ORDINARY AND USUAL COURSE. Without prior written consent of Glacier, subject to applicable law and except as required by the Commissioner, the FDIC, the OCC or the Federal Reserve (so long as Glacier receives prior written notice of such required action), CDC and each CDC Bank will conduct their respective business only in the ordinary and usual course and will not do any of the following: (i) effect any stock split or other recapitalization with respect to CDC Common Stock or the shares of any CDC Bank, pledge or encumber in any way any shares of such capital stock; or grant any option for shares of such capital stock; (ii) other than in the ordinary course of business, consistent with past practice, or as necessary to pay CDC Transaction Fee expenses consistent with this Agreement, declare or pay any dividend (excluding quarterly dividends to be paid in April 2006 and July 2006 of approximately $500,000 per quarter), or make any other distribution, either directly or indirectly, with respect to CDC Common Stock or the shares of any CDC Bank; (iii) acquire, sell, transfer, assign, encumber or otherwise dispose of any material assets or make any material commitment other than in the ordinary and usual course of business; (iv) solicit or accept deposit accounts of a different type from accounts previously accepted by the CDC Banks or at rates materially in excess of prevailing interest rates, or incur any indebtedness for borrowed money (excluding Fed Funds and Federal Home Loan Bank borrowings); (v) offer or make loans or other extensions of credit of a different type, or apply different underwriting standards, from those previously offered or applied by the CDC Banks, or offer or make a new loan or extension of credit in an amount greater than $1 million without prior consultation with Glacier; provided, that it is acknowledged and agreed that renewals of loans to existing customers shall not require prior consultation with Glacier; (vi) except for the transfer of the Leased Real Property, cancellation of Leases, foreclosures and satisfaction of obligations as contemplated by Section 4.1.12, acquire an ownership interest or a leasehold interest in any real property, except those disclosed in Schedule 3.1.6, without making an appropriate environmental evaluation in advance of obtaining such interest and without providing to Glacier such evaluation and at least 30 days’ advance notice; (vii) enter into, renew, or terminate any contracts calling for a payment by any of them of more than $25,000 (including real property leases and data or item processing agreements) with or for a term of one-year or more, except for its contracts of deposit and agreements to lend money not otherwise restricted under this Agreement and (1) entered into in the ordinary course of business, consistent with past practices, and (2) providing for not less (in the case of loans) or materially more (in the case of deposits) than prevailing market rates of interest; (viii) enter into or amend any contract (other than contracts for deposits or agreements to lend money not otherwise restricted by this Agreement) calling for a payment by any of them of more than $25,000, unless the contract may be terminated without cause or penalty upon 30 days notice or less; (ix) enter into any personal services contract with any person or firm outside the ordinary course of business, except contracts, agreements, or arrangements for legal, accounting, consulting, investment advisory, or tax services entered into to directly facilitate the Merger and to facilitate any divestiture or market redefinition proceedings related to the Merger; (A) sell any securities, whether held for investment or sale, other than in the ordinary course of business or sell any securities, whether held for investment or sale, even in the ordinary course of business, if the aggregate gain or loss realized from all sales after the Execution Date would be more than $25,000 or (B) transfer any investment securities between portfolios of securities available for sale and portfolios of securities to be held to maturity; (xi) amend its Articles of Incorporation, Bylaws, or other formation agreements, or convert its charter or form of entity; (xii) implement or adopt any material changes in its operations, policies, or procedures, including loan loss reserve policies, unless the changes are requested by Glacier or are necessary or advisable, on the advice of legal counsel, to comply with applicable laws, regulations, or regulatory policies; (xiii) implement or adopt any change in its accounting principles, practices or methods, other than as may be required (1) by GAAP, (2) for tax purposes, or (3) to take advantage of any beneficial tax or accounting methods; (xiv) other than in accordance with binding commitments existing on the Execution Date and that have been disclosed to Glacier, make any capital expenditures in excess of $25,000 per project or related series of projects or $50,000 in the aggregate; (xv) enter into any other material transaction or make any material expenditure other than in the ordinary and usual course of its business except for expenses reasonably related to completion of the Merger; or (xvi) take any action which would materially and adversely affect or delay their ability or the ability of Glacier and Holdings to obtain any necessary approvals, consents or waivers of any governmental authority required for the Merger or to perform in all material respects their respective covenants and agreements under this Agreement.
Appears in 1 contract
Sources: Merger Agreement
ORDINARY AND USUAL COURSE. Without prior written consent of GlacierGBCI, which consent shall not be unreasonably withheld, conditioned or delayed (except under subparagraphs (a), (b), (c), (g), (h), and (i) below), subject to applicable law Law and except as required by the Commissioner, the FDIC, the OCC OCC, or the Federal Reserve (so long as Glacier receives prior written notice or specifically contemplated by this Agreement or set forth in Schedule 4.1.2, from the date of such required action)this Agreement until the earlier of the Effective Time or an earlier Termination Date, CDC GNTY and each CDC the Bank will use commercially reasonable efforts to conduct their respective business businesses only in the ordinary and usual course of business in all material respects and will not do do, and GNTY will not permit any other GNTY Subsidiary to do, any of the following:
(ia) effect issue, sell, or otherwise permit to become outstanding, or dispose of or encumber or pledge, or authorize or propose the creation of, any stock split additional GNTY Securities or other recapitalization with respect to CDC Common Stock or the shares of capital stock of a GNTY Subsidiary; provided that GNTY may issue the foregoing upon the exercise of any CDC Bank, pledge or encumber in any way any shares GNTY Option outstanding as of such capital stock; or grant any option for shares the date of such capital stockthis Agreement;
(iib) directly or indirectly adjust, split, combine, redeem, reclassify, purchase, or otherwise acquire, any GNTY Securities or shares of capital stock of a GNTY Subsidiary (other than repurchases in the ordinary course of businessbusiness to satisfy obligations under a Plan); provided that GNTY may repurchase or otherwise acquire shares in connection with the acceptance of shares underlying GNTY Options as payment for the per share exercise price of the GNTY Options or as payment for Taxes incurred in connection with the exercise, vesting and/or settlement of the GNTY Options or GNTY Restricted Stock, in each case in accordance with the GNTY Stock Plan and individual award agreements;
(c) other than (i) as permitted by this Agreement or (ii) as is otherwise consistent with past practice, or as necessary practices with respect to pay CDC Transaction Fee expenses consistent with this Agreementtiming and amounts, declare or pay any dividend (excluding quarterly dividends to be paid in April 2006 and July 2006 of approximately $500,000 per quarter)dividend, or make any other distribution, either directly or indirectly, with respect to CDC Common Stock or the shares of any CDC BankGNTY Stock;
(iiid) acquire, sell, transfer, assign, encumber or otherwise dispose of any material assets or make any material commitment other than in the ordinary and usual course of business;
(iv) , solicit or accept deposit accounts of a materially different type from accounts previously accepted by the CDC Banks Bank or at rates materially in excess of prevailing interest rates, or incur incur, or increase the principal amount of, any indebtedness for borrowed money (excluding Fed Funds and Funds, Federal Home Loan Bank borrowings, repurchase agreements, brokered deposits (as defined in 12 C.F.R. 337.6(a)(2)), or similar obligations incurred in the ordinary course of business);
(ve) offer or make loans or other extensions of credit of a materially different type, or apply different underwriting standards, from those previously offered or applied by the CDC BanksBank, or offer or make a new loan or extension of credit (other than with respect to commitments existing as of the date hereof) in an amount greater than $1 million 3,000,000 except in accordance with the procedures set forth in Schedule 4.1.2(e);
(f) make any material changes to the Bank’s ACL without prior consultation with Glacier; provided, that it is acknowledged and agreed that renewals of loans to existing customers shall not require prior consultation with GlacierGBCI;
(vig) fail to maintain an adequate reserve for loan and lease losses (determined in accordance with GAAP and existing regulatory guidance);
(h) amend its certificate of formation, bylaws, or other formation agreements, or convert its charter or form of entity;
(i) implement or adopt any material changes in its operations, policies, or procedures, including loan loss reserve policies, unless the changes are requested by GBCI or are necessary or advisable, on the advice of legal counsel, to comply with applicable Laws, regulations, or regulatory policies;
(j) other than as may be required (i) by GAAP, (ii) for Tax purposes, or (iii) by Law, implement or adopt any change in its accounting principles, practices or methods, including with respect to the implementation of current expected credit losses;
(k) other than in the ordinary course of business, enter into, amend, renew, or terminate any contracts calling for annual payments of more than $100,000 (including without limitation real property leases, data or item processing agreements, and personal services contracts), except for its contracts of deposit and agreements to lend money which are subject to the provisions of Section 4.1.2(d) and (e), respectively;
(l) other than in the ordinary course of business, acquire, sell, transfer, assign, encumber, or otherwise dispose of any material assets (other than real estate or foreclosed assets) having an individual value greater than $100,000, except for the transfer sale of securities which are subject to the Leased Real Property, cancellation provisions of Leases, foreclosures and satisfaction Section 4.1.2(n);
(m) other than in the ordinary course of obligations as contemplated by Section 4.1.12business, acquire an ownership interest or a leasehold interest in any real propertyproperty other than the Real Property, except those disclosed and in Schedule 3.1.6, any event no such ownership or leasehold interest shall be acquired without making an appropriate environmental evaluation in advance of obtaining such interest and without providing to Glacier GBCI such evaluation and at least 30 days’ days in advance noticeof such acquisition;
(vii) enter into, renew, or terminate any contracts calling for a payment by any of them of more than $25,000 (including real property leases and data or item processing agreements) with or for a term of one-year or more, except for its contracts of deposit and agreements to lend money not otherwise restricted under this Agreement and (1) entered into in the ordinary course of business, consistent with past practices, and (2) providing for not less (in the case of loans) or materially more (in the case of deposits) than prevailing market rates of interest;
(viii) enter into or amend any contract (other than contracts for deposits or agreements to lend money not otherwise restricted by this Agreement) calling for a payment by any of them of more than $25,000, unless the contract may be terminated without cause or penalty upon 30 days notice or less;
(ix) enter into any personal services contract with any person or firm outside the ordinary course of business, except contracts, agreements, or arrangements for legal, accounting, consulting, investment advisory, or tax services entered into to directly facilitate the Merger and to facilitate any divestiture or market redefinition proceedings related to the Merger;
(An) sell any securities, whether held for investment or sale, other than in the ordinary course of business or sell any securities, whether held for investment or sale, even in the ordinary course of business, if the aggregate gain or loss realized from all sales after the Execution Date would be more than $25,000 or (B) transfer any investment securities between portfolios of securities available for sale and portfolios of securities to be held to maturity250,000;
(xio) amend its Articles of Incorporationenter into any hedging or other derivative positions with respect to the securities portfolio (whether held for investment or sale), Bylawsexcept to the extent that such positions are contractually obligated, or other formation agreementsGNTY otherwise has the right to cause such positions to be, or convert its charter or form of entityfully settled and closed out prior to the Anticipated Closing Date;
(xii) implement or adopt any material changes in its operations, policies, or procedures, including loan loss reserve policies, unless the changes are requested by Glacier or are necessary or advisable, on the advice of legal counsel, to comply with applicable laws, regulations, or regulatory policies;
(xiii) implement or adopt any change in its accounting principles, practices or methods, other than as may be required (1) by GAAP, (2) for tax purposes, or (3) to take advantage of any beneficial tax or accounting methods;
(xivp) other than (i) in the ordinary course of business; (ii) in accordance with binding commitments existing on the Execution Date and that have been disclosed Date; or (iii) as set forth in GNTY’s 2025 capital expenditure budget as made available to GlacierGBCI on or prior to the Execution Date, make any capital expenditures in excess of $25,000 250,000 per project or related series of related projects or $50,000 500,000 in the aggregate;
(xvq) become a party to, establish, adopt, amend, commence participation in or terminate any collective bargaining agreement or other agreement with a labor union, works council or similar organization;
(r) other than in the ordinary course of business, settle any claim, suit, action or proceeding (i) in an amount and for consideration in excess of $500,000 individually or $1,000,000 in the aggregate (in each case, net of any insurance proceeds or indemnity, contribution or similar payments received by GNTY or the Bank in respect thereof), or (ii) that would impose any material restriction on, or create any adverse precedent that would be material to, the business of GNTY or the Bank or GBCI or Glacier Bank;
(s) enter into any other material transaction or make any material expenditure or commitment other than in the ordinary and usual course of its business except for expenses or commitments reasonably related to completion of the MergerTransactions; or
(xvit) take any action which would materially and adversely affect or delay their ability or the ability of Glacier and Holdings GBCI to obtain any necessary approvals, consents or waivers of any governmental authority Governmental Authority required for the Merger Transactions or to perform in all material respects their respective covenants and agreements under this Agreement. Notwithstanding the foregoing or anything else set forth in this Agreement, nothing shall give GBCI or Glacier Bank, directly or indirectly, the right to control or direct GNTY’s or the Bank’s operations prior to the Effective Time. Prior to the Effective Time, GNTY and the Bank will, consistent with the terms and conditions of this Agreement, control and supervise all aspects of their respective operations.
Appears in 1 contract