Conduct Prior to Closing. Except as otherwise specifically contemplated by this Agreement, as disclosed in Section 4.1 of the Disclosure Schedule, as required in connection with the Sale, or as required by law, the Companies covenant and agree that, unless the Purchaser shall otherwise consent (which consent, in the case of subsections (ix), (x) and (xii) in Section 4.1(b) below and, only as it relates to subsections (ix), (x) and (xii), subsection (xvi) in Section 4.1(b) below, shall not be unreasonably withheld, delayed or conditioned) in writing, during the period from the date of this Agreement until the earlier of the termination of this Agreement or the Closing: (a) The business of the Subsidiaries shall in all material respects be conducted only in the ordinary course of business consistent with past practices, and the Companies shall use commercially reasonable efforts, to maintain and preserve substantially intact in all material respects the business organization, employees and advantageous business relationships of the Subsidiaries. (b) In addition, but without limiting the generality of the foregoing, none of the Companies or any Subsidiaries shall directly or indirectly do any of the following: (i) issue or sell, or authorize or agree to the issuance or sale of, any shares of, or any options or rights of any kind to acquire any shares of, or any securities convertible into or exchangeable or exercisable for any shares of, capital stock of any class of any Subsidiary; (ii) acquire, transfer, sell, lease, pledge or encumber any assets material to any Subsidiaries, except in connection with investment activities in the ordinary course of business consistent with past practices ("Subsidiary Investing"); (iii) amend the charter or by-laws or similar organizational documents of any of the Subsidiaries; (iv) split, combine or reclassify any shares of the capital stock of the Subsidiaries or declare, set aside for payment or pay any dividend or distribution, payable in cash, stock, property or otherwise, with respect to any of the capital stock of any of the Subsidiaries, other than, with respect to dividends or distributions cash dividends and distributions, by a Subsidiary to another Subsidiary (it being understood that no dividend or distribution has been paid or made or will be paid or made by any Subsidiary since September 30, 2000); (v) except pursuant to Section 5.5, enter into an agreement with respect to any merger, consolidation, liquidation or business combination involving any Subsidiary, or any acquisition or disposition of all or substantially all of the assets or securities of any of the Subsidiaries; (vi) except pursuant to Section 5.5 or in connection with Subsidiary Investing, enter into an agreement with respect to the disposition of a material amount of assets of any Subsidiary, or any release or relinquishment of any material contract rights of any Subsidiary; (vii) with respect to any Subsidiary, (A) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or (B) make any material investment either by purchase of stock or securities, contributions to capital (other than to wholly-owned Subsidiaries), property transfer or purchase of any property or assets of any other individual or entity, except in connection with Subsidiary Investing; (viii) with respect to any Subsidiary, other than in the ordinary course of business consistent with past practices, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or, except in connection with Subsidiary Investing, make any loans or advances; (A) other than in the ordinary course of business consistent with past practice, permit any Subsidiary to enter into any new Contract that would satisfy the definition of Material Contract if in effect on the date hereof or (B) terminate, amend, modify or waive compliance of any provision of any Material Contract in any respect materially adverse to any of the Subsidiaries; (x) except as set forth in Section 4.1 of the Disclosure Schedule, make or change any material Tax election, release, assign settle or compromise any material Tax liability, or waive any statute of limitations for any Tax claim or assessment unless such action would not reasonably be expected to increase the Tax liability of the Subsidiaries or the tax sharing obligation of any Subsidiary under this Agreement; (xi) except as may be required as result of a change in law, regulation or in generally accepted accounting principles, change any accounting principles or practices used by any Subsidiary; (xii) release, assign, settle or compromise any material claim or litigation relating to any Subsidiary; (xiii) other than as may be required as a result of a change in law, regulation or in generally accepted accounting principles, change any of the Subsidiary's reserving methods (it being understood that the foregoing shall not apply to changes in the amount of reserves); (xiv) with respect to any Subsidiary, pay, discharge or satisfy any claims, liabilities or obligations, other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practices; (xv) with respect to any Subsidiary, enter into any structured settlement agreement or arrangement, funding agreement or arrangement or reinsurance agreement or arrangement; provided that the Purchaser hereby consents that the Companies and Subsidiaries may, consistent with past practices, continue to enter into structured settlement agreements or arrangements, including any agreement to be the assignee of structured settlement payment obligations, so long as such structured settlement agreements or arrangements are subject to the Liberty Life Guarantee; or (xvi) agree or commit to do any of the foregoing. (c) None of the Companies or any Subsidiary shall adopt or amend in any material respect (except as may be required by law or permitted by or contemplated under this Agreement) any bonus, profit sharing, compensation, stock option, stock purchase, pension, retirement, deferred compensation, or other employee benefit plan, agreement, trust, fund or other arrangement for the benefit or welfare of any director, officer or employee or former director, officer or employee of any Subsidiary (other than commercially reasonable arrangements entered into with any new hires) or increase the compensation or fringe benefits of any employee or former director, officer or employee of any Subsidiary or pay any benefit not required by any existing plan, arrangement or agreement, except compensation increases for employees and non-executive officers in the ordinary course of business consistent with past practices. (d) None of the Companies nor any Subsidiary shall take any action with respect to the grant of any severance or termination pay or with respect to any increase of benefits payable under its retention, severance or termination pay policies in effect on the date hereof with respect to employees of any of the Subsidiaries. The Companies shall not amend or modify the Retention Plan after the date hereof to the extent any such amendment or modification relates to employees of the Subsidiaries or increases the costs to the Purchaser or any of the Subsidiaries under the Retention Plan. LFC has delivered to the Purchaser a true and complete copy of the Retention Plan. (e) Notwithstanding anything to the contrary contained in this Section 4.1, the Companies shall be permitted to cause, and shall cause, LASC to make a dividend or distribution to Keyport Life Insurance Company immediately prior to the Closing and effective at the same time as the amendments to the Administrative Services Agreement referred to in Section 1.2(d) of the Transition Services Agreement of (i) the issued and outstanding capital shares of KFSC and (ii) an amount in cash equal to the net worth of LASC as of such date. (f) The Insurance Subsidiaries shall manage their Subsidiary Investing in a manner that is consistent with past practices in all material respects and, within the reasonable business judgment of their senior management, consistent with the business plans provided to the Purchaser, subject to the restrictions set forth in clauses (i) and (ii) below. On a periodic basis as reasonably requested by the Purchaser and reasonably available to the Subsidiaries, but in no event less frequently than 18 Business Days after the end of each calendar month, the Companies shall deliver to the Purchaser such information regarding the duration and the asset/liability composition, duration matching of the Insurance Subsidiaries' general account investments as of such month end. Notwithstanding the foregoing: (i) The Insurance Subsidiaries shall not make additional commitments to make private equity investments (such as, but not limited to, venture funds, hedge funds and direct private equity investments) or other investments categorized by the Insurance Subsidiaries
Appears in 1 contract
Samples: Stock Purchase Agreement (Liberty Financial Companies Inc /Ma/)
Conduct Prior to Closing. Except From the date hereof until the Closing, except as otherwise specifically contemplated provided in this Agreement or consented to in writing by this Agreement, as disclosed in Section 4.1 of the Disclosure Schedule, as required in connection with the Sale, or as required by law, the Companies covenant and agree that, unless the Purchaser shall otherwise consent (which consent, in the case of subsections (ix), (x) and (xii) in Section 4.1(b) below and, only as it relates to subsections (ix), (x) and (xii), subsection (xvi) in Section 4.1(b) below, consent shall not be unreasonably withheld, delayed or conditioned):
(a) each Vendor and the Parent shall use commercially reasonable efforts to cause MIC to: (i) conduct its business in writingthe ordinary course of business; and (ii) maintain and preserve intact MIC’s current organization, during business, franchise, credit ratings and regulatory standing (including its continued compliance with the period Mortgage Insurer Capital Adequacy Test prescribed by OSFI) and to preserve the rights, franchises, goodwill and relationships of MIC’s employees, customers, lenders, suppliers, regulators and others having business relationships with MIC or any of its subsidiaries;
(b) each Vendor and the Parent shall not cause MIC to, and shall use commercially reasonable efforts to prevent MIC and its subsidiaries from taking, including by exercising the rights of such Vendor and the Parent under the Shareholder Agreement, any action that would cause any of the following to occur with respect to MIC or any of its subsidiaries:
(i) an amendment of the charter, by-laws or other organizational documents of MIC;
(ii) a split, combination or reclassification of any shares of capital stock of MIC;
(iii) an issuance or sale of any of capital stock by MIC, other than: (A) on conversion, exchange or exercise of options, warrants or other rights to purchase or obtain any of its capital stock outstanding on the date of this Agreement until Agreement, and (B) the earlier grant of the termination options, warrants or other rights to purchase or obtain any of this Agreement its capital stock (and any conversion, exchange or the Closing:
(aexercise thereof) The business of the Subsidiaries shall in all material respects be conducted only in the ordinary course of business and consistent with past practices, and the Companies shall use commercially reasonable efforts, to maintain and preserve substantially intact in all material respects the business organization, employees and advantageous business relationships of the Subsidiaries.practice under MIC’s existing equity compensation program;
(biv) In addition, but without limiting the generality of the foregoing, none of the Companies or any Subsidiaries shall directly or indirectly do any of the following:
(i) issue or sell, or authorize or agree to the an issuance or sale of, any shares of, or any options or rights of any kind to acquire any shares of, or any securities convertible into or exchangeable or exercisable for any shares of, capital stock by a subsidiary of any class MIC, other than to MIC or a wholly-owned subsidiary of any SubsidiaryMIC;
(iiv) acquireincurrence, transferassumption or guarantee of any material indebtedness for borrowed money to the extent of the rights of such Vendor and the Parent under the Shareholder Agreement, sellexcept, leasefor certainty, pledge or encumber any assets material to any Subsidiaries, except in connection with investment activities current obligations and liabilities incurred in the ordinary course of business consistent with past practices ("Subsidiary Investing");
(iii) amend the charter or by-laws or similar organizational documents of any of the Subsidiaries;
(iv) split, combine or reclassify any shares of the capital stock of the Subsidiaries or declare, set aside for payment or pay any dividend or distribution, payable in cash, stock, property or otherwise, with respect to any of the capital stock of any of the Subsidiaries, other than, with respect to dividends or distributions cash dividends and distributions, by a Subsidiary to another Subsidiary (it being understood that no dividend or distribution has been paid or made or will be paid or made by any Subsidiary since September 30, 2000);
(v) except pursuant to Section 5.5, enter into an agreement with respect to any merger, consolidation, liquidation or business combination involving any Subsidiary, or any acquisition or disposition of all or substantially all of the assets or securities of any of the Subsidiariesbusiness;
(vi) except pursuant to Section 5.5 a sale or in connection with Subsidiary Investing, enter into an agreement with respect other disposition of any assets material to the disposition business of MIC and its subsidiaries, taken as a material amount whole, to the extent of assets of any Subsidiary, or any release or relinquishment of any material contract the rights of any Subsidiarysuch Vendor and the Parent under the Shareholder Agreement;
(vii) with respect to any Subsidiaryan acquisition, (A) acquire (by mergermerger or consolidation with, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or (B) make any material investment either by purchase of a substantial portion of the assets or stock of, or securities, contributions to capital (other than to wholly-owned Subsidiaries), property transfer or purchase of any property or assets of by any other individual manner, any business or entityany person or any division thereof for consideration, except in connection with Subsidiary Investingif such acquisition would be material to the business of MIC and its subsidiaries, taken as a whole, to the extent of the rights of such Vendor and the Parent under the Shareholder Agreement;
(viii) with respect to any Subsidiary, other than in the ordinary course of business consistent with past practices, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations adoption by MIC of any other individual plan of merger, consolidation, reorganization, liquidation or entity, or, except dissolution or the making by MIC or any subsidiary of a filing of a petition in connection with Subsidiary Investing, make bankruptcy under any loans provisions of bankruptcy Law or advances;consent to the filing of any bankruptcy petition against it; and
(Aix) other than in the ordinary course of business consistent with past practice, permit any Subsidiary to enter entrance into any new Contract that would satisfy the definition of Material Contract if in effect on the date hereof or (B) terminate, amend, modify or waive compliance of any provision of any Material Contract in any respect materially adverse to any of the Subsidiaries;
(x) except as set forth in Section 4.1 of the Disclosure Schedule, make or change any material Tax election, release, assign settle or compromise any material Tax liability, or waive any statute of limitations for any Tax claim or assessment unless such action would not reasonably be expected to increase the Tax liability of the Subsidiaries or the tax sharing obligation of any Subsidiary under this Agreement;
(xi) except as may be required as result of a change in law, regulation or in generally accepted accounting principles, change any accounting principles or practices used by any Subsidiary;
(xii) release, assign, settle or compromise any material claim or litigation relating to any Subsidiary;
(xiii) other than as may be required as a result of a change in law, regulation or in generally accepted accounting principles, change any of the Subsidiary's reserving methods (it being understood that the foregoing shall not apply to changes in the amount of reserves);
(xiv) with respect to any Subsidiary, pay, discharge or satisfy any claims, liabilities or obligations, other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practices;
(xv) with respect to any Subsidiary, enter into any structured settlement agreement or arrangement, funding agreement or arrangement or reinsurance agreement or arrangement; provided that the Purchaser hereby consents that the Companies and Subsidiaries may, consistent with past practices, continue to enter into structured settlement agreements or arrangements, including any agreement to be the assignee of structured settlement payment obligations, so long as such structured settlement agreements or arrangements are subject to the Liberty Life Guarantee; or
(xvi) agree or commit to do any of the foregoing., or any action or omission that would result in any of the foregoing; provided that, the foregoing shall not require any action or inaction by the Parent Nominees, and such obligations shall be limited to actions that may be taken by the Vendors in their capacities as shareholders of MIC and by the Parent and the Vendors as counterparties to certain agreements with MIC; and
(c) None of except as required by Law or in connection with the Companies Approvals, each Vendor and the Parent shall not enter into any agreement, or amend or terminate any existing agreement, between or among MIC or any Subsidiary shall adopt of its subsidiaries, on the one hand, and a Vendor or amend in the Parent or any material respect (except as may be required by law or permitted by or contemplated under this Agreement) any bonus, profit sharing, compensation, stock option, stock purchase, pension, retirement, deferred compensation, or other employee benefit plan, agreement, trust, fund or other arrangement for the benefit or welfare of any director, officer or employee or former director, officer or employee of any Subsidiary their respective affiliates (other than commercially reasonable arrangements entered into with any new hiresMIC and its subsidiaries) or increase the compensation or fringe benefits of any employee or former director, officer or employee of any Subsidiary or pay any benefit not required by any existing plan, arrangement or agreement, except compensation increases for employees and non-executive officers in the ordinary course of business consistent with past practices.
(d) None of the Companies nor any Subsidiary shall take any action with respect to the grant of any severance or termination pay or with respect to any increase of benefits payable under its retention, severance or termination pay policies in effect on the date hereof with respect to employees of any of the Subsidiaries. The Companies shall not amend or modify the Retention Plan after the date hereof to the extent any such amendment or modification relates to employees of the Subsidiaries or increases the costs to the Purchaser or any of the Subsidiaries under the Retention Plan. LFC has delivered to the Purchaser a true and complete copy of the Retention Planother hand.
(e) Notwithstanding anything to the contrary contained in this Section 4.1, the Companies shall be permitted to cause, and shall cause, LASC to make a dividend or distribution to Keyport Life Insurance Company immediately prior to the Closing and effective at the same time as the amendments to the Administrative Services Agreement referred to in Section 1.2(d) of the Transition Services Agreement of (i) the issued and outstanding capital shares of KFSC and (ii) an amount in cash equal to the net worth of LASC as of such date.
(f) The Insurance Subsidiaries shall manage their Subsidiary Investing in a manner that is consistent with past practices in all material respects and, within the reasonable business judgment of their senior management, consistent with the business plans provided to the Purchaser, subject to the restrictions set forth in clauses (i) and (ii) below. On a periodic basis as reasonably requested by the Purchaser and reasonably available to the Subsidiaries, but in no event less frequently than 18 Business Days after the end of each calendar month, the Companies shall deliver to the Purchaser such information regarding the duration and the asset/liability composition, duration matching of the Insurance Subsidiaries' general account investments as of such month end. Notwithstanding the foregoing:
(i) The Insurance Subsidiaries shall not make additional commitments to make private equity investments (such as, but not limited to, venture funds, hedge funds and direct private equity investments) or other investments categorized by the Insurance Subsidiaries
Appears in 1 contract
Conduct Prior to Closing. Except as otherwise specifically contemplated by this Agreement, as disclosed in Section 4.1 of the Disclosure Schedule, as required in connection with the Sale, or as required by law, the Companies covenant and agree that, unless the Purchaser shall otherwise consent (which consent, in the case of subsections (ix), (x) and (xii) in Section 4.1(b) below and, only as it relates to subsections (ix), (x) and (xii), subsection (xvi) in Section 4.1(b) below, shall not be unreasonably withheld, delayed or conditioned) in writing, during the period from the date of this Agreement until the earlier of the termination of this Agreement or the Closing:
(a) The business of the Subsidiaries shall in all material respects be conducted only in the ordinary course of business consistent with past practices, and the Companies shall use commercially reasonable efforts, to maintain and preserve substantially intact in all material respects the business organization, employees and advantageous business relationships of the Subsidiaries.
(b) In addition, but without limiting the generality of the foregoing, none of the Companies or any Subsidiaries shall directly or indirectly do any of the following:
(i) issue or sell, or authorize or agree to the issuance or sale of, any shares of, or any options or rights of any kind to acquire any shares of, or any securities convertible into or exchangeable or exercisable for any shares of, capital stock of any class of any Subsidiary;
(ii) acquire, transfer, sell, lease, pledge or encumber any assets material to any Subsidiaries, except in connection with investment activities in the ordinary course of business consistent with past practices ("Subsidiary Investing");
(iii) amend the charter or by-laws or similar organizational documents of any of the Subsidiaries;
(iv) split, combine or reclassify any shares of the capital stock of the Subsidiaries or declare, set aside for payment or pay any dividend or distribution, payable in cash, stock, property or otherwise, with respect to any of the capital stock of any of the Subsidiaries, other than, with respect to dividends or distributions cash dividends and distributions, by a Subsidiary to another Subsidiary (it being understood that no dividend or distribution has been paid or made or will be paid or made by any Subsidiary since September 30, 2000);
(v) except pursuant to Section 5.5, enter into an agreement with respect to any merger, consolidation, liquidation or business combination involving any Subsidiary, or any acquisition or disposition of all or substantially all of the assets or securities of any of the Subsidiaries;
(vi) except pursuant to Section 5.5 or in connection with Subsidiary Investing, enter into an agreement with respect to the disposition of a material amount of assets of any Subsidiary, or any release or relinquishment of any material contract rights of any Subsidiary;
(vii) with respect to any Subsidiary, (A) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or (B) make any material investment either by purchase of stock or securities, contributions to capital (other than to wholly-owned Subsidiaries), property transfer or purchase of any property or assets of any other individual or entity, except in connection with Subsidiary Investing;
(viii) with respect to any Subsidiary, other than in the ordinary course of business consistent with past practices, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or, except in connection with Subsidiary Investing, make any loans or advances;
(A) other than in the ordinary course of business consistent with past practice, permit any Subsidiary to enter into any new Contract that would satisfy the definition of Material Contract if in effect on the date hereof or (B) terminate, amend, modify or waive compliance of any provision of any Material Contract in any respect materially adverse to any of the Subsidiaries;
(x) except as set forth in Section 4.1 of the Disclosure Schedule, make or change any material Tax election, release, assign settle or compromise any material Tax liability, or waive any statute of limitations for any Tax claim or assessment unless such action would not reasonably be expected to increase the Tax liability of the Subsidiaries or the tax sharing obligation of any Subsidiary under this Agreement;
(xi) except as may be required as result of a change in law, regulation or in generally accepted accounting principles, change any accounting principles or practices used by any Subsidiary;
(xii) release, assign, settle or compromise any material claim or litigation relating to any Subsidiary;
(xiii) other than as may be required as a result of a change in law, regulation or in generally accepted accounting principles, change any of the Subsidiary's reserving methods (it being understood that the foregoing shall not apply to changes in the amount of reserves);
(xiv) with respect to any Subsidiary, pay, discharge or satisfy any claims, liabilities or obligations, other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practices;
(xv) with respect to any Subsidiary, enter into any structured settlement agreement or arrangement, funding agreement or arrangement or reinsurance agreement or arrangement; provided that the Purchaser hereby consents that the Companies and Subsidiaries may, consistent with past practices, continue to enter into structured settlement agreements or arrangements, including any agreement to be the assignee of structured settlement payment obligations, so long as such structured settlement agreements or arrangements are subject to the Liberty Life Guarantee; or
(xvi) agree or commit to do any of the foregoing.
(c) None of the Companies or any Subsidiary shall adopt or amend in any material respect (except as may be required by law or permitted by or contemplated under this Agreement) any bonus, profit sharing, compensation, stock option, stock purchase, pension, retirement, deferred compensation, or other employee benefit plan, agreement, trust, fund or other arrangement for the benefit or welfare of any director, officer or employee or former director, officer or employee of any Subsidiary (other than commercially reasonable arrangements entered into with any new hires) or increase the compensation or fringe benefits of any employee or former director, officer or employee of any Subsidiary or pay any benefit not required by any existing plan, arrangement or agreement, except compensation increases for employees and non-executive officers in the ordinary course of business consistent with past practices.
(d) None of the Companies nor any Subsidiary shall take any action with respect to the grant of any severance or termination pay or with respect to any increase of benefits payable under its retention, severance or termination pay policies in effect on the date hereof with respect to employees of any of the Subsidiaries. The Companies shall not amend or modify the Retention Plan after the date hereof to the extent any such amendment or modification relates to employees of the Subsidiaries or increases the costs to the Purchaser or any of the Subsidiaries under the Retention Plan. LFC has delivered to the Purchaser a true and complete copy of the Retention Plan.
(e) Notwithstanding anything to the contrary contained in this Section 4.1, the Companies shall be permitted to cause, and shall cause, LASC to make a dividend or distribution to Keyport Life Insurance Company immediately prior to the Closing and effective at the same time as the amendments to the Administrative Services Agreement referred to in Section 1.2(d) of the Transition Services Agreement of (i) the issued and outstanding capital shares of KFSC and (ii) an amount in cash equal to the net worth of LASC as of such date.
(f) The Insurance Subsidiaries shall manage their Subsidiary Investing in a manner that is consistent with past practices in all material respects and, within the reasonable business judgment of their senior management, consistent with the business plans provided to the Purchaser, subject to the restrictions set forth in clauses (i) and (ii) below. On a periodic basis as reasonably requested by the Purchaser and reasonably available to the Subsidiaries, but in no event less frequently than 18 Business Days after the end of each calendar month, the Companies shall deliver to the Purchaser such information regarding the duration and the asset/liability composition, duration matching of the Insurance Subsidiaries' general account investments as of such month end. Notwithstanding the foregoing:
(i) The Insurance Subsidiaries shall not make additional commitments to make private equity investments (such as, but not limited to, venture funds, hedge funds and direct private equity investments) or other investments categorized by the Insurance SubsidiariesSubsidiaries as "alternative investments" ("Restricted Investments"); provided, however, that this Section 4.1(f)(i) shall not prohibit the Insurance Subsidiaries from making additional investments in Restricted Investments to the extent required by law or existing contractual obligations.
(ii) The Insurance Subsidiaries shall (x) invest new cash deposits from customers in investment grade securities and (y) reinvest proceeds (including payments of principal and interest) received from existing investments in below investment grade securities and investments ("Below Investment Grade Investments") in investment grade securities; provided, however, that (1) this Section 4.1(f)(ii) shall not prohibit the Insurance Subsidiaries from selling existing Below Investment Grade Investments and reinvesting the proceeds of such sales in other Below Investment Grade Investments and (2) this Section 4.1(f)(ii) shall not prohibit the Insurance Subsidiaries from making investments in Below Investment Grade Investments if, after giving effect to such investments, the portion of their combined general investment accounts invested in Below Investment Grade Investments would not exceed 7.5% of the total combined general investment accounts (including securities lending collateral).
Appears in 1 contract
Samples: Stock Purchase Agreement (Keyport Life Insurance Co)
Conduct Prior to Closing. Except as otherwise specifically contemplated by this Agreement, as disclosed in Section 4.1 of the Disclosure Schedule, as required in connection with the Sale, or as required by law, the Companies covenant Company covenants and agree agrees that, unless the Purchaser shall otherwise consent (which consent, in the case of subsections (viii), (ix), (x) and (xii) in Section 4.1(b) below and, only as it relates to subsections (viii), (ix), (x) and (xii), subsection (xvixv) in Section 4.1(b) below, shall not be unreasonably withheld, delayed or conditioned) in writing, during the period from the date of this Agreement until the earlier of the termination of this Agreement or the Closing:
(a) The business of the Subsidiaries shall in all material respects be conducted only in the ordinary course of business consistent with past practices, and the Companies Company shall use commercially reasonable efforts, to maintain and preserve substantially intact in all material respects the business organization, employees and advantageous business relationships of the Subsidiaries.;
(b) In addition, but without limiting the generality of the foregoing, none of the Companies Company shall not, or any shall cause the Subsidiaries shall not to, as applicable, directly or indirectly do any of the following:
(i) issue or sell, or authorize or agree to the issuance or sale of, any shares of, or any options or rights of any kind to acquire any shares of, or any securities convertible into or exchangeable or exercisable for any shares of, capital stock of any class of any Subsidiary;
(ii) acquire, transfer, sell, lease, pledge or encumber any assets material to any Subsidiaries, except in connection with investment activities in the ordinary course of business consistent with past practices ("Subsidiary Investing");
(iii) amend the charter or by-laws or similar organizational documents of any of the Subsidiaries;
(iv) split, combine or reclassify any shares of the capital stock of the Subsidiaries or declare, set aside for payment or pay any dividend or distribution, payable in cash, stock, property or otherwise, with respect to any of the capital stock of any of the Subsidiaries, other than, with respect to dividends or distributions distributions, cash dividends and distributions, distributions by a Subsidiary to another Subsidiary (it being understood that no dividend or distribution has been paid or made or will be paid or made by any Subsidiary since September 30, 2000)Subsidiary;
(v) except pursuant to in compliance with Section 5.5, enter into an agreement with respect to any merger, consolidation, liquidation or business combination involving any Subsidiary, or any acquisition or disposition of all or substantially all of the assets or securities of any of the Subsidiaries;
(vi) except pursuant to in compliance with Section 5.5 or in connection with Subsidiary Investing5.5, enter into an agreement with respect to the disposition of a material amount of assets of any Subsidiary, or any release or relinquishment of any material contract rights of any Subsidiary;
(vii) with respect to any Subsidiary, (A) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or (B) make any material investment either by purchase of stock or securities, contributions to capital (other than to wholly-owned Subsidiaries), property transfer or purchase of any property or assets of any other individual or entity, except in connection with Subsidiary Investing;
(viii) with respect to any Subsidiary, other than in the ordinary course of business consistent with past practices, (A) incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or, except in connection with Subsidiary Investing, or (B) make any loans or advances;
(A) advances other than in the ordinary course of business consistent with past practicepractices and, with respect to both (A) and (B) on a combined basis, not in excess of $2,000,000 in the aggregate;
(A) permit any Subsidiary to enter into any new Contract that would satisfy the definition of Material Contract if in effect on the date hereof and that would obligate the Subsidiaries to pay an amount in excess of $500,000 or (B) terminate, amend, modify or waive compliance of any provision of any Material Contract in any respect materially adverse to any of the Subsidiaries;
(x) except as set forth in Section 4.1 of the Disclosure Schedule, make or change any material Tax election, release, assign assign, settle or compromise any material Tax liability, dispute or controversy, or waive any statute of limitations for any Tax claim or assessment unless such action would not reasonably be expected to increase the Tax liability of the Subsidiaries or the tax sharing obligation of any Subsidiary under this Agreement;
(xi) subject to applicable fiduciary responsibilities to the Funds, the Offshore Funds and the Investment Pools, cause any Fund, Offshore Fund or Investment Pool to make or change any material Tax election, release, assign, settle or compromise any Tax liability, dispute, or controversy, or waive any statute of limitations for any Tax claim or assessment;
(xii) except as may be required as result of a change in law, regulation or in generally accepted accounting principles, change any accounting principles or practices used by any Subsidiary;
(xiixiii) release, assign, settle or compromise any material claim or litigation relating to any Subsidiary;
(xiii) other than as may be required as a result of a change in law, regulation or in generally accepted accounting principles, change any of the Subsidiary's reserving methods (it being understood that the foregoing shall not apply to changes in the amount of reserves);
(xiv) with respect to any Subsidiary, pay, discharge or satisfy any claims, liabilities or obligations, other than the payment, discharge or satisfaction in the ordinary course of business consistent with past practices;; and
(xv) with respect to any Subsidiary, enter into any structured settlement agreement or arrangement, funding agreement or arrangement or reinsurance agreement or arrangement; provided that the Purchaser hereby consents that the Companies and Subsidiaries may, consistent with past practices, continue to enter into structured settlement agreements or arrangements, including any agreement to be the assignee of structured settlement payment obligations, so long as such structured settlement agreements or arrangements are subject to the Liberty Life Guarantee; or
(xvi) agree or commit to do any of the foregoing.
(c) None Neither the Company nor any Subsidiary, except as may be required by their respective fiduciary duties or as contemplated by this Agreement, will seek to cause any Fund Board to take any action with respect to any Fund other than in the ordinary course of business of such Fund.
(d) Neither the Company nor any of the Companies or any Subsidiary Subsidiaries shall adopt or amend in any material respect (except as may be required by law or permitted by or contemplated under this Agreement) any bonus, profit sharing, compensation, stock option, stock purchase, pension, retirement, deferred compensation, or other employee benefit plan, agreement, trust, fund or other arrangement for the benefit or welfare of any director, officer or employee or former director, officer or employee of any Subsidiary (other than commercially reasonable arrangements entered into with any new hires) or increase the compensation or fringe benefits of any employee or former director, officer or employee of any Subsidiary or pay any benefit not required by any existing plan, arrangement or agreement, except compensation increases for employees and non-executive officers in the ordinary course of business consistent with past practices.
(de) None Neither the Company nor any of the Companies nor any Subsidiary Subsidiaries shall take any action with respect to the grant of any severance or termination pay or with respect to any increase of benefits payable under its retention, severance or termination pay policies in effect on the date hereof with respect to employees of any of the Subsidiaries. The Companies Company shall not amend or modify the Retention Plan after the date hereof to the extent any such amendment or modification relates to employees of the Subsidiaries or increases the costs to the Purchaser or any of the Subsidiaries under the Retention PlanSection 5.11 hereof. LFC The Company has delivered made available to the Purchaser a true and complete copy of the Retention Plan.
(e) Notwithstanding anything to the contrary contained in this Section 4.1, the Companies shall be permitted to cause, and shall cause, LASC to make a dividend or distribution to Keyport Life Insurance Company immediately prior to the Closing and effective at the same time as the amendments to the Administrative Services Agreement referred to in Section 1.2(d) of the Transition Services Agreement of (i) the issued and outstanding capital shares of KFSC and (ii) an amount in cash equal to the net worth of LASC as of such date.
(f) The Insurance Subsidiaries shall manage their Subsidiary Investing Other than in a manner that is the ordinary course of business consistent with past practices in all material respects andand except as otherwise required or permitted pursuant to this Agreement, within neither the reasonable business judgment of their senior management, consistent with the business plans provided to the Purchaser, subject to the restrictions set forth in clauses Company nor any Subsidiary shall (i) and enter into any transaction, agreement or arrangement with, or make any payment to, any affiliate which would be required to be disclosed on Section 3.8 of the Disclosure Schedule, if such transaction, agreement, arrangement or payment had existed as of the date of this Agreement, or (ii) below. On a periodic basis as reasonably requested by the Purchaser and reasonably available to the Subsidiaries, but in no event less frequently than 18 Business Days after the end of each calendar month, the Companies shall deliver to the Purchaser such information regarding the duration and the asset/liability composition, duration matching modify or amend any of the Insurance Subsidiaries' general account investments as matters disclosed on Section 3.8 of such month end. Notwithstanding the foregoing:
(i) The Insurance Subsidiaries shall not make additional commitments to make private equity investments (such as, but not limited to, venture funds, hedge funds and direct private equity investments) or other investments categorized by the Insurance SubsidiariesDisclosure Schedule.
Appears in 1 contract
Samples: Stock Purchase Agreement (Liberty Financial Companies Inc /Ma/)
Conduct Prior to Closing. Except as otherwise specifically contemplated by this Agreement, as disclosed in Section 4.1 of the Disclosure Schedule, as required in connection with the Sale, or as required by law, the Companies covenant and agree that, unless the Purchaser shall otherwise consent (which consent, in the case of subsections (ix), (xa) and (xii) in Section 4.1(b) below and, only as it relates to subsections (ix), (x) and (xii), subsection (xvi) in Section 4.1(b) below, shall not be unreasonably withheld, delayed or conditioned) in writing, during During the period from beginning on the date of this Agreement until and ending on the earlier of (x) the Closing Date and (y) the date of termination of this Agreement or in accordance with Article 8 (the Closing:
“Pre-Closing Period”), each of the Sellers shall, and shall cause its Affiliates to, (a) The conduct its business of with respect to each Product and the Subsidiaries shall in all material respects be conducted only Acquired Assets in the ordinary course of business consistent and in accordance with past practices, applicable Law and the Companies shall (b) use commercially reasonable efforts, efforts to preserve the Product Business and otherwise maintain and preserve substantially intact the tangible Acquired Assets in all material respects the business organization, employees and advantageous business relationships good condition. Except as set forth on Schedule 6.1(a) of the Subsidiaries.
Seller Disclosure Letter, the Sellers shall not, and shall cause their respective Affiliates not to, without the consent of Purchaser in writing (b) In additionnot to be unreasonably withheld, but without limiting the generality of the foregoingconditioned or delayed), none of the Companies or any Subsidiaries shall directly or indirectly do any of the following:
(i) issue mortgage, lease, pledge or otherwise Encumber any Acquired Assets or sell, transfer, license, lease, permit to lapse or authorize or agree to the issuance or sale of, any shares of, or any options or rights otherwise dispose of any kind to acquire any shares of, or any securities convertible into or exchangeable or exercisable Acquired Assets except for any shares of, capital stock sales of any class inventory in the ordinary course of any Subsidiarybusiness;
(ii) acquire(A) terminate or fail to renew any Acquired Contract, transferor make any material amendment to or waive any material right or remedy under any such Contract, sell(B) knowingly take, leaseor fail to take, pledge any action that would constitute a breach, violate the terms, conditions or encumber provisions of, or result in a default under, or give to others any assets material to rights of termination, amendment, acceleration or cancellation of any Subsidiaries, except in connection with investment activities in the ordinary course of business consistent with past practices Acquired Contract or ("Subsidiary Investing")C) enter into any Contract that would be an Acquired Contract;
(iii) amend the charter (A) abandon, lapse or by-laws allow to lapse any Acquired Intellectual Property Rights, (B) fail to make any filings, prosecute in good faith or similar organizational documents of maintain any of the Subsidiaries;
Acquired Intellectual Property Rights or (ivC) splitgrant any license, combine sublicense or reclassify any shares of the capital stock of the Subsidiaries or declare, set aside for payment or pay any dividend or distribution, payable in cash, stock, property or otherwise, other right with respect to any of the capital stock of any of the Subsidiaries, other than, with respect to dividends Acquired Intellectual Property Rights or distributions cash dividends and distributions, by a Subsidiary to another Subsidiary (it being understood that no dividend or distribution has been paid or made or will be paid or made by any Subsidiary since September 30, 2000);
(v) except pursuant to Section 5.5, enter into an agreement with respect to any merger, consolidation, liquidation or business combination involving any Subsidiary, or any acquisition or disposition of all or substantially all of the assets or securities of any of the Subsidiaries;
(vi) except pursuant to Section 5.5 or in connection with Subsidiary Investing, enter into an agreement with respect to the disposition of a material amount of assets of any Subsidiary, or any release or relinquishment of any material contract rights of any Subsidiary;
(vii) with respect to any Subsidiary, (A) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or (B) make any material investment either by purchase of stock or securities, contributions to capital (other than to whollyIn-owned Subsidiaries), property transfer or purchase of any property or assets of any other individual or entity, except in connection with Subsidiary Investing;
(viii) with respect to any SubsidiaryLicensed Intellectual Property, other than in the ordinary course of business consistent with past practices, incur any indebtedness for borrowed money or issue any debt securities or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations of any other individual or entity, or, except in connection with Subsidiary Investing, make any loans or advancesbusiness;
(Aiv) other than vary any inventory practices with respect to any Product (including samples) in a manner inconsistent with the ordinary course of business or fail to produce and maintain inventory levels and amounts consistent with past practicethe ordinary course of business;
(v) commence, permit compromise or settle any Subsidiary Action to enter into the extent related to the Product Business or the Acquired Assets;
(vi) fail to pay any new Contract that would satisfy the definition of Material Contract if in effect applicable Taxes imposed on the date hereof Acquired Assets or with respect to the Product Business as such Taxes become due or payable;
(vii) (A) materially revise or modify any promotional material (including any Labeling) included in the Acquired Regulatory Documentation or (B) terminateadd, amend, modify remove or waive compliance of otherwise alter any provision of any Material Contract references to the Products in any respect materially adverse to website controlled by any of the SubsidiariesSellers or their respective Affiliates or any of the content of such references in any such website, in each case ((A) and (B)), except as required by a Governmental Entity or as otherwise required by applicable Law;
(xviii) except as set forth in Section 4.1 of the Disclosure Schedule, make terminate or change materially modify any material Tax election, release, assign settle or compromise ongoing clinical trial (including any material Tax liability, or waive any statute of limitations for any Tax claim or assessment unless such action would not reasonably be expected to increase the Tax liability of the Subsidiaries or the tax sharing obligation of any Subsidiary under this Agreement;
(xi) except as may be required as result of a change in law, regulation or in generally accepted accounting principles, change any accounting principles or practices used by any Subsidiary;
(xii) release, assign, settle or compromise any material claim or litigation relating to any Subsidiary;
(xiii) other than as may be required as a result of a change in law, regulation or in generally accepted accounting principles, change any of the Subsidiary's reserving methods (it being understood that the foregoing shall not apply to changes in the amount of reserves);
(xivpost approval study) with respect to any SubsidiaryProduct, pay, discharge or satisfy any claims, liabilities or obligations, other than the payment, discharge or satisfaction except in the ordinary course event of business consistent a safety concern or as otherwise necessary to comply with past practices;
(xv) with respect to any Subsidiary, enter into any structured settlement agreement Governmental Entity or arrangement, funding agreement or arrangement or reinsurance agreement or arrangement; provided that the Purchaser hereby consents that the Companies and Subsidiaries may, consistent with past practices, continue to enter into structured settlement agreements or arrangements, including any agreement to be the assignee of structured settlement payment obligations, so long as such structured settlement agreements or arrangements are subject to the Liberty Life Guaranteeapplicable Law; or
(xviix) agree or commit to do any of the foregoing.
(c) None of the Companies or any Subsidiary shall adopt or amend in any material respect (except as may be required by law or permitted by or contemplated under this Agreement) any bonus, profit sharing, compensation, stock option, stock purchase, pension, retirement, deferred compensation, or other employee benefit plan, agreement, trust, fund or other arrangement for the benefit or welfare of any director, officer or employee or former director, officer or employee of any Subsidiary (other than commercially reasonable arrangements entered into with any new hires) or increase the compensation or fringe benefits of any employee or former director, officer or employee of any Subsidiary or pay any benefit not required by any existing plan, arrangement or agreement, except compensation increases for employees and non-executive officers in the ordinary course of business consistent with past practices.
(d) None of the Companies nor any Subsidiary shall take any action with respect to the grant of any severance or termination pay or with respect to any increase of benefits payable under its retention, severance or termination pay policies in effect on the date hereof with respect to employees of any of the Subsidiaries. The Companies shall not amend or modify the Retention Plan after the date hereof to the extent any such amendment or modification relates to employees of the Subsidiaries or increases the costs to the Purchaser or any of the Subsidiaries under the Retention Plan. LFC has delivered to the Purchaser a true and complete copy of the Retention Plan.
(e) Notwithstanding anything to the contrary contained in this Section 4.1, the Companies shall be permitted to cause, and shall cause, LASC to make a dividend or distribution to Keyport Life Insurance Company immediately prior to the Closing and effective at the same time as the amendments to the Administrative Services Agreement referred to in Section 1.2(d) of the Transition Services Agreement of (i) the issued and outstanding capital shares of KFSC and (ii) an amount in cash equal to the net worth of LASC as of such date.
(f) The Insurance Subsidiaries shall manage their Subsidiary Investing in a manner that is consistent with past practices in all material respects and, within the reasonable business judgment of their senior management, consistent with the business plans provided to the Purchaser, subject to the restrictions set forth in clauses (i) and (ii) below. On a periodic basis as reasonably requested by the Purchaser and reasonably available to the Subsidiaries, but in no event less frequently than 18 Business Days after the end of each calendar month, the Companies shall deliver to the Purchaser such information regarding the duration and the asset/liability composition, duration matching of the Insurance Subsidiaries' general account investments as of such month end. Notwithstanding the foregoing:
(i) The Insurance Subsidiaries shall not make additional commitments to make private equity investments (such as, but not limited to, venture funds, hedge funds and direct private equity investments) or other investments categorized by the Insurance Subsidiaries
Appears in 1 contract
Conduct Prior to Closing. Except Each Seller other than PacMan and Partners ------------------------ LLC as otherwise specifically contemplated by this Agreementto themselves shall, and each Seller shall cause each of its Subsidiaries to, conduct its business and each of their respective businesses, as disclosed in Section 4.1 of the Disclosure Schedule, as required in connection with the Sale, or as required by law, the Companies covenant and agree that, unless the Purchaser shall otherwise consent (which consentcase may be, in the case of subsections (ix)ordinary and usual course and to preserve its business organization and their respective business organizations and assets intact and maintain existing relations and goodwill with customers, (x) and (xii) in Section 4.1(b) below andsuppliers, only as it relates to subsections (ix)distributors, (x) and (xii)creditors, subsection (xvi) in Section 4.1(b) below, shall not be unreasonably withheld, delayed or conditioned) in writing, during the period from the date of this Agreement until the earlier of the termination of this Agreement or the Closing:
(a) The business of the Subsidiaries shall in all material respects be conducted only in the ordinary course of business consistent with past practices, and the Companies shall use commercially reasonable efforts, to maintain and preserve substantially intact in all material respects the business organizationlessors, employees and advantageous business relationships of the Subsidiaries.
(b) In addition, but without associates. Without limiting the generality of the foregoing, none from the date hereof until the Effective Time, except as contemplated in any other Transaction Document or as Previously Disclosed, each such Seller other than PacMan and Partners LLC as to themselves, shall not, and each Seller shall cause each of the Companies or any its Subsidiaries shall directly or indirectly (as to PacMan, only including Holding LLC and its Subsidiaries) not to, do any of the followingfollowing without the prior written consent of AZOA, which shall not be unreasonably withheld:
(ia) issue or issue, sell, pledge, grant, allocate, dispose of or authorize or agree to the issuance or sale of, encumber any shares of, Equity Interests in it or any options of its Subsidiaries or any options, warrants, conversion or other rights or understandings of any kind kind, contingent or otherwise, to acquire purchase any shares of, or any securities convertible into or exchangeable or exercisable for any shares of, capital stock of any class of any Subsidiarysuch Equity Interests;
(iib) acquire, transfer, sell, lease, pledge admit any new partner or encumber any assets material to any Subsidiaries, except in connection with investment activities in the ordinary course of business consistent with past practices ("Subsidiary Investing")member;
(iiic) amend the charter directly or by-laws or similar organizational documents of any of the Subsidiaries;
(iv) indirectly, adjust, split, combine or reclassify any shares of the capital stock of the Subsidiaries or its Equity Interests;
(d) declare, set aside for payment aside, make or pay any dividend or distribution, payable other distribution in cash, stockstock or property in respect of its Equity Interests, property or otherwiserepurchase, with respect to redeem or otherwise acquire, directly or indirectly, any of the capital stock of any of the Subsidiaries, other than, with respect to dividends or distributions cash dividends and distributions, by a Subsidiary to another Subsidiary (it being understood that no dividend or distribution has been paid or made or will be paid or made by any Subsidiary since September 30, 2000)its Equity Interests;
(ve) except pursuant to Section 5.5other than in the ordinary course of its business transfer, enter into an agreement with respect to lease, license, guarantee, sell, mortgage, pledge, dispose of or encumber any mergerof its or their material property or assets, consolidation, liquidation tangible or business combination involving any Subsidiaryintangible, or incur or modify any acquisition material indebtedness or disposition of all or substantially all of the assets or securities of any of the Subsidiariesother liability;
(vif) except pursuant to Section 5.5 make, authorize or in connection with Subsidiary Investing, enter into an agreement with respect to the disposition of a material amount of assets of commit for any Subsidiary, or any release or relinquishment of any material contract rights of any Subsidiary;
(vii) with respect to any Subsidiary, (A) acquire (by merger, consolidation or acquisition of stock or assets) any corporation, partnership or other business organization or division thereof or (B) make any material investment either by purchase of stock or securities, contributions to capital (other than to wholly-owned Subsidiaries), property transfer or purchase of any property or assets of any other individual or entity, except in connection with Subsidiary Investing;
(viii) with respect to any Subsidiary, expenditures other than in the ordinary course of business consistent with past practicesor their respective businesses, incur as the case may be, or, by any indebtedness for borrowed money means, make any acquisition of, or issue any debt securities investment in, assets or assume, guarantee, endorse or otherwise as an accommodation become responsible for, the obligations stock of any other individual Person or entity, or, except provided that the investment -------- restrictions contained in connection with Subsidiary Investing, make any loans this clause (f) shall not apply to capital expenditures or advancesinvestments made in the ordinary course of business;
(Ag) subject to its fiduciary duties, propose that any action be taken by the Board of a Sponsored Investment Company, other than actions in the ordinary course of business consistent with past practice, permit any Subsidiary to enter into any new Contract that would satisfy the definition of Material Contract if in effect on the date hereof or (B) terminate, amend, modify or waive compliance of any provision of any Material Contract in any respect materially are not adverse to any the interests of the Advisors LP or Subsidiaries;
(xh) except as set forth in Section 4.1 of the Disclosure Scheduleterminate, establish, adopt, enter into, make any new grants or change awards under, amend or otherwise modify any material Tax electionCompensation and Benefit Plan, release, assign settle or compromise including any material Tax liability, or waive agreement entered into pursuant to any statute of limitations for any Tax claim or assessment unless such action would not reasonably be expected to increase the Tax liability of the Subsidiaries or the tax sharing obligation of any Subsidiary under this AgreementCompensation and Benefit Plan;
(xii) except amend, supplement or restate its or any of its Subsidiaries' Constituent Documents, as the case may be required as result of a change be, or enter into any Written Consents which in laweffect amend, regulation supplement or in generally accepted accounting principles, change any accounting principles or practices used by any Subsidiaryrestate such Constituent Documents;
(xiij) releaseimplement or adopt any change in any respect of its accounting practices, assign, settle policies or compromise any material claim or litigation relating to any Subsidiary;
(xiii) principles other than as may be required as a result of a change in law, regulation or in generally accepted accounting principles, change any of the Subsidiary's reserving methods (it being understood that the foregoing shall not apply to changes in the amount of reserves)by GAAP;
(xivk) make or revoke any Tax election;
(l) enter into any Contract that would constitute a Key Contract with respect any other Seller or any Affiliate or Subsidiary of any Seller, or make any amendment or modification to any Subsidiary, pay, discharge or satisfy any claims, liabilities or obligations, other than the payment, discharge or satisfaction such agreement except in the ordinary course of business consistent with past practices;
(xv) with respect to any Subsidiary, enter into any structured settlement agreement or arrangement, funding agreement or arrangement or reinsurance agreement or arrangement; provided that the Purchaser hereby consents that the Companies and Subsidiaries may, consistent with past practices, continue to enter into structured settlement agreements or arrangements, including any agreement to be the assignee of structured settlement payment obligations, so long as such structured settlement agreements or arrangements are subject to the Liberty Life Guaranteebusiness; or
(xvim) agree authorize or commit enter into an agreement to do any of the foregoing.
(c) None of the Companies or any Subsidiary shall adopt or amend in any material respect (except as may be required by law or permitted by or contemplated under this Agreement) any bonus, profit sharing, compensation, stock option, stock purchase, pension, retirement, deferred compensation, or other employee benefit plan, agreement, trust, fund or other arrangement for the benefit or welfare of any director, officer or employee or former director, officer or employee of any Subsidiary (other than commercially reasonable arrangements entered into with any new hires) or increase the compensation or fringe benefits of any employee or former director, officer or employee of any Subsidiary or pay any benefit not required by any existing plan, arrangement or agreement, except compensation increases for employees and non-executive officers in the ordinary course of business consistent with past practices.
(d) None of the Companies nor any Subsidiary shall take any action with respect to the grant of any severance or termination pay or with respect to any increase of benefits payable under its retention, severance or termination pay policies in effect on the date hereof with respect to employees of any of the Subsidiaries. The Companies shall not amend or modify the Retention Plan after the date hereof to the extent any such amendment or modification relates to employees of the Subsidiaries or increases the costs to the Purchaser or any of the Subsidiaries under the Retention Plan. LFC has delivered to the Purchaser a true and complete copy of the Retention Plan.
(e) Notwithstanding anything to the contrary contained in this Section 4.1, the Companies shall be permitted to cause, and shall cause, LASC to make a dividend or distribution to Keyport Life Insurance Company immediately prior to the Closing and effective at the same time as the amendments to the Administrative Services Agreement referred to in Section 1.2(d) of the Transition Services Agreement of (i) the issued and outstanding capital shares of KFSC and (ii) an amount in cash equal to the net worth of LASC as of such date.
(f) The Insurance Subsidiaries shall manage their Subsidiary Investing in a manner that is consistent with past practices in all material respects and, within the reasonable business judgment of their senior management, consistent with the business plans provided to the Purchaser, subject to the restrictions set forth in clauses (i) and (ii) below. On a periodic basis as reasonably requested by the Purchaser and reasonably available to the Subsidiaries, but in no event less frequently than 18 Business Days after the end of each calendar month, the Companies shall deliver to the Purchaser such information regarding the duration and the asset/liability composition, duration matching of the Insurance Subsidiaries' general account investments as of such month end. Notwithstanding the foregoing:
(i) The Insurance Subsidiaries shall not make additional commitments to make private equity investments (such as, but not limited to, venture funds, hedge funds and direct private equity investments) or other investments categorized by the Insurance Subsidiaries
Appears in 1 contract
Samples: Implementation and Merger Agreement (Pimco Advisors Holdings Lp)
