Covenants of the Parties. (a) Covenant Against Competition and Disclosure. (i) During the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At the request of Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements") (ii) Seller acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable. (iii) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Fosberg J Roberts), Asset Purchase Agreement (Glenn Scott L), Asset Purchase Agreement (Planet Polymer Technologies Inc)
Covenants of the Parties. 7.1 Activity in the Ordinary Course. Until the Closing Date, (a) Covenant Against Competition and Disclosure.
(i) During Seller shall conduct the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the BusinessBranches (including, without limitation, any business filling open positions at the Branches and job-posting in the Branches for open positions at other offices of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereofSeller) in any county or other political subdivision the ordinary and usual course of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating business consistent with past practice and giving effect to the business fact that Seller is engaged in certain systems conversions and office closings arising out of its recent merger with First Interstate Bank, and (b) Seller or Purchaser (including without limitation information relating to accountsshall not, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At :
(i) Increase or agree to increase the salary, remuneration or compensation of any Branch Employee (or make any material increase or decrease in the number of such persons, or transfer such persons to or from any Branch) other than in accordance with Seller's existing customary policies generally applicable to employees having similar rank or duties, or pay or agree to pay any uncommitted bonus to any Branch Employee other than regular bonuses granted in the ordinary course of Seller's business (which bonuses, in any event, shall be the responsibility of Seller); or, except at the request of such Branch Employee, transfer any Branch Employee to another branch or office, of Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit or any of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")its Affiliates;
(ii) Seller acknowledges that the restrictions contained Offer interest rates or terms on any category of deposits at a Branch except as determined in this Section 8(a) a manner consistent with Seller's practice with respect to its branches which are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.being sold;
(iii) Purchaser acknowledges that Transfer to or from any Branch to or from any of Seller's other operations or branches any material Assets or any Deposits, except (A) in the restrictions contained ordinary course of business or as contemplated in this Section 8(aAgreement, or (B) are reasonably upon the unsolicited request of a depositor or customer;
(iv) Sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any of the Assets existing on the date hereof, except in the ordinary course of business and in an immaterial aggregate amount; provided, however, that in any event, Seller shall not knowingly take any action that would create any Encumbrance on any of the Real Property or the Branch Leases;
(v) Make or agree to make any material improvements to the Owned Real Property, except with respect to commitments for such made on or before the date of this Agreement (and heretofore disclosed in writing to Purchaser) and normal maintenance, repair or refurbishing purchased or made in the ordinary course of business;
(vi) File any application or give any notice to relocate or close any Branch or relocate or close any Branch;
(vii) Amend, terminate or extend in any material respect any Branch Lease, Tenant Lease or Personal Property Lease; provided, however, Seller may extend any Branch Lease, Tenant Lease or Personal Property Lease, in its reasonable business judgment (including without limitation pursuant to the terms and conditions of any contractual option to extend in any Branch Lease, Tenant Lease or Personal Property Lease) if Seller determines such extension is necessary to protect deliver the good will of Purchaser and Branch on the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring Closing Date as a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceablefully operative branch banking operation.
Appears in 3 contracts
Sources: Purchase and Assumption Agreement (Central Coast Bancorp), Purchase and Assumption Agreement (Klamath First Bancorp Inc), Purchase and Assumption Agreement (Heritage Oaks Bancorp)
Covenants of the Parties. 7.1 Activity in the Ordinary Course. Until the Closing Date, except as may be required in connection with the Merger, (a) Covenant Against Competition and Disclosure.
(i) During Seller shall conduct the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the BusinessBranches (including, without limitation, any business filling open positions at the Branches and job posting in the Branches for open positions at other offices of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereofSeller) in any county or other political subdivision the ordinary and usual course of any state of the United States of America or of any other country in the world where business consistent with past practice and (b) Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereofshall not, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At :
(i) Increase or agree to increase the salary, remuneration or compensation of any Branch Employee (or make any material increase or decrease in the number of such persons, or transfer such persons to or from any Branch) other than in accordance with Seller's existing customary policies generally applicable to employees having similar rank or duties, or pay or agree to pay any uncommitted bonus to any Branch Employee other than regular bonuses granted in the ordinary course of Seller's business (which bonuses, in any event, shall be the responsibility of Seller); or, except at the request of such Branch Employee, transfer any Branch Employee to another branch or office of Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit or any of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")its Affiliates;
(ii) Seller acknowledges that the restrictions contained Offer interest rates or terms on any category of deposits at a Branch except as determined in this Section 8(a) a manner consistent with Seller's practice with respect to its branches which are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.being sold;
(iii) Purchaser acknowledges Transfer to or from any Branch to or from any of Seller's other operations or branches any material Assets or any Deposits, except (A) in the ordinary course of business or as contemplated by this Agreement, (B) upon the unsolicited request of a depositor or customer, or (C) if such Deposit is pledged as security for a loan or other obligation that is not a Loan;
(iv) Sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any of the restrictions contained Assets existing on the date hereof, except in the ordinary course of business and in an immaterial aggregate amount; provided, however, that in any event, Seller shall not knowingly take any action that would create any Encumbrance on any of the Owned Real Property or the Branch Leases;
(v) Sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any Loan;
(vi) Make or agree to make any material improvements to the Owned Real Property, except with respect to commitments for such made on or before the date of this Agreement (and heretofore disclosed in writing to Purchaser) and normal maintenance or refurbishing purchased or made in the ordinary course of business;
(vii) File any application or give any notice to relocate or close any Branch or relocate or close any Branch;
(viii) Amend, terminate or extend in any material respect any Branch Lease or Tenant Lease; provided, however, Seller may extend any Branch Lease or Tenant Lease if, in its reasonable business judgment, Seller determines such extension is necessary to deliver the Branch on the Closing Date as a fully operative branch banking operation;
(ix) Except as permitted by this Section 8(a7.1, take, or permit its Affiliates to take, any action (A) are reasonably necessary to protect impairing Purchaser's rights in any Deposit or Asset, (B) impairing in any way the good will ability of Purchaser and to collect upon any Loan, or (C) except in the legitimate business interests ordinary course of Purchaser and that servicing, waiving any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earningsmaterial right, profits and other benefits arising from such violation and any other remedies at law or whether in equity available or at law, that it has with respect to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(aany Loan; or
(x) are to be effective are reasonable. In the event that any court determines that the time period or the areaAgree with, or both commit to, any person to do any of them, are unreasonable, the parties hereto agree that the covenants shall remain things described in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableclauses (i) through (ix) except as contemplated hereby.
Appears in 2 contracts
Sources: Purchase and Assumption Agreement (Golden State Bancorp Inc), Purchase and Assumption Agreement (Golden State Bancorp Inc)
Covenants of the Parties. (a) Covenant Against Competition and Disclosure.
(i) During Section 5.1 Conduct of the period commencing on Business of the Company. From the date hereof and ending on December 31-------------------------------------- until the Effective Time, 2006, neither Seller nor any officer, director except as expressly contemplated or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business allowed by this Agreement (including within the definition Distribution), the Company and the Non-Energy Subsidiaries shall conduct their businesses in the ordinary course consistent with past practice and shall use commercially reasonable efforts to preserve intact their business organizations and relationships with third parties and to keep available the services of their present officers and employees. Without limiting the generality of the Businessforegoing, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding from the date hereof until the Effective Time, except as expressly contemplated or under development allowed by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business this Agreement (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing listsDistribution), whether the Company will not (and will not permit any of its Non-Energy Subsidiaries to) take any action or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt knowingly omit to take away, with respect to the products of either Business as presently conducted, any action that would make any of Seller's its representations and warranties contained herein false to an extent that would cause the condition set forth in Section 6.3(b) not to be satisfied. In addition, except as expressly contemplated or Purchaser's customers or suppliersallowed by the terms of this Agreement, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser and except as expressly provided in Schedule 5.1 of the Company Disclosure Letter, without the prior written consent of Purchaser. At Parent, which, in the request case of Seller and/or Purchaserclause (d), Seller shall not be unreasonably withheld, during the period from the date of this Agreement and Purchaser continuing until the earlier of the termination of this Agreement pursuant to its terms or the Effective Time, the Company shall use their best efforts not do any of the following and shall not permit its Non-Energy Subsidiaries to cause their respective officerdo any of the following:
(a) Other than the Distribution or pursuant to the Pharma Merger or the Share Exchange Agreements, directorsdeclare, and controlling persons set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities of property) in respect of any capital stock of the Company or any Company Subsidiary or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock of the Company or any Non-Energy Subsidiary;
(b) Other than (i) pursuant to the Pharma Merger or the Share Exchange Agreements or (ii) in connection with the contribution of the Capitalization Amount or the conversion of the intercompany accounts to equity of CAT, purchase, redeem or otherwise acquire, directly or indirectly, any shares of capital stock of the Company or its Subsidiaries, or make any capital contribution to any Subsidiary of the Company, except repurchases of unvested shares at cost in connection with the termination of the employment relationship with any employee pursuant to stock option or purchase agreements in effect on the date hereof;
(c) Issue, deliver, sell, authorize, pledge or otherwise encumber any shares of capital stock or any securities convertible into shares of capital stock, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into shares of capital stock, or enter into other agreements for or commitments of any character obligating it to issue any such shares or convertible securities other than the benefit issuance, delivery and/or sale of Purchaser (i) shares of Company Common Stock pursuant to the exercise of Company Options outstanding on the date hereof, (ii) shares of Company Common Stock issuable to participants in the Company ESPP, in the case of (i) and Seller (ii), consistent with the terms thereof, (iii) Company Options to newly-hired non-executive employees in the ordinary course of this Section 8(a)(ibusiness, (iv) effective as Company Options pursuant to periodic grants to non-executive employees in the ordinary course of business, (v) Company Common Stock pursuant to the Pharma Merger or (vi) Company Common Stock in fulfillment of obligations pursuant to the Share Exchange Agreements;
(d) Incur any indebtedness for borrowed money, or guarantee any such indebtedness of another person, issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Company or enter into any arrangement having the economic effect of any of the Acquisition Date foregoing, other than in the ordinary course of business consistent with past practice and in an aggregate amount not in excess of $20,000,000;
(the "Non-Competition Agreements")
e) Make any capital expenditures or otherwise acquire (whether pursuant to merger, stock or asset purchase or otherwise) in one transaction or series of related transactions (i) any assets having a fair market value in excess of $5,000,000 or (ii) Seller acknowledges that all or substantially all of the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business equity interests of Purchaser any person or any business or division of any person, except, in the case of capital expenditures, in accordance with the current Company annual budget and plan (as of July 31, 2000) as previously disclosed to Parent;
(f) Amend the Company's or any Non-Energy Subsidiary's Certificate of Incorporation or by-laws or equivalent documents;
(g) Sell, lease, encumber or otherwise dispose of any assets of the Company or any Non-Energy Subsidiary, other than (i) sales in the ordinary course of business consistent with past practice, (ii) equipment and property no longer used in the operation of the Company's business and (iii) assets related to discontinued operations;
(h) Except in the ordinary course of business, amend, modify or terminate any material contract, agreement or arrangement of the Company or its Subsidiaries (assuming the consummation of the Distribution) or otherwise waive, release or assign any material rights, claims or benefits thereunder;
(i) Except as required by law or the current terms of an existing agreement or other authorization disclosed in Schedule 5.1 of the Company Disclosure Letter, (v) increase the amount of compensation of any current or former director, officer or employee (other than in the case of non-executive employees, ordinary periodic increases consistent with past practices) or make any increase in or commitment to increase any employee benefits or vest, fund or pay any pension or retirement allowance other than as required by the current terms of any Plan, (w) grant any severance or termination pay to any director, officer or employee of the Company or any Non-Energy Subsidiary, (x) adopt, amend, modify (except as may be required by law), enter into or commit to any additional employee benefit plan or, except in the ordinary course of business, make any contribution to any existing Plan, (y) increase the benefits payable under any existing severance or termination pay policies or employment agreements or (z) take any affirmative action to accelerate the vesting of any stock-based compensation;
(j) Change the Company's methods of accounting in effect at December 31, 1999, except as required by changes in GAAP or by Regulation S-X of the Exchange Act, as concurred in by its independent public accountants;
(k) Enter into any agreement or arrangement that limits or otherwise restricts the Company, any violation Non-Energy Subsidiary or any of their respective affiliates or any successor thereto from engaging or competing in any line of business or in any location, which agreement or arrangement would be material to the business of the Company and its Subsidiaries taken as a whole (assuming consummation of the Distribution);
(l) Settle, or propose to settle, any litigation, investigation, arbitration, proceeding or other claim that is material to the business of the Company and its Subsidiaries, taken as a whole (assuming consummation of the Distribution), other than the payment, discharge or satisfaction of liabilities, in the ordinary course of business consistent with past practice;
(m) Create or incur any material Lien on any material asset of the Company and its Subsidiaries (assuming consummation of the Distribution), other than in the ordinary course of business consistent with past practice or other than in connection with the purchase of such restrictions will result asset;
(n) Other than the contribution of the Capitalization Amount, make any material loan, advance or capital contribution to or investment in irreparable injury any Person, other than loans, advances or capital contributions to, or investments in, wholly owned Non-Energy Subsidiaries (or pursuant to Purchaser the ordinary cash management practices of the Company) made in the ordinary course of business consistent with past practice;
(o) Other than in the ordinary course of business consistent with past practice, (i) make any tax election with respect to Taxes or take any position on any tax return filed on or after the date of this Agreement or adopt any method thereof that is inconsistent with elections made, positions taken or methods used in preparing or filing similar returns in prior periods or (ii) enter into any settlement or compromise of any tax liability that in either case is material to the business of the Company and its Subsidiaries, taken as a whole (assuming consummation of the Distribution); or
(p) Agree in writing or otherwise to take any of the actions described in Section 5.1(a) through (o) above.
Section 5.2 Conduct of the Business acquired of Parent. From the date hereof until --------------------------------- the Closing Date, except as expressly contemplated or allowed by Purchaser hereunder for which damages this Agreement, Parent will not be an adequate remedy. Purchaser shall therefore be entitled (and will not permit any of its Subsidiaries to) take any action or knowingly omit to preliminary take any action that would make any of its representations and injunctive relief as well as warranties contained herein false to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree extent that would cause the duration and area for which the covenants condition set forth in this Section 8(a6.2(b) are not to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceablesatisfied.
(iii) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (DSM Nv), Agreement and Plan of Merger (Catalytica Inc)
Covenants of the Parties. (a) Covenant Against Competition 5.1 Activity in the Ordinary Course/Exclusive Dealing. From the date hereof, and Disclosure.
(i) During until the period commencing on Closing Date, Seller shall conduct the business of the Branch in the ordinary and usual course following the same practices and standards and will not enter into any material transaction with respect to any of the Assets or Liabilities or make any material commitment with respect to the Assets or Liabilities except in the ordinary and usual course of business consistent with past practice. From the date hereof and ending on December 31until the Closing Date, 2006Seller shall not, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At :
(a) Directly or indirectly solicit or engage in discussions or negotiations with any third party regarding the request purchase of Seller and/or Purchaserthe Assets or the assumption of the Liabilities.
(b) Except in the ordinary course of business, Seller and Purchaser shall use their best efforts to cause their respective officersell, directorstransfer, and controlling persons to lease, assign, encumber or otherwise dispose of or enter into agreements for the benefit any contract, agreement or understanding to transfer, assign, encumber or dispose of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as any of the Acquisition Date Assets;
(c) Terminate the "Non-Competition Agreements")operations of the Branch;
(d) Take any action that would (i) impair Purchaser’s rights in any Deposit, purchased Excluded Deposit, or Asset, (ii) Seller acknowledges that impair in any way the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests ability of Purchaser and that to collect upon any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earningsDeposit-Related Loan or Other Loan, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
(iii) except in the ordinary course of servicing, result in a waiver by Seller of any material right, whether in equity or at law, that it has with respect to any Deposit-Related Loan or Other Loan; or (iv) or that could otherwise have a Material Adverse Effect;
(e) Change its deposit pricing policies at the Branch in a manner that is not consistent with deposit pricing policies used with respect to other branches of Seller that are not a Branch, except to the extent that Purchaser acknowledges is provided notice of a change in pricing that the restrictions contained in this Section 8(a) are reasonably is necessary to protect respond to deposit increases or decreases resulting from announcement of the good will transactions contemplated by this Agreement; or
(f) Change its loan pricing policies related to the Deposit-Related Loans or Other Loans in a manner that is not consistent with loan pricing policies used with respect to other branches of Purchaser and the legitimate business interests of Purchaser and Seller that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring are not a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableBranch.
Appears in 2 contracts
Sources: Purchase and Assumption Agreement (Solera National Bancorp, Inc.), Purchase and Assumption Agreement (Solera National Bancorp, Inc.)
Covenants of the Parties. 6.1 Conduct of Business Prior to the Closing. Between the date of this Agreement and the Closing Date, unless the Buyer shall otherwise agree in writing and except for (i) those dividends, distributions or other transactions contemplated by the Target Working Capital Amount as set forth in Annex A to Schedule 2.1 of the Disclosure Schedules, (ii) the filing of a Form S-1 Registration Statement with the United States Securities and Exchange Commission as contemplated by Section 6.11 of this Agreement, and (iii) any payment of obligations related to or arising out of that certain Credit Agreement dated as of February 24, 2005 by and among the Company, the Seller, Credit Suisse First Boston and the other lenders referred to therein (each, a “Permitted Action” and, collectively, the “Permitted Actions”), the Business shall be conducted only in the ordinary course of business in all material respects, and the Company shall use its commercially reasonable efforts to preserve intact in all material respects its business organization and shall continue to make capital expenditures in accordance with its 2006 annual budget previously provided to Buyer. Between the date of this Agreement and the Closing Date, without the prior consent of the Buyer (which consent shall not be unreasonably withheld) and except for the Permitted Actions, the Company will not, and the Seller will not permit the Company to:
(a) Covenant Against Competition and Disclosure.amend or otherwise change the Certificate of Formation or the Operating Agreement;
(b) except for the transfer to Intermediate LLC contemplated under Section 2.2(c), adjust, split, combine or reclassify the membership interests in the Company;
(c) other than any Permitted Action, make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any of the membership interests in the Company or any securities or obligations convertible into or exchangeable for any of the membership interests in the Company or any other securities;
(d) grant any person any right to acquire any of the membership interests in the Company or any other securities or any registration or similar rights with respect to any of the Membership Interests or other securities of the Company or Intermediate LLC;
(e) except for the transfer to Intermediate LLC contemplated under Section 2.2(c), issue, deliver or sell or agree to issue, deliver or sell any additional membership interests of Intermediate LLC, the Company or Intermediate LLC or any other securities;
(f) enter into any agreement, understanding or arrangement with respect to the sale or voting of the membership interests in the Company or any other securities of the Company;
(g) except for the formation of Intermediate LLC, acquire any corporation, partnership, limited liability company, other business organization or division thereof or any assets other than in the ordinary course of business;;
(h) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation or recapitalization of Intermediate LLC or the Company;
(i) During incur any long-term or short-term debt or issue any debt securities, except for borrowings under existing lines of credit in the period commencing ordinary course of business;
(j) enter into any contract, agreement or arrangement that would be a Material Contract if entered into prior to the date hereof, other than any such contracts, agreements or arrangements entered into in the ordinary course of business (including contracts, agreements or arrangements with customers, vendors or clients);
(k) except as in the ordinary course of business as provided in this Section 6.1, authorize, or make any unbudgeted or not previously disclosed commitment with respect to, any capital expenditure;
(l) fail to exercise any rights of renewal with respect to any material Leased Real Property that by its terms would otherwise expire;
(m) grant or announce any increase in the salaries, bonuses or other benefits payable by the Company to any of its employees, other than as required by Law, pursuant to any plans, programs or agreements existing on the date hereof and ending on December 31, 2006, neither Seller nor (which have been disclosed in Schedule 4.10(a) of the Disclosure Schedules) or other ordinary increases not inconsistent with the past practices of the Company;
(n) make any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage change in any business competitive method of accounting or accounting practice or policy, except as required by GAAP or by Law;
(o) settle or compromise any pending or threatened legal proceeding or any claim or claims for, or that would result in a loss of revenue of, an amount that could, individually or in the aggregate, reasonably be expected to be greater than $250,000; or
(p) make or revoke any election relating to Taxes (other than making an ordinary course election in the ordinary course of preparing the Company’s Returns), settle or compromise any claim, action, suit, litigation, proceeding, arbitration, investigation, audit or controversy relating to material Taxes, except as required by applicable Law, or make any material change to any of its methods of accounting or methods of reporting income or deductions for Tax or accounting practice or policy from those employed in the preparation of its most recently filed federal income Return, or amend any material Return without having provided the Buyer with a copy thereof (together with supporting work papers) at least ten (10) days prior to the Seller Business due date thereof for Buyer’s review and approval;
(including within the definition q) terminate or unwind any of its hedging contracts, other than interest rate protective agreements or similar contracts; or
(r) agree in writing or otherwise to take any of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At the request of Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableforegoing actions.
(iii) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (Hawkeye Holdings, Inc.), Membership Interest Purchase Agreement (Hawkeye Holdings, Inc.)
Covenants of the Parties. Company and Launch covenant as follows:
(a) Covenant Against Competition From the Effective Date through the Closing, each Party shall promptly inform the other Parties in writing of any change in facts and Disclosurecircumstances that could render any of the representations and warranties made herein by the Party providing the notice, inaccurate or misleading if such representations and warranties had been made upon the occurrence of the fact or circumstance in question.
(b) From the Effective Date through the Closing, Company shall carry on the operation of its business in the ordinary course consistent with the practice conducted immediately prior to the Effective Date, and will use commercially reasonable efforts not to take any action inconsistent with this Agreement. Except as contemplated hereby or as may be incidental to or in furtherance of the transactions contemplated hereby or as may have been set forth herein, Company shall use commercially reasonable efforts to maintain the present character and quality of its business, including its present operations, physical facilities, working conditions, and relationships with lessors, licensors, suppliers, customers, partners (including, without limitation, joint venture partners, syndication partners and strategic partners) and employees. Without limiting the generality of the foregoing, unless consented to by Launch in writing, Company, except as specifically contemplated by this Agreement, shall not: Securities Purchase Agreement BioAuthorize Holdings, Inc.
(i) During incur any indebtedness for borrowed or purchase money or letters of credit, or assume, guarantee, endorse (other than endorsements for deposit or collection in the period commencing ordinary course of business), or otherwise become responsible for obligations of any other person or entity except in the ordinary course of business;
(ii) issue or redeem any securities other than pursuant to the exercise of options or warrants outstanding as of the date hereof;
(iii) make or incur any obligation to make any distribution to its stockholders;
(iv) make any change to its Articles of Incorporation or Bylaws;
(v) mortgage, pledge or otherwise encumber any of its assets or sell, transfer or otherwise dispose of any of its assets except in the ordinary course of business;
(vi) make any investment of a capital nature either by purchase of stock or securities, contributions to capital, property transfer or otherwise, or by the purchase of any property or assets of any other person or entity, except in the ordinary course of business;
(vii) adopt a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization or otherwise permit its corporate existence to be suspended, lapsed or revoked;
(viii) sell, lease, license, transfer or otherwise dispose of assets of Company in excess of $10,000.00 in any single transaction or series of transactions;
(ix) terminate any material contract or make any change in any material contract which will result in an aggregate value, cost or amount in excess of $50,000.00;
(x) make any change in any method of accounting or accounting practice except as required by GAAP or applicable law;
(xi) enter into, modify or amend any employment agreement or arrangement with, or grant any bonuses, salary increase, or retention pay to, any officer, director, consultant or key employee, other than (x) in connection with promotions or other changes in positions or responsibilities of employees that do not involve an increase in compensation, severance or benefits; or (y) as may be required by applicable law or any benefit plan as in effect on the date hereof hereof;
(xii) modify, amend or terminate any benefit plan or increase the benefits provided under any benefit plan except as required by applicable law and ending except for implementation of the new health insurance plan of which Launch has provided assistance in sourcing and is fully aware and hereby acknowledges; Securities Purchase Agreement BioAuthorize Holdings, Inc.
(xiii) enter into, renew on December 31materially different terms or agree to enter into, 2006or renew on materially different terms, neither Seller nor any officeremployee welfare, director pension, retirement, profit-sharing or controlling person of Seller similar plan, program, agreement, policy or Purchaser shall, directly arrangement except as required by applicable law;
(xiv) enter into any new or indirectly, for itself or themselves or on behalf of renew any other Personmaterial contract with respect to the Business which has an aggregate value, cost or amount in excess of $10,000.00;
(Axv) engage file any amended returns with respect to taxes, make or change any election in respect of material taxes, enter into any business competitive with the Seller Business (including within the definition closing agreement, settle any claim or assessment in respect of material taxes, or consent to any extension or waiver of the Businesslimitation period applicable to any claim or assessment in respect of material taxes;
(xvi) make any prepayments with respect to, or advance any funds under, any agreement or arrangement to which the Company is a party other than in the ordinary course of business; or
(xvii) make any individual cash payment in excess of $10,000.00, other than payments made in the ordinary course of business (including, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose payments for taxes due and payments to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing listsCompany’s suppliers), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At the request of Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
(iii) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
Appears in 1 contract
Sources: Securities Purchase Agreement (Genesis Holdings, Inc.)
Covenants of the Parties. 5.1 Operation of the Business of the Company. During the period from ---------------------------------------- and after the date of this Agreement and until the Closing Date, the Company covenants and agrees that, unless it obtains Buyer's prior written consent to the contrary, or except as specifically authorized in this Agreement, the Company shall, with respect to Davis Lay, to,: (a) Covenant Against Competition make, amend and Disclosure.terminate contracts only in the ordinary course of business; (b) refrain from suffering or refrain from creating any security interest, encumbrance or restriction on its properties or assets, except in the ordinary course of business consistent with past practices; (c) refrain from disposing of any of Davis Lay's properties or assets, except in the ordinary course of business consistent with past practices; (d) refrain from entering into or becoming a party to any employment, consulting or sales representation agreement, except in the ordinary course of business consistent with past practices; (e) refrain from increasing the rate of compensation paid or payable by it to any of Davis Lay's officers, directors, employees, agents, independent contractors or consultants, except pursuant to existing contractual obligations, and from making loans or advances to officers, directors, agents, employees, independent contractors, consultants or any shareholder, or any member of the families of any of them, except for advances for reasonable business expenses in accordance with past practices; (f) refrain from paying or agreeing to pay any bonus, extra compensation, pension or severance pay under any pension plan or otherwise, except pursuant to existing contractual obligations; (g) maintain its books accounts and records in the usual, regular and ordinary manner and in compliance with all applicable laws; (h) meet its obligations under all contracts and not become in default thereunder;
(i) During the period commencing on the date hereof maintain all of its assets in good repair, order and ending on December 31condition, 2006ordinary wear and tear excepted; (j) refrain from borrowing or agreeing to borrow any funds other than under existing banking relationships, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect ordinary course of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At the request of Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with past practices; (k) refrain from guaranteeing or agreeing to guarantee the terms obligations of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
(iii) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.others;
Appears in 1 contract
Covenants of the Parties. 7.1 Activity in the Ordinary Course. Until the Closing Date, (a) Covenant Against Competition and Disclosure.
(i) During Seller shall conduct the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the BusinessBranches (including, without limitation, any business filling open positions at the Branches and job-posting in the Branches for open positions at other offices of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereofSeller) in any county or other political subdivision the ordinary and usual course of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating business consistent with past practice and giving effect to the business fact that Seller is engaged in certain systems conversions and office closings arising out of its recent merger with First Interstate Bank, and (b) Seller or Purchaser (including without limitation information relating to accountsshall not, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At :
(i) Increase or agree to increase the salary, remuneration or compensation of any Branch Employee (or make any material increase or decrease in the number of such persons, or transfer such persons to or from any Branch) other than in accordance with Seller's existing customary policies generally applicable to employees having similar rank or duties, or pay or agree to pay any uncommitted bonus to any Branch Employee other than regular bonuses granted in the ordinary course of Seller's business (which bonuses, in any event, shall be the responsibility of Seller); or, except at the request of such Branch Employee, transfer any Branch Employee to another branch or office, of Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit or any of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")its Affiliates;
(ii) Seller acknowledges that the restrictions contained Offer interest rates or terms on any category of deposits at a Branch except as determined in this Section 8(a) a manner consistent with Seller's practice with respect to its branches which are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.being sold;
(iii) Purchaser acknowledges that Transfer to or from any Branch to or from any of Seller's other operations or branches any material Assets or any Deposits, except (A) in the restrictions contained ordinary course of business or as contemplated in this Section 8(aAgreement, or (B) are reasonably upon the unsolicited request of a depositor or customer;
(iv) Sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any of the Assets existing on the date hereof, except in the ordinary course of business and in ,an immaterial aggregate amount; provided, however, that in any event, Seller shall not knowingly take any action that would create any Encumbrance on any of the Real Property or the Branch Leases;
(v) Make or agree to make any material improvements to the Owned Real Property, except with respect to commitments for such made on or before the date of this Agreement (and heretofore disclosed in writing to Purchaser) and normal maintenance, repair or refurbishing purchased or made in the ordinary course of business;
(vi) File any application or give any notice to relocate or close any Branch or relocate or close any Branch;
(vii) Amend, terminate or extend in any material respect any Branch Lease, Tenant Lease or Personal Property Lease; provided, however, Seller may extend any Branch Lease, Tenant Lease or Personal Property Lease, in its reasonable business judgment (including, without limitation, pursuant to the terms and conditions of any contractual option to extend in any Branch Lease, Tenant Lease or Personal Property Lease) if Seller determines such extension is necessary to protect deliver the good will of Purchaser and Branch on the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring Closing Date as a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceablefully operative branch banking operation.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (National Bancshares Corp of Texas)
Covenants of the Parties. 7.1 Activity in the Ordinary Course. From the date hereof until the Closing Date, except (i) as set forth on Schedule 7.1 of the Seller Disclosure Schedule, (ii) as may be required by a Regulatory Authority or applicable law or (iii) as contemplated hereby, Seller (a) Covenant Against Competition and Disclosure.
(i) During the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take awaywill, with respect to the products Branches, the Assets and the Assumed Liabilities, use its reasonable best efforts to preserve its business relationships with depositors, (b) will maintain the Branches in their current condition, ordinary wear and tear excepted, (c) use its reasonable best efforts to conduct the business of either Business as presently conductedthe Branches and preserve the Assets and Assumed Liabilities in all material respects in the ordinary and usual course of business consistent with past practice, any of Seller's or Purchaser's customers or suppliersand (d) shall not, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At Purchaser (such consent not to be unreasonably withheld, conditioned or delayed): (i) Increase or agree to increase the request salary or wage rate and incentive opportunity of Seller and/or Purchaserany Branch Employee, Seller and Purchaser shall use their best efforts to cause their respective officerother than normal salary or wage increases in the ordinary course of business consistent with past practice (however, directorssuch increases shall, and controlling persons to in no event, increase the aggregate cash compensation for Branch Employees by more than 3% on an annualized basis or for any individual Branch Employee by more than 10%); (ii) Establish, adopt, enter into agreements or amend any plan, agreement or arrangement that provides incentive compensation, bonus or commissions exclusively for the benefit of Purchaser and the Branch Employees that would result in any material increase in liability for Purchaser; (iii) (A) Transfer any Branch Employee to another branch, facility or office of Seller consistent with the terms or any of this Section 8(a)(iits Affiliates which is not a Branch, or (B) effective transfer any employee of Seller or any of its Affiliates who, as of the Acquisition Date date hereof, is not a Branch Employee to any Branch other than in the ordinary course of business; (iv) Hire any employee for any of the "Non-Competition Agreements")
(ii) Seller acknowledges that Branches other than in the restrictions contained in this Section 8(a) are reasonably necessary ordinary course and consistent with past practices, including, with respect to protect the good will transferred to Purchaser type of position filled and the legitimate compensation and benefit levels; (v) Terminate any Branch Employee, except in the ordinary course of business interests in accordance with existing personnel policies and practices of Purchaser and that Seller; (vi) Establish or price Deposits at any violation Branch other than in the ordinary course of such restrictions will result business consistent with Seller’s past practices (including deposit pricing policies in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for such Branch as of the greatest time period and date hereof), subject to the limitation in (vii) below; (vii) Offer interest rates or terms on any category of Deposits at any Branch in a manner inconsistent with Seller’s past practice or, without limiting the greatest area that would not render them unenforceable.
(iii) Purchaser acknowledges that generality of the restrictions contained in this Section 8(a) are reasonably necessary to protect foregoing, accept any brokered deposits at the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.Branches;
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Cascade Bancorp)
Covenants of the Parties. 7.1 Activity in the Ordinary Course.
(a) Covenant Against Competition and Disclosure.
(i) During the period commencing on From the date hereof to and ending on December 31including the Closing Date, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with shall conduct the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country Branches in the world where ordinary and usual course consistent with past practices and standards, and Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereofshall not, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At :
(i) Permit the request Branches to engage or participate in any material transaction or incur or sustain any material obligation except in the ordinary course of Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")Branch business;
(ii) Seller acknowledges that Offer interest rates or terms on any category of Deposits at the restrictions contained Branches which are not determined in this Section 8(aa manner consistent with past practice and procedure and which, in any event, are materially either over or under what would be considered market rates (i.e., rates generally offered by similarly situated banks in the municipalities and immediately surrounding areas of the Branches) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or of the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.offer;
(iii) Purchaser acknowledges that Commence any new interest rate promotions with respect to any category of Deposits at the restrictions contained Branches without providing ten (10) calendar days’ prior written notice thereof to Purchaser;
(iv) Except as expressly contemplated herein, transfer to or from the Branches to or from any of Seller’s other operations or branches any Assets or Deposits;
(v) Except in the ordinary course of business, sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any Asset;
(vi) Make or agree to make any material Improvements to the Owned Branches or the Real Property;
(vii) Terminate the operations of the Branches or file any application to relocate or close the Branches, except as contemplated in Section 4.12;
(viii) Enter into any commitment, agreement, understanding or other arrangements to transfer, assign, encumber or otherwise dispose of the Branches, except in a manner consistent with Seller’s obligations under this Section 8(aAgreement; or
(ix) are reasonably necessary Transfer any employee employed at one of the Owned Branches to protect any other branch of Seller, nor will Seller permit any employee of one of the good Owned Branches to post for positions outside such Owned Branch, nor will Seller grant any increase in the salary or wages of Purchaser any of the employees of the Owned Branches other than normal increases at times and amounts consistent with Seller’s past practices.
(b) Between the date of this Agreement and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Closing Date, Seller shall therefore be entitled not, and shall cause its officers, directors, agents and employees not to, take any action that is intended to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the areainduce, or both of them, are unreasonableis reasonably likely to induce, the parties hereto agree that transfer of banking business from the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableBranches.
Appears in 1 contract
Sources: Purchase and Assumption Agreement
Covenants of the Parties. Section 4.1 Conduct of Business of the Company --------------------------------------- During the period from the date of this Agreement to the Closing Date, except (x) as otherwise contemplated by this Agreement or the transactions contemplated hereby, (y) for those matters set forth in Section 4.1 of the Company Disclosure Schedule, or (z) consented to by the Buyer in writing, the Seller shall cause the Company and each of its Subsidiaries:
(a) Covenant Against Competition to conduct its business and Disclosure.operations in the ordinary course consistent with past practice and, to the extent consistent therewith, use reasonable best efforts to preserve intact its current business organization, use reasonable efforts to keep available the services of its current officers and other key employees and preserve its relationships with those persons having business dealings with it to the end that its goodwill and ongoing businesses shall be unimpaired at the time of the Closing; and
(b) not to (i) During sell, license or dispose of any of its properties or assets, except finished goods and obsolete assets in the period commencing on ordinary course of business; (ii) make any loans, advances (other than advances in the date hereof ordinary course of business or advances to the Seller) or capital contributions to, or investments in, any other person; (iii) terminate or amend any of its Contracts or licenses, provided that the Company may take such action if the Buyer has not responded to the Company's request for consent (which consent shall not be unreasonably withheld) within two days of such request; (iv) enter into any new Contracts other than renewals of existing agreements or otherwise in the ordinary course of business; (v) enter into or amend any employment, severance or retirement agreement with any employee or increase the compensation of any of the officers or other employees of the Company or any of its Subsidiaries, except for such increases as are granted in the ordinary course of business in accordance with its customary practices (which shall include normal periodic performance reviews and ending on December 31related compensation and benefit increases); (vi) enter into or amend any collective bargaining agreement; provided, 2006however, neither that if the Buyer shall fail to consent to the Company's entering into any collective bargaining agreement then any events or circumstances that arise from or relate to the Company not entering into such agreement shall not be deemed to (A) be a Company Material Adverse Effect, (B) result in a failure of the conditions set forth in Section 5.3, and the Seller nor shall have no obligation to indemnify the Buyer Indemnitees for any officerBuyer Damages (as such terms are hereinafter defined) related thereto; (vii) hire any senior manager (other than any regional sales personnel) without first consulting with the Buyer; (viii) adopt, director grant, extend or controlling person increase the rate or terms of Seller any bonus, insurance, pension or Purchaser shallother Company Plan, directly payment or indirectlyarrangement made to, for itself or themselves with any such officers or on behalf employees of the Company or any of its Subsidiaries, except (A) increases required by any applicable Law, and (B) any other benefits payable in any form by the Seller; (ix) make any change in any of its present accounting methods and practices, except as required by changes in U.K. GAAP; (x) license, terminate or allow to lapse any Intellectual Property rights to or from any third party pursuant to an arrangement other than in the ordinary course of business consistent with past practice; (xi) make or authorize any capital expenditures other than in accordance with its annual plan or other than capital expenditures not exceeding $25,000 individually or $100,000 in the aggregate; (xii) settle or compromise any material Tax liability or make any material Tax election, except in the ordinary course of business or consistent with past practice; (xiii) incur any Indebtedness other than from the Seller, issue any debt securities or assume, guarantee or endorse the obligations of any other Personpersons, or mortgage or encumber any of their respective properties or assets; (Axiv) amend its certificate of incorporation or by-laws; (xv) issue, sell, pledge or transfer, or propose to issue, sell, pledge or transfer, any shares of its capital stock, or securities convertible into or exchangeable or exercisable for, or options with respect to, or warrants to purchase or rights to subscribe for, any shares of its capital stock or otherwise change its capital stock; (xvi) engage in any business competitive transaction with the Seller Business (including within the definition or any affiliate of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser the Company and its Subsidiaries) other than transactions on an arms-length basis or Sellertransactions on a basis consistent with past practice; (xvii) cancel or waive any litigation, any information relating claims or rights with a value to the business Company or any Subsidiary of Seller $25,000; or Purchaser (including without limitation information relating xviii) take, or agree to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conductedtake, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At the request of Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableforegoing actions.
(iii) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ralcorp Holdings Inc /Mo)
Covenants of the Parties. 8.1 Conduct of the Company’s Business.
(a) Covenant Against Competition and Disclosure.
From the Execution Date through the Closing, except (i) During as set forth on Section 8.1(b) of the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other PersonCompany Disclosure Schedule, (Aii) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted as expressly permitted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, this Agreement or (Diii) hire any employee or induce or attempt to induce any employee to leave his or her employment as otherwise approved with Purchaser without the prior written consent of Purchaser. At the request of Seller and/or PurchaserParent (which consent shall not be unreasonably withheld, Seller conditioned or delayed), the Company shall, and Purchaser shall cause its Subsidiaries to, use their best commercially reasonable efforts to cause their respective officerconduct the Business in the ordinary course of business and in compliance in all material respects with all applicable Laws, directorsincluding by using commercially reasonable efforts to: (A) preserve intact the business organization of the Company and its Subsidiaries; (B) maintain existing relations with key suppliers, customers, employees and other Persons having business relationships with the Company or its Subsidiaries; (C) maintain material insurance policies of the Company and its Subsidiaries or obtain reasonable substitutes; (D) maintain all Scheduled Permits; and (E) perform routine maintenance on the material Tangible Personal Property in the ordinary course of business.
(b) Except as otherwise expressly permitted by this Agreement, as set forth on Section 8.1(b) of the Company Disclosure Schedule, or with the prior written consent of the Parent, from the Execution Date through the Closing, the Company shall not, and controlling persons to enter into agreements shall cause its Subsidiaries not to:
(i) (A) declare, set aside, or pay any dividends on, or make any other distributions (whether in cash, stock, or property) in respect of, any of its equity or voting interests, except for transactions solely among the benefit Company and its wholly-owned Subsidiaries or among the Company’s wholly-owned Subsidiaries, (B) split, combine, or reclassify any of Purchaser and Seller consistent with the terms its equity or voting interests, or issue any other securities in respect of, in lieu of, or in substitution for shares of this Section 8(a)(i) effective as its capital stock or other equity or voting interests, except for transactions by a wholly-owned Subsidiary of the Acquisition Date Company, or (C) purchase, redeem, or otherwise acquire any securities of the "Non-Competition Agreements")Company or any of its Subsidiaries or any securities convertible into or exchangeable for such securities or any options, warrants, calls, or rights to acquire any such shares or other securities;
(ii) Seller acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary offer, issue, deliver, grant, sell, pledge, or otherwise encumber any shares of its equity or voting interests or any securities convertible into, or exchangeable for, or any options, warrants, calls, or rights to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that acquire or receive, any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earningsinterests, profits and other benefits arising from such violation and or securities or any stock appreciation rights, phantom stock awards, or any other remedies at law or similar rights that are linked in equity available any way to Purchaser. The parties hereto agree that the duration and area for which price of the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period Company Common Stock or the area, value of the Company or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.any part thereof;
(iii) Purchaser acknowledges that acquire by merger or consolidation, or by purchasing all or a substantial portion of the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring assets of, or by purchasing all or a substantial equity or voting interest hereunder in, or by any other manner, all or a substantial portion of any business or any entity or division thereof of any Person;
(iv) acquire any equity interest in any Person or any assets or a license therefor, other than acquisitions of assets that are used or held for use in the ordinary course of business or in order to maintain the Company’s and its Subsidiaries’ material Tangible Personal Property in good working order; or pursuant to existing Contracts as of the date of this Agreement that have been provided to the Parent prior to the date hereof;
(v) amend the Organizational Documents of the Company or any of its Subsidiaries;
(vi) make or commit to make any capital expenditure or series of related capital expenditures in excess of $300,000 individually or in excess of $750,000 in the aggregate, except for capital expenditures to repair damage resulting from insured casualty events where there is a reasonable basis for a claim of insurance or made in response to an emergency;
(vii) sell or otherwise dispose of any of its properties or assets, other than the sales and dispositions of inventory and products in the ordinary course of business;
(A) make or rescind any material election relating to Taxes (including any election for any joint venture, partnership, limited liability company or other investment where the Company has the authority to make such binding election, but excluding any election that is made periodically and consistent with past practice), (B) settle or compromise any material Proceeding relating to Taxes, or (C) change in any material respect any of its methods of reporting income or deductions for income Tax purposes from those employed in the preparation of its income Tax Returns that have been filed for prior taxable years;
(ix) make any change to the Company’s or its Subsidiaries’ financial or accounting methods, policies, principles, elections or procedures, except as required by applicable Law or changes in GAAP;
(x) enter into or terminate any Contract that would constitute a Material Contract, or amend any Material Contracts in a manner that would be adverse to the Company or any of its Subsidiaries and, in each case, cost the Company or any of its Subsidiaries more than $250,000 in any calendar year (provided, that, prior notice of any proposed amendment to a Material Contract will be provided in writing to the Parent); provided, further, that any Contract entered into in compliance with the foregoing shall not (x) conflict with, or result in any violation or breach of, or default under (with or without notice or lapse of time or both) this Agreement, or give rise to a right of, or result in, termination, cancellation, or acceleration of any obligation or to a loss of a material benefit under, or result in the creation of any Lien in or upon any of the properties or assets of the Company or any of its Subsidiaries or the Parent or any of its Subsidiaries under, or give rise to any increased, additional, accelerated, or guaranteed rights or entitlements under, any provision of such Contract; or (y) in any way purport to restrict the business activity of the Company or any of its Subsidiaries or any of their Affiliates or to limit the freedom of the Company or any of its Subsidiaries or any of their Affiliates to engage in any line of business or to compete with any Person or in any geographic area or solicit the employees or customers of any Person;
(xi) except as required by applicable Laws or the existing terms of the Benefit Programs: (A) increase the salary, wages or any other compensation of any officer, employee, director or independent contractor, other than for non-officers in the ordinary course of business consistent with past practice; (B) pay, grant, or award or promise to pay, grant, or award, any bonus or incentive compensation to any officer, employee, director or independent contractor; (C) increase the coverage or benefits available to any current or former employee, officer, director or independent contractor, including any severance pay, vacation pay, deferred compensation, bonus or other incentive compensation plan, other than in the ordinary course of business consistent with past practice; (D) enter into any employment, deferred compensation, severance, retention, change in control, bonus, consulting, non-competition or similar agreement (or materially amend any such agreement) involving any officer, employee, director or independent contractor, other than with non-officers in the ordinary course of business; (E) grant any severance or termination pay to any current or former officer, employee, director or independent contractor, other than to a non-officer in the ordinary course of business; (F) establish, adopt, enter into, materially amend or terminate any Benefit Program, other than amendments required to comply with applicable Laws; (G) grant any equity or equity-based awards; (H) transfer any Employee or terminate the employment of any Employee other than for cause; or (I) hire any individual who would become an Employee, unless necessary to replace an Employee whose employment has terminated as permitted herein (so long as such hiring is on compensation and other terms no more favorable than those of the Employee who has been replaced), other than the hiring of any non-officers in the ordinary course of business;
(xii) other than borrowings under the O-Tex Credit Facility in accordance with the terms thereof in effect as of the Execution Date in the ordinary course of business consistent with past practice, incur any Indebtedness or sell any debt securities or options, warrants, calls, or other rights to acquire any debt securities of the Company or any of its Subsidiaries;
(xiii) mortgage, pledge or subject to any Lien any of the assets or properties of the Company, other than Liens for Taxes not yet due and payable or that are being contested in good faith, or incur any liability as a guarantor or otherwise in respect of any Indebtedness;
(xiv) make any (A) loans, advances or extension of credit other than to customers or suppliers, travel and similar advances to employees, in each case in the ordinary course of business or (B) capital contributions to, or investments in, any other Person, in each case other than the Company or any direct or indirect wholly-owned Subsidiary of the Company;
(xv) (A) settle or compromise any claim, liability or Proceeding other than claims involving less than $250,000 in the aggregate; provided, however, that neither the Company nor any of its Subsidiaries shall settle or compromise any Proceeding if such settlement or compromise
(1) involves a material conduct remedy or material injunctive or similar relief, (2) involves an admission of criminal wrongdoing by the Company or any of its Subsidiaries or (3) has a restrictive impact on the business of the Company or any of its Subsidiaries in any material respect, or (B) waive or release any material claim or Proceeding brought by the Company or any of its Subsidiaries against another Person, other than in the ordinary course of business consistent with past practice;
(xvi) adopt a plan or agreement of complete or partial liquidation, dissolution, restructuring, recapitalization, merger, consolidation or other reorganization other than in connection with the Transactions;
(xvii) enter into any Affiliate Transaction;
(xviii) terminate or amend the coverage of any policies of title, liability, fire, workers’ compensation, property or any other form of insurance covering the assets or operations of the Company, except where such terminated coverage is replaced by comparable coverage (provided that such termination does not result in a material gap in coverage of the assets or operations of the Company); or
(xix) authorize, agree or commit to take any of the actions described above.
8.2 Conduct of the Parent’s Business. From the Execution Date through the Closing, except (a) as explicitly permitted or required by this Agreement, (b) as required by applicable Law or (c) as otherwise approved with the prior written consent of the Company (which damages consent will not be an adequate remedy. Seller unreasonably withheld or delayed), the Parent shall, and shall therefore be entitled cause its Subsidiaries to, use commercially reasonable efforts to preliminary and injunctive relief as well as conduct their businesses in the ordinary course of business, including by using commercially reasonable efforts to an equitable accounting of earnings(i) preserve substantially intact their current business organizations; (ii) maintain their existing relations with key suppliers, profits customers, employees and other benefits arising from such violation Persons having business relationships with the Parent and any its Subsidiaries; and (iii) file all forms, reports, registration statements and other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are documents required to be effective are reasonable. In filed by it with the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableSEC.
Appears in 1 contract
Sources: Merger Agreement
Covenants of the Parties. 5.1 The Vendors and the Corporation covenant and agree with the Purchaser as follows:
(a) Covenant Against Competition from the date of this Agreement to the Closing Date, the Vendors and Disclosurethe Corporation will permit the Purchaser and its auditors, counsel and other authorized persons, to make such investigation of the properties and assets of the Corporation and of its financial and legal condition as the Purchaser deems necessary or advisable to familiarize itself with such properties, assets or other matters and to have full access to the Business and the Corporation, including all working papers (internal and external) and details of accounts and inventories prepared, obtained or used in connection with the preparation of the Financial Statements;
(b) from the date of this Agreement to the Closing Date, the Vendors will cause the Corporation to and the Corporation will:
i) carry on the Business in the ordinary and normal course, in a prudent, businesslike and efficient manner and substantially in accordance with the procedures and practices in effect on the date of this Agreement;
ii) maintain insurance on the assets of the Corporation as they are insured on the date of this Agreement;
iii) use its best efforts to preserve and maintain the goodwill of the Business; and
iv) take reasonable care to protect and safeguard the Corporation's assets.
(c) from the date of this Agreement to the Closing Date, the Corporation will not, and the Vendors will not permit the Corporation to, without the prior consent in writing of the Purchaser:
i) During the period commencing on the date hereof and ending on December 31purchase or sell, 2006, neither Seller nor any officer, director consume or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf otherwise dispose of any other Person, (A) engage of the Corporation's assets in any business competitive connection with the Seller Business (including within the definition of the Business, without limitationexcept in the ordinary course of business; enter into any contract or assume or incur any liability relating to or in any way affecting the Business except in the ordinary course of business; issue, or enter into any agreement to issue, any business securities of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereofCorporation, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating shares, warrants, options, convertible securities, or rights to accountspurchase shares; redeem, financial dealingspurchase, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential acquire or secretcommit to acquire any of the Corporation's shares; amend its Charter documents; effect any subdivision, consolidation, or reclassification of the Corporation's shares; settle any accounts receivable of a material nature at less than face value net of the reserve for that account; waive or surrender any material right in connection with the Business; discharge, satisfy or pay any lien, encumbrance, obligation or liability in connection with the Business except in the ordinary course of Business; make or agree to make any payment to any director, officer, employee, or agent of the Corporation except in the normal course of business; and make any capital expenditures or commitment for any capital expenditures in connection with the Business.
(Ce) solicitthe Corporation and the Vendors will, diverton the Closing Date, take away or attempt all necessary steps and proceedings as approved by counsel for the Purchaser to take away, with respect permit the Shares to be duly and regularly transferred to the products Purchaser and registered in its name, free and clear of either Business as presently conductedany liens, any charges and encumbrances; and
(f) the Vendors will cause all directors and officers of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt the Corporation to induce any employee resign to leave his or her employment with Purchaser without be replaced by nominees of the prior written consent of Purchaser. At the request of Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are resignations to be effective are reasonable. In as at the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableClosing Date.
(iii) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
Appears in 1 contract
Sources: Share Purchase Agreement (Eclipse Entertainment Group Inc)
Covenants of the Parties. 9.1 Actions Pending Closing. From the date hereof to the Closing, ----------------------- except as contemplated by this Agreement, each SELLER and each Shareholder hereby represents, warrants, covenants and agrees that, unless the prior written consent of BUYER is obtained, each SELLER will not take any action that would result in a violation of any of the following proscriptions:
(a) Covenant Against Competition The Business of each SELLER will be carried on in the usual, regular and Disclosure.
(i) During ordinary manner and each SELLER will use its reasonable commercial efforts to preserve its present business organization intact, keep available the period commencing on services of its present officers and employees and preserve its present relationships with Persons having business dealings with it, all solely as the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of same relates to the Business, without limitationand shall not make or institute any methods of manufacture, purchase, sale, lease, management, accounting or operation in or affecting the Business that are not consistent with SELLER's past practices;
(b) No SELLER will increase or decrease the compensation payable or to become payable to any business of the type salaried officer or types conducted by Seller at employee, or make any time during the two year period preceding the date hereof or under development by Seller on the date hereof) change in any county insurance, pension or other political subdivision employee benefit plan nor pay any commission or bonus to any of any state of the United States of America such officers or of any employees other country than increases and bonuses in the world where Seller has conducted normal course of business, consistent with past practices and not exceeding in any aspect one (1) case an aggregate increase and bonus of Business more than ten percent (including 10%) of such Person's compensation;
(c) No SELLER will make any change in its practices regarding sales, credit or collection terms and conditions insofar as the sale of any productssame relates to its Business;
(d) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take awayNo SELLER will, with respect to its Business, (i) incur any obligation or liability or assume, guarantee, endorse or otherwise become responsible for the products liabilities or obligations of either any other Person (whether absolute, accrued, contingent or otherwise), except normal trade or business obligations incurred in the ordinary course of business; (ii) discharge or satisfy any Lien or pay any obligation or liability (whether absolute, accrued, contingent or otherwise), other than in the ordinary course of business; (iii) except in the ordinary course of business, mortgage, pledge, create or subject to a Lien any of its Assets; (iv) sell, assign, transfer, lease or otherwise dispose of any of its Assets except in the ordinary course of business, or acquire any assets or any interest therein except in the ordinary course of business; (v) except in the ordinary course of business, amend, terminate, waive or release any rights or cancel any debt owing to or claim by such SELLER; (vi) except in the ordinary course of business, transfer or grant any rights under any Contracts and Other Agreements, patents, inventions, trademarks, trade names, service marks or copyrights, or registrations or licenses thereof or applications therefor, or with respect to any know-how or other proprietary or trade rights; (vii) modify or change any Material Contracts; or (viii) enter into any transaction, contract or commitment that by reason of its size or otherwise is material to its Business or financial condition or that is not in the ordinary course of such SELLER's Business as presently now conducted;
(e) All tangible Assets of each SELLER will be used, operated, maintained and repaired in a manner consistent with past practices;
(f) No SELLER will do any of Seller's act or Purchaser's customers or suppliersomit to do any act, or permit any act or omission to act, that will cause a breach of any Material Contract;
(Dg) hire No SELLER will make any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser investment of a capital nature affecting its Business (except Growth Capital Expenditures as provided for herein) without the prior written consent of Purchaser. At the request of Seller and/or PurchaserBUYER;
(h) No SELLER will permit any insurance policy naming it as a beneficiary or a loss payable payee and relating to its Assets or Business to be canceled, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as terminated or modified or any of the Acquisition Date (coverage thereunder to lapse unless simultaneously with such termination or cancellation, replacement policies providing substantially the "Non-Competition Agreements")
(ii) Seller acknowledges that the restrictions contained in this Section 8(a) same coverage are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for effect;
(i) No SELLER will fail to pay when due any of the greatest time period and in the greatest area that would not render them unenforceable.
following insofar as they relate to its Business: (i) any trade accounts payable, (ii) any payments required by any indentures, mortgages, financing agreements, loan agreements or similar agreements, or (iii) Purchaser acknowledges that taxes of whatever kind or nature or payments related thereto (including, without limitation, estimated payments and withholding remittances);
(j) No SELLER will, insofar as the restrictions same relates to its Business, maintain its books, accounts and records in any manner other than the usual, regular and ordinary manner, on a basis consistent with prior years and will not knowingly fail to comply with any laws applicable to such SELLER and to the conduct of its Business or to its Assets;
(k) No SELLER will knowingly enter into any transaction or make any agreement or commitment or take any other action, in each case which would result in any of its representations, warranties or covenants contained in this Section 8(a) are reasonably necessary to protect Agreement not being true and correct at and as of the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableClosing Date.
Appears in 1 contract
Covenants of the Parties. (a) Covenant Against Competition and Disclosure.
(i) During Section 5.1 Conduct of DCB’s Business. Through the period commencing on the date hereof and ending on December 31Effective Time, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser DCB shall, directly or indirectlyand shall cause each DCB Subsidiary to, for itself or themselves or on behalf of any other Personin all material respects, (A) conduct its businesses and engage in any business competitive transactions only in the usual, regular and ordinary course and consistent with past practice, except as otherwise required or contemplated by this Agreement or with the Seller Business (including within prior written consent of OLB. DCB shall, and shall cause each DCB Subsidiary to, use its commercially reasonable good faith efforts to preserve its business organization intact, maintain good relationships with employees and preserve the definition good will of the Businessits customers and others with whom business relationships exist, without limitationprovided that, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country than in the world where Seller has conducted any aspect case of Business (including a Permitted Employee that DCB determines, in good faith, is necessary to comply with the sale of any products) at any time during the two (2) year period preceding the date hereofforegoing requirements, (B) disclose to any Person other than Purchaser or Seller, any information relating job vacancies that occur prior to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists Effective Date through attrition shall not be filled and pricing lists), whether or new officers and employees shall not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser be hired without the prior written consent of PurchaserOLB, which shall not be unreasonably conditioned, withheld or delayed. At Through the request Effective Time, without the consent in writing of Seller and/or PurchaserOLB (such consent not to be unreasonably withheld, Seller conditioned or delayed), as permitted by this Agreement or except as may be required, in writing, by any Regulatory Authority (in which case DCB shall immediately provide OLB with a copy of such written document), DCB shall not, and Purchaser shall use their best efforts not permit any DCB Subsidiary to:
(a) Change any provision of the DCB Governing Documents;
(b) Change the number of authorized or issued shares of its capital stock; repurchase, redeem or otherwise acquire any shares of its capital stock; issue or grant any call, commitment, subscription, Right or agreement of any character relating to cause their respective its authorized or issued capital stock or any securities convertible into shares of capital stock; or declare, set aside or pay any dividends (including any special dividends) or other distribution in respect of capital stock except for cash dividends declared and paid in the normal course of business consistent with past practices in an amount not to exceed $0.02 per share quarterly;
(c) Except as set forth in DCB Disclosure Schedule 5.1(c) or for retention payments as OLB and DCB may mutually agree upon for DCB or Damascus employees who remain employed through the Effective Time, grant any severance, retention or termination pay, other than pursuant to policies or agreements of DCB or any DCB Subsidiary in effect on the date hereof for employees, or enter into or amend any employment, consulting, severance, compensation, “change-in-control” or termination contract or arrangement with, any officer, directorsdirector, employee, independent contractor, agent or other Person associated with DCB or any DCB Subsidiary;
(d) Grant job promotions or increase the rate of compensation of, or pay any bonus to, any director, officer, employee, independent contractor, agent or other Person associated with DCB or any DCB Subsidiary, except, with respect to a Permitted Employee, (i) to the extent such promotion or increase is made by DCB or a DCB Subsidiary in the normal course of its business and consistent with its past practices, or (ii) routine periodic pay increases, selective merit pay increases and pay-raises in the normal course of business and consistent with past practices, provided, however, that such aggregate increases in the rate of compensation shall not be in excess of 3%, and controlling persons to such aggregate bonuses shall not be in excess of 5% of the aggregate salaries, for all Permitted Employees;
(e) Except in the ordinary course consistent with past practice, sell, lease, assign, transfer, mortgage, encumber or otherwise dispose of or discontinue any of its assets (excluding loans, which are governed by Section 5.1(w), and securities, which are governed by Section 5.1(q)), deposits, business or properties or cancel or compromise any debt or claim, or waive or release any right or claim, except in the ordinary course of business consistent with past practice for full and fair consideration actually received; or modify in any material manner the manner in which it has heretofore conducted its business or enter into agreements any new line of business;
(f) Except for FHLB advances with a maturity of six (6) months or less and deposits taken in the benefit ordinary course of Purchaser and Seller business consistent with past practice, incur any indebtedness for borrowed money; or incur, assume or become subject to, whether directly or by way of any guarantee or otherwise, any obligations or liabilities (absolute, accrued, contingent or otherwise) of any other Person, other than the issuance of letters of credit in the ordinary course of business and in accordance with the restrictions set forth in Sections 5.1(y) and (z);
(g) Sell or otherwise dispose of any DCB Real Property except REO in a reasonably acceptable commercial manner in the ordinary course of business;
(h) Take any action that would result in any of the conditions set forth in Article VI hereof not being satisfied;
(i) Change any method, practice, or principle of accounting, except as may be required from time to time by Law or changes in GAAP or by any Regulatory Authority;
(j) Waive, release, grant or transfer any rights of material value or modify or change in any material respect any existing material agreement to which it is a party;
(k) Implement any pension, retirement, profit-sharing, bonus, welfare or similar plan or arrangement that was not in effect on the date of this Agreement, or amend any existing pension, retirement, profit-sharing, bonus, welfare or similar plan or arrangement except to the extent (i) required by Law or (ii) required by its terms as a result of this Agreement or in connection with the Contemplated Transactions; provided, however, that amendments to a DCB Benefit Plan to modify any of the investment options available thereunder shall not constitute a breach of this Section 8(a)(i5.1(k);
(l) effective as Implement or adopt any material change in its: (i) guidelines and policies in existence on the date hereof with regard to underwriting and making extensions of credit, the Acquisition Date (establishment of reserves with respect to possible losses thereon or the "Noncharge-Competition Agreements")
off of losses incurred thereon; (ii) Seller acknowledges investment policies and practices; or (iii) other material banking policies, or otherwise fail to conduct its banking activities in the ordinary course of business consistent with past practice except as may be required by changes in Law, GAAP, or the direction of a Regulatory Authority;
(m) Change deposit or loan rates, or otherwise fail to conduct its lending and deposit activities in the ordinary course of business consistent with past practice;
(n) Enter into, modify, amend or renew any agreement under which it is obligated to pay more than $50,000 and that is not terminable by it with 60 days’ notice or less without penalty, payment or other conditions (other than the restrictions contained condition of notice), or enter into, renew, extend or modify any other transaction with any of its Affiliates, other than deposit and loan transactions in the ordinary course of business and that are in compliance with the requirements of Law;
(o) Except as required by Law or at the direction of a Regulatory Authority: (i) implement or adopt any material change in its interest rate and other risk management policies, procedures or practices; or (ii) fail to follow its existing policies or practices with respect to managing its exposure to interest rate and other risk;
(p) Take any action that would give rise to a right of payment to any individual under any employment agreement except for contractually required compensation;
(q) Purchase or sell any securities other than in the normal course of business consistent with past practices other than pursuant to redemptions by the issuer thereof;
(r) Except in the ordinary course of business consistent with past practice and involving an amount not in excess of $50,000 (exclusive of any amounts paid directly or reimbursed to DCB or any DCB Subsidiary under any insurance policy maintained by DCB or any DCB Subsidiary), settle any material action, suit, claim, arbitration, investigation, inquiry, grievance or other proceeding (or basis therefor) pending or, to the Knowledge of DCB, threatened, against or affecting DCB, any DCB Subsidiary or any of their respective properties or assets. Notwithstanding the foregoing, no settlement shall be made if it involves a precedent for other similar claims that, in the aggregate, could reasonably be determined to be material to DCB and the DCB Subsidiaries, taken as a whole;
(s) Foreclose upon or otherwise take title to or possession or control of any real property without first obtaining a Phase I environmental report thereon; provided, however, that neither DCB nor any DCB Subsidiary shall be required to obtain such a report: (i) where, after using commercially reasonable efforts, it is unable to gain access to the property, provided that DCB has provided notice to OLB that it has been unable to gain such access and as a result intends to foreclose without obtaining a Phase I environmental report thereon; or (ii) with respect to any one- to four-family, non-agricultural residential property of five acres or less to be foreclosed upon unless it has reason to believe that such property contains hazardous substances known or reasonably suspected to be in violation of, or require remediation under, Environmental Laws;
(t) Except as permitted by Section 5.7(a)(ii), merge or consolidate with any other Entity; sell or lease all or any substantial portion of its assets or business; make any acquisition of all or any substantial portion of the business or assets of any other Person other than in connection with the collection of any loan or credit arrangement; enter into a purchase and assumption transaction with respect to deposits and liabilities; permit the revocation or surrender of its certificate of authority to maintain, file an application for the opening, closing or relocation of, or open, close or relocate, any branch or automated banking facility;
(u) Make any new capital expenditure, individually or in the aggregate, of $50,000 or more;
(v) Sell or acquire any loans (excluding originations) or loan participations, except in the ordinary course of business consistent with past practice (but in the case of a sale, after giving OLB or Old Line a first right of refusal to acquire such loan or participation), or sell or acquire any servicing rights; provided, however, that in no event shall any of the DCB Companies sell or acquire any loan or loan participation having a principal balance in excess of $500,000;
(w) Take any action or knowingly fail to take any action, which action or failure to act would preclude the Merger from qualifying as a tax-free reorganization within the meaning of Section 368(a) of the IRC;
(x) Make any charitable or similar contributions, except consistent with past practice and in amounts not to exceed $5,000 individually and $10,000 in the aggregate;
(y) Except for any Non-Residential Credit Extension already committed to by DCB or a DCB Subsidiary on the date of this Agreement and set forth on DCB Schedule 5.1(y), enter into, grant, approve, modify or extend any Non-Residential Credit Extension except in the ordinary course of business consistent with past practice; provided, however, that none of the DCB Companies may make a Non-Residential Credit Extension (i) in excess of $2,000,000, or (ii) to an existing customer that increases the aggregate loan exposure to such customer to more than $2,000,000.
(z) Except for any loan, credit facility, line of credit, or letter of credit for an owner-occupied residence (collectively, a “Residential Credit Extension”) already committed to by DCB or a DCB Subsidiary and set forth on DCB Disclosure Schedule 5.1(z), enter into, grant, approve, modify or extend any Residential Credit Extension that would result in a credit exposure in excess of $1,000,000; provided, however, that (i) after March 31, 2017 none of the DCB Companies may make a Residential Credit Extension in a principal amount that exceeds FHA jumbo limit in effect at such time and (ii) all Residential Credit Extensions made between the date of this Agreement and March 31, 2017 in a principal amount that exceeds FHA jumbo limit in effect at such time shall be made in the ordinary course of business and consistent with past practice;
(aa) Issue any communication relating to the Contemplated Transactions to employees (including general communications relating to benefits and compensation) without prior consultation with OLB and, to the extent relating to post-Closing employment, benefit or compensation information, without the prior consent of OLB (which shall not be unreasonably withheld, conditioned or delayed) or issue any communication of a general nature to customers without the prior approval of OLB (which shall not be unreasonably withheld, conditioned or delayed), except as required by Law. For clarification, communications in the ordinary course of business consistent with past practice that do not relate to the Contemplated Transactions shall not be prohibited pursuant to this Section 8(a5.1(aa);
(bb) are reasonably necessary Change deposit or loan rates other than in the ordinary course of business consistent with past practice;
(cc) Enter into any interest rate swap, floor or cap or similar commitment, agreement or arrangement, except in the ordinary course of business consistent with past practice; or
(dd) Agree to protect do any of the good will transferred foregoing.
Section 5.2 Conduct of OLB’s Business. Through the Effective Time, except as otherwise consented to Purchaser in writing by DCB or as permitted by this Agreement, and the legitimate business interests of Purchaser and that except as may be required by Law or, in writing, by any violation Regulatory Authority (in which case OLB shall immediately provide DCB with a copy of such restrictions will written document), OLB shall not, and shall not permit any OLB Subsidiary to:
(a) Take any action that would result in irreparable injury to Purchaser and any of the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants conditions set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would Article VI hereof not render them unenforceable.being satisfied;
(iiib) Purchaser acknowledges that Take any action or knowingly fail to take any action, which action or failure to act would preclude the restrictions contained in this Merger from qualifying as a tax-free reorganization within the meaning of Section 8(a368(a) are reasonably necessary of the IRC; or
(c) Agree to protect do either of the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableforegoing.
Appears in 1 contract
Covenants of the Parties. 8.1 Management of the Group in the Interim Period. Except as expressly provided in this Agreement or otherwise approved in writing by the Buyer after the execution of this Agreement, during the period from the date of this Agreement to the Closing Date (hereinafter referred to as the “Interim Period”) the Seller shall cause the business of the Group to be conducted in its normal and ordinary course in compliance with past practice and the Restructuring Plan, and without taking any action which may cause any of the representations or warranties of the Seller contained in Section 5 to become materially untrue or incorrect. Without limiting the generality of the foregoing, the Seller shall cause, subject to the above, each of the Company and its Subsidiaries, as the case may be, not to:
(a) Covenant Against Competition amend its by-laws or equivalent constitutional document;
(b) as far as the Company is concerned, make any payments or undertaking any acts falling within the definition of Leakage;
(c) issue, sell, transfer, redeem or otherwise dispose of any participation in the capital of any Group Company, or issue, sell or otherwise dispose of any securities convertible into, or options with respect to, or warrants to purchase, or rights to subscribe to, the capital of any Group Company, or issue any other instruments outside of the ordinary and Disclosure.usual course;
(d) enter into any agreement, contract, deed and/or undertaking, whether written or oral, with any person within the Seller’s Group;
(e) merge, de-merge or carry out any other extraordinary corporate transaction or take any action that would change the organisational structure of the Group;
(f) fail to comply in any material respect with the provisions governing the conduct of the Group set out under the Restructuring Plan and the Convenzione Bancaria or in any ancillary documentation relating to their implementation;
(g) assume or take on any Group Borrowings in excess of Euro 100,000 (one hundred thousand);
(h) sell, transfer, pledge, mortgage, lease or otherwise dispose of any assets (whether tangible or intangible) or properties (other than inventory and products sold to customers) having a value in excess of Euro 100,000 (one hundred thousand);
(i) During make any single capital expenditure exceeding Euro 100,000 (one hundred thousand);
(j) acquire or dispose of any real properties or any participations in the period commencing equity of other companies or acquire, dispose of or lease (as lessor or lessee) any business or segment of business, other than the disposal of Arcotronics Fuel Cells S.r.l., or the business of such company, for not less than Euro 4,000,000 (four million) in cash;
(k) enter into any guarantees in relation to obligations of third parties or create, assume or permit to exist any Encumbrance upon any of its assets or assume any undertaking in respect thereto;
(l) hire new personnel (with the exception of the hiring of a new Chief Financial Officer of the Group and the exception of the hiring of personnel (a) made in the ordinary course of business, (b) whose hiring is in progress as of the date of this Agreement or (c) required to replace any employees, provided that any new employee is hired on materially the same terms and conditions as the personnel being replaced), or modify the employment relationship with any employee, with an annual remuneration in excess of Euro 40,000 (forty thousand) per annum, except as mandated under Relevant Laws;
(m) amend, terminate or create any pension, health, welfare or incentive plan or enter into any local labour agreement (“contratti integrativi aziendali”);
(n) increase in any manner (including in the form of bonuses or compensation in kind) the rate of remuneration payable or to become payable to any employees or consultants, other than increases (a) made in accordance with normal past practice or (b) mandated by Relevant Law or collective bargaining (either national or negotiated at company’s level) or individual agreements;
(o) enter into any (a) partnership, joint venture, strategic alliance or sharing of revenues, profits, losses, costs or liabilities, or (b) licensing or distribution agreements, or (c) transaction with any Affiliate within the Seller’s Group;
(p) make any changes in any method of accounting practice and in the way the Accounting Principles have been applied in the past, unless required by Relevant Laws;
(q) cancel, amend or terminate any coverage under any Policies, or permit any such Policy to expire;
(r) undertake obligations to do any of the foregoing.
8.2 Access to the Company and the Subsidiaries before Closing. In order to allow the Buyer to assure a smooth transition after Closing and in anticipation of any restructuring of the Group it might carry out after Completion, from the date hereof and ending on December 31until the Closing Date, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At the request of Seller and/or Purchaser, Seller and Purchaser shall use their its best efforts to cause their respective officerprocure that each Group Company, directors, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as upon reasonable request of the Acquisition Date Buyer with not less than 5 (five) Business Days notice: (i) allows access to the "Non-Competition Agreements")
corporate and selected accounting books and records and to selected further administrative, financial and tax and accounting files and documentation; and (ii) Seller acknowledges arranges for site visits to the manufacturing facilities and plants of the Group and for meeting sessions with selected managers, officers, key employees and consultants of the Company and each of the Subsidiaries, provided that the restrictions contained in timing of such visits and meetings will not interfere with, or prejudice, the ordinary operation of each such Group Company. The Buyer shall treat all information gathered pursuant to this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief 8.2 as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect confidential information for the greatest time period and in the greatest area that would not render them unenforceablepurpose of Section 10.1.
(iii) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
Appears in 1 contract
Covenants of the Parties. (a) Covenant Against Competition The Executive acknowledges that in the course of carrying out, performing and Disclosure.
(i) During fulfilling his obligations to the period commencing on Corporation hereunder, the date hereof Executive will have access to and ending on December 31will be entrusted with information that would reasonably be considered confidential to the Corporation, 2006the disclosure of which to competitors of the Corporation or to the general public will be highly detrimental to the best interests of the Corporation. Except as may be required in the course of carrying out his duties hereunder, neither Seller the Executive covenants and agrees that he will not disclose, for the duration of this Agreement or at any time during the pendency of the non-compete term, any such information to any person, other than to the directors, officers, employees or agents of the Corporation that have a need to know such information, nor any officer, director shall the Executive use or controlling person of Seller or Purchaser shallexploit, directly or indirectly, such information for itself or themselves or on behalf any purpose other than for the purposes of the Corporation, nor will he disclose nor use for any purpose, other than for those of the Corporation, any other Person, (A) engage in any information which he may during his employment with respect to the business competitive with the Seller Business (including within the definition and affairs of the BusinessCorporation or otherwise. The Executive acknowledges and agrees that all right, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) title and interest in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose and to any Person other than Purchaser information, trade secrets, advances, discoveries, improvements, research materials and data bases made or Seller, any information conceived by the Executive during his employment relating to the business or affairs of Seller or Purchaser (including without limitation information relating the Corporation, shall belong to accountsthe Corporation. Any business opportunities related to the business of the Corporation which become known to the Executive during his employment hereunder must be fully disclosed and made available to the Corporation by the Executive, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or the Executive agrees not marked or otherwise identified as confidential or secret, (C) solicit, divert, to take away or attempt to take awayany action if the result would be to divert from the Corporation any opportunity which is within the scope of its business. The Executive will not at any time, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaserthe Corporation, during the Term of this Agreement and for a period of 12 months after the expiration or termination of the Executive’s employment so as Executive is receiving bargained for consideration which is defined as Base Salary plus any annual incentives, either individually or in partnership, jointly or in conjunction with any person or persons, firm, association, syndicate, company or corporation, directly or indirectly engage in, carry on or otherwise have any interest in, advise, or permit the Executive’s name to be used in connection with, any business which is directly competitive to the Business, or which provides the same services as the Business; or solicit, interfere with, accept any business from or render any services to anyone whom Executive knows or should have reason to know is a client or a prospective client of the Corporation. At The Executive will comply with all applicable securities laws and any policies of the request Corporation in effect with respect to transactions in securities of Seller and/or Purchaser, Seller and Purchaser the Corporation. The Executive shall use their best efforts to cause their respective officernot disparage the Corporation or any of its affiliates, directors, officers, employees or other representatives in any manner and controlling persons shall in all respects avoid any negative criticism of the Corporation. The Executive acknowledges and agrees that in the event of a breach of the covenants, provisions and restrictions in this section, the Corporation’s remedy in the form of monetary damages will be inadequate and that the Corporation shall be, and is hereby, authorized and entitled, in addition to enter into agreements all other rights and remedies available to it, to apply for and obtain from a court of competent jurisdiction interim and permanent injunctive relief and an accounting of all profits and benefits arising out of such breach. Each and every provision of these Sections in “Covenants of the benefit of Purchaser and Seller consistent with Parties” hereunder shall survive the terms termination or expiration of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period Agreement or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableExecutive’s employment hereunder.
(iii) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
Appears in 1 contract
Covenants of the Parties. Section 5.1 Conduct of BYBK’s Business.
(a) Covenant Against Competition Through the Effective Time, BYBK shall, and Disclosure.shall cause each BYBK Subsidiary to:
(i) During the period commencing on the date hereof In all material respects, conduct its businesses and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive transactions only in the Ordinary Course, except as otherwise required or contemplated by this Agreement or with the Seller Business prior written consent of OLB; and
(including within ii) Use its commercially reasonable good faith efforts to preserve its business organization intact, maintain good relationships with employees and preserve the definition good will of the Businessits customers and others with whom business relationships exist, without limitationprovided that, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country than in the world where Seller has conducted any aspect case of Business (including a Permitted Employee that BYBK determines, in good faith, is necessary to comply with the sale provisions of any products) at any time during the two (2) year period preceding the date hereofthis Section 5.1(a), (B) disclose to any Person other than Purchaser or Seller, any information relating job vacancies that occur prior to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists Effective Date through attrition shall not be filled and pricing lists), whether or new officers and employees shall not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser be hired without the prior written consent of Purchaser. At OLB, which shall not be unreasonably conditioned, withheld or delayed.
(b) Beginning on the request of Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directorsdate that is two weeks after the date hereof, and controlling persons every two weeks thereafter, BYBK shall provide to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as OLB a report describing all of the Acquisition Date following that has occurred in the prior month: (i) approval of or entry into new Credit Extensions with principal balances or commitments of $500,000 or more, (ii) renewals or extensions of existing Credit Extensions for any Credit Extensions of $1,000,000 or more, or (iii) material amendments or modifications to Credit Extensions with principal balances or commitments of $1,500,000 or more.
(c) Through the "Non-Competition Agreements"Effective Time, without the consent in writing of OLB (such consent not to be unreasonably withheld, conditioned or delayed), as permitted by this Agreement or except as may be required, in writing, by any Regulatory Authority (in which case BYBK shall immediately provide OLB with a copy of such written document), BYBK shall not, and shall not permit any BYBK Subsidiary to:
(i) Change any provision of the BYBK Governing Documents;
(ii) Seller acknowledges Change the number of authorized or issued shares of its capital stock; repurchase, redeem or otherwise acquire any shares of its capital stock; issue or grant any call, commitment, subscription, Right or agreement of any character relating to its authorized or issued capital stock or any securities convertible into shares of capital stock; or declare, set aside or pay any dividends (including any special dividends) or other distribution in respect of capital stock;
(iii) Except as set forth in BYBK Disclosure Schedule 5.1(c)(iii), grant any severance, retention or termination pay, other than pursuant to policies or Contracts of BYBK or any BYBK Subsidiary in effect on the date hereof for employees who are not executive officers, or enter into or amend any employment, consulting, severance, compensation, “change-in-control” or termination Contract with, any officer, director, employee, independent contractor, agent or other Person associated with BYBK or any BYBK Subsidiary;
(iv) Except as set forth in BYBK Disclosure Schedule 5.1(c)(iv), grant job promotions or increase the rate of compensation or benefits of, or pay any bonus to, any director, officer, employee, independent contractor, agent or other Person associated with BYBK or any BYBK Subsidiary, except, with respect to a Permitted Employee, (A) to the extent such promotion or increase is made by BYBK or a BYBK Subsidiary in the Ordinary Course, or (B) routine periodic pay increases, selective merit pay increases and pay raises in the Ordinary Course, provided, however, that such aggregate increases in the rate of compensation and benefits shall not be in excess of 3%, and such aggregate bonuses shall not be in excess of 5%, of the aggregate salaries for all Permitted Employees;
(v) Except in the Ordinary Course, sell, lease, assign, transfer, mortgage, encumber or otherwise dispose of or discontinue any of its assets (excluding loans, which are governed by Section 5.1(c)(xxii), and securities, which are governed by Section 5.1(c)(xvii)), deposits, business or properties or cancel or compromise any debt or claim, or waive or release any right or claim, except in the Ordinary Course for full and fair consideration actually received; or modify in any material manner the manner in which it has heretofore conducted its business or enter into any new line of business;
(vi) Except for FHLB advances with a maturity of six months or less and deposits taken in the Ordinary Course, incur any indebtedness for borrowed money; or incur, assume or become subject to, whether directly or by way of any guarantee or otherwise, any obligations or liabilities (absolute, accrued, contingent or otherwise) of any other Person, other than the issuance of letters of credit in the Ordinary Course and in accordance with the restrictions set forth in Sections 5.1(c)(xv) and (xvi);
(vii) Sell or otherwise dispose of any BYBK Real Property except REO in a reasonably acceptable commercial manner in the Ordinary Course;
(viii) Take any action that would result in any of the conditions set forth in Article VI hereof not being satisfied;
(ix) Change any method, practice, or principle of accounting or tax compliance, except as may be required from time to time by Law or changes in GAAP or by any Regulatory Authority;
(x) Waive, release, grant or transfer any rights of material value or modify or change in any material respect any existing material Contract to which it is a party;
(xi) Implement any pension, retirement, profit-sharing, bonus, welfare or similar plan or arrangement that was not in effect on the date of this Agreement, or amend any existing pension, retirement, profit-sharing, bonus, welfare or similar plan or arrangement except to the extent (A) required by Law or (B) required by its terms as a result of this Agreement or in connection with the Contemplated Transactions; provided, however, that amendments to a BYBK Benefit Plan to modify any of the investment options available thereunder shall not constitute a breach of this Section 5.1(c)(xi);
(xii) Implement or adopt any material change in its: (A) guidelines and policies in existence on the date hereof with regard to underwriting and making extensions of credit, the establishment of reserves with respect to possible losses thereon or the charge-off of losses incurred thereon; (B) investment policies and practices; or (C) other material banking policies, or otherwise fail to conduct its banking activities in the Ordinary Course except as may be required by changes in Law or GAAP or at the direction of a Regulatory Authority;
(xiii) Change deposit or loan rates other than in the Ordinary Course, or otherwise fail to conduct its lending and deposit activities in the Ordinary Course;
(xiv) Enter into, modify, amend or renew any Contract under which it is obligated to pay more than $100,000 and that is not terminable by it with 60 days’ notice or less without penalty, payment or other conditions (other than the condition of notice), or enter into, renew, extend or modify any other transaction with any of its Affiliates, other than deposit and loan transactions in the Ordinary Course and that are in compliance with the requirements of Law;
(xv) Except as required by Law or at the direction of a Regulatory Authority: (A) implement or adopt any material change in its interest rate and other risk management policies, procedures or practices; or (B) fail to follow its existing policies or practices with respect to managing its exposure to interest rate and other risk;
(xvi) Take any action that would give rise to a right of payment to any individual under any employment Contract except for contractually required compensation;
(xvii) Purchase or sell any securities other than in the Ordinary Course, other than pursuant to redemptions by the issuer thereof;
(xviii) Except for the Lawsuit and/or the lawsuit captioned M▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ v. Bay Bank, FSB, pending in the Circuit Court for Baltimore County, Case No. 03-C-17-007139, settle, waive or release or agree or consent to the issuance of any Order in connection with any Litigation except in the Ordinary Course and involving an amount not in excess of $100,000 (exclusive of any amounts paid directly or reimbursed to BYBK or any BYBK Subsidiary under any insurance policy maintained by BYBK or any BYBK Subsidiary), pending or, to the Knowledge of BYBK, threatened, against or affecting BYBK, any BYBK Subsidiary or any of their respective properties or assets, provided that such Litigation does not arise out of or relate to the Contemplated Transactions. Notwithstanding the foregoing, no settlement shall be made if it involves a precedent for other similar claims that, in the aggregate, could reasonably be determined to be material to BYBK and the BYBK Subsidiaries, taken as a whole;
(xix) Foreclose upon or otherwise take title to or possession or control of any real property without first obtaining a Phase I environmental report thereon; provided, however, that neither BYBK nor any BYBK Subsidiary shall be required to obtain such a report: (A) where, after using commercially reasonable efforts, it is unable to gain access to the property, provided that BYBK has provided notice to OLB that it has been unable to gain such access and as a result intends to foreclose without obtaining a Phase I environmental report thereon; or (B) with respect to any one- to four-family, non-agricultural residential property of five acres or less to be foreclosed upon unless it has reason to believe that such property contains hazardous substances known or reasonably suspected to be in violation of, or require remediation under, Environmental Laws;
(xx) Except as permitted by Section 5.7(a)(ii), merge or consolidate with any other Entity; sell or lease all or any substantial portion of its assets or business; make any acquisition of all or any substantial portion of the business or assets of any other Person other than in connection with the collection of any loan or credit arrangement; enter into a purchase and assumption transaction with respect to deposits and liabilities; or permit the revocation or surrender of its certificate of authority to maintain, file an application for the opening, closing or relocation of, or open, close or relocate, any branch or automated banking facility;
(xxi) Make, or commit to make, any new capital expenditure, individually or in the aggregate, of $100,000 or more;
(xxii) Sell or acquire any loans (excluding originations) or loan participations, except in the Ordinary Course (but in the case of a sale, after giving OLB or Old Line a first right of refusal to acquire such loan or participation), or sell or acquire any servicing rights except in the Ordinary Course;
(xxiii) Take any action or knowingly fail to take any action, which action or failure to act would preclude the Merger from qualifying as a tax-free reorganization within the meaning of Section 368(a) of the IRC;
(xxiv) Make any charitable or similar contributions, except consistent with past practice and in amounts not to exceed $10,000 individually and $50,000 in the aggregate;
(xxv) Except for any Non-Residential Credit Extension already committed to by BYBK or a BYBK Subsidiary on the date of this Agreement and set forth on BYBK Schedule 5.1(c)(xxv), enter into, grant, approve, modify or extend any Non-Residential Credit Extension except in the Ordinary Course;
(xxvi) Except for any loan, credit facility, line of credit or letter of credit for an owner-occupied residence (each, a “Residential Credit Extension”) already committed to by BYBK or a BYBK Subsidiary and set forth on BYBK Disclosure Schedule 5.1(c)(xxvi), enter into, grant, approve, modify or extend any Residential Credit Extension except in the Ordinary Course;
(xxvii) Issue any communication to any BYBK employee related to post-Closing employment benefits or compensation without the prior consent of OLB (which shall not be unreasonably withheld, conditioned or delayed);
(xxviii) Enter into any interest rate swap, floor or cap or similar Contract, except in the Ordinary Course; or
(xxix) Agree to do any of the foregoing. Provided, however, that nothing contained in this Section 8(a5.1(c) are reasonably necessary shall apply to, or prohibit or otherwise restrict in any manner, the resolution by BYBK or Bay Bank, in their sole but reasonable discretion, of any loan disclosed in BYBK Disclosure Schedule 2.6(c).
Section 5.2 Conduct of OLB’s Business. Through the Effective Time, except as otherwise consented to protect the good will transferred to Purchaser in writing by BYBK or as permitted by this Agreement, and the legitimate business interests of Purchaser and that except as may be required by Law or, in writing, by any violation Regulatory Authority (in which case OLB shall immediately provide BYBK with a copy of such restrictions will written document), OLB shall not, and shall not permit any OLB Subsidiary to:
(a) Take any action that would result in irreparable injury to Purchaser and any of the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants conditions set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would Article VI hereof not render them unenforceable.being satisfied;
(iiib) Purchaser acknowledges that Take any action or knowingly fail to take any action, which action or failure to act would preclude the restrictions contained in this Merger from qualifying as a tax-free reorganization within the meaning of Section 8(a368(a) are reasonably necessary of the IRC; or
(c) Agree to protect do either of the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableforegoing.
Appears in 1 contract
Covenants of the Parties. 7.1 Activity in the Ordinary Course. From the date hereof until the Closing Date, except (i) as set forth on section 7.1 of the Seller Disclosure Schedule, (ii) as may be required by a Regulatory Authority or applicable law or (iii) as contemplated hereby, Seller (a) Covenant Against Competition and Disclosure.
(i) During the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take awaywill, with respect to the products Branches, the Assets and the Assumed Liabilities, use its reasonable best efforts to preserve its business relationships with depositors, (b) will maintain the Branches in their current condition, ordinary wear and tear excepted, and continue the construction at the Pearl River, Louisiana Branch in accordance with the construction plan previously made available to Purchaser, (c) use its reasonable best efforts to conduct the business of either Business as presently conductedthe Branches and preserve the Assets and Assumed Liabilities in all material respects in the ordinary and usual course of -50- business consistent with past practice, any of Seller's or Purchaser's customers or suppliersand (d) shall not, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At Purchaser (such consent not to be unreasonably withheld, conditioned or delayed): (i) increase or agree to increase the request salary or wage rate and incentive opportunity of Seller and/or Purchaserany Branch Employee, Seller other than normal salary or wage increases in the ordinary course of business consistent with past practice (however, such increases shall, in no event, increase the aggregate cash compensation for Branch Employees by more than 3% on an annualized basis and Purchaser shall use their best efforts to cause their respective officerfor any individual Branch Employee by more than 5%); (ii) establish, directorsadopt, and controlling persons to enter into agreements or amend any plan, agreement or arrangement that provides incentive compensation, bonus or commissions exclusively for the benefit of Purchaser the Branch Employees that would result in any material increase in liability for Purchaser; (iii) (A) transfer any Branch Employee to another branch, facility or office of Seller or any of their respective Affiliates which is not a Branch, or (B) transfer any employee of Seller or any of its Affiliates who, as of the date hereof, is not a Branch Employee to any Branch; (iv) hire any employee for any of the Branches other than in the ordinary course and Seller consistent with past practices, including, with respect to the type of position filled and the compensation and benefit levels; (v) terminate any Branch Employee, except in the ordinary course of business in accordance with existing personnel policies and practices of Seller; (vi) establish or price Deposits at any Branch other than in the ordinary course of business consistent with Seller’s past practices (including deposit pricing policies in effect for such Branch as of the date hereof), subject to the limitation in (vii) below; (vii) offer interest rates or terms on any category of Deposits at any Branch in a manner inconsistent with Seller’s past practice or, without limiting the generality of the foregoing, accept any brokered deposits at the Branches; (viii) transfer to or from any Branch to or from any of Seller’s other operations or branches any material Assets or any Deposits, except (A) pursuant to an unsolicited customer request or (B) if such Deposit is pledged as security for a loan or other obligation that is not a Loan; (ix) amend, modify or extend any Loan, except (a) in the ordinary course of business consistent with Seller’s approved lending policies, (b) as required by law or the terms of this Section 8(a)(iany Loan Document or (c) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
manner provided in Section 7.8; (iiix) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earningssell, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the areatransfer, or both of themassign, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.encumber or
Appears in 1 contract
Sources: Purchase and Assumption Agreement (First NBC Bank Holding Co)
Covenants of the Parties. (a) Covenant Against Competition and Disclosure.
(i) During Section 5.1 Conduct of RBI’s Business. Through the period commencing on the date hereof and ending on December 31Closing Date, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser RBI shall, directly or indirectlyand shall cause each RBI Subsidiary to, for itself or themselves or on behalf of any other Personin all material respects, (A) conduct its businesses and engage in any business competitive transactions only in the usual, regular and ordinary course and consistent with past practice, except as otherwise required or contemplated by this Agreement or with the Seller Business (including within prior written consent of OLB. RBI shall, and shall cause each RBI Subsidiary to, use its commercially reasonable good faith efforts to preserve its business organization intact, maintain good relationships with employees, and preserve the definition good will of customers of RBI and the BusinessRBI Subsidiaries and others with whom business relationships exist, without limitationprovided that, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country than in the world where Seller has conducted any aspect case of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereofPermitted Employees, (B) disclose to any Person other than Purchaser or Seller, any information relating job vacancies that occur prior to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists Effective Date through attrition shall not be filled and pricing lists), whether or new employees shall not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser be hired without the prior written consent of PurchaserOLB. At Through the request Closing Date, except as otherwise consented to in writing by OLB, such consent not to be unreasonably withheld, conditioned or delayed, or as permitted by this Agreement, and except as may be required, in writing, by any Regulatory Authority (in which case RBI shall immediately notify OLB), RBI shall not, and shall not permit any RBI Subsidiary to:
(a) Change any provision of Seller and/or Purchaserthe RBI Governing Documents;
(b) Change the number of authorized or issued shares of its capital stock; repurchase any shares of capital stock; issue or grant any call, Seller and Purchaser shall use their best efforts commitment, subscription, Right or agreement of any character relating to cause their respective its authorized or issued capital stock or any securities convertible into shares of capital stock; declare, set aside or pay any dividends (including any special dividends) or other distribution in respect of capital stock; or redeem or otherwise acquire any shares of RBI capital stock;
(c) Except as set forth in RBI Disclosure Schedule 5.1(c), grant any severance or termination pay, other than pursuant to policies or agreements of RBI or any RBI Subsidiary in effect on the date hereof for employees who are not executive officers, or enter into or amend any employment, consulting, severance, compensation, “change-in-control,” or termination contract or arrangement with, any officer, directorsdirector, employee, independent contractor, agent, or other person associated with RBI or any RBI Subsidiary;
(d) Except for retention payments as OLB and controlling persons RBI may mutually agree upon for RBI or Regal employees who remain employed through the Effective Time, grant job promotions or increase the rate of compensation of, or pay any bonus to, any director, officer, employee, independent contractor, agent or other person associated with RBI or any RBI Subsidiary, except, with respect to enter into agreements for a Permitted Employee, (i) to the benefit extent such promotion or increase is made by RBI or an RBI Subsidiary in the normal course of Purchaser its business and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
its past practices, or (ii) Seller acknowledges that routine periodic pay increases, selective merit pay increases and pay-raises in the normal course of business and consistent with past practices;
(e) Sell or otherwise dispose of any material asset, other than in the ordinary course of business, consistent with past practice; subject any material asset to a Lien, other than in the ordinary course of business consistent with past practice; or modify in any material manner the manner in which it has heretofore conducted its business or enter into any new line of business;
(f) Except for FHLB advances and deposits taken in the ordinary course of business consistent with past practice, incur any indebtedness for borrowed money other than as provided in Section 5.7(c)(i) hereof; or incur, assume or become subject to, whether directly or by way of any guarantee or otherwise, any obligations or liabilities (absolute, accrued, contingent or otherwise) of any other Person, other than the issuance of letters of credit in the ordinary course of business and in accordance with the restrictions contained set forth in this Section 8(aSections 5.1(y) are and (z);
(g) Sell or otherwise dispose of any RBI Real Property except REO in a reasonably necessary acceptable commercial manner in the ordinary course of business, or sell or otherwise dispose of any securities held by RBI or Regal other than pursuant to protect redemptions by the good will transferred to Purchaser and the legitimate business interests of Purchaser and issuer thereof;
(h) Take any action that any violation of such restrictions will would result in irreparable injury to Purchaser any of the representations and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting warranties of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants RBI set forth in this Agreement becoming untrue as of any date after the date hereof or in any of the conditions set forth in Article VI hereof not being satisfied, except in each case as may be required by Law (with notice to OLB) or after written consent or waiver from OLB;
(i) Change any method, practice, or principle of accounting, except as may be required from time to time by Law or changes in GAAP or by any Regulatory Authority;
(j) Waive, release, grant, or transfer any rights of material value or modify or change in any material respect any existing material agreement to which it is a party;
(k) Implement any pension, retirement, profit-sharing, bonus, or similar plan or arrangement that was not in effect on the date of this Agreement, or amend any existing pension, retirement, profit-sharing, bonus, or similar plan or arrangement except to the extent required by Law; provided, however, that amendments to the Regal Bank & Trust 401(k) Profit Sharing Plan to modify any of the investment options available thereunder shall not constitute a breach of this Section 8(a5.1(k);
(l) are Implement or adopt any material change in its: (i) guidelines and policies in existence on the date hereof with regard to be effective are reasonable. In underwriting and making extensions of credit, the event that any court determines that the time period establishment of reserves with respect to possible losses thereon, or the area, charge-off of losses incurred thereon; (ii) investment policies and practices; or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
(iii) Purchaser acknowledges other material banking policies, or otherwise fail to conduct its banking activities in the ordinary course of business consistent with past practice except as may be required by changes in Law, GAAP, or the direction of a Regulatory Authority;
(m) Otherwise fail to conduct its lending activities in the ordinary course of business consistent with past practice;
(n) Enter into, modify, amend or renew any agreement under which RBI or any RBI Subsidiary is obligated to pay more than $50,000 and which is not terminable by RBI or such RBI Subsidiary with 60 days’ notice or less without penalty, payment or other conditions (other than the condition of notice), or enter into, renew, extend or modify any other transaction with any Affiliate, other than deposit and loan transactions in the ordinary course of business and that are in compliance with the restrictions contained requirements of Law;
(o) Except as required by Law or at the direction of a Regulatory Authority: (i) implement or adopt any material change in this Section 8(aits interest rate and other risk management policies, procedures or practices; or (ii) are fail to follow its existing policies or practices with respect to managing its exposure to interest rate and other risk;
(p) Take any action that would give rise to a right of payment to any individual under any employment agreement except for contractually required compensation;
(q) Purchase any securities;
(r) Except in the ordinary course of business consistent with past practice and involving an amount not in excess of $50,000 (exclusive of any amounts paid directly or reimbursed to RBI or any RBI Subsidiary under any insurance policy maintained by RBI or any RBI Subsidiary), settle any material action, suit, claim, arbitration, investigation, inquiry, grievance or other proceeding (or basis therefor) pending or, to the Knowledge of RBI, threatened against or affecting RBI, any RBI Subsidiary, or any of their respective properties or any of their respective assets. Notwithstanding the foregoing, no settlement shall be made if it involves a precedent for other similar claims that, in the aggregate, could reasonably necessary be determined to protect the good will of Purchaser be material to RBI and the legitimate RBI Subsidiaries, taken as a whole;
(s) Foreclose upon or otherwise take title to or possession or control of any real property without first obtaining a Phase I environmental report thereon; provided, however, that neither RBI nor any RBI Subsidiary shall be required to obtain such a report: (i) where, after using commercially reasonable efforts, it is unable to gain access to the property, provided that RBI has provided notice to OLB that it has been unable to gain such access and as a result intends to foreclose without obtaining a Phase I environmental report thereon; or (ii) with respect to any one- to four-family, non-agricultural residential property of five acres or less to be foreclosed upon unless it has reason to believe that such property contains hazardous substances known or reasonably suspected to be in violation of, or require remediation under, Environmental Laws;
(t) Make application for the opening or closing of any, or open or close any, branch or automated banking facility;
(u) Make any new capital expenditure of $50,000 or more;
(v) Sell or acquire any loans (excluding originations) or loan participations, except in the ordinary course of business interests consistent with past practice (but in the case of Purchaser a sale, after giving OLB or Old Line a first right of refusal to acquire such loan or participation), or sell or acquire any servicing rights;
(w) Take any action that would preclude the Merger from qualifying as a tax-free reorganization within the meaning of Section 368(a) of the IRC;
(x) Make any charitable or similar contributions, except consistent with past practice and in amounts not to exceed $1,000 individually and $5,000 in the aggregate;
(y) Except for any Non-Residential Credit Extension already committed to by RBI on the date of this Agreement and set forth on RBI Schedule 5.1(y), enter into, grant, approve, modify or extend any Non-Residential Credit Extension except in the ordinary course of business consistent with past practice; provided, however, that RBI and/or Regal may not make a Non-Residential Credit Extension (i) in excess of $1,000,000 or (ii) to an existing customer of Regal that increases the aggregate loan exposure to such customer by more than $1,000,000;
(z) Enter into, grant, approve, modify or extend any violation loan, credit facility, line of such restrictions will credit, or letter of credit for an owner-occupied residence (collectively, a “Residential Credit Extension”) that would result in irreparable injury a credit exposure in excess of the then applicable FHFA jumbo loan limit in the aggregate to Seller a single borrower as determined in reference to the combination rules in 12 C.F.R. Section 32.5;
(aa) Issue any communication relating to the Contemplated Transactions to employees (including general communications relating to benefits and compensation) without prior consultation with OLB and, to the Business in extent relating to post-Closing employment, benefit or compensation information, without the prior consent of OLB (which Seller is acquiring a substantial equity interest hereunder for which damages will shall not be an adequate remedy. Seller unreasonably withheld, conditioned or delayed) or issue any communication of a general nature to customers without the prior approval of OLB (which shall therefore not be entitled to preliminary and injunctive relief unreasonably withheld, conditioned or delayed), except as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at required by law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and communications in the greatest area ordinary course of business consistent with past practice that would do not render them unenforceablerelate to the Merger or Contemplated Transactions; or
(bb) Agree to do any of the foregoing.
Appears in 1 contract
Covenants of the Parties. For so long as this Agreement has not been terminated in accordance with its terms, each Party agrees and covenants severally (abut not jointly) Covenant Against Competition that it shall:
a. use commercially reasonable efforts and Disclosure.work in good faith to consummate the Restructuring and the Settlement, including, without limitation, to enter into a restructuring support agreement in form and substance reasonably satisfactory to the Parties (the “Agreed RSA”) pursuant to which the Parties will agree to support a chapter 11 plan (the “Agreed Plan”) to implement the Restructuring and the Settlement, with each of the Agreed RSA and the Agreed Plan incorporating the terms of the Summary Term Sheet; and
(i) During the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shallb. not, directly or indirectly, support or consent to any reorganization, restructuring, recapitalization, refinancing or other transaction for itself or themselves or on behalf GenOn that is materially inconsistent with the Summary Term Sheet; provided, however, that, for the avoidance of doubt, the size and final terms of the financing are subject to continuing discussion with GenOn. Notwithstanding anything to the contrary herein, nothing in this Agreement shall (i) restrict the legal and financial advisors of any other Person, (A) engage Party in any business competitive with the Seller Business (manner, including within the definition of the Business, without limitation, any business from communicating with legal or financial advisors for another Party or other holders of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) Notes in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereofrespect, (Bii) disclose be deemed or construed as a waiver of attorney-client privilege or constrain the right, ability, and obligation of counsel to any Person other than Purchaser or Seller, any information relating Party to act in accordance with the business rules of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliersprofessional responsibility, or (Diii) hire constrain any employee or induce or attempt to induce any employee to leave his or her employment Party from acting in accordance with Purchaser without its fiduciary duties. For the prior written consent avoidance of Purchaser. At the request of Seller and/or Purchaserdoubt, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges that the restrictions contained nothing in this Section 8(a) are reasonably necessary Agreement shall limit the rights of any holder of Notes to protect initiate, prosecute, appear, or participate as a party in interest in any litigation opposing the good will transferred to Purchaser any refinancing proposal affecting GEI, GAG or their subsidiaries, so long as such appearance, initiation, prosecution or participation and the legitimate business interests of Purchaser and that any violation of such restrictions will result positions advocated in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will connection therewith are not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in inconsistent with this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period Agreement or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableSummary Term Sheet.
(iii) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
Appears in 1 contract
Covenants of the Parties. 7.1 Activity in the Ordinary Course. -------------------------------
(a) Covenant Against Competition and Disclosure.
(i) During the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding From the date hereof, (B) disclose to any Person other than Purchaser or Sellerand including the Closing Date, any information relating to Seller shall conduct the business of the Branches in the ordinary and usual course consistent with past practices and standards, and Seller or Purchaser (including without limitation information relating to accountsshall not, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At :
(i) Permit any of the Branches to engage or participate in any material transaction or incur or sustain any material obligation except in the ordinary course of business;
(ii) Offer interest rates or terms on any category of deposits or loans at the Branches which are not determined in a manner consistent with past practice and procedure;
(iii) Except as expressly contemplated herein, transfer to or from the Branches to or from any of Seller's other operations or branches any Assets or Deposits, except upon the unsolicited request of a depositor or customer in the ordinary course of business or if such deposit is pledged as security for a loan or similar obligation that is not an Asset;
(iv) Except in the ordinary course of business, sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any Asset;
(v) Make or agree to make any material improvements to any of the Branches or the Real Property except with respect to commitments for such made on or before the date of this Agreement and disclosed on Schedule 7.1 or normal maintenance purchased or made in the ordinary course of business;
(vi) Terminate the operations of any of the Branches or file any application to relocate or close any of the Branches; or
(vii) Enter into any commitment, agreement, understanding or other arrangements to transfer, assign, encumber or otherwise dispose of the Branches, except in a manner consistent with Seller's obligations under this Agreement; or
(viii) Except for those employees of the Branches listed on Schedule 1.2, transfer any employee employed at one of the Branches to any other branch of Seller, nor will Seller and/or Purchaserpermit any employee of one of the Branches to post for positions outside such Branch, nor will Seller grant any increase in the salary or wages of any of the employees of the Branches other than normal increases at times and amounts consistent with Seller's past practices.
(b) Between the date of this Agreement and the Closing Date, neither Seller nor Purchaser shall, and each shall use their best efforts to cause their its respective officerofficers, directors, agents and controlling persons employees not to, take any action that is intended to enter into agreements for induce, or is reasonably likely to induce, the benefit transfer of banking business from the Branches; provided, however, that nothing in this paragraph shall (i) limit the right of either party to advertise or market its products in the ordinary course of business or (ii) prohibit Purchaser from notifying customers of the Branches of its inability to provide certain services offered by Seller; provided that any such communications shall be agreed upon in advance by Seller and Seller consistent Purchaser, with both parties acting in a commercially reasonable manner.
(c) From the terms date hereof until twelve (12) months after (i) the Closing Date or (ii) the date of termination of this Section 8(a)(i) effective as of the Acquisition Date Agreement, whichever is applicable (the "Non-Competition AgreementsSolicitation Period")
(ii) , Seller acknowledges agrees that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good it will transferred to Purchaser and the legitimate business interests not solicit or hire any individual who is an employee of Purchaser and at any of the Branches or at any branch of Purchaser within a twenty-five (25) mile radius of the Branches. Likewise, except as explicitly contemplated hereby with respect to the Transferred Employees, Purchaser agrees that any violation of such restrictions will result in irreparable injury to during the Non-Solicitation Period, Purchaser and the Business acquired by Purchaser hereunder for which damages will not be solicit for employment or hire any individual who is an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting employee of earnings, profits and other benefits arising from such violation and Seller at any other remedies at law or in equity available to Purchaserbranch of Seller within a twenty-five (25) mile radius of any of the Branches. The parties hereto agree agree, however, that general recruiting advertisements not targeted specifically at the duration and area for which the covenants set forth in other's employees shall not be considered a solicitation under this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable7.1(c).
(iii) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
Appears in 1 contract
Sources: Branch Purchase and Assumption Agreement (First Bancorp /Nc/)
Covenants of the Parties. 5.01 Conduct of BFC's Business. From the date hereof through the Closing Date, except as otherwise set forth herein, BFC shall, and shall cause each BFC Subsidiary to, in all material respects, conduct its businesses and engage in transactions only in the ordinary course and consistent with past practice, except as otherwise required or contemplated by this Agreement or with the written consent of CMTY. BFC shall, and shall cause each BFC Subsidiary to, use its reasonable good faith efforts to preserve its business organization intact, maintain good relationships with employees, and preserve the good will of customers of BFC or the BFC Subsidiaries and others with whom business relationships exist. From the date hereof through the Closing Date, except as otherwise consented to in writing by CMTY (such consent shall not be unreasonably withheld) or as permitted by this Agreement, BFC shall not, and shall not permit any BFC Subsidiary to:
(a) Covenant Against Competition and Disclosure.change any provision of its articles of incorporation or of its bylaws;
(b) change the number of authorized or issued shares of its capital stock; repurchase any shares of capital stock; or issue or grant any option, warrant, call, commitment, subscription, Right or agreement of any character relating to its authorized or issued capital stock or any securities convertible into shares of capital stock; declare, set aside or pay any dividend or other distribution in respect of capital stock; initiate a dividend reinvestment plan; or redeem or otherwise acquire any shares of BFC capital stock; except that:
(i) During subject to applicable regulatory restrictions, if any, BUCS may pay cash dividends to BFC sufficient for BFC to fund any dividend by BFC permitted hereunder;
(ii) any BFC Subsidiary may pay dividends to BFC in the period commencing ordinary course of business consistent with past practice;
(c) grant any severance or termination pay to (other than pursuant to policies or agreements of BFC or any BFC Subsidiary in effect on the date hereof hereof) or enter into or amend any employment, consulting, severance, "change-in-control" or termination contract or arrangement with any officer, director, employee, independent contractor, agent or other person associated with BFC or any BFC Subsidiary;
(d) grant job promotions or increase the rate of compensation of, or pay any bonus to, any director, officer, employee, independent contractor, agent or other person associated with BFC or any BFC Subsidiary, except for:
(i) routine periodic pay increases, selective merit pay increases and ending pay-raises in connection with promotions, all in accordance with past practice; provided, however, that such pay increases and raises shall not exceed five percent (5%) in the aggregate;
(ii) subject to the approval of CMTY, which shall not be unreasonably withheld, annual bonuses in the ordinary course (other than timing of payment) for 2006 as scheduled at BFC Disclosure Schedule 5.01(d)(ii), determined consistently with past practice and in accordance with policies or agreements of BFC or any BFC Subsidiary in effect on the date hereof, to be payable on or before December 31, 2006, neither Seller nor to persons designated by BFC; and
(e) merge or consolidate with any officer, director other corporation; sell or controlling person lease all or any substantial portion of Seller its assets or Purchaser shall, directly businesses; make any acquisition of all or indirectly, for itself any substantial portion of the business or themselves or on behalf assets of any other Personperson, (A) engage firm, association, corporation or business organization; enter into a purchase and assumption transaction with respect to deposits, loans or liabilities; relocate or surrender its certificate of authority to maintain, or file an application for the relocation of, any existing office; file an application for a certificate of authority to establish a new office; change the status of any office as to its supervisory jurisdiction; or fail to maintain and enforce in any material respect its code of ethics and applicable compliance procedures;
(f) sell or otherwise dispose of any material asset, other than in the ordinary course of business, consistent with past practice; subject any asset to a lien, pledge, security interest or other encumbrance, other than in the ordinary course of business competitive consistent with past practice; modify in any material manner the Seller Business manner in which it has heretofore conducted its business or enter into any new line of business; incur any indebtedness for borrowed money, except in the ordinary course of business, consistent with past practice;
(including within the definition g) take any action which would result in any of the Businessconditions set forth in Article VI hereof not being satisfied;
(h) change any method, without limitationpractice or principle of accounting, except as required by changes in GAAP concurred in by its independent certified public accountants; or change any business assumption underlying, or any method of calculation of, depreciation of any type of asset or establishment of any reserve;
(i) waive, release, grant or transfer any rights of material value or modify or change in any material respect any existing material agreement to which it is a party, other than in the type ordinary course of business, consistent with past practice;
(j) implement any pension, retirement, profit-sharing, bonus, welfare benefit or types conducted similar plan or arrangement that was not in effect on the date of this Agreement, or except as may otherwise be provided for herein, amend any existing plan or arrangement except as required by Seller at any time during the two year period preceding law;
(k) materially amend or otherwise modify its underwriting and other lending guidelines and policies in effect as of the date hereof or otherwise fail to conduct its lending activities in the ordinary course of business consistent with past practice;
(l) enter into, renew, extend or modify any other transaction with any Affiliate, other than deposit and loan transactions in the ordinary course of business and which are in compliance with the requirements of applicable laws and regulations;
(m) enter into any interest rate swap, floor or cap or similar commitment, agreement or arrangement; (n) take any action that would accelerate any right of payment to any individual under development by Seller on the date hereofany employment agreement, except (i) in any county or other political subdivision the ordinary course of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At the request of Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
past practice, (ii) Seller acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
execution of this Agreement or (iii) Purchaser acknowledges that the restrictions contained in pursuant to Sections 5.01(c) and 5.01(d)(i) of this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.Agreement;
Appears in 1 contract
Covenants of the Parties. 7.1 Conduct of Business of the Sellers. ----------------------------------
(a) Covenant Against Competition and Disclosure.
(i) During the period commencing on Except as described in Schedule 7.1, from the date hereof to the Closing Date, the Sellers will conduct the Business related to the Purchased Assets (to the extent the Sellers have the legal right and ending on December 31, 2006, neither Seller nor any officer, director or controlling person authority to do so) according to their ordinary and usual course of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive consistent with Good Utility Practice. Without limiting the Seller Business (including within the definition generality of the Businessforegoing, without limitationand, any business of the type except as contemplated in this Agreement or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) as described in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereofSchedule 7.1, (B) disclose to any Person other than Purchaser or Seller, any information relating prior to the business of Seller or Purchaser (including without limitation information relating to accountsClosing Date, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At the request Buyer (which consent shall not be unreasonably withheld), the Sellers will not with respect to the Purchased Assets or the related Business:
(i) create any Encumbrance (except Permitted Encumbrances) on the Purchased Assets, except in the ordinary course of Seller and/or Purchaser, Seller Sellers' business or as required under Sellers' debt instruments and Purchaser shall use their best efforts as will be removed on or prior to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")Closing Date;
(ii) Seller acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that make any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and material change in the greatest area that would not render them unenforceable.levels of fuel inventory and stores inventory customarily maintained by the Sellers with respect to the Purchased Assets, except for such changes which are consistent with Good Utility Practice;
(iii) Purchaser acknowledges enter into any commitment for the purchase or sale of fuel having a term greater than six months and not terminable on or before the Closing Date either (i) automatically, or (ii) by option of BHE (or, after the Closing, by Buyer) in its sole discretion, if the aggregate payment under such commitment and all other outstanding commitments not previously approved by the Buyer would be expected to exceed $1 million;
(iv) sell, lease (as lessor), transfer or otherwise dispose of any of the Purchased Assets, other than assets used, consumed or replaced in the ordinary course of business consistent with Good Utility Practice;
(v) amend, terminate or grant any waiver or consent with respect to any of the Sellers' Agreements other than in the ordinary and usual course of business, or take any action, or permit PHC to take any action, to dissolve Bangor-Pacific;
(vi) enter into or amend any material real or personal property Tax agreement, treaty or settlement;
(vii) make or approve any increase in the compensation payable by Sellers to any of the Employees (including, without limitation, salary, bonuses and benefits) except for increases consistent with past practices as heretofore disclosed to the Buyer; provided, however, that the restrictions contained foregoing shall not restrict the granting by the Sellers of voluntary early retirement and severance packages in this accordance with the Employee Transition Plan solely at the Sellers' expense;
(viii) enter into any oral or written contracts, agreements, commitments or arrangements (A) to do any of the foregoing matters, or (B) with respect to the Purchased Assets, in excess of $500,000 which have a term in excess of six (6) months, unless it is terminable by the Sellers and their assignee without penalty or premium upon not more than 30 days' notice, or (C) outside the ordinary course of business.
(b) Without limiting the generality of the first sentence of Section 8(a7.1, prior to the Closing Date, except with the prior written consent of the Buyer, the Sellers will, with respect to the Purchased Assets:
(i) are reasonably necessary to protect consult with the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well Buyer as to an equitable accounting the making of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period material decisions or the areataking of any material actions in matters other than in the ordinary course of business;
(ii) consult with the Buyer as to the making of any material decisions or the taking of any material actions involving environmental decisions;
(iii) maintain the Purchased Assets in customary repair, working order and condition (reasonable wear and tear excepted) and, except as contemplated by Section 7.10, repair or both replace any Purchased Assets damaged or destroyed by fire or other casualty;
(iv) keep in force at not less than their present limits all policies of theminsurance to the extent reasonably practicable in light of the prevailing market conditions in the insurance industry and promptly notify Buyer of the cancellation of any such policy or any material modification thereto; and
(v) maintain their customary business relationships with any lessor, are unreasonablelicensor, customer or supplier of any Seller, and maintain their relationship with Purchased Assets Employees consistent with historical practice (subject to renegotiation of the Collective Bargaining Agreement).
(c) Notwithstanding anything in Section 7.1(a) or (b) to the contrary, the parties hereto agree Sellers may, in their sole discretion (i) make Maintenance Expenditures and Capital Expenditures up to but not to exceed the Maintenance and Capital Expenditures Amount, (ii) make, at the Sellers' expense, such other maintenance and capital expenditures as the Sellers deem necessary, and (iii) take any action in respect of the Purchased Assets (not otherwise described in (a) or (b)) that does not adversely affect the covenants shall remain in full force and effect for Purchased Assets or the greatest time period and in the greatest area that would not render them unenforceableAssumed Liabilities.
Appears in 1 contract
Sources: Asset Purchase Agreement (Pp&l Inc)
Covenants of the Parties. 7.1 Activity in the Ordinary Course. From the date hereof until the Closing Date, except (i) as set forth on Schedule 7.1 of the Seller Disclosure Schedule, (ii) as may be required by a Regulatory Authority or applicable law or (iii) as specifically contemplated hereby, Seller (a) Covenant Against Competition and Disclosure.
(i) During the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take awaywill, with respect to the products Branches, the Assets and the Assumed Liabilities, use its reasonable best efforts to preserve its business relationships with depositors, (b) will maintain the Branches in their current condition, ordinary wear and tear excepted, (c) use its reasonable best efforts to conduct the business of either Business as presently conductedthe Branches and preserve the Assets and Assumed Liabilities in all material respects in the ordinary and usual course of business consistent with past practice, any of Seller's or Purchaser's customers or suppliersand (d) shall not, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At Purchaser (such consent not to be unreasonably withheld, conditioned or delayed): ,
(i) Increase or agree to increase the request salary or wage rate and incentive opportunity of Seller and/or Purchaserany Branch Employee, Seller and Purchaser shall use their best efforts to cause their respective officerother than normal salary or wage increases in the ordinary course of business consistent with past practice (however, directorssuch increases shall, and controlling persons to in no event, increase the aggregate cash compensation for Branch Employees by more than 3% on an annualized basis or for any individual Branch Employee by more than 10%);
(ii) Establish, adopt, enter into agreements or amend any plan, agreement or arrangement that provides incentive compensation, bonus or commissions exclusively for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges Branch Employees that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will would result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder any material increase in liability for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.;
(iii) Purchaser acknowledges (A) Transfer any Branch Employee to another branch, facility or office of Seller or any of its Affiliates which is not a Branch, or (B) transfer any employee of Seller or any of its Affiliates who, as of the date hereof, is not a Branch Employee to any Branch other than in the ordinary course of business;
(iv) Hire any employee for any of the Branches other than in the ordinary course and consistent with past practices, including with respect to the type of position filled and the compensation and benefit levels;
(v) Terminate any Branch Employee, except in the ordinary course of business in accordance with existing personnel policies and practices of Seller;
(vi) Establish or price Deposits at any Branch other than in the ordinary course of business consistent with Seller’s past practices (including deposit pricing policies in effect for such Branch as of the date hereof), subject to the limitation in (vii) below;
(vii) Offer interest rates or terms on any category of Deposits at any Branch in a manner inconsistent with Seller’s past practice or, without limiting the generality of the foregoing, accept any brokered deposits at the Branches;
(viii) Transfer to or from any Branch to or from any of Seller’s other operations or branches any material Assets or any Deposits, except (A) pursuant to an unsolicited customer request or (B) if such Deposit is pledged as security for a loan or other obligation that is not a Loan;
(ix) Amend, modify or extend any Loan, except in the restrictions contained manner provided in this Section 8(a7.8;
(x) are reasonably Originate any loan at the Branch or that is attributed to the Branch, except in the ordinary course of business consistent with Seller’s approved lending policies as existed on the date hereof;
(xi) Sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any of the Assets or Deposits existing on the date hereof, except in the ordinary course of business consistent with past practice and prior to the thirtieth (30th) day before the Closing Date;
(xii) Make or agree to make any improvements to the Owned Real Property or the leased property subject to a Branch Lease, except normal maintenance made in the ordinary course of business;
(xiii) Add any Personal Property to any of the Branches except as necessary to protect operate in the good will ordinary course of Purchaser and the legitimate business interests of Purchaser and that business;
(xiv) Close, sell, consolidate, relocate or materially alter any violation of such restrictions will result Branch or otherwise file any application or give any notice to relocate or close any Branch;
(xv) Amend, terminate or extend in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedyany material respect any Branch Lease, or Tenant Lease; provided, however. Seller shall therefore be entitled may, in consultation with Purchaser, extend any Branch Lease or Tenant Lease if, in Seller’s reasonable business judgment, after reasonable consultation with Purchaser, Seller determines such extension is necessary to preliminary and injunctive relief deliver the Branch on the Closing Date as well as a fully operative branch banking operation or to an equitable accounting avoid the deemed waiver of earningsany right to extend the term of a Branch Lease or Tenant Lease;
(xvi) Release, profits and other benefits arising from such violation and compromise or waive any other remedies at law material claim or in equity available to Seller. The parties hereto agree right that is part of the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period Assets or the areaAssumed Liabilities; or
(xvii) Agree with, or both commit to, any person to do any of them, are unreasonable, the parties hereto agree that the covenants shall remain things described in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableclauses (i) through (xvi) except as contemplated hereby.
Appears in 1 contract
Sources: Purchase and Assumption Agreement
Covenants of the Parties. 7.1 Activity in the Ordinary Course. Until the close of business on the Closing Date (a) Covenant Against Competition and Disclosure.
(i) During Seller shall conduct the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the BusinessBranch (including, without limitation, any business of filling open positions at the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereofBranch) in any county or other political subdivision the ordinary and usual course of any state of the United States of America or of any other country in the world where business consistent with past practice and (b) Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereofshall not, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At Buyer:
(i) Increase or agree to increase the request salary, remuneration or compensation of any Branch Employee over that heretofore disclosed in writing to Buyer by Seller and/or Purchaser(or make any material increase or decrease in the number of such persons, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling or transfer such persons to enter into agreements for or from the benefit Branch) other than in accordance with Seller's existing customary policies generally applicable to employees having similar rank or duties, or pay or agree to pay any uncommitted bonus to any Branch Employee other than regular bonuses granted in the ordinary course of Purchaser and Seller consistent with Seller's business (which bonuses, in any event, shall be the terms responsibility of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements"Seller);
(ii) Seller acknowledges that Offer interest rates or terms on any category of deposits at the restrictions contained Branch except in this Section 8(a) are reasonably necessary to protect a manner consistent with past practice and in any event, shall not allow the good will transferred to Purchaser and aggregate amount of certificates of deposit at the legitimate business interests Branch in amounts of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are more than $100,000 to be effective are reasonable. In the event materially increased over that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.heretofore disclosed to Buyer by Seller;
(iii) Purchaser acknowledges that Transfer to or from the restrictions contained Branch to or from any of Seller's other operations or branches any material Assets or any Deposits, except (A) in the ordinary course of business or as contemplated in this Agreement, (B) upon the unsolicited request of a depositor or customer or (C) if such Deposit is pledged as security for a loan or other obligation that is not a Loan;
(iv) Sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any of the Assets existing on the date hereof, except in the ordinary course of business and in an immaterial aggregate amount;
(v) Sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any Loan;
(vi) Except as permitted by this Section 8(a7.1, take, or permit its Affiliates to take, any action (A) are reasonably necessary impairing Buyer's rights in any Deposit or Asset, (B) impairing in any way the ability of Buyer to protect collect upon any Loan, or (C) except in the good will ordinary course of Purchaser and the legitimate business interests of Purchaser and that servicing, waiving any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earningsmaterial right, profits and other benefits arising from such violation and any other remedies at law or whether in equity available or at law, that it has with respect to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(aany Loan; or
(vii) are to be effective are reasonable. In the event that any court determines that the time period or the areaAgree with, or both commit to, any person to do any of them, are unreasonable, the parties hereto agree that the covenants shall remain things described in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableclauses (i) through (vi) except as contemplated hereby.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Pacific State Bancorp)
Covenants of the Parties. (a) Covenant Against Competition 7.1 Activity in the Ordinary Course. From the date hereof, and Disclosure.
(i) During until the period commencing on Closing Date, Seller shall conduct the business of the Branches to be transferred at the Closing Date in the ordinary and usual course following the same practices and standards, including, without limitation, collection practices, as they have been consistently applied since January 13, 2003 and will not enter into any material transaction with respect to any of the Assets, Liabilities or Assumed Contracts or make any material commitment with respect to the Assets, Liabilities or Assumed Contracts except in the ordinary and usual course of business consistent with past practice. From the date hereof and ending on December 31until the Closing Date, 2006Seller shall not, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At :
(a) Permit any of the Branches to engage or participate in any material transaction or incur or sustain any material obligation except in the ordinary course of Branch business;
(b) Increase or agree to increase the salary, remuneration or compensation of persons employed at the Branches (or make any material increase or decrease in the number of such persons or transfer such persons to or from any Branch) other than in accordance with Seller's existing customary policies generally applicable to employees having similar rank or duties, or pay or agree to pay any uncommitted bonus to any such employees other than regular bonuses granted in the ordinary course of Seller's business;
(c) Offer interest rates or terms on any category of deposits at any of the Branches which are not consistent with past practice except as may be deemed appropriate by Seller in response to competitive developments in the local area of the Branch;
(d) Except in the ordinary course of business, or as contemplated herein, transfer to or from any Branch to or from any of Seller's other operations or branches any Assets or Branch Deposits, except upon the request of Seller and/or Purchasera depositor or customer in the ordinary course of business or if such deposit is pledged as security for a loan or other obligation that is not a Deposit Related Loan or Other Loan;
(e) Except in the ordinary course of business and in an immaterial aggregate amount, Seller and Purchaser shall use their best efforts to cause their respective officersell, directorstransfer, and controlling persons to assign, encumber or otherwise dispose of or enter into agreements any contract, agreement or understanding to transfer, assign, encumber or dispose of any of the Assets existing on the date hereof;
(f) Sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose (a "disposition") of any Deposit Related Loan or Other Loan.
(g) Make or agree to make any material improvements to the Branches, the Branch Real Estate or the Other Real Estate, except with respect to commitments for such made on or before the benefit of Purchaser and Seller consistent with the terms date of this Agreement and normal maintenance or refurbishing purchased or made in the ordinary course of business;
(h) File any application to relocate any Branch;
(i) Enter into any commitment, agreement, understanding or other arrangements to transfer, assign, encumber or otherwise dispose of any Branch, Branch Real Estate or Other Real Estate;
(j) Terminate the operations of any Branch;
(k) Amend in any material respect any Lease, lease relating to Furniture, Fixtures and Equipment or Assumed Contract except as permitted under Section 8(a)(i4.12;
(l) effective Except as of the Acquisition Date permitted by this Section 7.1, take, or permit its Affiliates to take, any action (the "Non-Competition Agreements")
i) impairing Purchaser's rights in any Assumed Deposit or Asset, (ii) Seller acknowledges that impairing in any way the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests ability of Purchaser and that to collect upon any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law Deposit-Related Loan or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
Other Loan (iii) Purchaser acknowledges that except in the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will ordinary course of Purchaser and the legitimate business interests of Purchaser and that servicing, waiving any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earningsmaterial right, profits and other benefits arising from such violation and any other remedies at law or whether in equity available or at law, that it has with respect to any Deposit-Related Loan or Other Loan or (iv) that could otherwise have a Material Adverse Effect; or
(m) Transfer or cause the movement of deposits from Seller. The parties hereto agree that 's branches or from the duration and area for which head office to the covenants set forth in this Section 8(a) are to be effective are reasonable. In Branches, except at the event that any court determines that written request of the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceabledepositor.
Appears in 1 contract
Sources: Branch Purchase and Assumption Agreement (Plumas Bancorp)
Covenants of the Parties. SELLER will conduct the Business prior to the Closing Date in the normal course and will use reasonable efforts to preserve the business organization of SELLER intact and retain the services of its present officers, employees and agents to the end that it may retain its goodwill and preserve its business relationships with customers, suppliers and others. In addition, SELLER covenants that, from the date hereof until the Closing:
(a) Covenant Against Competition the Business will be conducted only in the ordinary course, and Disclosure.none of its properties or assets will be sold or otherwise disposed of, mortgaged, pledged or otherwise hypothecated, except in the ordinary course of business;
(ib) During no general increase or individual increase will be made in the period commencing on the date hereof and ending on December 31compensation payable or to become payable by SELLER to any of its officers, 2006employees or agents, neither Seller nor any officerexcept for payments to SELLER's sole shareholder;
(c) no contract, director obligation or controlling person of Seller commitment will be entered into or Purchaser shall, directly or indirectly, for itself or themselves assumed by or on behalf of any SELLER extending beyond the Closing, except normal commitments for the purchase of raw materials, supplies, licenses and other Personassets used in the ordinary course of business, and for commitments to customers incurred in the ordinary course of business;
(Ad) engage no change, other than those required in any business competitive with the Seller Business ordinary course of business, will be made affecting SELLER's personnel or agents;
(including within e) SELLER will maintain its properties in the definition same operating condition and repair as of the Business, without limitation, any business date of the type or types conducted by Seller at any time during Agreement, using its customary standards of maintenance, reasonable wear and tear excepted;
(f) SELLER will continue until the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country Closing to carry insurance in the world where Seller has conducted any aspect of Business forms and in the amounts now carried;
(including the sale of any productsg) at any time during the two (2) year period preceding the date hereof, (B) disclose SELLER will permit BUYER to any Person other than Purchaser or Seller, any information relating have access to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists its books and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, records with respect to the products of either Business as presently conductedassets, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At the request of Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directorsbusiness, and controlling persons to enter into agreements other aspects of the Business; and
(h) SELLER will make the SELLER Business available for observation by BUYER between the benefit of Purchaser and Seller consistent with the terms date of this Section 8(a)(i) effective as of Agreement and Closing, during normal working hours, to assist BUYER in learning the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableSELLER Business.
(iii) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
Appears in 1 contract
Covenants of the Parties. 7.1. Activity in the Ordinary Course. From the date hereof until the Closing Date, (i) except as set forth in Schedule 7.1 of the Seller Disclosure Schedule, (ii) as may be required by a Regulatory Authority or applicable law or (iii) as otherwise expressly provided hereby, Seller will (a) Covenant Against Competition and Disclosure.
(i) During the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products Branches, the Assets and the Assumed Liabilities, use its commercially reasonable efforts to preserve its business relationships with depositors, (b) maintain the Branches in their current condition, ordinary wear and tear excepted, (c) conduct the business of either Business as presently conductedthe Branches and preserve the Assets and Assumed Liabilities in all material respects in the ordinary and usual course of business consistent with past practice and (d) shall not, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At Purchaser (such consent not to be unreasonably withheld, conditioned or delayed):
(i) Increase or agree to increase the request of Seller and/or salary, benefits, remuneration or compensation of, or pay any bonus to, any Branch Employee, other than, following notice to Purchaser, Seller and Purchaser shall use their best efforts (A) prior to cause their respective officerNovember 2, directors2011, and controlling persons to enter into agreements for normal salary or wage increases in the benefit ordinary course of Purchaser and Seller business consistent with past practice (however, any such increase shall, in no event, increase the terms aggregate cash compensation for Branch Employees by more than 2% of this Section 8(a)(i) effective their aggregate cash compensation as of the Acquisition Date date of this Agreement) and (B) increases or payments as required by contractual commitments outstanding on the "Non-Competition Agreements")date hereof and provided to Purchaser prior to the date hereof and set forth on Schedule 7.1(i)(B) of the Seller Disclosure Schedule;
(ii) Seller acknowledges Establish, adopt, enter into or amend any plan, agreement or arrangement that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and provides for incentive compensation, bonus or commissions or any Employment Agreement (or arrangement that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not would be an adequate remedy. Purchaser shall therefore be entitled employment agreement if in effect on the date hereof) with respect to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that Branch Employee (including any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.new hire);
(iii) Purchaser acknowledges (A) Transfer any Branch Employee to another branch, facility, or office of FBC or Seller or any of their respective Affiliates which is not a Branch, or (B) transfer any employee of FBC or Seller or any of their respective Affiliates who, as of the date hereof, is not a Branch Employee to any Branch other than temporary assignments of a fill-in nature in the ordinary course of business;
(iv) Hire any employee for any of the Branches other than, prior to November 2, 2011, in the ordinary course and consistent with past practices, including, with respect to the type of position filled and the compensation and benefit levels;
(v) Terminate any Branch Employee, except in the ordinary course of business in accordance with existing personnel policies and practices of Seller;
(vi) Establish or price Deposits at any Branch other than in the ordinary course of business consistent with Seller’s past practices (including deposit pricing policies in effect for such Branch as of the date hereof), subject to the limitation in (vii) below;
(vii) Offer interest rates or terms on any category of Deposits at any Branch in a manner inconsistent with Seller’s past practice or, without limiting the generality of the foregoing, accept any brokered deposits at the Branches;
(viii) Introduce new products or market promotions at any Branch other than market promotions in the ordinary course of business consistent with Seller’s past practices; provided, however, that in no event shall Seller offer any “teaser” interest rates in the restrictions contained in course of introducing any new market promotion permitted under this Section 8(a7.1(viii);
(ix) are reasonably Transfer to or from any Branch to or from any of Seller’s other operations or branches any material Assets (including customer relationships or goodwill) or any Deposits (except pursuant to an unsolicited customer request where it would be customary banking practice to honor such request);
(x) Sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any of the Assets or Deposits existing on the date hereof, except in the ordinary course of business consistent with past practice;
(xi) Make or agree to make any individual capital expenditure in respect of the Assets or the Assumed Liabilities in excess of $5,000;
(xii) Make or agree to make any material improvements to the Owned Real Property or the leased property subject to a Branch Lease, except normal maintenance or refurbishing purchased or made in the ordinary course of business;
(xiii) Close, sell, consolidate, relocate or materially alter any Branch or otherwise file any application or give any notice to relocate or close any Branch;
(xiv) Amend, terminate or extend in any material respect any Branch Lease or Tenant Lease; provided, however, Seller may extend any Branch Lease or Tenant Lease if, in its reasonable business judgment, and after consultation with Purchaser, Seller determines such extension is necessary to protect deliver the good will Branch on the Closing Date as a fully operative branch banking operation;
(xv) Knowingly take any action that, or omit to take (and shall cause its Affiliates not to knowingly take or omit to take) any action that if not taken, would reasonably be expected to (A) adversely affect the ability of Purchaser and any party hereto to obtain the legitimate business interests Regulatory Approvals, (B) adversely affect the ability of Purchaser and that any violation of such restrictions will party hereto to obtain any consent required pursuant to this Agreement, (C) result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting failure of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants condition set forth in Section 9.1(c) or (D) result in any of the covenants or conditions to the transactions contemplated hereby not being materially satisfied;
(xvi) Release, compromise or waive any material claim or right that is part of the Assets or the Assumed Liabilities;
(xvii) Take any action with respect to Taxes or Tax matters that could adversely affect the Assets, the Assumed Liabilities, the operation of the Branches or Purchaser;
(xviii) Except as permitted by this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area7.1, knowingly take, or both knowingly permit its Affiliates to take, any action impairing in a material respect Purchaser’s rights or obligations in respect of themany Deposit, are unreasonableAsset or Assumed Liability; or
(xix) Solicit, agree with, or commit to, any Person to do any of the parties hereto agree that the covenants shall remain things described in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableclauses (i) through (xviii) except as contemplated hereby.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Flagstar Bancorp Inc)
Covenants of the Parties. (a) Covenant Against Competition and Disclosure.
(i) During 7.1 Operations in the period commencing on Ordinary Course. From the date hereof and ending on December 31until the --------------------------------- Closing Date, 2006except as permitted by this Agreement or with Purchaser's written consent, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with shall conduct the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at Hawaii Division in the ordinary and usual course, and will not enter into any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in material transaction with respect to any county or other political subdivision of any state of the United States of America Assets or of Liabilities or make any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, material commitment with respect to the products Assets or Liabilities except in the ordinary and usual course of either Business business. Seller shall use its best efforts to preserve goodwill and relationships with all Persons having business dealings with the Acquired Business. From the date hereof and until the Closing Date, except as presently conductedshall be required by a regulatory authority or by a change in policy applicable to Seller and all of its banking Affiliates, any of Seller's or Purchaser's customers or suppliersSeller shall not, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At :
(a) Offer interest rates or terms on any category of Deposits which are not consistent with Seller's past practices or reduce the request service charges related to any category of Deposits or fee based product, except in either case as may reasonably be deemed necessary by Seller and/or in response to competitive developments or to maintain relationships with customers of the Hawaii Division;
(b) Except in the ordinary course of business in an immaterial amount, or as contemplated herein, transfer any Assets or Liabilities to or from any Branch to or from any of Seller's or its Affiliates other operations or branches or offices;
(c) Except for transactions in the ordinary course of business in an immaterial aggregate amount, sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to transfer, assign, encumber or dispose of any of the Assets or Liabilities existing on the date hereof or arising hereafter in the ordinary course of business, or agree or commit to do the same;
(d) Make or agree to make any material improvements to the Designated Branches, Designated Operating Sites or Designated ATMs, except with respect to commitments for such made on or before the date of this Agreement and normal maintenance in the ordinary course of business;
(e) File any application or take any other action to relocate any Designated Branch;
(f) Terminate the operations of any Designated Branch, Designated Operating Site or Designated ATM, or terminate the operations of any Other Branch without making arrangements satisfactory to Purchaser for the transfer of any related Deposits at such Other Branch to a Designated Branch;
(g) Renew, extend, or renegotiate or otherwise modify any Lease, Assumed Contract, Tenant Lease or FF&E Agreement that is currently in effect, without the prior written consent of Purchaser, Seller and which consent shall be deemed to have been granted if Purchaser shall use their best efforts not have responded to any such written request to consent to such renewal, extension, renegotiation or modification within twenty (20) calendar days after Purchaser's receipt thereof; provided, however, that no such consent shall be required if any such Lease, Assumed Contract, Tenant Lease or FF&E Agreement, as so renewed, extended, renegotiated or modified, may be terminated without cause their respective officeror penalty on notice of not more than 90 days or involve costs or expenses that do not exceed $25,000 for any twelve (12) month period;
(h) Except in the ordinary course of business or as permitted hereunder, directorstake any action (i) materially impairing Purchaser's rights in any Liability or Asset, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges that materially impairing in any way the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests ability of Purchaser and that to collect upon any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law Loan or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the areaNew Loan, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
(iii) Purchaser acknowledges except in the ordinary course of servicing, waiving any material right, whether in equity or at law, that it has with respect to any Loan or New Loan;
(i) Change in any material respect its basic policies and practices from those in effect on the restrictions contained in this Section 8(a) are reasonably necessary date hereof with respect to protect marketing, loan purchases and lending, personnel practices, accounting or any other material aspect of the good will operations or business of Purchaser and the legitimate business interests of Purchaser and Hawaii Division or with respect to the Acquired Business, provided that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will shall not be an adequate remedy. Seller shall therefore be entitled construed as having -------- effected such a change by instituting reasonable incentive compensation arrangements designed to preliminary and injunctive relief as well as encourage retention of deposit relationships;
(j) Undertake any actions which are inconsistent with a program to an equitable accounting of earningsuse all reasonable efforts to maintain good relations with employees employed by the Hawaii Division, profits and other benefits arising from unless such violation and any other remedies at law actions are required or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in permitted by this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableAgreement.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Hawaiian Electric Industries Inc)
Covenants of the Parties. 8.1 Activity in the Ordinary Course. From the date hereof until the Closing Date, except (i) as set forth on Schedule 8.1 of the Seller Disclosure Schedule, (ii) as may be required by a Regulatory Authority or applicable law or (iii) as contemplated hereby, Seller (a) Covenant Against Competition and Disclosure.
(i) During the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take awaywill, with respect to the products Branches, the Assets and the Assumed Liabilities, use its reasonable best efforts to preserve its business relationships with depositors and customers related to the Loans, (b) will maintain the Branches in their current condition, ordinary wear and tear excepted, (c) use its reasonable best efforts to conduct the business of either Business as presently conductedthe Branches and preserve the Assets and Assumed Liabilities in all material respects in the ordinary and usual course of business consistent with past practice, any of Seller's or Purchaser's customers or suppliersand (d) shall not, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At Purchaser (such consent not to be unreasonably withheld, conditioned or delayed):
(i) Increase or agree to increase the request salary or wage rate and incentive opportunity of Seller and/or Purchaserany Branch Employee, Seller and Purchaser shall use their best efforts to cause their respective officerother than normal salary or wage increases in the ordinary course of business consistent with past practice (however, directorssuch increases shall, and controlling persons to in no event, increase the aggregate cash compensation for Branch Employees by more than 3% on an annualized basis or for any individual Branch Employee by more than 10%);
(ii) Establish, adopt, enter into agreements or amend any plan, agreement or arrangement that provides incentive compensation, bonus or commissions exclusively for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges Branch Employees that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will would result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder any material increase in liability for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.;
(iii) Purchaser acknowledges that (A) Transfer any Branch Employee to another branch, facility or office of Seller or any of their respective Affiliates which is not a Branch, or (B) transfer any employee of Seller or any of its Affiliates who, as of the restrictions contained date hereof, is not a Branch Employee to any Branch other than in this Section 8(athe ordinary course of business and consistent with past practices;
(iv) are reasonably necessary Hire any employee for any of the Branches other than in the ordinary course and consistent with past practices, including, with respect to protect the good will type of Purchaser position filled and the legitimate compensation and benefit levels;
(v) Terminate any Branch Employee, except in the ordinary course of business interests in accordance with existing personnel policies and practices of Purchaser and that Seller;
(vi) Establish or price Deposits at any violation Branch other than in the ordinary course of business consistent with Seller’s past practices (including deposit pricing policies in effect for such restrictions will result Branch as of the date hereof), subject to the limitation in irreparable injury (vii) below;
(vii) Offer interest rates or terms on any category of Deposits at any Branch in a manner inconsistent with Seller’s past practice or, without limiting the generality of the foregoing, accept any brokered deposits at the Branches;
(viii) Transfer to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled or from any Branch to preliminary and injunctive relief as well as or from any of Seller’s other operations or branches any material Assets or any Deposits, except (A) pursuant to an equitable accounting unsolicited customer request or (B) if such Deposit is pledged as security for a loan or other obligation that is not a Loan;
(ix) Amend, modify or extend any Loan, except in the manner provided in Section 8.8;
(x) Originate any loan at the Branch or that is attributed to the Branch, except in the ordinary course of earningsbusiness consistent with Seller’s approved lending policies as existed on the date hereof;
(xi) Sell, profits and other benefits arising from such violation and transfer, assign, encumber or otherwise dispose of or enter into any other remedies at law contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any of the Assets or Deposits existing on the date hereof, except in equity available the ordinary course of business consistent with past practice;
(xii) Make or agree to Seller. The parties hereto agree that make any material improvements to the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period Owned Real Property or the arealeased property subject to a Branch Lease, except normal maintenance or refurbishing purchased or made in the ordinary course of business;
(xiii) Close, sell, consolidate, relocate or materially alter any Branch or otherwise file any application or give any notice to relocate or close any Branch;
(xiv) Amend, terminate or extend in any material respect any Branch Lease or Tenant Lease;
(xv) Release, compromise or waive any material claim or right that is part of the Assets or the Assumed Liabilities; or
(xvi) Agree with, or both commit to, any person to do any of them, are unreasonable, the parties hereto agree that the covenants shall remain things described in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableclauses (i) through (xv) except as contemplated hereby.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Old National Bancorp /In/)
Covenants of the Parties. (a) Covenant Against Competition The Executive acknowledges that in the course of carrying out, performing and Disclosure.
(i) During fulfilling his obligations to the period commencing on Corporation hereunder, the date hereof Executive will have access to and ending on December 31will be entrusted with information that would reasonably be considered confidential to the Corporation, 2006the disclosure of which to competitors of the Corporation or to the general public will be highly detrimental to the best interests of the Corporation. Except as may be required in the course of carrying out his duties hereunder, neither Seller the Executive covenants and agrees that he will not disclose, for the duration of this Agreement any such information to any person, other than to the directors, officers, employees or agents of the Corporation that have a need to know such information, nor any officer, director shall the Executive use or controlling person of Seller or Purchaser shallexploit, directly or indirectly, such information for itself or themselves or on behalf any purpose other than for the purposes of the Corporation, nor will he disclose nor use for any purpose, other than for those of the Corporation, any other Person, (A) engage in any information which he may during his employment with respect to the business competitive with the Seller Business (including within the definition and affairs of the BusinessCorporation or otherwise. The Executive acknowledges and agrees that all right, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) title and interest in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose and to any Person other than Purchaser information, trade secrets, advances, discoveries, improvements, research materials and data bases made or Seller, any information conceived by the Executive during his employment relating to the business or affairs of Seller or Purchaser (including without limitation information relating the Corporation, shall belong to accountsthe Corporation. Any business opportunities related to the business of the Corporation which become known to the Executive during his employment hereunder must be fully disclosed and made available to the Corporation by the Executive, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or the Executive agrees not marked or otherwise identified as confidential or secret, (C) solicit, divert, to take away or attempt to take awayany action if the result would be to divert from the Corporation any opportunity which is within the scope of its business. The Executive will not at any time, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaserthe Corporation, during the Term of this Agreement and after the expiration or termination of the Executive’s employment so long as Executive is receiving bargained for consideration which is defined as Base Salary plus any annual incentives, either individually or in partnership, jointly or in conjunction with any person or persons, firm, association, syndicate, company or corporation, directly or indirectly engage in, carry on or otherwise have any interest in, advise, or permit the Executive’s name to be used in connection with, any business which is directly competitive to the Business, or which provides generally the same services as the Business; or solicit, interfere with, accept any business from or render any services to anyone whom Executive knows or should have reason to know is a client or a prospective client of the Corporation. At The Executive will comply with all applicable securities laws and any policies of the request Corporation in effect with respect to transactions in securities of Seller and/or Purchaser, Seller and Purchaser the Corporation. The Executive shall use their best efforts to cause their respective officernot disparage the Corporation or any of its affiliates, directors, officers, employees or other representatives in any manner and controlling persons shall in all respects avoid any negative criticism of the Corporation. The Executive acknowledges and agrees that in the event of a breach of the covenants, provisions and restrictions in this section, the Corporation’s remedy in the form of monetary damages will be inadequate and that the Corporation shall be, and is hereby, authorized and entitled, in addition to enter into agreements all other rights and remedies available to it, to apply for and obtain from a court of competent jurisdiction interim and permanent injunctive relief and an accounting of all profits and benefits arising out of such breach. Each and every provision of these Sections in “Covenants of the benefit of Purchaser and Seller consistent with Parties” hereunder shall survive the terms termination or expiration of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period Agreement or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableExecutive’s employment hereunder.
(iii) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
Appears in 1 contract
Covenants of the Parties. 7.1 Activity in the Ordinary Course. Until the Closing Date, (a) Covenant Against Competition Seller shall conduct the business of the Branches (including, without limitation, filling open positions at the Branches and Disclosure.job-posting in the Branches for open positions at other offices of Seller) in the ordinary and usual course of business consistent with past practice and giving effect to the fact
(i) During Increase or agree to increase the period commencing on salary, remuneration or compensation of any Branch Employee (or make any material increase or decrease in the date hereof and ending on December 31number of such persons, 2006or transfer such persons to or from any Branch) other than in accordance with Seller's existing customary policies generally applicable to employees having similar rank or duties, neither Seller nor or pay or agree to pay any officeruncommitted bonus to any Branch Employee other than regular bonuses granted in the ordinary course of Seller's business (which bonuses, director in any event, shall be the responsibility of Seller); or, except at the request of such Branch Employee, transfer any Branch Employee to another branch or controlling person office, of Seller or Purchaser shallany of its Affiliates;
(ii) Offer interest rates or terms on any category of deposits at a Branch except as determined in a manner consistent with Seller's practice with respect to its branches which are not being sold;
(iii) Transfer to or from any Branch to or from any of Seller's other operations or branches any material Assets or any Deposits, directly or indirectly, for itself or themselves or on behalf of any other Person, except (A) engage in the ordinary course of business or as contemplated in this Agreement, or (B) upon the unsolicited request of a depositor or customer;
(iv) Sell, transfer, assign, encumber or otherwise dispose of or enter into any business competitive with the Seller Business (including within the definition contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller Assets existing on the date hereof) , except in the ordinary course of business and in an immaterial aggregate amount; provided, however, that in any county or other political subdivision of event, Seller shall not knowingly take any state action that would create any Encumbrance on any of the United States Real Property or the Branch Leases;
(v) Make or agree to make any material improvements to the Owned Real Property, except with respect to commitments for such made on or before the date of America this Agreement (and heretofore disclosed in writing to Purchaser) and normal maintenance, repair or of any other country refurbishing purchased or made in the world where ordinary course of business;
(vi) File any application or give any notice to relocate or close any Branch or relocate or close any Branch;
(vii) Amend, terminate or extend in any material respect any Branch Lease, Tenant Lease or Personal Property Lease; provided, however, Seller has conducted may extend any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereofBranch Lease, (B) disclose to any Person other than Purchaser Tenant Lease or SellerPersonal Property Lease, any information relating to the in its reasonable business of Seller or Purchaser judgment (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect pursuant to the products terms and conditions of either Business as presently conductedany contractual option to extend in any Branch Lease, any of Seller's Tenant Lease or Purchaser's customers or suppliers, or (DPersonal Property Lease) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At the request of if Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges that the restrictions contained in this Section 8(a) are reasonably determines such extension is necessary to protect deliver the good will transferred to Purchaser and Branch on the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief Closing Date as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceablea fully operative branch banking operation.
(iii) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Cowlitz Bancorporation)
Covenants of the Parties. (a) Covenant Against Competition and Disclosure.
(i) During Increase or agree to increase the period commencing on salary, remuneration or compensation of any Branch Employee (or make any material increase or decrease in the date hereof and ending on December 31number of such persons, 2006or transfer such persons to or from any Branch) other than in accordance with Seller's existing customary policies generally applicable to employees having similar rank or duties, neither Seller nor or pay or agree to pay any officeruncommitted bonus to any Branch Employee other than regular bonuses granted in the ordinary course of Seller's business (which bonuses, director in any event, shall be the responsibility of Seller); or, except at the request of such Branch Employee, transfer any Branch Employee to another branch or controlling person office, of Seller or Purchaser shallany of its Affiliates;
(ii) Offer interest rates or terms on any category of deposits at a Branch except as determined in a manner consistent with Seller's practice with respect to its branches which are not being sold;
(iii) Transfer to or from any Branch to or from any of Seller's other operations or branches any material Assets or any Deposits, directly or indirectly, for itself or themselves or on behalf of any other Person, except (A) engage in the ordinary course of business or as contemplated in this Agreement, or (B) upon the unsolicited request of a depositor or customer;
(iv) Sell, transfer, assign, encumber or otherwise dispose of or enter into any business competitive with the Seller Business (including within the definition contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller Assets existing on the date hereof) , except in the ordinary course of business and in an immaterial aggregate amount; provided, however, that in any county or other political subdivision of event, Seller shall not knowingly take any state action that would create any Encumbrance on any of the United States Real Property or the Branch Leases;
(v) Make or agree to make any material improvements to the Owned Real Property, except with respect to commitments for such made on or before the date of America this Agreement (and heretofore disclosed in writing to Purchaser) and normal maintenance, repair or of any other country refurbishing purchased or made in the world where ordinary course of business;
(vi) File any application or give any notice to relocate or close any Branch or relocate or close any Branch;
(vii) Amend, terminate or extend in any material respect any Branch Lease, Tenant Lease or Personal Property Lease; provided, however, Seller has conducted may extend any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereofBranch Lease, (B) disclose to any Person other than Purchaser Tenant Lease or SellerPersonal Property Lease, any information relating to the in its reasonable business of Seller or Purchaser judgment (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect pursuant to the products terms and conditions of either Business as presently conductedany contractual option to extend in any Branch Lease, any of Seller's Tenant Lease or Purchaser's customers or suppliers, or (DPersonal Property Lease) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At the request of if Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges that the restrictions contained in this Section 8(a) are reasonably determines such extension is necessary to protect deliver the good will transferred to Purchaser and Branch on the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief Closing Date as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceablea fully operative branch banking operation.
(iii) Purchaser acknowledges that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
Appears in 1 contract
Covenants of the Parties. (a) Covenant Against Competition 5.1 Activity in the Ordinary Course. From the date hereof, and Disclosure.
(i) During until the period commencing on Closing Date, except as may be required to commence conversion of its electronic data processing system to a new software system, Seller shall conduct the business of the Branches to be transferred at the Closing Date in the ordinary and usual course following the same practices and standards and will not enter into any material transaction with respect to any of the Assets or Liabilities or make any material commitment with respect to the Assets or Liabilities except in the ordinary and usual course of business consistent with past practice. From the date hereof and ending on December 31until the Closing Date, 2006Seller shall not, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At :
(a) Except in the request ordinary course of Seller and/or Purchaserbusiness, Seller and sell, transfer, lease, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to transfer, assign, encumber or dispose of any of the Assets existing on the date hereof;
(b) Agree to make any material improvements to the Branches or the Branch Real Estate, except with respect to commitments for such made on or before the date of this Agreement of which Purchaser shall use their best efforts to cause their respective officer, directorshas been informed in writing, and controlling persons normal maintenance or refurbishing purchased or made in the ordinary course of business;
(c) File any application to enter relocate any Branch;
(d) Enter into agreements for any commitment, agreement, understanding or other arrangements to transfer, lease, assign, encumber or otherwise dispose of any Branch or Branch Real Estate;
(e) Terminate the benefit operations of Purchaser and Seller consistent with the terms of this Section 8(a)(iany Branch;
(f) effective as of the Acquisition Date Take, or permit its Affiliates to take, any action (the "Non-Competition Agreements")
i) impairing Purchaser's rights in any Deposit or Asset, (ii) impairing in any way the ability of Purchaser to collect upon any Deposit-Related Loan or Other Loan, (iii) except in the ordinary course of servicing, waive any material right, whether in equity or at law, that it has with respect to any Deposit-Related Loan or Other Loan and (iv) that could have a material adverse effect on any Branch and (v) that could otherwise have a Material Adverse Effect;
(g) Change its deposit pricing policies at the Branches in a manner that is not consistent with deposit pricing policies used with respect to branches of Seller acknowledges that are not Branches, except to the restrictions contained extent that Purchaser consents (which consent shall not be unreasonably withheld) to a change in this Section 8(a) are reasonably pricing that is necessary to protect respond to deposit increase or decreases resulting from announcement of the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired transactions contemplated by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableAgreement.
(iiih) Purchaser acknowledges Change its loan pricing policies related to the Deposit-Related Loans in a manner that the restrictions contained in this Section 8(a) is not consistent with loan pricing policies used with respect to branches of Seller that are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableBranches.
Appears in 1 contract
Sources: Branch Purchase and Assumption Agreement (Intrust Financial Corp /)
Covenants of the Parties. (a) Covenant Against Competition and Disclosure.
(i) 5.01 Conduct of the Business of Seller. During the period commencing on from the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person ------- -- --- -------- -- ------ of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating this Agreement to the business of Seller or Purchaser (including without limitation information relating to accountsEffective Time, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, except with respect to the products transactions required or permitted to be undertaken by Seller prior to the Effective Time in accordance with Section 5.18 below and Seller's management during such period of either Business the assets, liabilities and operations that are the subject of such transactions or except as presently conductedspecifically described in Section 5.01 of the Seller Disclosure Schedule, the Seller:
(a) shall, and shall cause each of its subsidiaries to, conduct its business and engage in transactions only in the ordinary and usual course of business consistent with past practices, which shall mean (i) conducting its banking, trust and other businesses in the ordinary and usual course, (ii) refraining from any of Seller's or Purchaser's customers or suppliersthe activities described in Section 5.01(b) below and (iii) not entering into any material transactions except in the ordinary and usual course of business consistent with past practices;
(b) shall not and shall not permit any of its subsidiaries to, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At the request Buyer:
(i) engage or participate in any material transaction or incur or sustain any material obligation or liability except in the ordinary, regular and usual course of Seller and/or Purchaserits businesses consistent with past practices;
(ii) accept, Seller renew or roll over any "brokered deposit" as defined under 12 C.F.R. (s)(s)337.6(a)(3) or offer an interest rate with respect to any deposit that would either constitute an impermissible interest rate with respect to deposits of an undercapitalized insured depository institution pursuant to the limitations contained under 12 C.F.R.(s)(s)337.6(b)(3)(ii) or otherwise set interest rates on deposits that depart from past practices of the Savings Bank with respect to the setting of interest rates on deposits, unless such interest rates do not exceed the rates then offered by the Bank on comparable deposit products;
(iii) except in the ordinary, regular and Purchaser usual course of business consistent with past practices and in an immaterial aggregate amount, sell, lease, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to lease, transfer, assign, encumber or dispose of any of its assets;
(iv) relocate, or file any application to relocate, any branch office;
(v) terminate, or give any notice (written or verbal) to customers or governmental authorities or agencies to terminate the operations of any branch office; or
(vi) waive any material right, whether in equity or at law, that it has with respect to any asset except in the ordinary, regular and usual course of business consistent with past practice;
(c) shall use their all reasonable efforts, and cause each of its subsidiaries to use all reasonable efforts, to preserve intact its business organization and goodwill in all material respects, keep available the services of its officers and employees as a group and maintain satisfactory relationships with borrowers, depositors, other customers and others having business relationships with it;
(d) shall, at the Buyer's request and expense, use its best efforts to cause their respective officercooperate with the Buyer with respect to preparation for the combination and integration of the businesses, directorssystems and operations of the Bank and the Savings Bank, and controlling persons shall confer on a regular and frequent basis with one or more representatives of the Buyer to enter into agreements for report on operational and related matters;
(e) shall, subject to any restrictions under applicable law or regulation, promptly notify the benefit Buyer of Purchaser any emergency or other change in the normal course of its or its subsidiaries' businesses or in the operation of its or its subsidiaries' properties and of any governmental complaints, investigations or hearings (or communications indicating that the same may be contemplated) if such emergency, change, complaint, investigation or hearing would be material to the assets, properties, liabilities, business, results of operations, financial condition or prospects of the Seller consistent or any of its subsidiaries;
(f) shall not declare or pay any dividends on or make any other distributions in respect of the Seller Common Stock after the Measurement Date ;
(g) Seller (with Buyer's cooperation) prior to the terms Effective Time, and Buyer upon and following the Effective Time, shall take all appropriate steps to (i) effectuate termination of this Section 8(a)(i) the Seller ESOP effective as of the Acquisition Date (the "Non-Competition Agreements")
Effective Time, (ii) cause the Seller acknowledges ESOP, upon termination, to repay promptly and in full any loan outstanding, and (iii) cause any shares of Seller Common Stock or Buyer Common Stock held unallocated in the Seller ESOP following such termination and repayment to be allocated among the accounts of those participants in the Seller ESOP who were participants immediately prior to the Effective Time in proportion to their relative compensation for the period beginning with the first day of the plan year of the Seller ESOP in which the Closing Date occurs and ending on the Effective Time, subject only to such limitations as are required to maintain qualification of the Seller ESOP under the Code. Seller may repurchase from the Seller ESOP a sufficient number of shares of Seller Common Stock for not less than "adequate consideration" as defined in Section 3(18) of ERISA to permit the Seller ESOP to repay in full any loan outstanding to the Seller ESOP. Seller shall not otherwise adopt or amend (other than amendments required by applicable law or amendments that reduce amounts payable by it or its subsidiaries) in any material respect any Seller Pension Plan, any Seller Benefit Plan or any Seller Other Plan or enter (or permit any of its subsidiaries to enter) into any employment, severance or similar contract with any person (including, without limitation, contracts with management which might require that payments be made upon the restrictions consummation of the transactions contemplated hereby) or amend any such existing agreements, plans or contracts to increase any amounts payable thereunder or benefits provided thereunder, or grant or permit any increase in compensation to its or its subsidiaries' employees as a class or pay any bonus except in the ordinary course of business consistent with past practices and as disclosed in Section 5.01(g) of the Seller Disclosure Schedule;
(h) subject to its directors fiduciary duties, shall not, with respect to itself or any of its subsidiaries, authorize, recommend, propose or announce an intention to authorize, recommend or propose, or enter into an agreement with respect to, any merger, consolidation, purchase and assumption transaction or business combination (other than the Acquisition Merger and the Bank Merger), any acquisition of a material amount of assets or securities or assumption of liabilities (including deposit liabilities), any disposition of a material amount of assets or securities, or any release or relinquishment of any material contract rights not in the ordinary course of business and consistent with past practices;
(i) shall not propose or adopt amendments to its certificate of incorporation or by-laws;
(j) shall not issue, deliver or sell any shares (whether original issuance or from treasury shares) of its capital stock or securities convertible into or exercisable for shares of its capital stock (or permit any of its subsidiaries to issue, deliver or sell any shares of such subsidiaries' capital stock or securities convertible into or exercisable for shares of such subsidiaries' capital stock), except upon exercise or fulfillment of options issued or existing on the date hereof pursuant to the Seller Stock Option Plan and listed in Section 5.01(j) of the Seller Disclosure Schedule, and except upon exercise of the Seller Option, as applicable, or effect any stock split, reverse stock split, recapitalization, reclassification or similar transaction or otherwise change its equity capitalization as it exists on the date hereof;
(k) shall not grant, confer or award any options, warrants, conversion rights or other rights, not existing on the date hereof, to acquire any shares of its capital stock;
(l) shall not purchase, redeem or otherwise acquire, or permit any of its subsidiaries to purchase, redeem or otherwise acquire, any shares of its capital stock or any securities convertible into or exercisable for any shares of its capital stock, except in a fiduciary capacity;
(m) shall not impose, or suffer the imposition, on any share of capital stock held by it or by any of its subsidiaries of any material lien, charge, or encumbrance, or permit any such lien, charge, or encumbrance to exist;
(n) shall not incur, or permit any of its subsidiaries to incur, any additional debt obligation or other obligation for borrowed money, or to guaranty any additional debt obligation or other obligation for borrowed money, except in the ordinary course of business consistent with past practices, which shall include but not necessarily be limited to creation of deposit liabilities, purchases of federal funds, sales of certificates of deposit and entry into repurchase agreements or other similar arrangements commonly employed by banks;
(o) shall not incur or commit to any capital expenditures or any obligations or liabilities in connection therewith, other than capital expenditures and such related obligations or liabilities incurred or committed to in the ordinary and usual course of business consistent with past practices, which, in all cases, do not individually exceed $75,000 or cumulatively exceed $300,000;
(p) shall not change its methods of accounting in effect at October 31, 1994, except as may be required by changes in GAAP as concurred in by the Seller's independent auditors, and the Seller shall not change its fiscal year;
(q) shall file all reports, applications and other documents required to be filed by it with the SEC, OTS, FDIC, Massachusetts Commissioner and any other governmental agency or authority between the date of this Agreement and the Effective Time and shall furnish to the Buyer copies of all such reports promptly after the same are filed; and
(r) shall not agree, in writing or otherwise, to take any of the actions prohibited under this Section 5.01 or any action which would make any of its representations or warranties contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests Agreement untrue or incorrect or would otherwise violate any of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and its other benefits arising from such violation and any other remedies at law agreements or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.
(iii) Purchaser acknowledges that the restrictions commitments contained in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that Agreement in any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceablematerial respect.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Bank of Boston Corp)
Covenants of the Parties. 7.1 Activity in the Ordinary Course.
(a) Covenant Against Competition and Disclosure.
(i) During the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding From the date hereof, (B) disclose to any Person other than Purchaser or Sellerand including the Closing Date, any information relating to Seller shall conduct the business of the Branches in the ordinary and usual course consistent with past practices and standards, and Seller or Purchaser (including without limitation information relating to accountsshall not, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At the request of Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i:
(i) effective as Permit any of the Acquisition Date (Branches to engage or participate in any material transaction or incur or sustain any material obligation except in the "Non-Competition Agreements")ordinary course of business;
(ii) Seller acknowledges that Offer interest rates or terms on any category of deposits or loans at the restrictions contained Branches which are not determined in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser a manner consistent with past practice and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.procedure;
(iii) Except as expressly contemplated herein, transfer to or from the Branches to or from any of Seller’s other operations or branches any Assets or Deposits, except upon the unsolicited request of a depositor or customer in the ordinary course of business or if such deposit is pledged as security for a loan or similar obligation that is not an Asset;
(iv) Except in the ordinary course of business, sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any Asset;
(v) Make or agree to make any material improvements to any of the Branches or the Real Property except with respect to commitments for such made on or before the date of this Agreement and disclosed on Schedule 7.1 or normal maintenance purchased or made in the ordinary course of business;
(vi) Terminate the operations of any of the Branches or file any application to relocate or close any of the Branches;
(vii) Enter into any commitment, agreement, understanding or other arrangements to transfer, assign, encumber or otherwise dispose of the Branches, except in a manner consistent with Seller’s obligations under this Agreement; or
(viii) Except for those employees of the Branches listed on Schedule 1.2, transfer any employee employed at one of the Branches to any other branch of Seller, nor will Seller permit any employee of one of the Branches to post for positions outside such Branch, nor will Seller grant any increase in the salary or wages of any of the employees of the Branches other than normal increases at times and amounts consistent with Seller’s past practices.
(b) Between the date of this Agreement and the Closing Date, neither Seller nor Purchaser acknowledges shall, and each shall cause its respective officers, directors, agents and employees not to, take any action that is intended to induce, or is reasonably likely to induce, the restrictions contained transfer of banking business from the Branches; provided, however, that nothing in this Section 8(aparagraph shall (i) are reasonably necessary limit the right of either party to protect advertise or market its products in the good ordinary course of business or (ii) prohibit Purchaser from notifying customers of the Branches of its inability to provide certain services offered by Seller.
(c) From the date hereof until twenty-four (24) months after (i) the Closing Date or (ii) the date of termination of this Agreement, whichever is applicable (the “Non-Solicitation Period”), Seller agrees that it will not solicit or hire any individual who is an employee of Purchaser and at any of the legitimate business interests Branches or at any branch of Purchaser and within a twenty-five (25) mile radius of the Branches. Likewise, except as explicitly contemplated hereby with respect to the Transferred Employees, Purchaser agrees that any violation of such restrictions will result in irreparable injury to Seller and during the Business in which Seller is acquiring a substantial equity interest hereunder for which damages Non-Solicitation Period, Purchaser will not be solicit for employment or hire any individual who is an adequate remedy. employee of Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting at any branch of earnings, profits and other benefits arising from such violation and Seller within a twenty-five (25) mile radius of any other remedies at law or in equity available to Sellerof the Branches. The parties hereto agree agree, however, that general recruiting advertisements not targeted specifically at the duration and area for which the covenants set forth in other’s employees shall not be considered a solicitation under this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable7.1(c).
Appears in 1 contract
Covenants of the Parties. 7.1 Activity in the Ordinary Course. From the date hereof until the Closing Date, except (i) as may be required by a Regulatory Authority or applicable law or (ii) as contemplated hereby, Seller (a) Covenant Against Competition and Disclosure.
(i) During the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take awaywill, with respect to the products Branches, the Assets and the Assumed Liabilities, use Commercially Reasonable Efforts to preserve its business relationships with depositors, (b) will maintain the Branches in their current condition, ordinary wear and tear excepted, (c) use Commercially Reasonable Efforts to conduct the business of either Business as presently conductedthe Branches and preserve the Assets and Assumed Liabilities in all material respects in the ordinary and usual course of business consistent with past practice, any of Seller's or Purchaser's customers or suppliersand (d) shall not, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At Purchaser (such consent not to be unreasonably withheld, conditioned or delayed):
(i) Increase or agree to increase the request salary or wage rate and incentive opportunity of Seller and/or Purchaserany Branch Employee, Seller and Purchaser shall use their best efforts to cause their respective officerother than normal salary or wage increases in the ordinary course of business consistent with past practice (however, directorssuch increases shall, and controlling persons to in no event, increase the aggregate cash compensation for Branch Employees by more than 3% on an annualized basis or for any individual Branch Employee by more than 10%);
(ii) Establish, adopt, enter into agreements or amend any plan, agreement or arrangement that provides incentive compensation, bonus or commissions exclusively for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges Branch Employees that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will would result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder any material increase in liability for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.;
(iii) (A) Transfer any Branch Employee to another branch, facility or office of Seller or any of their respective Affiliates which is not a Branch, or (B) transfer any employee of Seller or any of its Affiliates who, as of the date hereof, is not a Branch Employee to any Branch other than in the ordinary course of business;
(iv) Hire any employee for any of the Branches other than in the ordinary course of business and consistent with past practices, including with respect to compensation and benefit levels; provided, however, Seller shall consult with Purchaser acknowledges prior to the hire of any individual employed as a Branch Manager, commercial loan officer, mortgage lending officer or in any other managerial capacity;
(v) Terminate any Branch Employee, except in the ordinary course of business in accordance with existing personnel policies and practices of Seller;
(vi) Establish or price Deposits at any Branch other than in the ordinary course of business consistent with Seller’s past practices (including deposit pricing policies in effect for such Branch as of the date hereof), subject to the limitation in (vii) below;
(vii) Offer interest rates or terms on any category of Deposits at any Branch in a manner inconsistent with Seller’s past practice or, without limiting the generality of the foregoing, accept any brokered deposits at the Branches;
(viii) Transfer to or from any Branch to or from any of Seller’s other operations or branches any material Assets or any Deposits, except (A) pursuant to an unsolicited customer request or (B) if such Deposit is pledged as security for a loan or other obligation that is not a Loan;
(ix) Amend, modify or extend any Loan, except in the restrictions contained manner provided in this Section 8(a7.8; 44
(x) are reasonably Originate any loan at the Branch or that is attributed to the Branch, except in the ordinary course of business consistent with Seller’s approved lending policies as existed on the date hereof;
(xi) Sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any of the Assets or Deposits existing on the date hereof, except in the ordinary course of business consistent with past practice;
(xii) Make or agree to make any material improvements to the Owned Real Property or the leased property subject to a Branch Lease, except normal maintenance or refurbishing purchased or made in the ordinary course of business;
(xiii) Close, sell, consolidate, relocate or materially alter any Branch or otherwise file any application or give any notice to relocate or close any Branch;
(xiv) Amend, terminate or extend in any material respect any Branch Lease or Tenant Lease; provided, however, Seller may extend any Branch Lease or Tenant Lease if, in its reasonable business judgment, Seller determines such extension is necessary to protect deliver the good will Branch on the Closing Date as a fully operative branch banking operation or to avoid the deemed waiver of Purchaser and any right to extend the legitimate business interests term of Purchaser and a Branch Lease;
(xv) Release, compromise or waive any material claim or right that any violation is part of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period Assets or the areaAssumed Liabilities; or
(xvi) Agree with, or both commit to, any person to do any of them, are unreasonable, the parties hereto agree that the covenants shall remain things described in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableclauses (i) through (xv) except as contemplated hereby.
Appears in 1 contract
Sources: Purchase and Assumption Agreement
Covenants of the Parties. 7.1 Activity in the Ordinary Course. From the date hereof until the Closing Date, except (i) as set forth on Schedule 7.1 of the Seller Disclosure Schedule, (ii) as may be required by a Regulatory Authority or applicable law or (iii) as contemplated hereby, Seller (a) Covenant Against Competition and Disclosure.
(i) During the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take awaywill, with respect to the products Branches, the Assets and the Assumed Liabilities, use its reasonable best efforts to preserve its business relationships with depositors, (b) will maintain the Branches in their current condition, ordinary wear and tear excepted, (c) use its reasonable best efforts to conduct the business of either Business the Branches and preserve the Assets and Assumed Liabilities in all material respects in the ordinary and usual course of business consistent with past practice, (d) maintain the Loans and Deposits at their current designated Branches except as presently conductedotherwise expressly provided herein, any of Seller's or Purchaser's customers or suppliersand (e) shall not, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At Purchaser (such consent not to be unreasonably withheld, conditioned or delayed):
(i) Increase or agree to increase the request salary or wage rate and incentive opportunity of Seller and/or Purchaserany Included Employee, Seller and Purchaser shall use their best efforts to cause their respective officerother than normal salary or wage increases in the ordinary course of business consistent with past practice (however, directorssuch increases shall, and controlling persons to in no event, increase the aggregate cash compensation for Included Employees by more than 3.0% on an annualized basis or for any individual Included Employee by more than 5.0%);
(ii) Establish, adopt, enter into agreements into, terminate or amend any plan, agreement or arrangement that provides incentive compensation, severance pay, change in control, bonus or commissions or other Benefit Plan for the benefit of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")
(ii) Seller acknowledges Included Employees that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will would result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder any increase in liability for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.;
(iii) Purchaser acknowledges (A) Transfer any Included Employee to another branch, facility or office of Seller or any of its Affiliates which is not a Branch, or (B) transfer any employee of Seller or any of its Affiliates who, as of the date hereof, is not an Included Employee to any Branch other than in the ordinary course of business and consistent with past practice;
(iv) Hire any employee for any of the Branches other than in the ordinary course and consistent with past practices, including, with respect to the type of position filled and the compensation and benefit levels;
(v) Terminate any Included Employee, except in the ordinary course of business in accordance with existing personnel policies and practices of Seller;
(vi) Establish or price Deposits at any Branch other than in the ordinary course of business consistent with Seller’s past practices (including deposit pricing policies in effect for such Branch as of the date hereof), subject to the limitation in (vii) below and in no event establish or price (A) certificates of deposit at rates higher than the federal funds rate plus 45 bps or for a term greater than 13 months or (B) money market rates higher than the federal funds rate plus 40 bps or guaranteed for greater than 90 days;
(vii) Offer interest rates or terms on any category of Deposits at any Branch in a manner inconsistent with Seller’s past practice or, without limiting the generality of the foregoing, accept any brokered deposits at the Branches;
(viii) Transfer any item of Personal Property set forth on Exhibit 2.3(d) from its current designated Branch or transfer to or from any Branch to or from any of Seller’s other operations or branches any other Assets or any Deposits, except (A) pursuant to an unsolicited customer request, (B) if such Deposit is pledged as security for a loan or other obligation that is not a Loan or (C) movements of Records and cash on hand in the restrictions contained ordinary course of business consistent with Seller’s past practices;
(ix) Amend, modify or extend any Loan, except in this the manner provided in Section 8(a7.8;
(x) are reasonably Originate any loan at the Branch or that is attributed to the Branch, except in the ordinary course of business consistent with Seller’s approved lending policies as existed on the date hereof;
(xi) Sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any of the Assets or Deposits existing on the date hereof, except in the ordinary course of business consistent with past practice;
(xii) Make or agree to make any material improvements to the leased property subject to a Branch Lease, except normal maintenance or refurbishing purchased or made in the ordinary course of business;
(xiii) Close, sell, consolidate, relocate or materially alter any Branch or otherwise file any application or give any notice to relocate or close any Branch;
(xiv) Amend, terminate or extend any Branch Lease; provided, however, Seller may extend the Branch Lease if, in its reasonable business judgment, Seller determines such extension is necessary to protect deliver the good will Branch on the Closing Date as a fully operative branch banking operation or to avoid the deemed waiver of Purchaser and any right to extend the legitimate business interests term of Purchaser and a Branch Lease;
(xv) Release, compromise or waive any material claim or right that any violation is part of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period Assets or the areaAssumed Liabilities;
(xvi) Make any amendment to any Tax returns, or both of themany election made, are unreasonableany accounting method or fiscal year adopted, or any position taken in any Tax returns with respect to the Assets, the parties hereto agree Assumed Liabilities or the operation of the Branches that is inconsistent with any such election, accounting method, fiscal year or position previously made, adopted or taken with respect to such returns; or
(xvii) Agree with, or commit to, any Person to do any of the covenants shall remain things described in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableclauses (i) through (xvi) except as contemplated hereby.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Investors Bancorp, Inc.)
Covenants of the Parties. 7.1 Activity in the Ordinary Course. Until the Closing Date, except as may be required in connection with the Merger or as contemplated hereby, (a) Covenant Against Competition and Disclosure.
(i) During Seller shall conduct the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the BusinessBranches (including, without limitation, any business of filling open positions at the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country Branches but excluding job posting in the world where Seller has conducted any aspect of Business (including the sale of any products) Branches for open positions at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business offices of Seller or Purchaser its Affiliates) in the ordinary and usual course of business consistent with past practice and (including without limitation information relating to accountsb) Seller shall not, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take away, with respect to the products of either Business as presently conducted, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At , which consent shall not be unreasonably withheld:
(i) Increase or agree to increase the request salary, remuneration or compensation of any Branch Employee other than in accordance with Seller's existing customary policies generally applicable to employees having similar rank or duties, or pay or agree to pay any uncommitted bonus to any Branch Employee other than regular bonuses granted in the ordinary course of Seller's business (which bonuses, to the extent they constitute stay bonuses, in any event, shall be the responsibility of Seller), or transfer any Branch Employee to another branch or office of Seller and/or Purchaser, Seller and Purchaser shall use their best efforts to cause their respective officer, directors, and controlling persons to enter into agreements for the benefit or any of Purchaser and Seller consistent with the terms of this Section 8(a)(i) effective as of the Acquisition Date (the "Non-Competition Agreements")its Affiliates;
(ii) Seller acknowledges that the restrictions contained Offer interest rates or terms on any category of deposits at a Branch except as determined in this Section 8(a) a manner materially consistent with Seller's practice with respect to its branches which are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not be an adequate remedy. Purchaser shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.being sold;
(iii) Transfer to or from any Branch to or from any of Seller's other operations or branches any material Assets or any Deposits, except (A) in the ordinary course of business or as contemplated by this Agreement, (B) upon the unsolicited request of a depositor or customer, or (C) if such Deposit is pledged as security for a loan or other obligation that is not a Loan;
(iv) Sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any of the Assets existing on the date hereof, except in the ordinary course of business consistent with past practice;
(v) Sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any Loan;
(vi) Make or agree to make any material improvements to the Owned Real Property, except with respect to commitments for such made on or before the date of this Agreement and set forth on Schedule 7.1(a)(vi) and normal maintenance or refurbishing purchased or made in the ordinary course of business;
(vii) File any application or give any notice to relocate or close any Branch or relocate or close any Branch;
(viii) Amend, terminate or extend in any material respect any Branch Lease or Tenant Lease; PROVIDED, HOWEVER, Seller may extend any Branch Lease or Tenant Lease if, in its reasonable business judgment, Seller determines such extension is necessary to deliver the Branch on the Closing Date as a fully operative branch banking operation;
(ix) Except as permitted by this Section 7.1, knowingly take, or knowingly permit its Affiliates to take, any action (A) impairing Purchaser's rights in any Deposit or Asset, (B) impairing in any way the ability of Purchaser acknowledges to collect upon any Loan, or (C) except in the ordinary course of servicing, waiving any material right, whether in equity or at law, that it has with respect to any Loan; or
(x) Extend credit otherwise then in accordance with its existing lending policies and credit authorities; provided, however, that the restrictions contained Seller may also make any such loan in this Section 8(a) are reasonably necessary to protect the good will of Purchaser and the legitimate business interests of Purchaser and that any violation of such restrictions will result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that (A) the Seller has delivered to Purchaser or its designated representative a notice of its intention to make such loan and such information as Purchaser or its designated representative shall require in respect thereof and (B) the Purchaser or its designated representative shall not have objected to such loan by giving written or facsimile notice of such objection within one (1) business day following the delivery to Purchaser or its designated representative of the notice and information as aforesaid.
(xi) Make any court determines that contract, commitment or renew any contract or commitment related to any of the time period Branches in an amount where payments would exceed $100,000 or the areawhich exceeds twelve (12) months.
(xii) Agree with, or both commit to, any person to do any of them, are unreasonable, the parties hereto agree that the covenants shall remain things described in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableclauses (i) through (ix) except as contemplated hereby.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Bremer Financial Corporation)
Covenants of the Parties. 7.1 Activity in the Ordinary Course. From the date hereof until the Closing Date, (i) except as set forth in Schedule 7.1 of the Seller Disclosure Schedule, (ii) as may be required by a Regulatory Authority or applicable law or (iii) as otherwise expressly provided hereby, Seller (a) Covenant Against Competition and Disclosure.
(i) During the period commencing on the date hereof and ending on December 31, 2006, neither Seller nor any officer, director or controlling person of Seller or Purchaser shall, directly or indirectly, for itself or themselves or on behalf of any other Person, (A) engage in any business competitive with the Seller Business (including within the definition of the Business, without limitation, any business of the type or types conducted by Seller at any time during the two year period preceding the date hereof or under development by Seller on the date hereof) in any county or other political subdivision of any state of the United States of America or of any other country in the world where Seller has conducted any aspect of Business (including the sale of any products) at any time during the two (2) year period preceding the date hereof, (B) disclose to any Person other than Purchaser or Seller, any information relating to the business of Seller or Purchaser (including without limitation information relating to accounts, financial dealings, transactions, trade secrets, Intellectual Property, customer lists and pricing lists), whether or not marked or otherwise identified as confidential or secret, (C) solicit, divert, take away or attempt to take awaywill, with respect to the products Branch, the Assets and the Assumed Liabilities, use its commercially reasonable efforts to preserve its business relationships with depositors and borrowers, (b) will maintain the Branch in its current condition, ordinary wear and tear excepted, (c) use its commercially reasonable efforts to conduct the business of either Business as presently conductedthe Branch and preserve the Assets and Assumed Liabilities in all material respects in the ordinary and usual course of business consistent with past practice and (d) shall not, any of Seller's or Purchaser's customers or suppliers, or (D) hire any employee or induce or attempt to induce any employee to leave his or her employment with Purchaser without the prior written consent of Purchaser. At Purchaser (such consent not to be unreasonably withheld, conditioned or delayed):
(i) Increase or agree to increase the request of Seller and/or salary, benefits, remuneration or compensation of, or pay any bonus to, any Branch Employee, other than, following notice to Purchaser, Seller and Purchaser shall use their best efforts (A) prior to cause their respective officerthe date which is one (1) week before the Closing Date, directors, and controlling persons to enter into agreements for normal salary or wage increases in the benefit ordinary course of Purchaser and Seller business consistent with past practice (however, any such increase shall, in no event, increase the terms aggregate cash compensation for Branch Employees by more than 2% of this Section 8(a)(i) effective their aggregate cash compensation as of the Acquisition Date date of this Agreement), (B) increases or payments as required by contractual commitments outstanding on the "Non-Competition Agreements")date hereof and provided to Purchaser prior to the date hereof and set forth on Schedule 7.1(i)(B) of the Seller Disclosure Schedule, and (C) regular bonuses granted in the ordinary course of business consistent with past practice and set forth on Schedule 7.1(i)(C) of the Seller Disclosure Schedule;
(ii) Seller acknowledges Establish, adopt, enter into or amend any plan, agreement or arrangement that the restrictions contained in this Section 8(a) are reasonably necessary to protect the good will transferred to Purchaser and the legitimate business interests of Purchaser and provides for incentive compensation, bonus or commissions or any Employment Agreement (or arrangement that any violation of such restrictions will result in irreparable injury to Purchaser and the Business acquired by Purchaser hereunder for which damages will not would be an adequate remedy. Purchaser shall therefore be entitled employment agreement if in effect on the date hereof) with respect to preliminary and injunctive relief as well as to an equitable accounting of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Purchaser. The parties hereto agree that the duration and area for which the covenants set forth in this Section 8(a) are to be effective are reasonable. In the event that Branch Employee (including any court determines that the time period or the area, or both of them, are unreasonable, the parties hereto agree that the covenants shall remain in full force and effect for the greatest time period and in the greatest area that would not render them unenforceable.new hire);
(iii) Purchaser acknowledges (A) Transfer any Branch Employee to another branch, facility or office of HoldCo or Seller or any of their respective Affiliates which is not a Branch, or (B) transfer any employee of HoldCo or Seller or any of their respective Affiliates who, as of the date hereof, is not a Branch Employee to the Branch other than temporary assignments of a fill-in nature in the ordinary course of business;
(iv) Hire any employee for any of the Branch other than, prior to the date which is one (1) week prior to the Closing Date, in the ordinary course and consistent with past practices, including, with respect to the type of position filled and the compensation and benefit levels;
(v) Terminate any Branch Employee, except in the ordinary course of business in accordance with existing personnel policies and practices of Seller;
(vi) Establish or price Deposits at the Branch other than in the ordinary course of business consistent with Seller’s past practices (including deposit pricing policies in effect for such Branch as of the date hereof), subject to the limitation in (vii) below;
(vii) Offer interest rates or terms on any category of Deposits at the Branch in a manner inconsistent with Seller’s past practice;
(viii) Introduce new products or market promotions at the Branch other than market promotions in the ordinary course of business consistent with Seller’s past practices; provided, however, that in no event shall Seller offer any “teaser” interest rates in the restrictions contained in course of introducing any new market promotion permitted under this Section 8(a7.1(viii);
(ix) are Transfer to or from the Branch to or from any of Seller’s other operations or Branch any material Assets or any Deposits (except pursuant to an unsolicited customer request where it would be customary banking practice to honor such request);
(x) Sell, transfer, assign, encumber or otherwise dispose of or enter into any contract, agreement or understanding to sell, transfer, assign, encumber or dispose of any of the Assets or Deposits existing on the date hereof, except in the ordinary course of business consistent with past practice;
(xi) Make or agree to make any individual capital expenditure in respect of the Assets or the Assumed Liabilities in excess of $5,000; provided that with respect to any written request for Purchaser’s consent for proposed capital expenditures that Seller deems to be for “emergency purposes,” Purchaser shall respond within forty-eight (48) hours;
(xii) Make or agree to make any material improvements to the Real Property except normal maintenance or refurbishing purchased or made in the ordinary course of business;
(xiii) Close, sell, consolidate or relocate the Branch or otherwise file any application or give any notice to relocate or close the Branch;
(xiv) Knowingly take any action that would reasonably necessary be expected to protect (A) adversely affect the good will ability of Purchaser and any party hereto to obtain the legitimate business interests Regulatory Approvals, (B) adversely affect the ability of Purchaser and that any violation of such restrictions will party hereto to obtain any consent required pursuant to this Agreement, (C) result in irreparable injury to Seller and the Business in which Seller is acquiring a substantial equity interest hereunder for which damages will not be an adequate remedy. Seller shall therefore be entitled to preliminary and injunctive relief as well as to an equitable accounting failure of earnings, profits and other benefits arising from such violation and any other remedies at law or in equity available to Seller. The parties hereto agree that the duration and area for which the covenants condition set forth in Section 9.1(c) or (D) result in any of the covenants or conditions to the transactions contemplated hereby not being materially satisfied;
(xv) Except as permitted by this Section 8(a) are to be effective are reasonable. In the event that any court determines that the time period or the area7.1, knowingly take, or both knowingly permit its Affiliates to take, any action impairing in a material respect Purchaser’s rights or obligations in respect of themany Deposit, are unreasonableLoan Asset or Assumed Liability; or
(xvi) Solicit, agree with, or commit to, any Person to do any of the parties hereto agree that the covenants shall remain things described in full force and effect for the greatest time period and in the greatest area that would not render them unenforceableclauses (i) through (xv), except as contemplated hereby.
Appears in 1 contract
Sources: Purchase and Assumption Agreement (Floridian Financial Group Inc)