Operating Covenants. The Company and the Trust, jointly and severally, hereby covenants and agrees with United and PFC Acquisition that, from the date of this Agreement through the Closing Date or the earlier termination of this Agreement, except with the prior written consent of United and PFC Acquisition, the Company or the Bank will not: (i) Declare or pay any dividends or distributions with respect to any shares of their capital stock, except that the Bank shall declare and pay a dividend to the Company in an amount consistent with past practice; (ii) Borrow any amount or incur or become subject to any liability, except liabilities incurred in the ordinary course of business, but in no event shall the Company or the Bank enter into any long-term borrowings or obligations, other than deposit obligations; (iii) Discharge or satisfy any lien or encumbrance on the properties or assets of the Company or the Bank or pay any liability, other than in the ordinary course of business; (iv) Sell, assign or transfer any tangible assets, except in the ordinary course of business and for fair and reasonable consideration; (v) Amend their Articles of Association or Incorporation or Bylaws; (vi) Cancel any debt or claim or waive any right of value, except in the ordinary course of business and for fair and reasonable consideration; (vii) Repurchase or enter into any agreement to repurchase all or any portion of any loan previously participated to any other financial institution; (viii) Originate any loan which is thereafter participated to another financial institution providing for payment upon default on any basis other than pro rata; (ix) Except in the ordinary course of business and consistent with the Bank's current loan policies and safe and sound banking practices, make or commit to make any further advances on any loan which is either in default or classified, whether such classification is a result of a federal bank regulatory examination or internal classification by the Bank's officers or directors, unless the Bank is under a legal obligation to do so; (x) Except in the ordinary course of business and consistent with the Bank's current loan policies and safe and sound banking practices, release or agree to release any collateral securing any loan, except where the collateral released is replaced by collateral with an equal or greater value or where the Bank is under a legal obligation to do so; (xi) Make, renew or agree to make or renew any loan or advance on any existing loan, except in substantial conformity with the Bank's current loan policies and safe and sound banking practices (where any nonconformity has been approved by the Bank's loan committee); (xii) Pay or incur any obligation or liability with respect to capital expenditures which exceed $100,000 in the aggregate; (xiii) Fail to timely pay and discharge all federal and state taxes and other accounts payable for which it is liable, provided that the Company or the Bank may deposit an amount equal to any such taxes, in lieu of the payment thereof, into a reserve account from which such taxes will be paid when and to the extent they are found to be properly due and payable; (xiv) Pay or commit to pay any additional salary or other compensation to any of the Company or the Bank's officers, directors or employees, other than normal pay raises in the ordinary course of business and an appreciation bonus to the employees of the Bank in an amount calculated by a formula approved by the parties hereto (which amount shall be inclusive of the bonus plus the matching 401(k) contributions with respect to the bonus plus the FICA payroll taxes relating to the bonus) that will be fully accrued on the books of the Company or the Bank prior to the Valuation Date and an incentive bonus to the employees of the Bank in an amount calculated by a formula approved by the parties hereto that will be fully accrued on the books of the Bank prior to the Valuation Date; (xv) Make or grant any increase in any Employee Plan, amend or terminate any existing Employee Plan, or adopt any new Employee Plan, except as required by law; (xvi) Make any investments, including derivatives or structured notes, except in the ordinary course of business and consistent with prior practices, or sell or agree to sell any investment securities prior to maturity; (xvii) Incur or permit to be entered against the Company or the Bank any default judgment, or permit any unsatisfied judgment to remain unsatisfied, provided, however, that the Company or the Bank may deposit an amount equal to any such judgment, in lieu of the payment thereof, into a reserve account from which such judgments will be paid when and to the extent they are found to be properly due and payable and upon exhaustion of the Company's or the Bank's rights to appeal or seek review of such judgments; (xviii) Take any other action or enter into any other transaction or agreement, other than in the ordinary course of business; or (xix) Fail to conduct its business in, and only in, the usual, regular and ordinary course in substantially the same manner as heretofore conducted and in accordance with the terms and conditions of this Agreement.
Appears in 1 contract
Operating Covenants. The Company and the Trust, jointly and severally, hereby covenants and agrees with United and PFC Acquisition that, from From the date of this Agreement through until the earlier to occur of the Closing Date or the earlier termination of and this Agreement, except Agreement being terminated in accordance with the prior written consent of United and PFC AcquisitionSection 7.1, the Company or the Bank will shall not:
(i) Declare purchase or pay redeem, however effected, any dividends or distributions equity interests of the Company other than pursuant to this Agreement (which exception shall include any repurchase of FOAEC Units substantially concurrently with respect to any the Closing in connection with the purchase of the shares of their capital stockClass A Common Stock constituting Sold Equity) or from a director, except that officer or employee in connection with the Bank shall declare and pay a dividend to termination of service or employment of any director, officer or employee of the Company under circumstances where the purchase of such equity is permitted in an amount consistent accordance with past practiceequity documents (including any applicable grant or similar agreement) as of the date hereof;
(ii) Borrow any amount voluntarily prepay in cash, or incur voluntarily accelerate the payment of, by means of a payoff, paydown, redemption, repurchase or become subject to any liabilityotherwise, except liabilities incurred in the ordinary course of business, but in no event shall the Company or the Bank enter into any long-term borrowings or obligations, other than deposit obligations;
(iii) Discharge or satisfy any lien or encumbrance on the properties or assets of the Company or the Bank or pay any liability, other than in the ordinary course of business;
(iv) Sell, assign or transfer any tangible assets, except in the ordinary course of business and for fair and reasonable consideration;
(v) Amend their Articles of Association or Incorporation or Bylaws;
(vi) Cancel any debt or claim or waive any right of value, except in the ordinary course of business and for fair and reasonable consideration;
(vii) Repurchase or enter into any agreement to repurchase all or any portion of any loan previously participated to any other financial institution;
indebtedness for borrowed money (viii) Originate any loan which is thereafter participated to another financial institution providing for payment upon default on any basis other than pro rata;
(ix) Except in to the ordinary course of business and consistent with the Bank's current loan policies and safe and sound banking practices, make or commit to make any further advances on any loan which is either in default or classified, whether such classification is a result of a federal bank regulatory examination or internal classification extent specifically required by the Bank's officers or directorsterms of such indebtedness as of the date hereof, unless the Bank is under a legal obligation to do so;
(x) Except in the ordinary course of business and consistent with the Bank's current loan policies and safe and sound banking practices, release or agree to release any collateral securing any loan, except where the collateral released is replaced by collateral with an equal or greater value or where the Bank is under a legal obligation to do so;
(xi) Make, renew or agree to make or renew any loan or advance on any existing loan, except in substantial conformity with the Bank's current loan policies and safe and sound banking practices (where any nonconformity has been approved by the Bank's loan committee);
(xii) Pay or incur any obligation or liability including with respect to capital expenditures which exceed $100,000 in the aggregate;
(xiii) Fail to timely pay and discharge all federal and state taxes and other accounts payable for which it is liable, provided that the Company any mandatory interest or the Bank may deposit an amount equal to any such taxesamortization payments, in lieu of the payment thereof, into a reserve account from which such taxes will be paid when and each case solely to the extent they are found to be properly due and payable;
(xiv) Pay or commit to pay any additional salary or other compensation to any of the Company or the Bank's officers, directors or employees, other than normal pay raises in the ordinary course of business and an appreciation bonus to the employees of the Bank in an amount calculated by a formula approved by the parties hereto (which amount shall be inclusive of the bonus plus the matching 401(k) contributions with respect to the bonus plus the FICA payroll taxes relating to the bonus) that will be fully accrued on the books of the Company or the Bank prior to the Valuation Date and an incentive bonus to the employees of the Bank in an amount calculated by a formula approved by the parties hereto that will be fully accrued on the books of the Bank prior to the Valuation Date;
(xv) Make or grant any increase in any Employee Plan, amend or terminate any existing Employee Plan, or adopt any new Employee Plan, except as required by law;
(xvi) Make any investments, including derivatives or structured notes, except in the ordinary course of business and consistent with prior practices, or sell or agree to sell any investment securities prior to maturity;
(xvii) Incur or permit to be entered against the Company or the Bank any default judgment, or permit any unsatisfied judgment to remain unsatisfied, provided, however, that the Company or the Bank may deposit an amount equal to any such judgment, in lieu of the payment thereof, into a reserve account from which such judgments will be paid is effected when and to the extent they are found to be properly due and payable and upon exhaustion of the Company's or the Bank's rights to appeal or seek review of such judgments;
(xviii) Take any other action or enter into any other transaction or agreement, other than in the ordinary course of business; or
(xix) Fail to conduct its business in, and only in, the usual, regular and ordinary course in substantially the same manner as heretofore conducted and if required in accordance with the terms of such indebtedness as of the date hereof), and the Company shall cause Finance of America Funding LLC to not take any of the foregoing actions with respect to its 7.875% Senior Notes due 2025, its 7.875% Senior Notes due 2026 or its 10.000% Exchangeable Senior Notes due 2029 (except, with respect to Finance of America Funding LLC and the foregoing indebtedness, “as of the date hereof” shall also take into account any amendment or modification contemplated by the Support Agreement from and after the effectiveness of such amendment or modification);
(iii) declare, set aside, make or pay any dividend or distribution (whether in cash, assets, shares, other securities or property or any combination thereof) in respect of any equity interests of the Company or any of its Subsidiaries (other than among the Company and its Subsidiaries which do not involve payments to any third party);
(iv) take any action (or inaction) (A) with the intent to delay or prevent the Closing from occurring or to cause any of the conditions set forth in Article V to not be satisfied (including the receipt of the Solvency Opinion) or (B) with the knowledge that such action (or inaction) would reasonably be likely to materially delay or prevent the Closing from occurring or to cause any of the conditions set forth in Article V to not be satisfied (including the receipt of the Solvency Opinion), except this Agreementclause (B) shall not apply to any action (or inaction) taken by the Company if the Board of Directors determines that the Company failing to take such action (or inaction) would be inconsistent with its fiduciary duties; or
(v) authorize or commit to or otherwise agree to become obligated to do any action prohibited by this Section 4.5.
Appears in 1 contract
Sources: Repurchase Agreement (Finance of America Companies Inc.)
Operating Covenants. The Company and Pursuant to the Trust, jointly and severally, hereby covenants and agrees with United and PFC Acquisition thatMerger Agreement, from the date of this the Merger Agreement through until the Closing Date Effective Time, OPAY will, and will cause its subsidiary to (unless otherwise required by applicable law, consented to in writing in advance by ACI or expressly permitted or required by the earlier termination of this Agreement, except with Merger Agreement or as set forth in the prior written consent of United and PFC Acquisition, the Company or the Bank will not:
(i) Declare or pay any dividends or distributions with respect to any shares of their capital stock, except that the Bank shall declare and pay a dividend disclosure schedules to the Company in an amount consistent with past practice;
(ii) Borrow any amount or incur or become subject to any liabilityMerger Agreement), except liabilities incurred in the ordinary course of business, but in no event shall the Company or the Bank enter into any long-term borrowings or obligations, other than deposit obligations;
(iii) Discharge or satisfy any lien or encumbrance carry on the properties or assets of the Company or the Bank or pay any liability, other than in the ordinary course of business;
(iv) Sell, assign or transfer any tangible assets, except its business in the ordinary course of business consistent with past practice, and for fair use commercially reasonable efforts to preserve (a) the current relationships of OPAY and reasonable consideration;
its subsidiary with each of their respective customers, suppliers and other business relationships, (vb) Amend their Articles substantially intact its respective business organizations and will not, among other things: • amend OPAY’s certificate of Association incorporation or Incorporation by-laws; • except as otherwise permitted in the Merger Agreement, issue, deliver, sell, pledge or Bylaws;
encumber, or authorize, propose or agree to the issuance, delivery, sale, pledge or encumbrance of, any shares of its capital stock, or securities convertible into or exchangeable for, or options, warrants, calls, Table of Contents commitments or rights of any kind to acquire, any shares of any class or series of its capital stock (vi) Cancel other than pursuant to the exercise of OPAY’s existing stock options, RSUs, warrants, conversion rights and other contractual rights existing as of the date of the Merger Agreement and set forth in the disclosure schedules to the Merger Agreement); • declare, set aside, make or pay any debt dividend or claim distribution with respect to any of its capital stock (other than dividends paid by OPAY’s subsidiary to OPAY), or waive enter into any right agreement with respect to the voting of valueits capital stock; • reclassify, combine, split, subdivide or redeem, purchase or otherwise acquire any of its capital stock or other equity interests, except pursuant to the exercise or settlement of OPAY’s existing stock options, RSUs, warrants, conversion rights, employee severance, retention, termination, change of control and other contractual rights existing on the date of the Merger Agreement and set forth in the disclosure schedules to the Merger Agreement; • acquire all or any portion of the assets, business, properties or shares of stock or other securities of any other person other than the purchase of assets and properties in the ordinary course of business consistent with past practice and for fair consideration that is individually not in excess of $1 million or, in the aggregate, not in excess of $5 million for acquisitions by OPAY and reasonable consideration;
(vii) Repurchase its subsidiary taken as a whole; • incur any indebtedness for borrowed money or enter into issue any agreement to repurchase all debt securities or any portion assume, guarantee or endorse, or otherwise become responsible for the obligations of any loan previously participated to any other financial institution;
third party (viii) Originate any loan which is thereafter participated to another financial institution providing for payment upon default on any basis other than pro rata;
OPAY’s subsidiary) for borrowed money, except (ix1) Except indebtedness owing by OPAY’s subsidiary to OPAY, (2) indebtedness incurred to refinance any existing indebtedness in an amount not to exceed and on terms no less favorable in the aggregate than such existing indebtedness, and (3) indebtedness for borrowed money incurred with respect to permitted acquisitions or capital expenditures; • grant any lien in any of its material assets to secure any indebtedness for borrowed money, except as otherwise permitted by the Merger Agreement; • issue any debt securities or assume, endorse, or otherwise become responsible for, the obligations of any third party, or make any loans or advances, other than (1) loans or advances to OPAY’s subsidiary and (2) advances of travel and other out-of-pocket expenses to directors, officers and employees in the ordinary course of business and consistent with the Bank's current loan policies and safe and sound banking past practices, make ; • authorize or commit to make any further advances on commitment with respect to capital expenditures that exceeds OPAY’s capital expenditures budget for fiscal year 2014 by $250,000 individually or $500,000 in the aggregate; • enter into any loan which new material line of business outside of its existing business segments; • adopt or amend any existing OPAY benefit plans, increase the compensation or fringe benefits of any OPAY or any OPAY’s subsidiary’s director, officer or employee, pay, fund or accelerate the vesting of any benefit not provided for by any existing benefit plans, except, in each case, (1) as reasonably necessary to comply with applicable law to address the requirements of the Merger Agreement or the terms of existing contracts disclosed in the disclosure schedules to the Merger Agreement or (2) in connection with employees who are not directors or executive officers (as such term is either used in default or classified, whether such classification is a result Rule 3b-7 of a federal bank regulatory examination or internal classification by the Bank's officers or directors, unless the Bank is under a legal obligation to do so;
(xExchange Act) Except in the ordinary course of business and consistent with the Bank's current loan policies and safe and sound banking practicespast practice; • pay, release discharge, settle or agree to release satisfy any collateral securing any loanmaterial claims, except where the collateral released is replaced by collateral with an equal liabilities or greater value obligations (absolute, accrued, contingent or where the Bank is under a legal obligation to do so;
(xi) Make, renew or agree to make or renew any loan or advance on any existing loan, except in substantial conformity with the Bank's current loan policies and safe and sound banking practices (where any nonconformity has been approved by the Bank's loan committeeotherwise);
(xii) Pay or incur any obligation or liability with respect to capital expenditures which exceed $100,000 in the aggregate;
(xiii) Fail to timely pay and discharge all federal and state taxes and other accounts payable for which it is liable, provided that the Company or the Bank may deposit an amount equal to any such taxes, in lieu of the payment thereof, into a reserve account from which such taxes will be paid when and to the extent they are found to be properly due and payable;
(xiv) Pay or commit to pay any additional salary or other compensation to any of the Company or the Bank's officers, directors or employees, other than normal pay raises (1) performance of contractual obligations in accordance with their terms, (2) payment, discharge, settlement or satisfaction in the ordinary course of business and an appreciation bonus to consistent with past practice, or (3) payment, discharge, settlement or satisfaction in accordance with their terms, of claims, liabilities or obligations that have been (i) disclosed in the employees of the Bank in an amount calculated by a formula approved by the parties hereto most recent financial statements (which amount shall be inclusive of the bonus plus the matching 401(k) contributions with respect to the bonus plus the FICA payroll taxes relating to the bonus) that will be fully accrued on the books of the Company or the Bank notes thereto) of OPAY included in OPAY’s SEC filings filed prior to the Valuation Date and an incentive bonus September 20, 2013 or contemplated by documents made available to the employees of the Bank in an amount calculated by a formula approved by the parties hereto that will be fully accrued on the books of the Bank ACI prior to September 20, 2013 or (ii) incurred since the Valuation Date;
(xv) Make or grant any increase in any Employee Plan, amend or terminate any existing Employee Plan, or adopt any new Employee Plan, except as required by law;
(xvi) Make any investments, including derivatives or structured notes, except date of such SEC filings in the ordinary course of business and consistent with prior practicespast practice; Table of Contents • except as otherwise permitted in the Merger Agreement, or sell or agree to sell any investment securities prior to maturity;
(xvii) Incur or permit to be entered against the Company or the Bank any default judgment, or permit any unsatisfied judgment to remain unsatisfied, provided, however, that the Company or the Bank may deposit an amount equal to any such judgment, in lieu of the payment thereof, into a reserve account from which such judgments will be paid when and to the extent they are found to be properly due and payable and upon exhaustion of the Company's or the Bank's rights to appeal or seek review of such judgments;
(xviii) Take any other action adopt or enter into a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of OPAY or its subsidiary (other than the Merger). • dispose of, sell, lease, license or otherwise transfer, any other transaction of OPAY’s or agreementits subsidiary’s material assets, properties, interests or businesses, other than (1) disposing of, selling, leasing or otherwise transferring obsolete equipment or assets being replaced, in each case in the ordinary course of business; or
business consistent with past practice or (xix2) Fail to conduct its business in, and only in, licensing OPAY owned intellectual property on a non-exclusive basis in the usual, regular and ordinary course of business consistent with past practice; • enter into, renew, amend or modify in substantially any material respect or terminate any material contract (as defined in the same manner Merger Agreement) or otherwise waive, release or assign any material rights, claims or benefits of OPAY or its subsidiary; provided, however, OPAY and its subsidiary are not prohibited or precluded from (1) negotiating and/or renewing in the ordinary course of business consistent with past practice any material contracts which expire upon their terms or (2) entering into any customer or supplier contracts in the ordinary course of business consistent with past practice, regardless of whether or not any such contract would constitute a material contract for purposes of the Merger Agreement; • make any material change in its methods of accounting, except as heretofore conducted and required by concurrent changes in accordance with GAAP or in Regulation S-X of the terms and Exchange Act; • make or change any material tax election, adopt or change any material tax method of accounting, consent to any extension or waiver of the statute of limitations period applicable to any material tax claim, audit or assessment, change any annual tax accounting period, enter into any tax allocation agreement, tax sharing agreement or tax indemnity agreement, file any amended tax return that is material or settle or compromise any material tax claim, audit or assessment; or • knowingly commit or agree to take any of the foregoing actions or any action which would result in any of the conditions of this Agreementto the Offer or the Merger not being satisfied.
Appears in 1 contract
Operating Covenants. The From the date of this Agreement until the Effective Time, unless Parent otherwise consents in writing, except (i) as set forth in Section 6.1 of the Company Disclosure Letter, (ii) as otherwise expressly required by this Agreement or (iii) as required by applicable Law (including as required by any COVID-19 Measures), the Company will, and will cause each of the Company Subsidiaries to use reasonable best efforts to (A) conduct its business in the ordinary course of business in a commercially reasonable manner and consistent with its past practice; (B) preserve intact its respective business organization, assets and goodwill and relationships with all Governmental Authorities, customers, employees, contractors, suppliers, distributors, licensors, licensees, collaborators, strategic and joint venture partners and others having material business dealings with the Company or any Company Subsidiary; (C) keep available the services of its and the TrustCompany Subsidiaries’ current officers and key employees; (D) maintain its and the Company Subsidiaries’ material rights and franchises; and (E) comply with all applicable Laws, jointly in all material respects, in each case, consistent with industry and severally, hereby covenants past practice. In addition to and agrees with United and PFC Acquisition thatwithout limiting the generality of the foregoing, from the date of this Agreement through until the Closing Date or the earlier termination of this AgreementEffective Time, unless Parent otherwise consents in writing, except with (i) as set forth in Section 6.1 of the prior written consent of United and PFC AcquisitionCompany Disclosure Letter, (ii) as otherwise expressly required by this Agreement or (iii) as required by applicable Law (including as required by any COVID-19 Measures), the Company or the Bank will not, and will not permit any Company Subsidiary to:
(ia) Declare amend, modify or enter into any of the Constituent Documents, or the terms of any Security, of the Company or any Company Subsidiary or any Constituent Documents to which any such entities are a party;
(b) declare, set aside, make or pay any dividend or other distribution (whether in cash, stock or property) in respect of any Securities, other than cash dividends or distributions with respect to any shares of their capital stock, except that the Bank shall declare and pay a dividend by wholly-owned Company Subsidiaries to the Company in an amount ordinary course of business consistent with past practice;
(c) adjust, split, reverse split, combine, subdivide or reclassify any Securities or issue or propose or authorize the issuance of any other Securities in respect of, in lieu of, or in substitution for, any Securities, other than issuances of shares of Common Stock upon (i) the exercise of Company Options or settlement of Company Restricted Stock Units, in each case, outstanding on the Capitalization Date and in accordance with their respective terms and the terms of the applicable Stock Plan as in effect on the date of this Agreement, or (ii) Borrow the completion of the offering period in effect under the Company ESPP as of the date of this Agreement;
(d) repurchase, redeem or otherwise acquire, directly or indirectly, any amount Securities of the Company or incur any Company Subsidiary, or become subject any other equity interests or any rights, warrants or options to acquire any such Securities, other than (i) the acquisition by the Company of shares of Common Stock in connection with the surrender of shares of Common Stock by holders of Company Options outstanding on the Capitalization Date in order to pay the exercise price thereof, (ii) the withholding of shares of Common Stock to satisfy Tax obligations with respect to Company Equity Awards outstanding on the Capitalization Date, or (iii) the acquisition by the Company of Company Equity Awards outstanding on the Capitalization Date in connection with the forfeiture thereof;
(e) (i) issue, sell, transfer, dispose of, grant, pledge or otherwise encumber any Securities of the Company or any Company Subsidiaries, other than issuances of Common Stock upon (A) the exercise of Company Options or settlement of Company Restricted Stock Units, in each case, outstanding on the Capitalization Date and in accordance with their respective terms and the terms of the applicable Stock Plan as in effect on the date of this Agreement or (B) the completion of the offering period in effect under the Company ESPP as of the date of this Agreement, or (ii) enter into any Contract with respect to the voting of any Securities;
(f) merge or consolidate the Company or any Company Subsidiary with any Person, or acquire or purchase (by merger; consolidation; acquisition of stock or assets; exercise of options to purchase, license, or otherwise acquire or obtain rights; or otherwise), directly or indirectly, Securities, assets or liabilities in any transaction or series of related transactions, (i) constituting a business or (ii) with a value or purchase price in the aggregate in excess of $1,000,000;
(g) transfer, sell, assign, lease, grant any Lien on, license, surrender, cancel, abandon, divest, allow to lapse or otherwise dispose of (including by merger, consolidation, sale of stock or assets or otherwise) any material asset, product line, line of business, right or property (including any interest in a partnership, joint venture or similar entity), other than the sale of Company Products to customers and distributors in the ordinary course of business consistent with past practice pursuant to applicable Company Contracts and other than the disposal of unused, excess or obsolete tangible assets in the ordinary course of business consistent with past practice;
(h) make any loans, advances or capital contributions to, or investments in, any other Person other than (i) by the Company or any wholly-owned Company Subsidiary to or in the Company or any wholly-owned Company Subsidiary or (ii) pursuant to any liabilityContract or other legal obligation existing at the date of this Agreement set forth in Section 6.1(h) of the Company Disclosure Letter;
(i) create, incur, guarantee or assume any Indebtedness, or issue or sell any debt Securities, guarantees, loans or advances, except liabilities (i) Indebtedness incurred in the ordinary course of businessbusiness consistent with past practice not to exceed $500,000 in the aggregate, but in no event shall (ii) Indebtedness between the Company and any Company Subsidiary or (iii) pursuant to any Contract existing at the Bank date of this Agreement set forth in Section 6.1(i) of the Company Disclosure Letter;
(j) make or commit to make any capital expenditure, except for aggregate expenditures in an amount not in excess of (and for projects consistent with) the capital expenditure budget made available to Parent prior to the date of this Agreement and set forth in Section 6.1(j) of the Company Disclosure Letter;
(k) abandon, modify, waive or terminate any material Permit;
(l) amend or modify, terminate, or waive or release any right under, any Covenant Contract or Lease, negotiate, renew or extend any Covenant Contract or Lease or enter into any long-term borrowings Contract that would have been a Covenant Contract or obligations, other than deposit obligationsLease if it had been entered into prior to the date of this Agreement;
(m) (i) sell, transfer, assign, lease, license or otherwise dispose of (whether by merger, stock or asset sale or otherwise) to any Person any rights to any Owned Intellectual Property or Third Party Intellectual Property (except for licensing non-exclusive rights for the primary purpose of (A) conducting clinical research, entered into with a clinical research organization; (B) material transfer, sponsored research or other similar matters; (C) conducting clinical trials; or (D) manufacturing, labeling, or selling the Company’s or any Company Subsidiaries’ products), (ii) cancel, dedicate to the public, disclaim, forfeit, reissue, reexamine or abandon without filing a substantially identical counterpart in the same jurisdiction with the same priority or allow to lapse (except with respect to Patents expiring in accordance with their terms) any Owned Intellectual Property or Third Party Intellectual Property, (iii) Discharge or satisfy fail to make any lien or encumbrance on the properties or assets of the Company or the Bank or filing, pay any liabilityfee, or take any other than action necessary to prosecute and maintain in the ordinary course of business;
full force and effect any registered Owned Intellectual Property, (iv) Sellmake any change in Owned Intellectual Property or Third Party Intellectual Property that is or would reasonably be expected to materially impair such Intellectual Property or the Company’s or any Company Subsidiaries’ rights with respect thereto, assign (v) disclose to any Person (other than Representatives of Parent and Merger Sub), any Trade Secrets, know-how or transfer any tangible assetsconfidential or proprietary information, except except, in the case of confidential or proprietary information, in the ordinary course of business to a Person that is subject to confidentiality obligations, or (vi) fail to take or maintain reasonable measures to protect the confidentiality and for fair and reasonable considerationvalue of Trade Secrets included in any Owned Intellectual Property;
(vn) Amend their Articles forgive, cancel or compromise any debt or claim, or waive or release any right, of Association material value, or Incorporation fail to pay or Bylawssatisfy when due any material liability or obligation;
(vio) Cancel other than as required by any debt Benefit Plan as in effect on the date of this Agreement, (i) increase the compensation payable or claim to become payable or waive the benefits provided to any right of valueIndividual Service Provider, except for any merit and cost-of-living increases in the level of annual base salary or hourly wage rate for non-executive employees in the ordinary course of business and consistent with past practice; (ii) grant any severance, retention, change in control or termination payments or benefits (or provide for fair and reasonable considerationany increase thereof) to, or pay, loan or advance any amount to, any such Individual Service Provider; (iii) grant any equity or equity-based awards to any such Individual Service Provider; (iv) establish, adopt, enter into, terminate or amend or otherwise modify benefits under any Benefit Plan (or any plan, program, policy, agreement or arrangement that would be a Benefit Plan if in effect on the date hereof); or (v) except as required by Section 2.7, take any action to accelerate the vesting, lapsing of restrictions or timing of payment, or fund or in any other way secure the payment, in respect of any award or benefit provided pursuant to any Benefit Plan;
(viip) Repurchase hire any employee or enter into any agreement to repurchase all or any portion of any loan previously participated to any other financial institution;
contractor (viii) Originate any loan which is thereafter participated to another financial institution providing for payment upon default on any basis other than pro rata;
(ixi) Except to fill vacancies arising due to terminations of employment of non-executive officer employees or other contractor or (ii) as described in Section 6.1(p) of the Company Disclosure Letter, in each case in the ordinary course of business and consistent with past practice) or terminate the Bank's current loan policies and safe and sound banking practices, make or commit to make employment of any further advances on any loan which is either in default or classified, whether such classification is a result of a federal bank regulatory examination or internal classification by the Bank's officers or directors, unless the Bank is under a legal obligation to do soexecutive officer other than for cause;
(xq) Except in enter into, amend or otherwise become bound by, or amend or modify, a collective bargaining agreement or similar labor Contract with a labor union, works council, employee committee or representative or other labor organization with respect to employees of the ordinary course of business and consistent with the Bank's current loan policies and safe and sound banking practices, release Company or agree to release any collateral securing any loan, except where the collateral released is replaced by collateral with an equal or greater value or where the Bank is under a legal obligation to do soCompany Subsidiary;
(xir) Makeeffect any “plant closing” or “mass layoff” as those terms are defined in the Worker Adjustment and Retraining Notification Act of 1988, renew as amended, or agree to make or renew any loan or advance on any existing loan, except in substantial conformity with the Bank's current loan policies and safe and sound banking practices (where any nonconformity has been approved by the Bank's loan committee)comparable Law;
(xiis) Pay settle or incur compromise any obligation Proceeding, other than settlements or liability with respect to capital expenditures which exceed $100,000 in the aggregate;
(xiii) Fail to timely pay and discharge all federal and state taxes and other accounts payable for which it is liable, provided compromises that require only payments of money by the Company or the Bank may deposit an amount equal to any such taxes, in lieu of Company Subsidiaries without ongoing limits on the payment thereof, into a reserve account from which such taxes will be paid when and to the extent they are found to be properly due and payable;
(xiv) Pay conduct or commit to pay any additional salary or other compensation to any operation of the Company or the Bank's officersCompany Subsidiaries, directors and after the Closing, Parent and its Affiliates, or employeesother non-monetary relief, other than normal pay raises which payments of money will not exceed $1,000,000 per Proceeding or $5,000,000 in the ordinary course aggregate for all such Proceedings, or enter into any consent, decree, injunction or similar restraint or Order or form of business and an appreciation bonus to the employees equitable relief;
(t) adopt or implement a plan of the Bank in an amount calculated by complete or partial liquidation or resolution providing for or authorizing such liquidation or a formula approved by the parties hereto (which amount shall be inclusive of the bonus plus the matching 401(k) contributions with respect to the bonus plus the FICA payroll taxes relating to the bonus) that will be fully accrued on the books dissolution, merger, restructuring, consolidation, recapitalization or other reorganization of the Company or the Bank any Company Subsidiary; (u) (i) make, revoke or amend any material election relating to Taxes, (ii) take any position on any Tax Return that is inconsistent with past practice or positions taken in preparing or filing similar Tax Returns in prior periods, (iii) settle or compromise any Proceeding relating to the Valuation Date and Taxes, (iv) make a written request for a ruling or determination of a Taxing Authority relating to Taxes, (v) file or re-file an incentive bonus amended Tax Return, (vi) surrender or waive any claim to the employees a Tax refund of the Bank in an amount calculated by a formula approved by the parties hereto that will be fully accrued on the books Company or any Company Subsidiary, (vii) enter into any closing agreement or similar Contract with respect to Taxes, (viii) extend or waive any statute of limitations with respect to any Taxes of the Bank prior to the Valuation DateCompany or any Company Subsidiary or (ix) change any of its Tax accounting methods, policies or practices;
(xvv) Make make any material change with respect to accounting policies or grant any increase in any Employee Plan, amend or terminate any existing Employee Plan, or adopt any new Employee Planprocedures, except as may be required by law;
(xvi) Make changes in GAAP after the date of this Agreement, change its fiscal year or make any investments, including derivatives material change in internal accounting or structured notes, except in the ordinary course of business disclosure controls and consistent with prior practices, or sell or agree to sell any investment securities prior to maturity;
(xvii) Incur or permit to be entered against the Company or the Bank any default judgment, or permit any unsatisfied judgment to remain unsatisfied, provided, however, that the Company or the Bank may deposit an amount equal to any such judgment, in lieu of the payment thereof, into a reserve account from which such judgments will be paid when and to the extent they are found to be properly due and payable and upon exhaustion of the Company's or the Bank's rights to appeal or seek review of such judgments;
(xviii) Take any other action or enter into any other transaction or agreement, other than in the ordinary course of businessprocedures; or
(xixw) Fail propose, authorize, agree or commit to conduct its business in, and only in, do any of the usual, regular and ordinary course in substantially the same manner as heretofore conducted and in accordance with the terms and conditions of this Agreementforegoing.
Appears in 1 contract
Operating Covenants. The Company and the Trust, jointly and severally, hereby covenants and agrees with United and PFC Acquisition Merger Agreement provides that, from except as required or permitted by the date of this Agreement through the Closing Date or the earlier termination of this Merger Agreement, except as required by applicable law, or with the prior written consent of United and PFC AcquisitionParent (which consent will not be unreasonably conditioned, withheld or delayed), or as set forth in Part 5.2 of the Company Disclosure Schedule, from the date of the Merger Agreement until the earlier of the Effective Time or the Bank termination of the Merger Agreement pursuant to its terms, Miramar will use its commercially reasonable efforts to ensure that each Acquired Corporation conducts in all material respects its business and operations in its ordinary course of business consistent with past practices and (ii) Miramar shall promptly notify Parent of (A) any knowledge of any notice from any Person alleging that the Consent of such Person is or may be required in connection with any of the Transactions, and (B) any Legal Proceeding commenced, or, to its knowledge threatened, relating to or involving any Acquired Corporation that relates to the consummation of the Transactions. Additionally, Miramar shall, and shall cause each of its subsidiaries to, use commercially reasonable efforts to preserve intact the material components of its current business organization, including keeping available the services of current officers and key employees and maintaining their respective relations and good will with all material suppliers, governmental bodies and other material business relations. In addition, during the same period, except as required or permitted by the Merger Agreement, as required by applicable law, or otherwise with the prior written consent of Parent, Miramar will not:
(i) Declare , and will not permit any of its subsidiaries to, take certain actions, including the following: • establish a record date for, declare, accrue, set aside or pay any dividends dividend or distributions with make any other distribution in respect of any Miramar securities, or repurchase, redeem or otherwise reacquire any Miramar securities, or any rights, warrants or options to acquire any such securities; • split, combine, subdivide or reclassify any shares of their Miramar’s capital stock (including the Shares) or other equity interests; • sell, issue, grant, deliver, pledge, transfer, encumber or authorize the issuance, sale, delivery, pledge, transfer, encumbrance or grant of (A) any capital stock, equity interest or other security, (B) any option, call, warrant, restricted securities or right to acquire any capital stock, equity interest or other security, or (C) any instrument convertible into or exchangeable for any capital stock, equity interest or other security (except that Miramar may issue Shares as required to be issued upon the Bank shall declare and pay a dividend exercise or vesting of options or warrants outstanding as of the date of the Merger Agreement); • except as contemplated by Section 6.3 of the Merger Agreement, (A) establish, adopt, terminate or amend any employee plan (except to the Company extent required by applicable law), (B) amend or waive any of its rights under, or accelerate the vesting under, any provision of any of the employee plans (except as required by the Merger Agreement), (C) grant any increase in compensation, bonuses or other benefits other than in the ordinary course of business consistent with past practice or (D) pay any severance, retention or retirement benefits to any current or former employees, other than vested benefits (including benefits that become vested as a result of the Transactions) required by the terms of an amount employee plan or (E) grant any equity or equity-based compensation to any employees; • make any contributions (excluding contributions which are employee deferrals of eligible earnings under ▇▇▇▇▇▇▇’s 401(k) plan) to Miramar’s 401(k) plan other than as required under the terms of such plan as in effect on the date of the Merger Agreement, or make any contribution to ▇▇▇▇▇▇▇’s 401(k) plan in Shares; • hire, promote or terminate any employee other than in the ordinary course of business consistent with past practice;
; • amend or permit the adoption of any amendment to ▇▇▇▇▇▇▇’s certificate of incorporation or bylaws or other charter or organizational documents; • form any subsidiary, acquire (iiby merger, consolidation or acquisition of stock or otherwise) Borrow any amount businesses of any other Person or any equity interest in any other Entity or enter into any joint venture, partnership, limited liability corporation or similar arrangement; • make or authorize any capital expenditure (except that Miramar may make any capital expenditure that does not exceed $50,000 individually and $100,000 in the aggregate during any fiscal quarter); • acquire, lease, license, sublicense, pledge, sell or otherwise dispose of, divest or spin-off, abandon, waive, relinquish or permit to lapse (other than any patent expiring at the end of its statutory term), transfer, assign, guarantee, exchange or swap, mortgage or otherwise encumber (including pursuant to a sale-leaseback transaction or securitization) or subject to any material Encumbrance (other than Permitted Encumbrances) any material right or other material asset or property of any of the Acquired Corporations, including without limitation any Company IP owned by any Acquired Corporation, except certain instances; • lend money or make capital contributions or advances to or make investments in, any Person, or incur or become subject guarantee any Indebtedness (except for advances to employees and consultants for travel and other business related expenses in the ordinary course of business consistent with past business practice and in compliance with ▇▇▇▇▇▇▇’s policies related thereto); • excluding any liabilityrenewal of a material contract on terms no less favorable in all material respects in the aggregate to the Acquired Corporations, except liabilities incurred or with respect to a revenue generating contract with a customer in the ordinary course of business, but amend or modify in no event shall the Company any material respect, waive any rights under, terminate, replace or the Bank release, settle or compromise any material claim, liability or obligation under any material contract or enter into any long-term borrowings or obligations, other than deposit obligations;
(iii) Discharge or satisfy any lien or encumbrance on contract which if entered into prior to the properties or assets of the Company or the Bank or pay any liability, date hereof would have been a material contract; • other than in the ordinary course of business;
, (ivA) Sellmake any change to any accounting method or accounting period used for Tax purposes (or request such a change); (B) make or change any material tax election; (C) file any income or other material tax return other than on a basis consistent with past practice; (D) file an amended tax return; (E) enter into a closing agreement with any governmental body regarding any tax; (F) settle, assign compromise or transfer consent to any tangible assetsmaterial tax claim or assessment or surrender a right to a material tax refund; or (G) waive or extend the statute of limitations with respect to any income or material tax other than pursuant to extensions of time to file a tax return obtained in the ordinary course of business; • commence any legal proceeding, except in certain instances; • settle, release, waive or compromise any legal proceeding or other claim (or threatened legal proceeding or other claim), other than any legal proceeding relating to a breach of the Merger Agreement or any other agreements contemplated hereby or pursuant to a settlement that does not relate to any of the Transactions; • correspond, communicate or consult with (in each case, at any planned meetings or telephonic discussions involving substantive matters, or through written correspondence) the FDA or similar governmental body or any governmental body having jurisdiction over any of ▇▇▇▇▇▇▇’s pending clinical trials, except in the ordinary course of business business, without, to the extent reasonable practicable, providing Parent with prior written reasonable advance notice and for fair and reasonable consideration;
(v) Amend their Articles the opportunity to consult with Miramar with respect to such correspondence, communication or consultation • publicly disclose any clinical data relating to or resulting from ▇▇▇▇▇▇▇’s pending clinical trials or any analysis or work product created by or on behalf of Association Miramar based in whole or Incorporation or Bylaws;
(vi) Cancel any debt or claim or waive any right of value, except in the ordinary course of business and for fair and reasonable consideration;
(vii) Repurchase or part on such clinical data; • enter into any collective bargaining agreement to repurchase all or other agreement with any portion labor organization; • adopt or implement any stockholder rights plan or similar arrangement; • enter into any new line of business; • adopt a plan or agreement of complete or partial liquidation or dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Acquired Corporations; or • authorize any loan previously participated to any other financial institution;
(viii) Originate any loan which is thereafter participated to another financial institution providing for payment upon default on any basis other than pro rata;
(ix) Except in the ordinary course of business and consistent with the Bank's current loan policies and safe and sound banking practicesof, make or agree or commit to make any further advances on any loan which is either in default or classifiedtake, whether such classification is a result of a federal bank regulatory examination or internal classification by the Bank's officers or directors, unless the Bank is under a legal obligation to do so;
(x) Except in the ordinary course of business and consistent with the Bank's current loan policies and safe and sound banking practices, release or agree to release any collateral securing any loan, except where the collateral released is replaced by collateral with an equal or greater value or where the Bank is under a legal obligation to do so;
(xi) Make, renew or agree to make or renew any loan or advance on any existing loan, except in substantial conformity with the Bank's current loan policies and safe and sound banking practices (where any nonconformity has been approved by the Bank's loan committee);
(xii) Pay or incur any obligation or liability with respect to capital expenditures which exceed $100,000 in the aggregate;
(xiii) Fail to timely pay and discharge all federal and state taxes and other accounts payable for which it is liable, provided that the Company or the Bank may deposit an amount equal to any such taxes, in lieu of the payment thereof, into a reserve account from which such taxes will be paid when and to the extent they are found to be properly due and payable;
(xiv) Pay or commit to pay any additional salary or other compensation to any of the Company or the Bank's officers, directors or employees, other than normal pay raises in the ordinary course of business and an appreciation bonus to the employees of the Bank in an amount calculated by a formula approved by the parties hereto (which amount shall be inclusive of the bonus plus the matching 401(k) contributions with respect to the bonus plus the FICA payroll taxes relating to the bonus) that will be fully accrued on the books of the Company or the Bank prior to the Valuation Date and an incentive bonus to the employees of the Bank in an amount calculated by a formula approved by the parties hereto that will be fully accrued on the books of the Bank prior to the Valuation Date;
(xv) Make or grant any increase in any Employee Plan, amend or terminate any existing Employee Plan, or adopt any new Employee Plan, except as required by law;
(xvi) Make any investments, including derivatives or structured notes, except in the ordinary course of business and consistent with prior practices, or sell or agree to sell any investment securities prior to maturity;
(xvii) Incur or permit to be entered against the Company or the Bank any default judgment, or permit any unsatisfied judgment to remain unsatisfied, provided, however, that the Company or the Bank may deposit an amount equal to any such judgment, in lieu of the payment thereof, into a reserve account from which such judgments will be paid when and to the extent they are found to be properly due and payable and upon exhaustion of the Company's or the Bank's rights to appeal or seek review of such judgments;
(xviii) Take any other action or enter into any other transaction or agreement, other than in the ordinary course of business; or
(xix) Fail to conduct its business in, and only in, the usual, regular and ordinary course in substantially the same manner as heretofore conducted and in accordance with the terms and conditions of this Agreementforegoing actions.
Appears in 1 contract
Sources: Offer to Purchase (Sientra, Inc.)