries not to, without the prior written consent of the other party Party (such consent not to this Agreement:be unreasonably withheld, conditioned or delayed):
(a) For PENSAT and its subsidiaries: other than indebtedness(i) federal funds borrowings (including under the Federal Reserve Bank Term Funding Program (BTFP)) and Federal Home Loan Bank borrowings, guaranteesin each case with a maturity not in excess of two (2) years, endorsements or accommodations incurred to finance ongoing operations(ii) the creation of deposit liabilities (including reciprocal and brokered deposits), refinance short-term indebtedness (iii) issuances of letters of credit, (iv) purchases of federal funds, (v) sales of certificates of deposit and indebtedness (vi) entry into repurchase agreements, in each case in the ordinary course of PENSAT or any of its wholly-owned Subsidiaries to PENSAT or any of its Subsidiariesbusiness, incur any indebtedness for borrowed moneymoney (other than indebtedness of Company or any of its wholly owned Subsidiaries to Company or any of its wholly owned Subsidiaries, on the one hand, or of Parent or any of its wholly owned Subsidiaries to Parent or any of its wholly owned Subsidiaries, on the other hand), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements);
(b) For CDXX and its subsidiaries: incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(ci) Adjustadjust, split, combine or reclassify any capital stock;
(di) Makemake, declare declare, pay or pay set a record date for any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or other equity or voting securities or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) or exchangeable into or exchangeable exercisable for any shares of its capital stock (except or other equity or voting securities, except, in each case, (A) in the case of PENSAT, for regular quarterly cash dividends on its preferred stock or convert Preferred Stock or other equity interest into by Company at a rate not in excess of $0.10 per share of Company Common stock for the purposes of this merger Stock, (B) dividends paid by any of the Subsidiaries of each of CDXX Parent and PENSAT Company to CDXX Parent or PENSAT Company or any of their wholly owned Subsidiaries, respectively, and (C) regular distributions or dividends provided for and paid on any preferred securities (including trust preferred securities) of Parent, Company or their respective Subsidiaries in accordance with the terms thereof or (D) the acceptance of shares of PENSAT Company Common Stock or CDXX Parent Common Stock, as the case may be, as payment for the exercise price of stock warrants or stock option plans or for withholding taxes Taxes incurred in connection with the exercise vesting or settlement of stock warrants or options or the vesting of restricted stockequity compensation awards, in each case case, in accordance with past practice and the terms of the applicable award agreements;
(eii) Grant grant any stock appreciation rights options, restricted stock units, performance stock units, phantom stock units, restricted shares or other equity-based awards or interests, or grant any individualperson any right to acquire Company Securities or any Company Subsidiary Securities, corporation in the case of Company, or, except pursuant to the Equity Financing in accordance with the Investment Agreements, Parent Securities or any Parent Subsidiary Securities, in the case of Parent; or
(iii) except pursuant to the Equity Financing in accordance with the Investment Agreements, issue, sell, transfer, encumber or otherwise permit to become outstanding any shares of capital stock or voting securities or equity interests or securities convertible (whether currently convertible or convertible only after the passage of time of the occurrence of certain events) or exchangeable into, or exercisable for, any shares of its capital stock or other entity equity or voting securities, including any right Company Securities or Company Subsidiary Securities, in the case of Company, or Parent Securities or Parent Subsidiary Securities, in the case of Parent, or any options, warrants, or other rights of any kind to acquire any shares of its capital stock; or
(f) Issue any additional shares of capital stock except (i) pursuant to the exercise of stock warrants or options outstanding as of the date hereof, (ii) pursuant to any conversions of debt or other obligationsequity or voting securities, including any Company Securities or (iii) Company Subsidiary Securities, in the case of PENSATCompany, or Parent Securities or Parent Subsidiary Securities, in the ordinary course case of business;
(g) SellParent, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any individual, corporation or other entity other than a Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than in the ordinary course of business or except pursuant to contracts or agreements the settlement of equity compensation awards in force at accordance with their terms and the date payment of this Agreement;
(h) Except for transactions in the ordinary course of business or pursuant to contracts or agreements in force at the date of or permitted by this Agreement, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity other than a Subsidiary thereof;
(i) Except for transactions in the ordinary course of business, terminate, or waive any material provision of, any PENSAT Contract or CDXX Contract, Director fees as the case may be, or make any change in any instrument or agreement governing the terms of any of its securities, or material lease or contract, other than normal renewals of contracts and leases without material adverse changes of terms;
(j) Increase in any manner the compensation or fringe Benefits of any of its employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee other than in the ordinary course of business;
(k) Settle any material claim, action or proceeding involving money damages, except in the ordinary course of business;
(l) Knowingly take any action that would prevent or impede the Merger from qualifying (i) for "Reverse Merger" accounting treatment or (ii) as a reorganization within the meaning of Section 368 of the Code;
(m) Amend its articles of incorporation, its bylaws or comparable governing documents, or any Takeover or similarly restrictive provisions of such party's organizational documents;
(n) Take any action that is intended or expected to result in any of its representations and warranties set forth in this Agreement being the Company’s Director compensation program (with respect to Company) or becoming untrue in any material the Parent’s Director compensation program (with respect at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VII not being satisfied or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable lawParent);
(o) Implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(p) Agree to take, make any commitment to take, or adopt any resolutions of its board of directors in support of, any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Sources: Merger Agreement (HomeStreet, Inc.)
Forbearances. During the period from the date of this Agreement to the Effective TimeTime or earlier termination of this Agreement, except as set forth in the IBTX Disclosure Schedule or the TCBI Disclosure Schedule, as expressly contemplated or permitted by this AgreementAgreement or as required by law, neither CDXX IBTX nor PENSAT TCBI shall, and neither CDXX IBTX nor PENSAT TCBI shall permit any of their respective Subsidiaries to, without the prior written consent of the other party to this Agreement:Agreement (such consent not to be unreasonably withheld, conditioned or delayed):
(a) For PENSAT and its subsidiaries: other than indebtedness(i) federal funds borrowings and Federal Home Loan Bank borrowings, guaranteesin each case with a maturity not in excess of six (6) months, endorsements or accommodations incurred to finance ongoing operations(ii) the creation of deposit liabilities, refinance short-term (iii) issuances of letters of credit, (iv) purchases of federal funds, (v) sales of certificates of deposit and (vi) entry into repurchase agreements, in each case in the ordinary course of business, incur any indebtedness and for borrowed money (other than indebtedness of PENSAT TCBI or any of its wholly-owned Subsidiaries to PENSAT TCBI or any of its wholly-owned Subsidiaries, incur on the one hand, or of IBTX or any indebtedness for borrowed moneyof its wholly-owned Subsidiaries to IBTX or any of its wholly-owned Subsidiaries, on the other hand), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements);
(b) For CDXX and its subsidiaries: incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(c%4) Adjustadjust, split, combine or reclassify any capital stock;
(di) Makemake, declare declare, pay or pay set a record date for any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or other equity or voting securities or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) or exchangeable into or exchangeable exercisable for any shares of its capital stock (except (A) or other equity or voting securities, including any TCBI Securities or TCBI Subsidiary Securities, in the case of PENSATTCBI, for or IBTX Securities or IBTX Subsidiary Securities, in the case of IBTX, except, in each case, (A) regular quarterly cash dividends on its preferred stock or convert Preferred Stock or other equity interest into by IBTX at a rate not in excess of $0.25 per share of IBTX Common stock for the purposes of this merger Stock, (B) dividends paid by any of the Subsidiaries of each of CDXX IBTX and PENSAT TCBI to CDXX IBTX or PENSAT TCBI or any of their wholly-owned Subsidiaries, respectively, and (C) dividends provided for and paid on any trust preferred securities of IBTX, TCBI or their respective Subsidiaries in accordance with the terms thereof, or, in the case of TCBI, dividends provided for and paid on TCBI Preferred Stock in accordance with the terms of such TCBI Preferred Stock or (D) the acceptance of shares of PENSAT TCBI Common Stock or CDXX IBTX Common Stock, as the case may be, as payment for the exercise price of stock warrants appreciation rights or stock option plans options or for withholding taxes Taxes incurred in connection with the exercise of stock warrants appreciation rights or stock options or the vesting or settlement of restricted stockequity compensation awards, in each case case, in accordance with past practice and the terms of the applicable award agreements;
(eii) Grant grant any stock appreciation rights rights, stock options, restricted stock units, performance units, phantom stock units, restricted shares or other equity-based awards or interests, or grant any individual, corporation or other entity person any right to acquire any TCBI Securities or TCBI Subsidiary Securities, in the case of TCBI, or IBTX Securities or IBTX Subsidiary Securities, in the case of IBTX; or
(iii) issue, sell, transfer, encumber or otherwise permit to become outstanding any shares of capital stock or voting securities or equity interests or securities convertible (whether currently convertible or convertible only after the passage of time of the occurrence of certain events) or exchangeable into, or exercisable for, any shares of its capital stock; or
(f) Issue stock or other equity or voting securities, including any additional TCBI Securities or TCBI Subsidiary Securities, in the case of TCBI, or IBTX Securities or IBTX Subsidiary Securities, in the case of IBTX, or any options, warrants, or other rights of any kind to acquire any shares of capital stock or other equity or voting securities, including any TCBI Securities or TCBI Subsidiary Securities, in the case of TCBI, or IBTX Securities or IBTX Subsidiary Securities, in the case of IBTX, except (i) pursuant to the exercise of stock warrants appreciation rights or stock options outstanding as or the settlement of the date hereof, (ii) pursuant to any conversions of debt or other obligations, or (iii) equity compensation awards in the case of PENSAT, in the ordinary course of business;
(g) Sell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any individual, corporation or other entity other than a Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than in the ordinary course of business or pursuant to contracts or agreements in force at the date of this Agreement;
(h) Except for transactions in the ordinary course of business or pursuant to contracts or agreements in force at the date of or permitted by this Agreement, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity other than a Subsidiary thereof;
(i) Except for transactions in the ordinary course of business, terminate, or waive any material provision of, any PENSAT Contract or CDXX Contract, as the case may be, or make any change in any instrument or agreement governing the terms of any of its securities, or material lease or contract, other than normal renewals of contracts and leases without material adverse changes of accordance with their terms;
(j) Increase in any manner the compensation or fringe Benefits of any of its employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee other than in the ordinary course of business;
(k) Settle any material claim, action or proceeding involving money damages, except in the ordinary course of business;
(l) Knowingly take any action that would prevent or impede the Merger from qualifying (i) for "Reverse Merger" accounting treatment or (ii) as a reorganization within the meaning of Section 368 of the Code;
(m) Amend its articles of incorporation, its bylaws or comparable governing documents, or any Takeover or similarly restrictive provisions of such party's organizational documents;
(n) Take any action that is intended or expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VII not being satisfied or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable law;
(o) Implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(p) Agree to take, make any commitment to take, or adopt any resolutions of its board of directors in support of, any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement to the Effective TimeTime or earlier termination of this Agreement, except as set forth in the Lakeland Disclosure Schedule or the Provident Disclosure Schedule, as expressly contemplated or permitted by this AgreementAgreement or as required by law (including the Pandemic Measures), neither CDXX Lakeland nor PENSAT Provident shall, and neither CDXX Lakeland nor PENSAT Provident shall permit any of their respective Subsidiaries to, without the prior written consent of the other party to this Agreement:Agreement (such consent not to be unreasonably withheld, conditioned or delayed):
(a) For PENSAT and its subsidiaries: other than indebtedness(i) federal funds borrowings and Federal Home Loan Bank borrowings, guaranteesin each case with a maturity not in excess of six (6) months and (ii) deposits or other customary banking products such as letters of credit, endorsements or accommodations incurred to finance ongoing operationsin each case in the ordinary course of business, refinance short-term incur any indebtedness and for borrowed money (other than indebtedness of PENSAT Lakeland or any of its wholly-owned Subsidiaries to PENSAT Lakeland or any of its wholly-owned Subsidiaries, incur on the one hand, or of Provident or any indebtedness for borrowed moneyof its wholly-owned Subsidiaries to Provident or any of its wholly-owned Subsidiaries, on the other hand), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements);
(bi) For CDXX and its subsidiaries: incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(c) Adjustadjust, split, combine or reclassify any capital stock;
(dii) Makemake, declare declare, pay or pay set a record date for any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or other equity or voting securities or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) or exchangeable into or exchangeable exercisable for any shares of its capital stock (except or other equity or voting securities, except, in each case, (A) in the case of PENSAT, for regular quarterly cash dividends on its preferred stock or convert Preferred Stock or other equity interest into by Lakeland at a rate not in excess of $0.145 per share of Lakeland Common stock for the purposes of this merger Stock, (B) regular quarterly cash dividends by Provident at a rate not in excess of $0.24 per share of Provident Common Stock, (C) dividends paid by any of the Subsidiaries of each of CDXX Lakeland and PENSAT Provident to CDXX Lakeland or PENSAT Provident or any of their wholly-owned Subsidiaries, respectively, and (CD) regular distributions on outstanding trust preferred securities in accordance with their terms or (E) the acceptance of shares of PENSAT Lakeland Common Stock or CDXX Provident Common Stock, as the case may be, as payment for the exercise price of stock warrants or stock option plans options or for withholding taxes Taxes incurred in connection with the exercise of stock warrants or options or the vesting or settlement of restricted stockequity compensation awards, in each case case, in accordance with past practice and the terms of the applicable award agreements;
(eiii) Grant grant any stock options, stock appreciation rights rights, performance shares, restricted stock units, performance stock units, phantom stock units, restricted shares or other equity-based awards or interests, or grant any individual, corporation or other entity person any right to acquire any shares of its capital stockstock or other equity or voting securities of Lakeland or Provident or any of their Subsidiaries, (A) in the case of Lakeland, except as set forth on Section 5.2(b)(iii) of the Lakeland Disclosure Schedule and (B) in the case of Provident, in the ordinary course consistent with past practices or except as set forth on Section 5.2(b)(iii) of the Provident Disclosure Schedule; or
(fiv) Issue issue, sell, transfer, encumber or otherwise permit to become outstanding any additional shares of capital stock or voting securities or equity interests or securities convertible (whether currently convertible or convertible only after the passage of time of the occurrence of certain events) or exchangeable into, or exercisable for, any shares of its capital stock or other equity or voting securities, including any securities of Lakeland or Provident or their respective Subsidiaries, or any options, warrants, or other rights of any kind to acquire any shares of capital stock or other equity or voting securities, including any securities of Lakeland or Provident or their respective Subsidiaries, except (i) pursuant to the exercise of stock warrants options or options outstanding as the vesting or settlement of the date hereof, (ii) pursuant to any conversions of debt or other obligations, or (iii) equity compensation awards in the case of PENSAT, in the ordinary course of businessaccordance with their terms;
(gc) Sellsell, transfer, mortgage, encumber or otherwise dispose of any of its material properties properties, deposits or assets or any business to any individual, corporation or other entity other than a wholly-owned Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than in the ordinary course of business business, or pursuant to contracts or agreements in force at the date of this Agreement;
(hd) Except except for transactions foreclosure or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith in the ordinary course of business or pursuant to contracts or agreements in force at the date of or permitted by this Agreementbusiness, make any material investment either in or acquisition of (whether by purchase of stock or securities, contributions to capital, property transfers, merger or purchase consolidation, or formation of a joint venture or otherwise) any property other person or the property, deposits or assets of any other individualperson, corporation or other entity in each case, other than a wholly-owned Subsidiary thereofof Lakeland or Provident, as applicable;
(ie) Except in each case except for transactions in the ordinary course of business, terminate, materially amend, or waive any material provision of, any PENSAT Lakeland Contract or CDXX Provident Contract, as the case may be, or make any change in any instrument or agreement governing the terms of any of its securities, or material lease or contract, other than normal renewals of contracts and leases without material adverse changes of termsterms with respect to Lakeland or Provident, or enter into any contract that would constitute a Lakeland Contract or Provident Contract, if it were in effect on the date of this Agreement;
(jf) Increase in any manner the compensation or fringe Benefits case of Lakeland only, except as required under applicable law, the terms of any Lakeland Benefit Plan existing as of its employees the date hereof or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party toset forth on Section 5.2(f) of the Lakeland Disclosure Schedule, (i) enter into, establish, adopt, amend or commit itself terminate any Lakeland Benefit Plan, or any arrangement that would be a Lakeland Benefit Plan if in effect on the date hereof, other than with respect to any pension, retirement, profitbroad-sharing or based welfare benefit plan or agreement or employment agreement with or for the benefit of any employee plans (other than severance) in the ordinary course of business;
business consistent with past practice and as would not reasonably be expected to materially increase the cost of benefits under any such Lakeland Benefit Plan, (kii) Settle increase the compensation or benefits payable to any material claimcurrent or former employee, action director or proceeding involving money damagesindividual consultant, except other than increases for current employees with an annual base salary below $150,000 in connection with a promotion (permitted hereunder) or change in responsibilities, in each case, in the ordinary course of businessbusiness consistent with past practice and to a level consistent with similarly situated peer employees, (iii) accelerate the vesting of any equity-based awards or other compensation or benefits, (iv) enter into any new, or amend any existing, employment, severance, change in control, retention, collective bargaining agreement or similar agreement or arrangement, (v) fund any rabbi trust or similar arrangement, or in any other way secure the payment of compensation or benefits under any Lakeland Benefit Plan, (vi) materially change any actuarial or other assumptions used to calculate funding obligations with respect to any Lakeland Benefit Plan that is required by applicable law to be funded or change the manner in which contributions to such plan are made or the basis on which such contributions are determined, except as may be required by generally accepted accounting principles, (vii) terminate the employment or services of any employee with an annual base salary equal to or in excess of $150,000, other than for cause, or (viii) hire or promote any employee with an annual base salary equal to or in excess of $150,000 (other than as a replacement hire or promotion on substantially similar terms of employment as the departed employee), or significantly change the responsibilities assigned to any such employee;
(lg) Knowingly take any action that would prevent or impede the Merger from qualifying (i) settle any material claim, suit, action or proceeding, except involving solely monetary remedies in an amount and for "Reverse Merger" accounting treatment consideration not in excess of $500,000 individually or $2,000,000 in the aggregate and that would not impose any material restriction on, or create any adverse precedent that would be material to, the business of it or its Subsidiaries or the Surviving Corporation or its Subsidiaries, or (ii) in the case of Lakeland only, enter into any Specified Order;
(h) take any action or knowingly fail to take any action where such action or failure to act could reasonably be expected to prevent the Merger and the Holdco Merger, taken together, from qualifying as a reorganization “reorganization” within the meaning of Section 368 368(a) of the Code;
(mi) Amend amend its articles certificate of incorporation, its bylaws or comparable governing documents, or any Takeover or similarly restrictive provisions documents of such party's organizational documentsits Significant Subsidiaries;
(nj) Take any action that is intended materially restructure or expected to result in any of materially change its representations and warranties set forth in this Agreement being investment securities, derivatives, wholesale funding or becoming untrue in any material respect at any time prior to the Effective TimeBOLI portfolio or its interest rate exposure, through purchases, sales or otherwise, or the manner in any of which the conditions to the Merger set forth in Article VII not being satisfied portfolio is classified or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable lawreported;
(ok) Implement implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP GAAP;
(l) enter into any new line of business or, other than in the ordinary course of business consistent with past practice, change in any material respect its lending, investment, underwriting, risk and asset liability management and other banking and operating, hedging, securitization and servicing policies (including any change in the maximum ratio or regulatory guidelinessimilar limits as a percentage of its capital exposure applicable with respect to its loan portfolio or any segment thereof), except as required by applicable law, regulation or policies imposed by any Governmental Entity;
(m) merge or consolidate itself or any of its Significant Subsidiaries with any other person, or restructure, reorganize or completely or partially liquidate or dissolve it or any of its Significant Subsidiaries;
(n) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, or settle any material Tax claim, audit, assessment or dispute or surrender any material right to claim a refund of Taxes; or
(po) Agree agree to take, make any commitment to take, or adopt any resolutions of its board of directors or similar governing body in support of, any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement to the Effective Time, except as set forth in the Pinnacle Disclosure Schedule or the IFC Disclosure Schedule, as the case may be, and, except as expressly contemplated or permitted by this AgreementAgreement or the Option Agreements, neither CDXX 23 Pinnacle nor PENSAT IFC shall, and neither CDXX Pinnacle nor PENSAT IFC shall permit any of their respective Subsidiaries to, without the prior written consent of the other party to this Agreement:
other: (a) For PENSAT and its subsidiaries: other than indebtednessin the ordinary course of business consistent with past practice, guarantees, endorsements or accommodations incur any indebtedness for borrowed money (other than short-term indebtedness incurred to finance ongoing operations, refinance short-term indebtedness and indebtedness of PENSAT Pinnacle or any of its wholly-owned Subsidiaries to PENSAT Pinnacle or any of its Subsidiaries, incur on the one hand, or of IFC or any indebtedness for borrowed moneyof its Subsidiaries to IFC or any of its Subsidiaries, on the other hand), assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements);
; (b) For CDXX and its subsidiaries: incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(ci) Adjustadjust, split, combine or reclassify any capital stock;
; (dii) Makemake, declare or pay any dividend, dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except except, (A) in the case of PENSATPinnacle, for regular quarterly cash dividends on its preferred stock or convert Preferred Pinnacle Common Stock or other equity interest into at a rate not in excess of $0.25 per share of Pinnacle Common stock for the purposes of this merger Stock, (B) in the case of IFC, for regular quarterly cash dividends on IFC Common Stock at a rate not in excess of $0.21 per share of IFC Common Stock, (C) for dividends paid by any of the Subsidiaries of each of CDXX Pinnacle and PENSAT IFC to CDXX Pinnacle or PENSAT IFC or any of their Subsidiaries, respectively, and (CD) for dividends paid in the acceptance ordinary course of shares business by any subsidiaries (whether or not wholly owned) of PENSAT Common Stock or CDXX Common Stockeach of Pinnacle and IFC), as the case may be, as payment for the exercise price of stock warrants or stock option plans or for withholding taxes incurred in connection with the exercise of stock warrants or options or the vesting of restricted stock, in each case in accordance with past practice and the terms of the applicable award agreements;
(eiii) Grant grant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stock; or
stock (fand no further or additional options to purchase stock shall be granted pursuant to the Pinnacle Stock Plans or the IFC Stock Plans, except as otherwise agreed in writing by Pinnacle and IFC) Issue or (iv) issue any additional shares of capital stock except (i) pursuant to (A) the exercise of stock options or warrants or options outstanding as of the date hereof, (iiB) pursuant to any conversions of debt or other obligationsthe Option Agreements, or (C) as permitted unless clause (iii) in the case of PENSAT, in the ordinary course of business;
above; (gc) Sellsell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any individual, corporation or other entity other than a Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than except in the ordinary course of business consistent with past practice or pursuant to contracts or agreements in force at the date of this Agreement;
; (hd) Except except for transactions in the ordinary course of business consistent with past practice or pursuant to contracts or agreements in force at the date of or permitted by this Agreement, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity other than a Subsidiary thereof;
; (ie) Except except for transactions in the ordinary course of businessbusiness consistent with past practice, terminate, enter into or waive terminate any material provision of, any PENSAT Contract contract or CDXX Contract, as the case may beagreement, or make any change in any instrument or agreement governing the terms of any of its securities, material leases or material lease or contractcontracts, other than normal renewals of contracts and leases without material adverse changes of terms;
; (jf) Increase increase in any manner the compensation or fringe Benefits benefits of any of its employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee other than in the ordinary course of business;
business consistent with past practice or accelerate the vesting of any stock options or other stock-based compensation; (kg) Settle solicit, encourage or authorize or permit any material claimindividual, action corporation or proceeding involving money damages, except in other entity to solicit from any third party any inquiries or proposals relating to the ordinary course disposition of business;
(l) Knowingly take any action that would prevent its business or impede the Merger from qualifying (i) for "Reverse Merger" accounting treatment or (ii) as a reorganization within the meaning of Section 368 of the Code;
(m) Amend its articles of incorporation, its bylaws or comparable governing documentsassets, or any Takeover or similarly restrictive provisions of such party's organizational documents;
(n) Take any action that is intended or expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VII not being satisfied or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable law;
(o) Implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(p) Agree to take, make any commitment to take, or adopt any resolutions of its board of directors in support of, any of the actions prohibited by this Section 5.2.24
Appears in 1 contract
Forbearances. During the period from the date of this Agreement to the earlier of the Effective Time, except as expressly contemplated Time or permitted by the termination of this Agreement, neither CDXX nor PENSAT shalland except as set forth in Section 7.2 of the Company Disclosure Memorandum, the Company shall not, and neither CDXX nor PENSAT shall not permit any of their respective its Subsidiaries to, without the prior written consent of Sterling, which consent shall not be unreasonably withheld (and the other party Company shall provide Sterling with prompt notice of any events referred to in this Agreement:Section 7.2 occurring after the date hereof):
(a) For PENSAT and its subsidiaries: other than indebtednessin the ordinary course of business consistent with past practice, guarantees, endorsements or accommodations incur any indebtedness for borrowed money (other than short-term indebtedness incurred to finance ongoing operations, refinance short-term indebtedness and indebtedness of PENSAT the Company or any of its wholly-owned Subsidiaries to PENSAT the Company or any of its Subsidiaries, incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (; it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal federal funds, and sales of certificates of deposit and entering into repurchase agreementsdeposit);
(b) For CDXX and its subsidiaries: incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entityPerson, or make any loan or advanceadvance other than in the ordinary course of business consistent with past practice and prudent banking practices;
(cb) Adjustadjust, split, combine or reclassify any capital stock;
(d) Make; make, declare or pay any dividend, dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock, other than distributions from the Bank to the Company, grant any stock (except (A) in the case of PENSAT, for regular cash dividends on its preferred stock or convert Preferred Stock or other equity interest into Common stock for the purposes of this merger (B) dividends paid by any of the Subsidiaries of each of CDXX and PENSAT to CDXX or PENSAT or any of their Subsidiaries, respectively, and (C) the acceptance of shares of PENSAT Common Stock or CDXX Common Stock, as the case may be, as payment for the exercise price of stock warrants options or stock option plans or for withholding taxes incurred in connection with the exercise of stock warrants or options or the vesting of restricted stockawards, in each case in accordance with past practice and the terms of the applicable award agreements;
(e) Grant any stock appreciation rights or grant any individual, corporation or other entity Person any right to acquire any shares of its capital stock; or
(f) Issue or issue any additional shares of capital stock (except (ias permitted by Section 3.3(c) pursuant to the or upon exercise and conversion of stock warrants or options outstanding Company Options, as of the date hereof, (ii) pursuant to any conversions of debt or other obligationsprovided in Section 3.4 and Section 8.6), or (iii) in the case any securities or obligations convertible into or exchangeable for any shares of PENSAT, in the ordinary course of businessits capital stock;
(gc) Sellsell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any individual, corporation or other entity other than a SubsidiaryPerson, or cancel, release or assign any indebtedness to any such person Person or any claims held by any such personPerson, in each case other than except in the ordinary course of business consistent with past practice and prudent banking practices or pursuant to contracts or agreements in force at the date of this Agreement;
(hd) Except for transactions in the ordinary course of business or pursuant to contracts or agreements in force at the date of or permitted by this Agreement, make any material investment (other than trades in investment securities in the ordinary course) either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity other than a Subsidiary thereofPerson;
(ie) Except for transactions in the ordinary course of businessenter into, terminate, terminate or waive fail to exercise any material provision ofright under, any PENSAT Contract contract or CDXX Contract, as the case may beagreement involving annual payments in excess of $15,000 and which cannot be terminated without penalty upon 30 days’ notice, or make any change in, or extension of (other than automatic extensions) any of its leases or contracts involving annual payments in excess of $10,000 and which cannot be terminated without penalty upon 30 days’ notice;
(f) make, renegotiate, renew, increase, extend or purchase any instrument (i) loan, lease (credit equivalent), advance, credit enhancement or agreement governing other extension of credit, except (A) in conformity with existing lending practices of the Company in amounts not to exceed $1,000,000 to any individual borrower, (B) loans or advances as to which the Company or any Subsidiary has a legally binding obligation to make such loan or advances as of the date hereof, (C) loans fully secured by a certificate of deposit at the Bank, and (D) consumer loans in amounts less than $100,000; provided, however, that the Company and its Subsidiaries may not make, renegotiate, renew, increase, extend or purchase any loan that is underwritten based on no verification of income or loans commonly known or referred to as “no documentation loans,” or (ii) loans, advances or commitments to directors, officers or other affiliated parties of the Company or any of its subsidiaries;
(g) except as required by law, modify the terms of any of its securities, Company Benefit Plan (including any severance pay plan) or material lease increase or contract, other than normal renewals of contracts and leases without material adverse changes of terms;
(j) Increase modify in any manner the compensation or fringe Benefits benefits of any of its employees Employees (including, without limitation, entering into any commitment to pay any “stay bonuses” or similar benefits not permitted by this Agreement) or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees Employees, or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee Employee other than routine adjustments in compensation and fringe benefits in the ordinary course of businessbusiness consistent with past practice or accelerate the vesting of any stock options or other stock-based compensation, provided, that the Company may pay in December 2006 bonuses accrued in accordance with the Company’s historical practices;
(kh) Settle settle any material claim, action or proceeding involving the payment of money damagesdamages in excess of $10,000;
(i) amend its Articles of Incorporation or its bylaws;
(j) fail to maintain its Regulatory Agreements, except material Authorizations or to file in a timely fashion all federal, state, local and foreign Tax Returns;
(k) make any capital expenditures of more than $15,000 individually or $50,000 in the ordinary course of businessaggregate;
(l) Knowingly take any action that would prevent fail to maintain or impede the Merger from qualifying (i) for "Reverse Merger" accounting treatment administer each Company Benefit Plan in accordance with applicable Law or (ii) as a reorganization within the meaning of Section 368 of the Codetimely make all contributions or accruals required thereunder in accordance with GAAP;
(m) Amend its articles of incorporation, its bylaws or comparable governing documents, or any Takeover or similarly restrictive provisions of such party's organizational documents;
(n) Take 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 at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VII X not being satisfied or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable law;
(on) Implement change any methods or adopt any change policies of accounting from those used in its accounting principlesthe Company Financial Statements, practices or methods, other than except as may be required by GAAP or regulatory guidelinesany Regulatory Authority;
(o) take or cause or permit to be taken any action, whether before or after the Effective Time, which would disqualify the Merger as a tax-free reorganization within the meaning of Section 368 of the Code (subject to required recognition of gain or loss with respect to cash paid for fractional shares pursuant hereto);
(p) make or change any election, change an annual accounting period, adopt or change any accounting method, file any amended Tax Return, enter into any closing agreement, settle any Tax claim or assessment relating to the Company or any of its Subsidiaries, surrender any right to claim a refund of Taxes, consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment relating to the Company or any of its Subsidiaries, or take any other similar action relating to the filing of any Tax Return or the payment of any Tax, if such election, adoption, change, amendment, agreement, settlement, surrender, consent or other action would have the effect of increasing the Tax liability of the Company or any of its Subsidiaries for any period ending after the Closing Date or decreasing any Tax attribute of the Company or any of its Subsidiaries existing on the Closing Date;
(q) make any material changes to its securities portfolio, the weighted averages of its certificate of deposit portfolio, or materially deviate from its policies and practices regarding the establishment of its allowance for credit losses; or
(pr) Agree agree, or make any commitment, to take, make any commitment to take, in writing or adopt any resolutions of its board of directors in support ofotherwise, any of the actions prohibited by described in clauses (a) through (q) of this Section 5.27.2.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement to the Effective TimeTime or earlier termination of this Agreement, except as set forth in the Umpqua Disclosure Schedule or the Columbia Disclosure Schedule, as expressly contemplated or permitted by this AgreementAgreement or as required by law, neither CDXX Umpqua nor PENSAT Columbia shall, and neither CDXX Umpqua nor PENSAT Columbia shall permit any of their respective Subsidiaries to, without the prior written consent of the other party to this Agreement:Agreement (such consent not to be unreasonably withheld, conditioned or delayed):
(a) For PENSAT and its subsidiaries: other than indebtedness(i) federal funds borrowings and Federal Home Loan Bank borrowings, guaranteesin each case with a maturity not in excess of six (6) months, endorsements or accommodations incurred to finance ongoing operations(ii) deposits, refinance short-term (iii) issuances of letters of credit, (iv) purchases of federal funds, (v) sales of certificates of deposit and (vi) entry into repurchase agreements, in each case in the ordinary course of business, incur any indebtedness and for borrowed money (other than indebtedness of PENSAT Umpqua or any of its wholly-owned Subsidiaries to PENSAT Umpqua or any of its wholly-owned Subsidiaries, incur on the one hand, or of Columbia or any indebtedness for borrowed moneyof its wholly-owned Subsidiaries to Columbia or any of its wholly-owned Subsidiaries, on the other hand), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements);
(bi) For CDXX and its subsidiaries: incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(c) Adjustadjust, split, combine or reclassify any capital stock;
(dii) Makemake, declare declare, pay or pay set a record date for any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or other equity or voting securities or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) or exchangeable into or exchangeable exercisable for any shares of its capital stock (except or other equity or voting securities, except, in each case, (A) in the case of PENSAT, for regular quarterly cash dividends on its preferred stock or convert Preferred Stock or other equity interest into by Umpqua at a rate not in excess of $0.21 per share of Umpqua Common stock for the purposes of this merger Stock, (B) regular quarterly cash dividends by Columbia at a rate not in excess of $0.30 per share of Columbia Common Stock, (C) dividends paid by any of the Subsidiaries of each of CDXX Umpqua and PENSAT Columbia to CDXX Umpqua or PENSAT Columbia or any of their wholly-owned Subsidiaries, respectively, and (CD) the acceptance of shares of PENSAT Common Stock regular distributions on outstanding trust preferred securities in accordance with their terms or CDXX Common Stock, as the case may be, as payment for the exercise price of stock warrants or stock option plans or for withholding taxes incurred in connection with (E) the exercise of stock warrants or options or the vesting or settlement of restricted stockequity compensation awards, in each case case, in accordance with past practice and the terms of the applicable award agreements;
(eiii) Grant grant any stock options, stock appreciation rights rights, performance shares, restricted stock units, performance stock units, phantom stock units, restricted shares or other equity-based awards or interests, or grant any individual, corporation or other entity person any right to acquire any shares of its capital stockstock or other equity or voting securities of Umpqua or Columbia or any of their respective Subsidiaries, other than in the case of Columbia, grants of rights to purchase shares of Columbia Common Stock under the Columbia ESPP in accordance with the terms of thereof; or
(fiv) Issue issue, sell, transfer, encumber or otherwise permit to become outstanding any additional shares of capital stock or voting securities or equity interests or securities convertible (whether currently convertible or convertible only after the passage of time of the occurrence of certain events) or exchangeable into, or exercisable for, any shares of its capital stock or other equity or voting securities, including any securities of Umpqua or Columbia or their respective Subsidiaries, or any options, warrants, or other rights of any kind to acquire any shares of capital stock or other equity or voting securities, including any securities of Umpqua or Columbia or their respective Subsidiaries, except (i) pursuant to the exercise of stock warrants options or options outstanding as the vesting or settlement of the date hereof, (ii) pursuant to any conversions of debt or other obligations, or (iii) equity compensation awards in the case of PENSAT, in the ordinary course of business;
(g) Sell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any individual, corporation or other entity other than a Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than in the ordinary course of business or pursuant to contracts or agreements in force at the date of this Agreement;
(h) Except for transactions in the ordinary course of business or pursuant to contracts or agreements in force at the date of or permitted by this Agreement, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity other than a Subsidiary thereof;
(i) Except for transactions in the ordinary course of business, terminate, or waive any material provision of, any PENSAT Contract or CDXX Contract, as the case may be, or make any change in any instrument or agreement governing the terms of any of its securities, or material lease or contract, other than normal renewals of contracts and leases without material adverse changes of accordance with their terms;
(j) Increase in any manner the compensation or fringe Benefits of any of its employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee other than in the ordinary course of business;
(k) Settle any material claim, action or proceeding involving money damages, except in the ordinary course of business;
(l) Knowingly take any action that would prevent or impede the Merger from qualifying (i) for "Reverse Merger" accounting treatment or (ii) as a reorganization within the meaning of Section 368 of the Code;
(m) Amend its articles of incorporation, its bylaws or comparable governing documents, or any Takeover or similarly restrictive provisions of such party's organizational documents;
(n) Take any action that is intended or expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VII not being satisfied or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable law;
(o) Implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(p) Agree to take, make any commitment to take, or adopt any resolutions of its board of directors in support of, any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement to the Effective Time, except as set forth in the OSB Disclosure Schedules or the FCB Disclosure Schedules, as the case may be, and, except as expressly contemplated or permitted by this Agreement, the Plan of Merger or the Option Agreements, neither CDXX FCB nor PENSAT OSB shall, and neither CDXX nor PENSAT shall FCB or OSB permit any of their respective the FCB Subsidiaries or OSB Subsidiaries, respectively to, without the prior written consent of the other party to this Agreementother:
(a) For PENSAT and its subsidiaries: other than indebtednessin the ordinary course of business consistent with past practice, guarantees, endorsements or accommodations incurred to finance ongoing operations, refinance short-term indebtedness and indebtedness of PENSAT or any of its wholly-owned Subsidiaries to PENSAT or any of its Subsidiaries, (i) incur any indebtedness for borrowed moneymoney (other than pursuant to existing lines of credit or short-term indebtedness incurred in the ordinary course of business consistent with past practice, assume, guarantee, endorse indebtedness of OSB to any of the OSB Subsidiaries or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entityof the OSB Subsidiaries to OSB, or make indebtedness of FCB to any loan of the FCB Subsidiaries or advance (of any of the FCB Subsidiaries to FCB, it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements);
, (bii) For CDXX and its subsidiaries: incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, ; or (iii) make any loan or advance;
(cb) Adjust(i) adjust, split, combine or reclassify any capital stock;
, (dii) Makemake, declare or pay any dividend, dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (A) in the case of PENSATFCB, for regular quarterly cash dividends on its preferred stock or convert Preferred Stock or other equity interest into at a rate not in excess of $0.18 per share of FCB Common stock for the purposes of this merger Stock, and (B) in the case of OSB, for regular quarterly cash dividends paid by at a rate not in excess of $0.16 per share of OSB Common Stock); (iii) directly or indirectly redeem, purchase or otherwise acquire any shares of the Subsidiaries of each of CDXX and PENSAT to CDXX or PENSAT capital stock or any securities or obligations convertible into or exchangeable for any shares of their Subsidiariesits capital stock (except (A) in the case of FCB, respectivelyrepurchases of FCB Common Stock in the open market or in privately negotiated transactions, provided that written notice of any such repurchase is given to OSB as soon as is practicable thereafter, and (CB) in the acceptance case of shares OSB, repurchases of PENSAT OSB Common Stock in the open market or CDXX Common Stockin privately negotiated transactions, provided that written notice of any such repurchase is given to FCB as the case may be, soon as payment for the exercise price of stock warrants or stock option plans or for withholding taxes incurred in connection with the exercise of stock warrants or options or the vesting of restricted stock, in each case in accordance with past practice and the terms of the applicable award agreements;
practicable thereafter); (eiv) Grant grant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stock; or
, or (fiv) Issue issue any additional shares of capital stock (except (i) pursuant to (A) the exercise of stock warrants or options outstanding as of the date hereof, (ii) pursuant to any conversions of debt or other obligationsthis Agreement, or (iiiB) in the case of PENSAT, in the ordinary course of businessOption Agreements);
(gc) Sellsell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any individual, corporation or other entity other than a Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than except in the ordinary course of business consistent with past practice or pursuant to contracts or agreements in force at the date of this Agreement;
(hd) Except except for transactions in the ordinary course of business consistent with past practice or pursuant to contracts or agreements in force at the date of or permitted by this Agreement, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity other than a Subsidiary thereofthereof or any existing joint venture to which OSB or FCB is a party;
(ie) Except except for transactions in the ordinary course of businessbusiness consistent with past practice, terminate, enter into or waive terminate any material provision of, any PENSAT Contract contract or CDXX Contract, as the case may beagreement, or make any change in any instrument or agreement governing the terms of any of its securities, material leases or material lease or contractcontracts, other than normal renewals of contracts and leases without material adverse changes of terms;
(jf) Increase other than in the ordinary course of business consistent with past practice, increase in any manner the compensation or fringe Benefits benefits of any of its employees (it being understood and agreed that an increase in any manner the compensation of any employee in the ordinary course of business consistent with past practice shall include, without limitation, an increase in ▇▇. ▇▇▇▇▇▇▇▇▇▇'▇ base salary to an amount not to exceed $125,000 annually), or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party to, amend or commit itself to any pension, retirement, profit-profit- sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee employee; provided, however, that (i) any bonus paid any officer of FCB or the FCB Subsidiaries shall not exceed 115% of such bonus paid to such individual for the immediately preceding fiscal year and (ii) any bonus paid by OSB or the OSB Subsidiaries to (a) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ shall not exceed 30% of his 1996 base salary, (b) any Vice President of OSB or the OSB Subsidiaries shall not exceed 15% of each individual's 1996 base salary, and (c) all other employees of OSB or the OSB Subsidiaries shall not exceed $30,000 in the aggregate for any fiscal year;
(g) grant, amend or modify in any material respect any stock option, stock awards or other stock based compensation, except that OSB and FCB may modify their respective stock options and OSB may modify stock awards previously granted under the OSB MRP which are outstanding as of the date of this Agreement in each case solely to provide full vesting conditioned upon and effective as of the Closing Date.
(h) pay, discharge or satisfy any material claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business;
business consistent with past practice (kwhich includes the payment of final and unappealable judgments) Settle any material claimor in accordance with their terms, action of liabilities reflected or proceeding involving money damagesreserved against in, except or contemplated by, the most recent consolidated financial statements (or the notes thereto) of such party included in such party's reports filed with the SEC, or incurred in the ordinary course of businessbusiness consistent with past practice;
(li) Knowingly take any action that would prevent or impede the Merger from qualifying (i) for "Reverse Merger" accounting treatment or (ii) as a reorganization within the meaning of Section 368 of the Code; provided, however, that nothing contained herein shall limit the ability of OSB or FCB to exercise its rights under the OSB Option Agreement or the FCB Option Agreement, as the case may be;
(mj) Amend amend its articles of incorporation, incorporation or its bylaws or comparable governing documents, or any Takeover or similarly restrictive provisions of such party's organizational documentsbylaws;
(nk) Take other than in prior consultation with the other party to this Agreement, restructure or materially change its investment securities portfolio or its gap position, through purchases, sales, or otherwise, or the manner in which the portfolio is classified or reported;
(l) 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 at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VII not being satisfied or in a violation of any provision of this Agreement, the Plan of Merger or the Option Agreements, except, in every case, as may be required by applicable law;
(o) Implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(pm) Agree to takeagree to, or make any commitment to taketo, or adopt any resolutions of its board of directors in support of, take any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement to the Effective TimeTime or earlier termination of this Agreement, except as set forth in the BancorpSouth Disclosure Schedule or the Cadence Disclosure Schedule, as expressly contemplated or permitted by this AgreementAgreement or as required by law (including the Pandemic Measures), neither CDXX BancorpSouth nor PENSAT Cadence shall, and neither CDXX BancorpSouth nor PENSAT Cadence shall permit any of their respective Subsidiaries to, without the prior written consent of the other party to this Agreement:Agreement (such consent not to be unreasonably withheld, conditioned or delayed):
(a) For PENSAT and its subsidiaries: other than indebtedness(i) federal funds borrowings and Federal Home Loan Bank borrowings, guaranteesin each case, endorsements with a maturity not in excess of six (6) months, and (ii) deposits or accommodations incurred to finance ongoing operationsother customary banking products such as letters of credit, refinance short-term in each case, in the ordinary course of business, incur any indebtedness and for borrowed money (other than indebtedness of PENSAT Cadence or any of its wholly-owned Subsidiaries to PENSAT Cadence or any of its wholly-owned Subsidiaries, incur on the one hand, or of BancorpSouth or any indebtedness for borrowed moneyof its wholly-owned Subsidiaries to BancorpSouth or any of its wholly-owned Subsidiaries, on the other hand), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance entity (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, include the creation of deposit liabilities, issuances of letters of credit, purchases of federal funds, borrowings from the Federal fundsHome Loan Bank, sales of certificates of deposit deposits, and entering entry into repurchase agreements, in each case, on terms and in amounts consistent with past practice);
(b) For CDXX and its subsidiaries: incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(ci) Adjustadjust, split, combine or reclassify any capital stock;
(d) Make, declare or pay any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (A) in the case of PENSAT, for regular cash dividends on its preferred stock or convert Preferred Stock or other equity interest into Common stock for the purposes of this merger (B) dividends paid by any of the Subsidiaries of each of CDXX and PENSAT to CDXX or PENSAT or any of their Subsidiaries, respectively, and (C) the acceptance of shares of PENSAT Common Stock or CDXX Common Stock, as the case may be, as payment for the exercise price of stock warrants or stock option plans or for withholding taxes incurred in connection with the exercise of stock warrants or options or the vesting of restricted stock, in each case in accordance with past practice and the terms of the applicable award agreements;
(e) Grant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stock; or
(f) Issue any additional shares of capital stock except (i) pursuant to the exercise of stock warrants or options outstanding as of the date hereof, (ii) pursuant to any conversions of debt or other obligations, or (iii) in the case of PENSAT, in the ordinary course of business;
(g) Sell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any individual, corporation or other entity other than a Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than in the ordinary course of business or pursuant to contracts or agreements in force at the date of this Agreement;
(h) Except for transactions in the ordinary course of business or pursuant to contracts or agreements in force at the date of or permitted by this Agreement, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity other than a Subsidiary thereof;
(i) Except for transactions in the ordinary course of business, terminate, or waive any material provision of, any PENSAT Contract or CDXX Contract, as the case may be, or make any change in any instrument or agreement governing the terms of any of its securities, or material lease or contract, other than normal renewals of contracts and leases without material adverse changes of terms;
(j) Increase in any manner the compensation or fringe Benefits of any of its employees or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee other than in the ordinary course of business;
(k) Settle any material claim, action or proceeding involving money damages, except in the ordinary course of business;
(l) Knowingly take any action that would prevent or impede the Merger from qualifying (i) for "Reverse Merger" accounting treatment or (ii) as a reorganization within the meaning of Section 368 of the Code;
(m) Amend its articles of incorporation, its bylaws or comparable governing documents, or any Takeover or similarly restrictive provisions of such party's organizational documents;
(n) Take any action that is intended or expected to result in any of its representations and warranties set forth in this Agreement being or becoming untrue in any material respect at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VII not being satisfied or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable law;
(o) Implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(p) Agree to take, make any commitment to take, or adopt any resolutions of its board of directors in support of, any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement to the Effective Time, except as set forth in the HBE Disclosure Schedules or the SFS Disclosure Schedules, as the case may be, and, except as expressly contemplated or permitted by this Agreement, the Plan of Merger or the HBE Stock Option Agreement, neither CDXX SFS nor PENSAT HBE shall, and neither CDXX nor PENSAT shall SFS or HBE permit any of their respective the SFS Subsidiaries or the HBE Bank, respectively to, without the prior written consent of the other party to this Agreementother:
(a) For PENSAT and its subsidiaries: other than indebtednessin the ordinary course of business consistent with past practice, guarantees, endorsements or accommodations incurred to finance ongoing operations, refinance short-term indebtedness and indebtedness of PENSAT or any of its wholly-owned Subsidiaries to PENSAT or any of its Subsidiaries, (i) incur any indebtedness for borrowed moneymoney (other than pursuant to existing lines of credit or short-term indebtedness incurred in the ordinary course of business consistent with past practice, assumeindebtedness of HBE to the HBE Bank or of the HBE Bank to HBE, guarantee, endorse or otherwise as an accommodation become responsible for indebtedness of SFS to any of the obligations SFS Subsidiaries or of any other individualof the SFS Subsidiaries to SFS, corporation or other entity, or make any loan or advance (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, Federal Home Loan Bank borrowings, sales of certificates of deposit and entering into repurchase agreements);
, (bii) For CDXX and its subsidiaries: incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, ; or (iii) make any loan or advance;
(cb) Adjust(i) adjust, split, combine or reclassify any capital stock;
, (dii) Makemake, declare or pay any dividend, dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (A) in the case of PENSATSFS, for regular quarterly cash dividends on its preferred stock or convert Preferred Stock or other equity interest into at a rate not in excess of $0.12 per share of SFS Common stock for the purposes of this merger Stock, and (B) in the case of HBE, for regular quarterly cash dividends paid by at a rate not in excess of $0.10 per share of HBE Common Stock); (iii) directly or indirectly redeem, purchase or otherwise acquire any shares of the Subsidiaries of each of CDXX and PENSAT to CDXX or PENSAT capital stock or any of their Subsidiaries, respectively, and (C) the acceptance of securities or obligations convertible into or exchangeable for any shares of PENSAT Common Stock or CDXX Common Stock, as the case may be, as payment for the exercise price of stock warrants or stock option plans or for withholding taxes incurred in connection with the exercise of stock warrants or options or the vesting of restricted its capital stock, in each case in accordance with past practice and the terms of the applicable award agreements;
; (eiv) Grant grant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stock; or
, or (fv) Issue issue any additional shares of capital stock (except (i) pursuant to (A) the exercise of stock warrants or options outstanding as of the date hereof, (ii) pursuant to any conversions of debt or other obligationsthis Agreement, or (iiiB) in the case of PENSAT, in the ordinary course of businessHBE Stock Option Agreement);
(gc) Sellsell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any individual, corporation or other entity other than a Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than except in the ordinary course of business consistent with past practice or pursuant to contracts or agreements in force at the date of this Agreement;
(hd) Except except for transactions in the ordinary course of business consistent with past practice or pursuant to contracts or agreements in force at the date of or permitted by this Agreement, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity other than a Subsidiary thereofthereof or any existing joint venture to which HBE or SFS is a party;
(ie) Except except for transactions in the ordinary course of businessbusiness consistent with past practice, terminate, enter into or waive terminate any material provision of, any PENSAT Contract contract or CDXX Contract, as the case may beagreement, or make any change in any instrument or agreement governing the terms of any of its securities, material leases or material lease or contractcontracts, other than normal renewals of contracts and leases without material adverse changes of terms;
(jf) Increase other than in the ordinary course of business consistent with past practice, or as required by law, increase in any manner the compensation or fringe Benefits benefits of any of its employees employees, or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee employee;
(g) grant, amend or modify in any material respect any stock option, stock awards or other stock based compensation, except as contemplated in Section 1.5(c) hereof;
(h) pay, discharge or satisfy any material claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business;
business consistent with past practice (kwhich includes the payment of final and unappealable judgments) Settle any material claimor in accordance with their terms, action of liabilities reflected or proceeding involving money damagesreserved against in, except or contemplated by, the most recent consolidated financial statements (or the notes thereto) of such party included in such party's reports filed with the SEC, or incurred in the ordinary course of businessbusiness consistent with past practice;
(li) Knowingly take any action that would prevent or impede the Merger from qualifying (i) for "Reverse Merger" accounting treatment or (ii) as a reorganization within the meaning of Section 368 of the Code; PROVIDED, HOWEVER, that nothing contained herein shall limit the ability of HBE or SFS to exercise its rights under the HBE Stock Option Agreement;
(mj) Amend amend its articles of incorporationincorporation (other than, in the case of SFS, to increase the amount of its bylaws authorized common stock) or comparable governing documents, or any Takeover or similarly restrictive provisions of such party's organizational documentsits bylaws;
(nk) Take other than in prior consultation with the other party to this Agreement, restructure or materially change its investment securities portfolio or its gap position, through purchases, sales, or otherwise, or the manner in which the portfolio is classified or reported;
(l) 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 at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VII not being satisfied or in a violation of any provision of this Agreement, the Plan of Merger or the HBE Stock Option Agreement, except, in every case, as may be required by applicable law;
(o) Implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(pm) Agree to takeagree to, or make any commitment to taketo, or adopt any resolutions of its board of directors in support of, take any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement to the Effective TimeTime or earlier termination of this Agreement, except as set forth in the First Midwest Disclosure Schedule or the Old National Disclosure Schedule, as expressly contemplated or permitted by this AgreementAgreement or as required by law (including the Pandemic Measures), neither CDXX First Midwest nor PENSAT Old National shall, and neither CDXX First Midwest nor PENSAT Old National shall permit any of their respective Subsidiaries to, without the prior written consent of the other party to this Agreement:Agreement (such consent not to be unreasonably withheld, conditioned or delayed):
(a) For PENSAT and its subsidiaries: other than indebtedness(i) federal funds borrowings and Federal Home Loan Bank borrowings, guaranteesin each case with a maturity not in excess of six (6) months and (ii) deposits or other customary banking products such as letters of credit, endorsements or accommodations incurred to finance ongoing operationsin each case in the ordinary course of business, refinance short-term incur any indebtedness and for borrowed money (other than indebtedness of PENSAT First Midwest or any of its wholly-owned Subsidiaries to PENSAT First Midwest or any of its wholly-owned Subsidiaries, incur on the one hand, or of Old National or any indebtedness for borrowed moneyof its wholly-owned Subsidiaries to Old National or any of its wholly-owned Subsidiaries, on the other hand), or assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements);
(bi) For CDXX and its subsidiaries: incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, or make any loan or advance;
(c) Adjustadjust, split, combine or reclassify any capital stock;
(dii) Makemake, declare declare, pay or pay set a record date for any dividend, or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or other equity or voting securities or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) or exchangeable into or exchangeable exercisable for any shares of its capital stock (except or other equity or voting securities, except, in each case, (A) in the case of PENSAT, for regular quarterly cash dividends on its preferred stock or convert Preferred Stock or other equity interest into by First Midwest at a rate not in excess of $0.14 per share of First Midwest Common stock for the purposes of this merger Stock, (B) regular quarterly cash dividends by Old National at a rate not in excess of $0.14 per share of Old National Common Stock, (C) dividends paid by any of the Subsidiaries of each of CDXX First Midwest and PENSAT Old National to CDXX First Midwest or PENSAT Old National or any of their wholly-owned Subsidiaries, respectively, (D) in the case of First Midwest, dividends provided for and paid on shares of First Midwest Series A Preferred Stock and First Midwest Series C Preferred Stock in accordance with the terms of such First Midwest Series A Preferred Stock and First Midwest Series C Preferred Stock, respectively, (CE) regular distributions on outstanding trust preferred securities in accordance with their terms or (F) the acceptance of shares of PENSAT First Midwest Common Stock or CDXX Old National Common Stock, as the case may be, as payment for the exercise price of stock warrants or stock option plans options or for withholding taxes Taxes incurred in connection with the exercise of stock warrants or options or the vesting or settlement of restricted stockequity compensation awards, in each case case, in accordance with past practice and the terms of the applicable award agreements;
(eiii) Grant grant any stock options, stock appreciation rights rights, performance shares, restricted stock units, performance stock units, phantom stock units, restricted shares or other equity-based awards or interests, or grant any individual, corporation or other entity person any right to acquire any shares of its capital stockstock or other equity or voting securities of First Midwest or Old National or any of their respective Subsidiaries; or
(fiv) Issue issue, sell, transfer, encumber or otherwise permit to become outstanding any additional shares of capital stock or voting securities or equity interests or securities convertible (whether currently convertible or convertible only after the passage of time of the occurrence of certain events) or exchangeable into, or exercisable for, any shares of its capital stock or other equity or voting securities, including any securities of First Midwest or Old National or their respective Subsidiaries, or any options, warrants, or other rights of any kind to acquire any shares of capital stock or other equity or voting securities, including any securities of First Midwest or Old National or their respective Subsidiaries, except (i) pursuant to the exercise of stock warrants options or options outstanding as the vesting or settlement of the date hereof, (ii) pursuant to any conversions of debt or other obligations, or (iii) equity compensation awards in the case of PENSAT, in the ordinary course of businessaccordance with their terms;
(gc) Sellsell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any individual, corporation or other entity other than a wholly-owned Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than in the ordinary course of business business, or pursuant to contracts or agreements in force at the date of this Agreement;
(hd) Except except for transactions foreclosure or acquisitions of control in a fiduciary or similar capacity or in satisfaction of debts previously contracted in good faith in the ordinary course of business or pursuant to contracts or agreements in force at the date of or permitted by this Agreementbusiness, make any material investment either in or acquisition of (whether by purchase of stock or securities, contributions to capital, property transfers, merger or purchase consolidation, or formation of a joint venture or otherwise) any other person or the property or assets of any other individualperson, corporation or other entity in each case, other than a wholly-owned Subsidiary thereofof First Midwest or Old National, as applicable;
(ie) Except in each case except for transactions in the ordinary course of business, terminate, materially amend, or waive any material provision of, any PENSAT First Midwest Contract or CDXX Old National Contract, as the case may be, or make any change in any instrument or agreement governing the terms of any of its securities, or material lease or contract, other than normal renewals of contracts and leases without material adverse changes of termsterms with respect to First Midwest or Old National, or enter into any contract that would constitute a First Midwest Contract or Old National Contract, if it were in effect on the date of this Agreement;
(jf) Increase in any manner except as required under applicable law, the compensation or fringe Benefits terms of any First Midwest Benefit Plan or Old National Benefit Plan existing as of its employees the date hereof or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party toSection 6.6 of this Agreement, as applicable, (i) enter into, establish, adopt, amend or commit itself terminate any First Midwest Benefit Plan or Old National Benefit Plan, or any arrangement that would be a First Midwest Benefit Plan or an Old National Benefit Plan if in effect on the date hereof, other than with respect to any pension, retirement, profitbroad-sharing or based welfare benefit plan or agreement or employment agreement with or for the benefit of any employee plans (other than severance) in the ordinary course of business;
business consistent with past practice and as would not reasonably be expected to materially increase the cost of benefits under any such First Midwest Benefit Plan or Old National Benefit Plan, as the case may be, (kii) Settle increase the compensation or benefits payable to any material claimcurrent or former employee, action director or proceeding involving money damagesindividual consultant, except other than increases for current employees with an annual base salary below $300,000 in connection with a promotion (permitted hereunder) or change in responsibilities, in each case, in the ordinary course of businessbusiness consistent with past practice and to a level consistent with similarly situated peer employees, (iii) accelerate the vesting of any equity-based awards or other compensation or benefits, (iv) enter into any new, or amend any existing, employment, severance, change in control, retention, collective bargaining agreement or similar agreement or arrangement; provided, however, that the parties may enter into offer letters with new commercial banking hires in the ordinary course of business consistent with past practice that do not provide for enhanced or change in control severance, (v) fund any rabbi trust or similar arrangement, or in any other way secure the payment of compensation or benefits under any First Midwest Benefit Plan or Old National Benefit Plan, as the case may be, (vi) terminate the employment or services of any employee with an annual base salary equal to or in excess of $300,000, other than for cause, or (vii) hire or promote any employee with an annual base salary equal to or in excess of $300,000 (other than as a replacement hire or promotion on substantially similar terms of employment as the departed employee), or significantly change the responsibilities assigned to any such employee;
(lg) Knowingly settle any material claim, suit, action or proceeding, except involving solely monetary remedies in an amount and for consideration not in excess of $500,000 individually or $1,000,000 in the aggregate and that would not impose any material restriction on, or create any adverse precedent that would be material to, the business of it or its Subsidiaries or the Surviving Corporation;
(h) take any action that would or knowingly fail to take any action where such action or failure to act could reasonably be expected to prevent or impede the Merger from qualifying (i) for "Reverse Merger" accounting treatment or (ii) as a reorganization “reorganization” within the meaning of Section 368 368(a) of the Code;
(mi) Amend amend its articles of incorporation or certificate of incorporation, its bylaws or comparable governing documents, or any Takeover or similarly restrictive provisions documents of such party's organizational documentsits Significant Subsidiaries;
(nj) Take any action that is intended materially restructure or expected to result in any of materially change its representations and warranties set forth in this Agreement being investment securities or becoming untrue in any material respect at any time prior to the Effective Timederivatives portfolio or its interest rate exposure, through purchases, sales or otherwise, or the manner in any of which the conditions to the Merger set forth in Article VII not being satisfied portfolio is classified or in a violation of any provision of this Agreement, except, in every case, as may be required by applicable lawreported;
(ok) Implement implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP GAAP;
(l) enter into any new line of business or, other than in the ordinary course of business (which may include partnering with third parties in origination, flow, servicing and other capacities) consistent with past practice, change in any material respect its lending, investment, underwriting, risk and asset liability management and other banking and operating, securitization and servicing policies (including any change in the maximum ratio or regulatory guidelinessimilar limits as a percentage of its capital exposure applicable with respect to its loan portfolio or any segment thereof), except as required by applicable law, regulation or policies imposed by any Governmental Entity;
(m) merge or consolidate itself or any of its Significant Subsidiaries with any other person, or restructure, reorganize or completely or partially liquidate or dissolve it or any of its Significant Subsidiaries;
(n) make, change or revoke any material Tax election, change an annual Tax accounting period, adopt or change any material Tax accounting method, file any material amended Tax Return, enter into any closing agreement with respect to a material amount of Taxes, or settle any material Tax claim, audit, assessment or dispute or surrender any material right to claim a refund of Taxes; or
(po) Agree agree to take, make any commitment to take, or adopt any resolutions of its board of directors or similar governing body in support of, any of the actions prohibited by this Section 5.2.. ARTICLE VI
Appears in 1 contract
Forbearances. During the period from the date of this Agreement to the Effective Time, except as set forth in the OSB Disclosure Schedules or the FCB Disclosure Schedules, as the case may be, and, except as expressly contemplated or permitted by this Agreement, the Plan of Merger or the Option Agreements, neither CDXX FCB nor PENSAT OSB shall, and neither CDXX nor PENSAT shall FCB or OSB permit any of their respective the FCB Subsidiaries or OSB Subsidiaries, respectively to, without the prior written consent of the other party to this Agreementother:
(a) For PENSAT and its subsidiaries: other than indebtednessin the ordinary course of business consistent with past practice, guarantees, endorsements or accommodations incurred to finance ongoing operations, refinance short-term indebtedness and indebtedness of PENSAT or any of its wholly-owned Subsidiaries to PENSAT or any of its Subsidiaries, (i) incur any indebtedness for borrowed moneymoney (other than pursuant to existing lines of credit or short-term indebtedness incurred in the ordinary course of business consistent with past practice, assume, guarantee, endorse indebtedness of OSB to any of the OSB Subsidiaries or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entityof the OSB Subsidiaries to OSB, or make indebtedness of FCB to any loan of the FCB Subsidiaries or advance (of any of the FCB Subsidiaries to FCB, it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, sales of certificates of deposit and entering into repurchase agreements);
, (bii) For CDXX and its subsidiaries: incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, ; or (iii) make any loan or advance;
(cb) Adjust(i) adjust, split, combine or reclassify any capital stock;
, (dii) Makemake, declare or pay any dividend, dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (A) in the case of PENSATFCB, for regular quarterly cash dividends on its preferred stock or convert Preferred Stock or other equity interest into at a rate not in excess of $0.18 per share of FCB Common stock for the purposes of this merger Stock, and (B) in the case of OSB, for regular quarterly cash dividends paid by at a rate not in excess of $0.16 per share of OSB Common Stock); (iii) directly or indirectly redeem, purchase or otherwise acquire any shares of the Subsidiaries of each of CDXX and PENSAT to CDXX or PENSAT capital stock or any securities or obligations convertible into or exchangeable for any shares of their Subsidiariesits capital stock (except (A) in the case of FCB, respectivelyrepurchases of FCB Common Stock in the open market or in privately negotiated transactions, provided that written notice of any such repurchase is given to OSB as soon as is practicable thereafter, and (CB) in the acceptance case of shares OSB, repurchases of PENSAT OSB Common Stock in the open market or CDXX Common Stockin privately negotiated transactions, provided that written notice of any such repurchase is given to FCB as the case may be, soon as payment for the exercise price of stock warrants or stock option plans or for withholding taxes incurred in connection with the exercise of stock warrants or options or the vesting of restricted stock, in each case in accordance with past practice and the terms of the applicable award agreements;
practicable thereafter); (eiv) Grant grant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stock; or
, or (fiv) Issue issue any additional shares of capital stock (except (i) pursuant to (A) the exercise of stock warrants or options outstanding as of the date hereof, (ii) pursuant to any conversions of debt or other obligationsthis Agreement, or (iiiB) in the case of PENSAT, in the ordinary course of businessOption Agreements);
(gc) Sellsell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any individual, corporation or other entity other than a Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than except in the ordinary course of business consistent with past practice or pursuant to contracts or agreements in force at the date of this Agreement;
(hd) Except except for transactions in the ordinary course of business consistent with past practice or pursuant to contracts or agreements in force at the date of or permitted by this Agreement, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity other than a Subsidiary thereofthereof or any existing joint venture to which OSB or FCB is a party;
(ie) Except except for transactions in the ordinary course of businessbusiness consistent with past practice, terminate, enter into or waive terminate any material provision of, any PENSAT Contract contract or CDXX Contract, as the case may beagreement, or make any change in any instrument or agreement governing the terms of any of its securities, material leases or material lease or contractcontracts, other than normal renewals of contracts and leases without material adverse changes of terms;
(jf) Increase other than in the ordinary course of business consistent with past practice, increase in any manner the compensation or fringe Benefits benefits of any of its employees (it being understood and agreed that an increase in any manner the compensation of any employee in the ordinary course of business consistent with past practice shall include, without limitation, an increase in Mr. Rothenbach's base salary to an amount not to e▇▇▇▇▇ $▇▇▇,▇▇▇ ▇nnually), or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a 49 party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee employee; PROVIDED, HOWEVER, that (i) any bonus paid any officer of FCB or the FCB Subsidiaries shall not exceed 115% of such bonus paid to such individual for the immediately preceding fiscal year and (ii) any bonus paid by OSB or the OSB Subsidiaries to (a) James J. Rothenbach shall not exceed 30% of his 19▇▇ ▇▇▇▇ ▇▇▇▇▇▇, (▇) any Vice President of OSB or the OSB Subsidiaries shall not exceed 15% of each individual's 1996 base salary, and (c) all other employees of OSB or the OSB Subsidiaries shall not exceed $30,000 in the aggregate for any fiscal year;
(g) grant, amend or modify in any material respect any stock option, stock awards or other stock based compensation, except that OSB and FCB may modify their respective stock options and OSB may modify stock awards previously granted under the OSB MRP which are outstanding as of the date of this Agreement in each case solely to provide full vesting conditioned upon and effective as of the Closing Date.
(h) pay, discharge or satisfy any material claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business;
business consistent with past practice (kwhich includes the payment of final and unappealable judgments) Settle any material claimor in accordance with their terms, action of liabilities reflected or proceeding involving money damagesreserved against in, except or contemplated by, the most recent consolidated financial statements (or the notes thereto) of such party included in such party's reports filed with the SEC, or incurred in the ordinary course of businessbusiness consistent with past practice;
(li) Knowingly take any action that would prevent or impede the Merger from qualifying (i) for "Reverse Merger" accounting treatment or (ii) as a reorganization within the meaning of Section 368 of the Code; PROVIDED, HOWEVER, that nothing contained herein shall limit the ability of OSB or FCB to exercise its rights under the OSB Option Agreement or the FCB Option Agreement, as the case may be;
(mj) Amend amend its articles of incorporation, incorporation or its bylaws or comparable governing documents, or any Takeover or similarly restrictive provisions of such party's organizational documentsbylaws;
(nk) Take other than in prior consultation with the other party to this Agreement, restructure or materially change its investment securities portfolio or its gap position, through purchases, sales, or otherwise, or the manner in which the portfolio is classified or reported;
(l) 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 at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VII not being satisfied or in a violation of any provision of this Agreement, the Plan of Merger or the Option Agreements, except, in every case, as may be required by applicable law;
(o) Implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(pm) Agree to takeagree to, or make any commitment to taketo, or adopt any resolutions of its board of directors in support of, take any of the actions prohibited by this Section 5.2.
Appears in 1 contract
Forbearances. During the period from the date of this Agreement to the Effective Time, except as set forth in the HBE Disclosure Schedules or the SFS Disclosure Schedules, as the case may be, and, except as expressly contemplated or permitted by this Agreement, the Plan of Merger or the HBE Stock Option Agreement, neither CDXX SFS nor PENSAT HBE shall, and neither CDXX nor PENSAT shall SFS or HBE permit any of their respective the SFS Subsidiaries or the HBE Bank, respectively to, without the prior written consent of the other party to this Agreementother:
(a) For PENSAT and its subsidiaries: other than indebtednessin the ordinary course of business consistent with past practice, guarantees, endorsements or accommodations incurred to finance ongoing operations, refinance short-term indebtedness and indebtedness of PENSAT or any of its wholly-owned Subsidiaries to PENSAT or any of its Subsidiaries, (i) incur any indebtedness for borrowed moneymoney (other than pursuant to existing lines of credit or short-term indebtedness incurred in the ordinary course of business consistent with past practice, assumeindebtedness of HBE to the HBE Bank or of the HBE Bank to HBE, guarantee, endorse or otherwise as an accommodation become responsible for indebtedness of SFS to any of the obligations SFS Subsidiaries or of any other individualof the SFS Subsidiaries to SFS, corporation or other entity, or make any loan or advance (it being understood and agreed that incurrence of indebtedness in the ordinary course of business shall include, without limitation, the creation of deposit liabilities, purchases of Federal funds, Federal Home Loan Bank borrowings, sales of certificates of deposit and entering into repurchase agreements);
, (bii) For CDXX and its subsidiaries: incur any indebtedness for borrowed money, assume, guarantee, endorse or otherwise as an accommodation become responsible for the obligations of any other individual, corporation or other entity, ; or (iii) make any loan or advance;
(cb) Adjust(i) adjust, split, combine or reclassify any capital stock;
, (dii) Makemake, declare or pay any dividend, dividend or make any other distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible (whether currently convertible or convertible only after the passage of time or the occurrence of certain events) into or exchangeable for any shares of its capital stock (except (A) in the case of PENSATSFS, for regular quarterly cash dividends on its preferred stock or convert Preferred Stock or other equity interest into at a rate not in excess of $0.12 per share of SFS Common stock for the purposes of this merger Stock, and (B) in the case of HBE, for regular quarterly cash dividends paid by at a rate not in excess of $0.10 per share of HBE Common Stock); (iii) directly or indirectly redeem, purchase or otherwise acquire any shares of the Subsidiaries of each of CDXX and PENSAT to CDXX or PENSAT capital stock or any of their Subsidiaries, respectively, and (C) the acceptance of securities or obligations convertible into or exchangeable for any shares of PENSAT Common Stock or CDXX Common Stock, as the case may be, as payment for the exercise price of stock warrants or stock option plans or for withholding taxes incurred in connection with the exercise of stock warrants or options or the vesting of restricted its capital stock, in each case in accordance with past practice and the terms of the applicable award agreements;
; (eiv) Grant grant any stock appreciation rights or grant any individual, corporation or other entity any right to acquire any shares of its capital stock; or
, or (fv) Issue issue any additional shares of capital stock (except (i) pursuant to (A) the exercise of stock warrants or options outstanding as of the date hereof, (ii) pursuant to any conversions of debt or other obligationsthis Agreement, or (iiiB) in the case of PENSAT, in the ordinary course of businessHBE Stock Option Agreement);
(gc) Sellsell, transfer, mortgage, encumber or otherwise dispose of any of its material properties or assets to any individual, corporation or other entity other than a Subsidiary, or cancel, release or assign any indebtedness to any such person or any claims held by any such person, in each case other than except in the ordinary course of business consistent with past practice or pursuant to contracts or agreements in force at the date of this Agreement;
(hd) Except except for transactions in the ordinary course of business consistent with past practice or pursuant to contracts or agreements in force at the date of or permitted by this Agreement, make any material investment either by purchase of stock or securities, contributions to capital, property transfers, or purchase of any property or assets of any other individual, corporation or other entity other than a Subsidiary thereofthereof or any existing joint venture to which HBE or SFS is a party;
(ie) Except except for transactions in the ordinary course of businessbusiness consistent with past practice, terminate, enter into or waive terminate any material provision of, any PENSAT Contract contract or CDXX Contract, as the case may beagreement, or make any change in any instrument or agreement governing the terms of any of its securities, material leases or material lease or contractcontracts, other than normal renewals of contracts and leases without material adverse changes of terms;
(jf) Increase other than in the ordinary course of business consistent with past practice, or as required by law, increase in any manner the compensation or fringe Benefits benefits of any of its employees employees, or pay any pension or retirement allowance not required by any existing plan or agreement to any such employees or become a party to, amend or commit itself to any pension, retirement, profit-sharing or welfare benefit plan or agreement or employment agreement with or for the benefit of any employee employee;
(g) grant, amend or modify in any material respect any stock option, stock awards or other stock based compensation, except as contemplated in Section 1.5(c) hereof;
(h) pay, discharge or satisfy any material claims, liabilities or obligations (whether absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the ordinary course of business;
business consistent with past practice (kwhich includes the payment of final and unappealable judgments) Settle any material claimor in accordance with their terms, action of liabilities reflected or proceeding involving money damagesreserved against in, except or contemplated by, the most recent consolidated financial statements (or the notes thereto) of such party included in such party's reports filed with the SEC, or incurred in the ordinary course of businessbusiness consistent with past practice;
(li) Knowingly take any action that would prevent or impede the Merger from qualifying (i) for "Reverse Merger" accounting treatment or (ii) as a reorganization within the meaning of Section 368 of the Code; provided, however, that nothing contained herein shall limit the ability of HBE or SFS to exercise its rights under the HBE Stock Option Agreement;
(mj) Amend amend its articles of incorporationincorporation (other than, in the case of SFS, to increase the amount of its bylaws authorized common stock) or comparable governing documents, or any Takeover or similarly restrictive provisions of such party's organizational documentsits bylaws;
(nk) Take other than in prior consultation with the other party to this Agreement, restructure or materially change its investment securities portfolio or its gap position, through purchases, sales, or otherwise, or the manner in which the portfolio is classified or reported;
(l) 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 at any time prior to the Effective Time, or in any of the conditions to the Merger set forth in Article VII not being satisfied or in a violation of any provision of this Agreement, the Plan of Merger or the HBE Stock Option Agreement, except, in every case, as may be required by applicable law;
(o) Implement or adopt any change in its accounting principles, practices or methods, other than as may be required by GAAP or regulatory guidelines; or
(pm) Agree to takeagree to, or make any commitment to taketo, or adopt any resolutions of its board of directors in support of, take any of the actions prohibited by this Section 5.2.
Appears in 1 contract