Covenants Relating to Conduct of Business Prior to Merger. Except as contemplated hereby, during the period from the date of this Agreement to the Effective Time, Summit shall, and shall cause its Subsidiaries to, act and carry on their respective businesses in the Ordinary Course of Business and, to the extent consistent therewith, use reasonable efforts to preserve intact their business organizations, keep available the services of their key officers and employees and preserve the goodwill of those engaged in material business relationships with them. Without limiting the generality of the foregoing, except as otherwise expressly contemplated by this Agreement, during the period from the date hereof to the Effective Time, Summit shall not, and shall not permit any of its Subsidiaries to, without the prior consent of Liberty (which consent shall be given or withheld based on Liberty's reasonable business judgment): (a) (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of Summit's outstanding capital stock, (ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (iii) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (other than shares of Summit Common Stock purchased as employee investments under the Summit Holding Southeast, Inc. Amended and Restated Retirement Plan dated September 1, 1997); (b) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, except for the issuance of shares of Summit Common Stock upon exercise of options to purchase shares of Summit Common Stock outstanding on the date hereof; (c) amend its charter, by-laws or other comparable charter or organizational documents; (d) acquire any business or any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof; (e) sell, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets that are material to Summit and its Subsidiaries taken as a whole, except in the Ordinary Course of Business; (f) (i) incur any indebtedness for borrowed money (other than incurred in the Ordinary Course of Business pursuant to Summit's existing line of credit with SunTrust Bank, Tampa Bay) or guarantee any such indebtedness of another Person or (ii) make any loans or advances to any other Person, other than to any direct or indirect wholly-owned Subsidiary of Summit and other than routine advances to employees; (g) make any tax election (other than elections required by law and made in the Ordinary Course of Business not giving rise to additional material tax liabilities) or settle or compromise any tax liability that could reasonably be expected to be material to Summit and its Subsidiaries taken as a whole; (h) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the Ordinary Course of Business or in accordance with their terms (or on terms more favorable to Summit), of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of Summit included in the SEC Documents or incurred since the date of such financial statements in the Ordinary Course of Business; (i) except in the Ordinary Course of Business, modify, amend or terminate any material agreement, permit, concession, franchise, License or similar instrument to which Summit or any Subsidiary is a party or waive, release or assign any material rights or claims thereunder; or (j) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Liberty Mutual Insurance Co), Merger Agreement (Summit Holding Southeast Inc)
Covenants Relating to Conduct of Business Prior to Merger. 5.1 Conduct of Business by the Company. Except as contemplated herebyby this Agreement or as set forth in Section 5.1 of the Disclosure Schedule, during the period from the date of this Agreement to the Effective Time, Summit the Company shall, and shall cause its Subsidiaries subsidiaries to, act and carry on their respective businesses in the Ordinary Course ordinary course of Business business and, to the extent consistent therewith, use reasonable efforts to preserve intact their current business organizations, keep available the services of their current key officers and employees and preserve the goodwill of those engaged in material business relationships with them. In addition, the Company agrees to allow representatives of Conseco to have access to the management and other personnel of G:\LEGAL\AGREEMNT\MERGER\PIONEER.4TH 28 the Company so that Conseco can be fully informed at all times as to significant executive, legal, financial, marketing and other operational matters involving the Company, its subsidiaries or their businesses. Without limiting the generality of the foregoing, except as otherwise expressly contemplated by this Agreement, during the period from the date hereof of this Agreement to the Effective Time, Summit the Company shall not, and shall not permit any of its Subsidiaries subsidiaries to, without the prior consent of Liberty (which consent shall be given or withheld based on Liberty's reasonable business judgment):Conseco:
(ai) (ix) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of Summitthe Company's outstanding capital stockstock (other than regular quarterly cash dividends not in excess of $0.055 per Share, with usual record and payment dates and in accordance with the Company's present dividend policy), (iiy) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (iiiz) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (other than shares of Summit Common Stock purchased as employee investments under the Summit Holding Southeast, Inc. Amended and Restated Retirement Plan dated September 1, 1997)shares;
(bii) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, except for securities other than upon the issuance of shares of Summit Common Stock upon exercise of options to purchase shares of Summit Common Company Stock Options outstanding on the date hereofof this Agreement or as set forth in Section 4.16 of the Disclosure Schedule;
(ciii) amend its chartercertificate of incorporation, by-laws or other comparable charter or organizational documents;
(div) acquire acquire, form or commence the operations of any business or any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof;
(ev) sell, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets that are material to Summit the Company and its Subsidiaries subsidiaries taken as a whole, except in the Ordinary Course ordinary course of Businessbusiness;
(fvi) (ix) incur any indebtedness for borrowed money (other than incurred in the Ordinary Course of Business pursuant to Summit's existing line of credit with SunTrust Bank, Tampa Bay) or guarantee any such indebtedness of another Person person, other than indebtedness under any credit agreement in effect on the date of this Agreement or indebtedness owing to or guarantees of indebtedness owing to the Company or any direct or indirect wholly-owned subsidiary of the Company or (iiy) make any loans or advances to any other Personperson, other than to the Company, or to any direct or indirect wholly-owned Subsidiary subsidiary of Summit the Company and other than routine advances to agents and employees;; G:\LEGAL\AGREEMNT\MERGER\PIONEER.4TH 29
(gvii) make any tax election (other than elections required by law and made in the Ordinary Course of Business not giving rise to additional material tax liabilities) or settle or compromise any income tax liability that could would reasonably be expected to be material to Summit the Company and its Subsidiaries subsidiaries taken as a whole;
(hviii) pay, discharge, settle or satisfy any material claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the Ordinary Course ordinary course of Business business consistent with past practice or in accordance with their terms (or on terms more favorable to Summit)terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of Summit the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(ix) invest its future cash flow, any cash from matured and maturing investments, any cash proceeds from the sale of its assets and properties, and any cash funds currently held by it, in any investments other than cash equivalent assets or in short-term investments (consisting of United States government issued or guaranteed securities, or commercial paper rated A-1 or P-1), except (i) as otherwise required by law, (ii) as required to provide cash (in the ordinary course of business and consistent with past practice) to meet its actual or anticipated obligations or (iii) publicly-traded corporate bonds that are rated investment grade by at least two nationally recognized statistical rating organizations;
(x) except as may be required by law,
(i) make any representation or promise, oral or written, to any employee or former director, officer or employee of the Company or any subsidiary which is inconsistent with the terms of any Benefit Plan;
(ii) make any change to, or amend in any way, the contracts, salaries, wages, or other compensation of any employee or any agent or consultant of the Company or any subsidiary other than (a) changes or amendments that are required under existing contracts, (b) individual, routine changes with respect to employees that are made in the ordinary course of business and consistent with past practice and do not exceed 6% or (c) changes with respect to agents or consultants that are made in the ordinary course of business and consistent with past practice;
(iii) adopt, enter into, amend, alter or terminate, partially or completely, any Benefit Plan or any election made pursuant to the provisions of any Benefit Plan, to accelerate any payments, obligations or vesting schedules under any Benefit Plan; or G:\LEGAL\AGREEMNT\MERGER\PIONEER.4TH 30
(iv) approve any general or company-wide pay increases for employees;
(xi) except in the Ordinary Course ordinary course of Businessbusiness, materially modify, amend or terminate any material agreement, permit, concession, franchise, License license or similar instrument to which Summit the Company or any Subsidiary subsidiary is a party or waive, release or assign any material rights or claims thereunder;
(xii) hold any meeting of the board of directors of the Company or any subsidiary or any committee of any such board, or take any action by written consent of any such board or committee, without providing to Conseco (i) notice of any such meeting no later than the date notice is given to the board of directors or in advance of the date of any proposed action by written consent and (ii) with such notice, an agenda of the specific matters intended to be considered at such meeting or a copy of the proposed written consent, unless, in the reasonable good faith judgment of the President or Chairman of the Company, providing prior notice of any agenda item or any item of such written consent will prejudice the ability of the board of directors or any committee of the board of directors to discharge its duties, in which case such item may be omitted from the agenda or written consent provided to Conseco; or
(jxiii) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Conseco Inc Et Al), Merger Agreement (Pioneer Financial Services Inc /De)
Covenants Relating to Conduct of Business Prior to Merger. SECTION 4.1 Conduct of Business of the Company. Except as contemplated herebyor otherwise permitted by this Agreement, during the period from the date of this Agreement to the Effective Time, Summit shallthe Company shall use its reasonable best efforts to operate, and shall cause each Subsidiary to use its Subsidiaries toreasonable best efforts to operate, act and carry on their respective businesses its business in the Ordinary Course of Business and, to the extent consistent therewith, use reasonable efforts to preserve intact their business organizations, keep available the services of their key officers ordinary course in all material respects and employees and preserve the goodwill of those engaged comply with applicable laws in all material business relationships with themrespects. Without limiting the generality of the foregoing, except as otherwise expressly contemplated by this Agreement, during the period from the date hereof of this Agreement to the Effective Time, Summit except as expressly contemplated by this Agreement and except as set forth in Section 4.1 of the Disclosure Schedule, the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Liberty (which consent shall be given or withheld based on Liberty's reasonable business judgment):Parent:
(ai) (ix) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of Summitthe Company's outstanding capital stock, (iiy) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (iiiz) purchase, redeem or otherwise acquire any shares of its outstanding capital stock or any rights, warrants or options to acquire any such shares (other than shares of Summit Common Stock purchased as employee investments under the Summit Holding Southeast, Inc. Amended and Restated Retirement Plan dated September 1, 1997)shares;
(bii) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, except for the issuance of shares of Summit Common Stock upon exercise of options Options outstanding prior to purchase shares of Summit Common Stock outstanding on the date hereofof this Agreement and disclosed in Section 3.1(c), or take any action that would make the Company's representations and warranties set forth in Section 3.1(c) not true and correct in all material respects;
(ciii) amend its charter, byRestated Charter or By-laws or other comparable charter or organizational documents;
(div) acquire any business or any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereofthereof (or any interest therein) in a transaction or series of transactions involving aggregate consideration in excess of $25 million or form any subsidiaries;
(ev) sell, mortgage or otherwise encumber or subject to any Lien sell or otherwise dispose of any of its properties or assets that are material to Summit and its Subsidiaries taken as a wholesubstantial assets, except in the Ordinary Course ordinary course of Businessbusiness or in a transaction or series of transactions involving assets with an aggregate value of less than $5,000,000;
(fvi) make any capital expenditures or commitments with respect thereto, except capital expenditures or commitments not exceeding the Company's budget (which capital expenditures budget is described in Section 4.1 of the Disclosure Schedule) by more than $1,000,000 in the aggregate as the Company may, in its discretion, deem appropriate;
(vii) (ix) incur any indebtedness for borrowed money (other than incurred in the Ordinary Course of Business pursuant to Summit's existing line of credit with SunTrust Bank, Tampa Bay) or guarantee guaranty any such indebtedness of another Person person, other than (A) borrowings in the ordinary course under existing lines of credit (or under any refinancing of such existing lines), (B) indebtedness owing to, or guaranties of indebtedness owing to, the Company or (iiC) in connection with the Financing, or (y) make any loans or advances to any other Personperson, other than to any direct or indirect wholly-owned Subsidiary of Summit the Company and other than routine advances to employees, except in the case of either (x) or (y) as disclosed in Section 4.1 of the Disclosure Schedule;
(gviii) make grant or agree to grant to any tax election employee any increase in wages or bonus (other than elections required by law and made any increase in the Ordinary Course ordinary course of Business not giving rise business consistent with past practices), severance, profit sharing, retirement, deferred compensation, insurance or other compensation or benefits, or establish any new compensation or benefit plans or arrangements, or amend or agree to additional material tax liabilitiesamend any existing Company Stock Option Plans, except as may be required under existing agreements disclosed in Section 3.1(a)(viii) or settle or compromise any tax liability that could reasonably be expected to be material to Summit and its Subsidiaries taken as a wholeof the Disclosure Schedule;
(hix) paymerge, dischargeamalgamate or consolidate with any other entity in any transaction, settle sell all or satisfy substantially all of its business or assets;
(x) enter into or amend any claimsemployment, liabilities consulting, severance or obligations similar agreement with any individual which provides for the payment of an annual base salary in excess of $125,000;
(absolutexi) change its accounting policies in any material respect, accruedexcept as required by generally accepted accounting principals;
(xii) cancel, asserted terminate, amend, modify or unassertedwaive any of the terms of any confidentiality or standstill agreement executed with respect to a proposed acquisition of the capital stock or substantially all of the assets of the Company or any of its Subsidiaries by any other party prior to the date of this Agreement;
(xiii) except as contemplated by Section 5.8 and Section 7.1(d) hereof, contingent authorize, recommend, propose or otherwise)announce an intention to authorize, recommend or propose, or enter into an agreement in principle or an agreement with respect to any merger, consolidation or business combination (other than the paymentMerger), discharge any acquisition or satisfactiondisposition of a material amount of assets or securities (including, without limitation, the assets or securities of any Subsidiary and other than inventory in the Ordinary Course of Business or in accordance with their terms (or on terms more favorable to Summitordinary course), of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of Summit included in the SEC Documents or incurred since the date of such financial statements in the Ordinary Course of Business;
(i) except in the Ordinary Course of Business, modify, amend or terminate any material agreement, permit, concession, franchise, License or similar instrument to which Summit or any Subsidiary is a party or waive, release or assign any material rights or claims thereunder; or
(jxiv) authorize any ofexcept as contemplated by Section 5.8 and Section 7.1(d) hereof, or commit or agree to take any of, of the foregoing actionsactions except as contemplated by Section 5.8 and Section 7.1(d) hereof.
Appears in 2 contracts
Samples: Merger Agreement (Cort Business Services Corp), Merger Agreement (Egan Charles)
Covenants Relating to Conduct of Business Prior to Merger. Except as contemplated hereby, during SECTION 4.01 Conduct of Business by the Company. During the period from the date of this Agreement to the Effective Time, Summit the Company shall, and shall cause its Subsidiaries to, act and carry on their respective businesses in the Ordinary Course ordinary course of Business and, to the extent business consistent therewith, with past practice and use its and their respective reasonable best efforts to preserve substantially intact their current business organizations, keep available the services of their key current officers and employees and preserve the goodwill of those engaged in material their relationships with customers, suppliers, licensors, licensees, development partners, and others having significant business relationships dealings with them. Without limiting the generality of the foregoing, except as otherwise expressly contemplated by this Agreement, during the period from the date hereof of this Agreement to the Effective Time, Summit except as provided in Section 4.01 of the Company Disclosure Schedule and except as expressly provided in this Agreement (but excluding for this purpose any provisions of the Company Disclosure Schedule other than those contained in Section 4.01 or 4.03 thereof) the Company shall not, and shall not permit any of its Subsidiaries to, without the prior consent of Liberty (which consent shall be given or withheld based on Liberty's reasonable business judgment)::
(a) (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of Summit's outstanding its capital stock, (ii) split, combine or reclassify any of its outstanding capital stock of the Company or any Subsidiary or issue or authorize the issuance of any other securities Equity Interests in respect of, in lieu of or in substitution for shares of its outstanding capital stockstock of the Company or any Subsidiary, or (iii) purchase, redeem or otherwise acquire any shares Equity Interests of outstanding capital stock the Company or any rights, warrants or options to acquire any such shares (other than shares of Summit Common Stock purchased as employee investments under the Summit Holding Southeast, Inc. Amended and Restated Retirement Plan dated September 1, 1997)its Subsidiaries;
(b) authorize for issuance, issue, deliver, sell, grant, pledge or otherwise encumber any shares Equity Interest of the Company or any of its capital stockSubsidiaries, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, except for than (i) the issuance of shares of Summit Company Common Stock upon the exercise of options to purchase shares of Summit Common Stock Company Warrants outstanding on the date of this Agreement in accordance with their present terms, (ii) the issuance of Company Common Stock upon the exercise of Company Stock Options awarded prior to the date of this Agreement but unexercised on the date of this Agreement (or granted after the date hereof in accordance with Section 4.03 hereof) in accordance with their present terms, (iii) the issuance of Company Common Stock pursuant to the Company's Employee Stock Purchase Plan in accordance with its present terms, (iv) the conversion of the Convertible Notes in accordance with their present terms, (v) the issuance of Company Common Stock in order to pay interest on the Convertible Notes, should the Company so elect, in accordance with their present terms and (vi) the sale of shares of capital stock of Akkadix Corporation, DNA Sciences, Inc. or Discovery Partners International, Inc. upon the exercise of options outstanding as of the date hereof pursuant to the 1999 Key Personnel Stock Option Plan;
(c) amend its charter, by(i) the Certificate of Incorporation or By-laws Laws or other the comparable charter or organizational documentsdocuments of any Subsidiary of the Company or (ii) the Rights Agreement;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof;
(e) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of (i) any of its properties or assets, other than any such properties or assets that are material to Summit the value of which do not exceed $50,000 individually and its Subsidiaries taken as a whole$250,000 in the aggregate, except the granting of purchase money security interests in the Ordinary Course ordinary course of Businessbusiness consistent with past practice or (ii) any Minority Investments or other Equity Interests in any other Person (other than as set forth in Section 4.01(b)(vi));
(f) (i) incur any indebtedness Indebtedness for borrowed money (other than incurred in the Ordinary Course of Business pursuant to Summit's existing line of credit with SunTrust Bank, Tampa Bay) or guarantee any such indebtedness Indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another Person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice and other than pursuant to equipment lease financing not to exceed $250,000, in the aggregate, or (ii) make any loans loans, advances or advances to capital contributions to, or Minority Investments or other investments in, any other Person, other than to any direct or indirect wholly-owned Subsidiary of Summit and other than routine advances to employeesthe Company;
(g) make or agree to make any tax election (capital expenditures, except capital expenditures described in the capital expenditure budget attached as Annex A to Section 4.01(g) of the Company Disclosure Schedule and such additional capital expenditures as do not exceed $50,000 individually and $250,000 in the aggregate; or acquire or agree to acquire any other assets, other than elections required by law inventory and made supplies in the Ordinary Course ordinary course of Business not giving rise to additional material tax liabilities) or settle or compromise any tax liability that could reasonably be expected to be material to Summit and its Subsidiaries taken as a wholebusiness consistent with past practice;
(hi) waive, release, grant, or transfer any rights of material value or modify or change in any material respect any existing material license, lease, contract or other document, other than in the ordinary course of business consistent with past practice, (ii) pay, discharge, settle discharge or satisfy any claimsclaims (including claims of stockholders), liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, satisfaction of liabilities or obligations in the Ordinary Course ordinary course of Business business consistent with past practice or in accordance with their terms as in effect on the date hereof or (iii) settle or on terms more favorable compromise any litigation or claim other than settlements or compromises of litigation or claims that do not relate to Summit), of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (this Agreement or the notes theretoTransactions and do not provide for injunctive or similar relief and where the amount paid (after giving effect to insurance proceeds actually received) of Summit included in settlement or compromise does not exceed $50,000 individually or $250,000 in the SEC Documents or incurred since the date of such financial statements in the Ordinary Course of Businessaggregate;
(i) adopt a plan of complete or partial liquidation or resolutions providing for or authorizing such a liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(j) enter into or amend any collective bargaining agreement;
(k) enter into or amend in any material respect any Material Contract of the type specified in clause (iii), (v), (vi), (vii) or (viii) of Section 2.17(a) hereof, or any Contract, transaction, indebtedness or other arrangement of the type described in Section 2.24 hereof; or enter into or amend any Material Contract of the type specified in Section 2.17(a)(ii) hereof;
(l) change any accounting principle used by it, except as required by GAAP;
(m) transfer to any Person any rights to its Intellectual Property other than the granting of end-user licenses and the right to grant end-user sublicenses in the Ordinary Course ordinary course of Business, modify, business consistent with past practice to customers of the Company or its Subsidiaries to the extent such licenses are necessary to permit such customers to use products purchased from the Company or such Subsidiaries;
(n) enter into or amend or terminate any material agreement, permit, concession, franchise, License or similar instrument agreement pursuant to which Summit any other party is granted exclusive development, marketing or other exclusive rights of any Subsidiary is a party type or waivescope with respect to any of its research, release products, Intellectual Property or assign any material rights or claims thereunderother technology; or
(jo) authorize any ofauthorize, or commit or agree to take take, any of, of the foregoing actions.
Appears in 2 contracts
Samples: Merger Agreement (Axys Pharmaceuticals Inc), Merger Agreement (Applera Corp)
Covenants Relating to Conduct of Business Prior to Merger. Except as contemplated hereby, during Section 5.01 Conduct of the period from Parent and Merger Sub. From the date of this Agreement and until the Effective Time, or until the prior termination of this Agreement, the Parent and Merger Sub shall not, unless mutually agreed to in writing:
(a) engage in any transaction, except in the normal and ordinary course of business, or create or suffer to exist any lien or other encumbrance upon any of their respective assets or which will not be discharged in full prior to the Effective Time;
(b) sell, Summit shallassign or otherwise transfer any of their assets, or cancel or compromise any debts or claims relating to their assets, other than for fair value, in the ordinary course of business, and shall cause consistent with past practice;
(c) (i) directly or indirectly redeem, purchase or otherwise acquire to redeem, purchase or otherwise acquire any shares of its Subsidiaries tocapital stock; (ii) issue or agree to issue any additional shares of, act and carry on their respective businesses or options, warrants rights of any kind to acquire any shares of Capital Stock; (iii) amend its certificate of incorporation or bylaws, or split, combine or reclassify the outstanding Capital Stock or declare, set aside or pay any dividend payable in the Ordinary Course of Business andcash, stock or property or make any distribution with respect to the extent consistent therewith, any such stock.
(d) fail to use reasonable efforts to preserve intact their present business organizations, keep available the services of their key officers and employees and preserve the goodwill of those engaged in its material business relationships with them. Without limiting customers, suppliers, licensors, licensees, distributors and others, to the generality of the foregoing, except as otherwise expressly contemplated by this Agreement, during the period from the date hereof end that its good will and on-going business not be impaired prior to the Effective Time, Summit shall not, and shall not permit any of its Subsidiaries to, without the prior consent of Liberty (which consent shall be given or withheld based on Liberty's reasonable business judgment):
(a) (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of Summit's outstanding capital stock, (ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (iii) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (other than shares of Summit Common Stock purchased as employee investments under the Summit Holding Southeast, Inc. Amended and Restated Retirement Plan dated September 1, 1997);
(b) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, except for the issuance of shares of Summit Common Stock upon exercise of options to purchase shares of Summit Common Stock outstanding on the date hereof;
(c) amend its charter, by-laws or other comparable charter or organizational documents;
(d) acquire any business or any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof;
(e) sellexcept for matters related to complaints by former employees related to wages, mortgage suffer or otherwise encumber permit any material adverse change to occur with respect to Parent and Merger Sub or subject to any Lien their respective business or otherwise dispose of any of its properties or assets that are material to Summit and its Subsidiaries taken as a whole, except in the Ordinary Course of Business;assets; or
(f) (i) incur any indebtedness for borrowed money (other than incurred in the Ordinary Course of Business pursuant to Summit's existing line of credit with SunTrust Bank, Tampa Bay) or guarantee any such indebtedness of another Person or (ii) make any loans material change with respect to their business in accounting or advances to any other Personbookkeeping methods, other than to any direct principles or indirect wholly-owned Subsidiary of Summit and other than routine advances to employees;
(g) make any tax election (other than elections practices, except as required by law and made in the Ordinary Course of Business not giving rise to additional material tax liabilities) or settle or compromise any tax liability that could reasonably be expected to be material to Summit and its Subsidiaries taken as a whole;
(h) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the Ordinary Course of Business or in accordance with their terms (or on terms more favorable to Summit), of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of Summit included in the SEC Documents or incurred since the date of such financial statements in the Ordinary Course of Business;
(i) except in the Ordinary Course of Business, modify, amend or terminate any material agreement, permit, concession, franchise, License or similar instrument to which Summit or any Subsidiary is a party or waive, release or assign any material rights or claims thereunder; or
(j) authorize any of, or commit or agree to take any of, the foregoing actionsGAAP.
Appears in 1 contract
Covenants Relating to Conduct of Business Prior to Merger. Except as contemplated hereby, during 4.1 Conduct of Business of the period from Company. From the date of this Agreement to the Effective TimeTime (except as otherwise specifically required by the terms of this Agreement), Summit the Company shall, and shall cause its Subsidiaries subsidiaries to, act and carry on their respective businesses in the Ordinary Course usual, regular and ordinary course of Business business consistent with past practice and, to the extent consistent therewith, use reasonable its best efforts to preserve intact their current business organizations, keep available the services of their key current officers and employees and preserve the goodwill of those engaged in material business their relationships with themcustomers, suppliers, franchisees, licensors, licensees, advertisers, distributors and others having business dealings with them to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, except as otherwise expressly contemplated by this Agreement, during the period from the date hereof of this Agreement. to the Effective Time, Summit the Company shall not, and shall not permit any of its Subsidiaries subsidiaries to, without the prior written consent of Liberty (which consent shall be given or withheld based on Liberty's reasonable business judgment):Parent:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of Summit's outstanding its capital stock, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (iii) purchase, redeem or otherwise acquire any shares of outstanding capital stock of the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities, except, in the case of clause (other than iii), for the acquisition of shares of Summit Company Common Stock purchased as employee investments under from holders of Company Stock Options in full or partial payment of the Summit Holding Southeastexercise price payable by such holder or tax liability arising in connection therewith, Inc. Amended and Restated Retirement Plan dated September 1, 1997)upon exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms;
(b) authorize for issuance, issue, deliver, sell, grant, pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securitiessecurities or any other securities or equity equivalents (including without limitation stock appreciation rights), except for or contractual obligation valued or measured by the value or market price of Company Common Stock (other than the issuance of shares of Summit Company Common Stock upon the exercise of options to purchase shares of Summit Common Company Stock Options outstanding on the date hereofof this Agreement and in accordance with their present terms, such issuance, together with the acquisitions of shares of Company Common Stock permitted under clause (a) above, being referred to herein as "Permitted Changes");
(c) amend its chartercertificate of incorporation, by-laws or other comparable charter or organizational documents;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, limited liability company, partnership, joint venture, association association, or other business organization or division thereof;
(e) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets that are material material, individually or in the aggregate, to Summit the Company and its Subsidiaries subsidiaries taken as a whole, except in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(f) (i) incur any indebtedness for borrowed money (other than incurred in the Ordinary Course of Business pursuant to Summit's existing line of credit with SunTrust Bank, Tampa Bay) or guarantee any such indebtedness of another Person person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice, or (ii) make any loans loans, advances or advances to capital contributions to, or investments in, any other Personperson, other than to the Company or any direct or indirect wholly-wholly owned Subsidiary subsidiary of Summit and other than routine advances to employeesthe Company;
(g) make acquire or agree to acquire any tax election (other than elections required by law and made assets that are material, individually or in the Ordinary Course of Business not giving rise aggregate, to additional material tax liabilities) or settle or compromise any tax liability that could reasonably be expected to be material to Summit the Company and its Subsidiaries subsidiaries taken as a whole, or make or agree to make any capital expenditures except in the ordinary course of business consistent with past practice;
(h) pay, discharge, settle discharge or satisfy any claimsclaims (including claims of stockholders), liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than except for the payment, discharge or satisfaction, of (i) liabilities or obligations in the Ordinary Course ordinary course of Business business consistent with past practice or in accordance with their terms as in effect on the date hereof, (or on terms more favorable to Summit), of ii) liabilities reflected or reserved against in, or contemplated by, the most recent consolidated audited financial statements (or the notes theretothereof) of Summit the Company included in the Recent SEC Documents Documents, or incurred since the date waive, release, grant, or transfer any rights of such financial statements material value or modify or change in any material respect any existing license, lease, contract or other document, other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(i) adopt or amend in any material respect (except as may be required by law or by this Agreement) any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or other arrangement (including any Company Benefit Plan) for the benefit or welfare of any employee, director or former director or employee or, other than increases for individuals (other than officers and directors) in the Ordinary Course ordinary course of Businessbusiness consistent with past practice, modifyincrease the compensation or fringe benefits of any director, amend employee or terminate former director or employee; pay any material benefit not required by any existing plan, arrangement or agreement, permitgrant any new or modified severance or termination arrangement or increase or accelerate any benefits payable under its severance or termination pay policies in effect on the date hereof, concession, franchise, License other than any such increase or similar instrument to which Summit or any Subsidiary is a party or waive, release or assign any material rights or claims thereunder; oracceleration provided for under such policies as in effect on the date of this Agreement;
(j) authorize change any ofmaterial accounting principle used by it, except for such changes as may be required to be implemented following the date of this Agreement pursuant to generally accepted accounting principles or rules and regulations of the SEC promulgated following the date hereof;
(k) take any action that would, or commit is reasonably likely to, result in any of its representations and warranties in this Agreement becoming untrue, or agree in any of the conditions to take the Merger set forth in Article 6 not being satisfied;
(1) except in the ordinary course of business and consistent with past practice, make any oftax election or settle or compromise any federal, the foregoing actions.state, local or foreign income tax liability; and
Appears in 1 contract
Covenants Relating to Conduct of Business Prior to Merger. Except as contemplated hereby, during 6.1 Conduct of Business of Company. During the period from the date of this Agreement to the Effective TimeTime of the Merger (except as otherwise specifically required by the terms of this Agreement), Summit Company shall, and shall cause its Subsidiaries to, act and carry on their respective businesses in the Ordinary Course ordinary course of Business and, to the extent business consistent therewith, with past practice and use all its and their respective reasonable efforts to preserve intact their current business organizations, keep available the services of their key current officers and employees and preserve the goodwill of those engaged in material business their relationships with themcustomers, suppliers, licensors, licensees, advertisers, distributors and others having business dealings with them and to preserve goodwill. Without limiting the generality of the foregoing, except as otherwise expressly contemplated by this Agreement, during the period from the date hereof of this Agreement to the Effective TimeTime of the Merger, Summit Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Liberty (Buyer, which consent shall not be given or withheld based on Liberty's reasonable business judgment):unreasonably withheld:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of Summit's outstanding its capital stock, other than dividends and distributions by a Subsidiary of Company to Company in accordance with applicable law;
(iib) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or ;
(iiic) purchase, redeem or otherwise acquire any shares of outstanding capital stock of Company or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities, except for the cash-out (other than shares or in the case of Summit Common Stock purchased as employee investments the warrants issued under the Summit Holding SoutheastAmstxxx Xxxrant Agreement, Inc. Amended the redemption in accordance with the current terms thereof) of Company Stock Options and Restated Retirement Plan dated September 1, 1997)Warrants (as provided in Section 3.2) outstanding on the date of this Agreement;
(bd) authorize for issuance, issue, deliver, sell, grant, pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, except for securities or any other securities or equity equivalents (including without limitation stock appreciation rights) other than the issuance of shares of Summit Company Common Stock upon the exercise of options to purchase shares of Summit Common Company Stock Options and Warrants outstanding on the date hereofof this Agreement and in accordance with their present terms (such issuances, together with the acquisitions of shares of Company Common Stock permitted under clause (c) above, being referred to herein as "Permitted Changes");
(ce) amend its chartercertificate or articles of incorporation, by-laws bylaws or other comparable charter or organizational documents;
(df) subject to the provisions of Section 7.6 hereof and except as set forth in Section 6.1(f) of the Disclosure Schedule, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereoforganization;
(eg) sellother than as specifically described in Section 6.1 of the Disclosure Schedule, mortgage or otherwise encumber or subject to any Lien (in each case except as provided by the existing terms of Company's credit agreements) or otherwise dispose of of, sell, lease or license any of its properties or assets that are material to Summit and its Subsidiaries taken as a wholeassets, except other than sales of inventory in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(f) (ih) incur any indebtedness for borrowed money (other than incurred in the Ordinary Course of Business pursuant to Summit's existing line of credit with SunTrust Bank, Tampa Bay) or guarantee any such indebtedness of another Person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Company or any of its Subsidiaries, guarantee any debt securities of another Person, enter into any "keep well" or other agreement to maintain any financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for borrowings under current credit facilities and for lease obligations, in each case incurred in the ordinary course of business consistent with past practice;
(iii) make any loans loans, advances or advances to capital contributions to, or investments in, any other Person, other than to Company or any direct or indirect wholly-owned Subsidiary of Summit and other than routine advances to employeesCompany;
(g) make any tax election (other than elections required by law and made in the Ordinary Course of Business not giving rise to additional material tax liabilities) or settle or compromise any tax liability that could reasonably be expected to be material to Summit and its Subsidiaries taken as a whole;
(hj) pay, discharge, settle discharge or satisfy any claimsclaims (including claims of shareholders), liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than except for the payment, discharge or satisfaction, satisfaction (i) of liabilities or obligations in the Ordinary Course ordinary course of Business business consistent with past practice or in accordance with their terms as in effect on the date hereof or (ii) claims settled or on terms more favorable compromised to Summitthe extent permitted by Section 6.1(n), of liabilities reflected or reserved against inwaive, release, grant, or contemplated bytransfer any rights of material value or modify or change in any material respect any existing license, the most recent consolidated financial statements (lease, Permit, contract or the notes thereto) of Summit included other document, other than in the SEC Documents ordinary course of business consistent with past practice;
(k) adopt resolutions providing for or incurred since authorizing a liquidation or a dissolution;
(l) enter into any new collective bargaining agreement;
(m) change any material accounting principle used by it, except to the extent required by generally accepted accounting principles;
(n) settle or compromise any litigation (whether or not commenced prior to the date of such financial statements this Agreement) other than settlements or compromises of litigation where the amount paid (after giving effect to insurance proceeds actually received) in the Ordinary Course of Businesssettlement or compromise is not greater than $50,000;
(io) make any new capital expenditure or expenditures, other than capital expenditures not to exceed $200,000, in the aggregate;
(p) except in the Ordinary Course ordinary course of Businessbusiness or otherwise permitted by this Agreement, modify, amend or terminate any material agreement, permit, concession, franchise, License contract or similar instrument agreement set forth in the SEC Documents filed and publicly available prior to the date of this Agreement to which Summit Company or any Subsidiary is a party or waive, release or assign any material rights or claims thereunderclaims;
(q) except as set forth in Section 6.1(q) of the Disclosure Schedule, (i) enter into any employment or other agreement with any officer, director or key employee of Company or any of its Subsidiaries or (ii) hire or agree to hire any new or additional key employees with annual compensation of $50,000 or more or officers;
(r) make any Tax election or settle or compromise any material Tax liability;
(s) voluntarily take, or voluntarily agree to commit to take, any action that would make any representation or warranty of Company contained herein inaccurate in any material respect at, or as of any time prior to, the Effective Time of the Merger; or
(jt) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Covenants Relating to Conduct of Business Prior to Merger. Except as contemplated hereby, during the period from 7.01 Conduct of Parent and Merger Sub. From the date of this Agreement and until the Effective Time, or until the prior termination of this Agreement, the Parent and Merger Sub shall not, unless mutually agreed to in writing:
(a) engage in any transaction, except in the normal and ordinary course of business, or create or suffer to exist any lien or other encumbrance upon any of their respective assets or which will not be discharged in full prior to the Effective Time;
(b) sell, Summit shallassign or otherwise transfer any of their assets, or cancel or compromise any debts or claims relating to their assets, other than for fair value, in the ordinary course of business, and shall cause consistent with past practice;
(i) directly or indirectly redeem, purchase or otherwise acquire to redeem, purchase or otherwise acquire any shares of Parent or Merger Sub Common Stock; (ii) issue or agree to issue any additional shares of, or options, warrants rights of any kind to acquire any shares of Parent or Merger Sub Common Stock; or (iii) amend its Subsidiaries tocertificate of incorporation or bylaws, act and carry on their respective businesses or split, combine or reclassify the outstanding Common Stock of Parent or Merger Sub or declare, set aside or pay any dividend payable in the Ordinary Course of Business andcash, stock or property or make any distribution with respect to the extent consistent therewith, any such stock.
(d) fail to use reasonable efforts to preserve intact their present business organizations, keep available the services of their key officers and employees and preserve the goodwill of those engaged in its material business relationships with them. Without limiting customers, suppliers, licensors, licensees, distributors and others, to the generality of the foregoing, except as otherwise expressly contemplated by this Agreement, during the period from the date hereof end that its good will and on-going business not be impaired prior to the Effective Time, Summit shall not, and shall not permit any of its Subsidiaries to, without the prior consent of Liberty (which consent shall be given or withheld based on Liberty's reasonable business judgment):
(a) (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of Summit's outstanding capital stock, (ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (iii) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (other than shares of Summit Common Stock purchased as employee investments under the Summit Holding Southeast, Inc. Amended and Restated Retirement Plan dated September 1, 1997);
(b) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, except for the issuance of shares of Summit Common Stock upon exercise of options to purchase shares of Summit Common Stock outstanding on the date hereof;
(c) amend its charter, by-laws or other comparable charter or organizational documents;
(d) acquire any business or any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof;
(e) sellexcept for matters related to complaints by former employees related to wages, mortgage suffer or otherwise encumber permit any Material Adverse Change to occur with respect to Parent and Merger Sub or subject to any Lien their respective business or otherwise dispose of any of its properties or assets that are material to Summit and its Subsidiaries taken as a whole, except in the Ordinary Course of Business;assets; or
(f) (i) incur any indebtedness for borrowed money (other than incurred in the Ordinary Course of Business pursuant to Summit's existing line of credit with SunTrust Bank, Tampa Bay) or guarantee any such indebtedness of another Person or (ii) make any loans material change with respect to their business in accounting or advances to any other Personbookkeeping methods, other than to any direct principles or indirect wholly-owned Subsidiary of Summit and other than routine advances to employees;
(g) make any tax election (other than elections practices, except as required by law and made in the Ordinary Course of Business not giving rise to additional material tax liabilities) or settle or compromise any tax liability that could reasonably be expected to be material to Summit and its Subsidiaries taken as a whole;
(h) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the Ordinary Course of Business or in accordance with their terms (or on terms more favorable to Summit), of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of Summit included in the SEC Documents or incurred since the date of such financial statements in the Ordinary Course of Business;
(i) except in the Ordinary Course of Business, modify, amend or terminate any material agreement, permit, concession, franchise, License or similar instrument to which Summit or any Subsidiary is a party or waive, release or assign any material rights or claims thereunder; or
(j) authorize any of, or commit or agree to take any of, the foregoing actionsGAAP.
Appears in 1 contract
Samples: Acquisition Agreement
Covenants Relating to Conduct of Business Prior to Merger. 5.1 CONDUCT OF BUSINESS IN ORDINARY COURSE. Except as contemplated herebyset forth in Section 5.1 of the Disclosure Schedule, during the period from the date of this Agreement to through the Effective TimeTime of the Merger (except as otherwise specifically required by the terms of this Agreement), Summit the Company shall, and shall cause its Subsidiaries to, act and carry on their respective businesses in the Ordinary Course usual, regular and ordinary course of Business and, to the extent business consistent therewith, with past practice and use reasonable its and their respective best efforts to preserve intact their current business organizations, preserve their goodwill, keep available the services of their key current officers and employees employees, maintain all material properties and assets in customary condition and repair (reasonable wear and use and damage by fire and unavoidable casualty excepted), maintain their Books and Records in accordance with past practice, comply in all material respects with all applicable laws, and preserve the goodwill of those engaged in material their relationships with customers, suppliers, sales representatives, distributors and others having business relationships dealings with them. Without limiting the generality of the foregoing, except as otherwise expressly contemplated by this Agreement, during the period from the date hereof to of this Agreement through the Effective TimeTime of the Merger, Summit the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Liberty (which consent shall be given or withheld based on Liberty's reasonable business judgment):Buyer:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of Summit's outstanding its capital stock, other than dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent company in accordance with applicable law;
(ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or ;
(iii) purchase, redeem or otherwise acquire any shares of outstanding capital stock of the Company or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities, except for (other than shares a) the acquisition of Summit Company Common Shares from holders of Company Stock purchased as employee investments under Options outstanding on the Summit Holding Southeastdate of this Agreement, Inc. Amended and Restated Retirement Plan dated September 1in full or partial payment of the exercise price payable by such holders upon the exercise of such Company Stock Options, 1997)(b) the acquisition of outstanding Company Warrants or (c) the redemption of Convertible Debt Securities, in each case in accordance with Section 2.2;
(biv) authorize for issuance, issue, deliver, sell, grant, pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, except for securities or any other securities or equity equivalents (other than the issuance of shares of Summit Company Common Stock Shares upon the proper exercise of options Company Stock Options or Company Warrants or upon a conversion pursuant to purchase shares of Summit Common Stock outstanding on the date hereofConvertible Debt Securities);
(cv) amend its charterCertificate of Incorporation, byBy-laws Laws or other comparable charter or organizational documents;
(dvi) acquire or agree to acquire any other Person or the assets or business operations of such Person by merger, consolidation, purchase of stock or assets, or in any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereofmanner;
(evii) other than as specifically permitted by Section 5.1 of the Disclosure Schedule, sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets that are material to Summit other than any such properties or assets the value of which do not exceed $50,000 individually and its Subsidiaries taken as a whole$200,000 in the aggregate, except sales of inventory in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(f) (iviii) incur any indebtedness for borrowed money (Indebtedness, issue or sell any debt securities or warrants or other than incurred in rights to acquire any debt securities of the Ordinary Course Company or any of Business pursuant its Subsidiaries, enter into any agreement to Summit's existing line of credit with SunTrust Bank, Tampa Bay) or guarantee maintain any such indebtedness financial statement condition of another Person or enter into any arrangement having the economic effect of any of the foregoing, except for (iia) short-term borrowings and lease obligations incurred in the ordinary course of business consistent with past practice not in excess of $100,000 in the aggregate and (b) borrowings in the ordinary course of business consistent with past practice under the Company's existing revolving line of credit that do not cause the outstanding balance of such revolving line of credit to exceed $1,000,000 at any time; provided, however, that the Company shall provide written notice to Buyer contemporaneously with the notice provided to the bank of such drawdown, or, if no notice to a bank is provided, such notice shall be delivered to Buyer within 48 hours after the Company receives notice from the bank of a drawdown, of the amount of and purpose for any such borrowings or incurrence of Indebtedness;
(ix) make any loans loans, advances or advances to capital contributions to, or investments in, any other Person, other than to the Company or any direct or indirect wholly-wholly owned Subsidiary of Summit and other than routine advances to employeesthe Company;
(g) make any tax election (other than elections required by law and made in the Ordinary Course of Business not giving rise to additional material tax liabilities) or settle or compromise any tax liability that could reasonably be expected to be material to Summit and its Subsidiaries taken as a whole;
(hx) pay, discharge, settle discharge or satisfy any claimsLiabilities, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than except for the payment, discharge or satisfaction, satisfaction of Liabilities (i) in the Ordinary Course ordinary course of Business or business consistent with past practice, (ii) in accordance with their terms (or as in effect on terms more favorable to Summit), of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of Summit included in the SEC Documents or incurred since the date of such financial statements in hereof, (iii) to the Ordinary Course of Businessextent permitted by Section 5.1(xv) or (iv) as otherwise contemplated by this Agreement;
(ixi) waive, release, grant or transfer any rights of material value or modify or change in any material respect any existing Contract, Permit or other document, other than in the ordinary course of business consistent with past practice;
(xii) adopt any resolution or plan providing for or authorizing a complete or partial liquidation or a dissolution, merger, consolidation, restructuring, recapitalization or reorganization;
(xiii) enter into any new Contract except in the Ordinary Course ordinary course of Business, modify, amend business consistent with past practice or modify or terminate any material agreement, permit, concession, franchise, License or similar instrument to which Summit or any Subsidiary is a party or waive, release or assign any material rights or claims thereunder; existing Contract if such modification or
(j) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Covenants Relating to Conduct of Business Prior to Merger. 5.1 Conduct of Business by the Company. Except as contemplated herebyby this Agreement or as set forth in the Section 6.1 of the Disclosure Schedule, during the period from the date of this Agreement to the Effective Time, Summit the Company shall, and shall cause its Subsidiaries subsidiaries to, act and carry on their respective businesses in the Ordinary Course ordinary course of Business business and, to the extent consistent therewith, use reasonable efforts to preserve intact their current business organizations, keep available the services of their current key officers and employees and preserve the goodwill of those engaged in material business relationships with them. Without limiting the generality of the foregoing, except as otherwise expressly contemplated by this Agreement, during the period from the date hereof of this Agreement to the Effective Time, Summit the Company shall not, and shall not permit any of its Subsidiaries subsidiaries to, without the prior consent of Liberty (which consent shall be given or withheld based on Liberty's reasonable business judgment):Conseco:
(ai) (ix) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of Summitthe Company's outstanding capital stockstock (other than regular quarterly cash dividends not in excess of $.03 per Share, with usual record and payment dates and in accordance with the Company's present dividend policy), (iiy) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (iiiz) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (other than shares of Summit Common Stock purchased as employee investments under the Summit Holding Southeast, Inc. Amended and Restated Retirement Plan dated September 1, 1997)shares;
(bii) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, except for securities other than upon the issuance of shares of Summit Common Stock upon exercise of options to purchase shares of Summit Common Company Stock Options outstanding on the date hereofof this Agreement;
(ciii) amend its charterarticles of organization, byBy-laws or other comparable charter or organizational documents;
(div) acquire any business or any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof;
(ev) sell, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets that are material to Summit the Company and its Subsidiaries subsidiaries taken as a whole, except in the Ordinary Course ordinary course of Businessbusiness;
(fvi) (ix) incur any indebtedness for borrowed money (other than incurred in the Ordinary Course of Business pursuant to Summit's existing line of credit with SunTrust Bank, Tampa Bay) or guarantee any such indebtedness of another Person person, other than indebtedness owing to or guarantees of indebtedness owing to the Company or any direct or indirect wholly-owned subsidiary of the Company or (iiy) make any loans or advances to any other Personperson, other than to the Company, or to any direct or indirect wholly-owned Subsidiary subsidiary of Summit the Company and other than routine advances to employees;
(gvii) make any tax election (other than elections required by law and made in the Ordinary Course of Business not giving rise to additional material tax liabilities) or settle or compromise any income tax liability that could would reasonably be expected to be material to Summit the Company and its Subsidiaries subsidiaries taken as a whole;
(hviii) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the Ordinary Course ordinary course of Business business consistent with past practice or in accordance with their terms (or on terms more favorable to Summit)terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of Summit the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(ix) invest its future cash flow, any cash from matured and maturing investments, any cash proceeds from the sale of its assets and properties, and any cash funds currently held by it, in any investments other than cash equivalent assets or in short-term investments (consisting of United States government issued or guaranteed securities, or commercial paper rated A-1 or P-1), except (i) as otherwise required by law, (ii) as required to provide cash (in the ordinary course of business and consistent with past practice) to meet its actual or anticipated obligations or (iii) publicly-traded corporate bonds that are rated investment grade by at least two nationally recognized statistical rating organizations;
(x) except as may be required by law,
(i) make any representation or promise, oral or written, to any employee or former director, officer or employee of the Company or any subsidiary which is inconsistent with the terms of any Benefit Plan;
(ii) make any change to, or amend in any way, the contracts, salaries, wages, or other compensation of any employee or any agent or consultant of the Company or any subsidiary other than routine changes or amendments that are required under existing contracts;
(iii) adopt, enter into, amend, alter or terminate, partially or completely, any Benefit Plan or any election made pursuant to the provisions of any Benefit Plan, to accelerate any payments, obligations or vesting schedules under any Benefit Plan; or
(iv) approve any general or company-wide pay increases for employees;
(xi) except in the Ordinary Course ordinary course of Businessbusiness, modify, amend or terminate any material agreement, permit, concession, franchise, License license or similar instrument to which Summit the Company or any Subsidiary subsidiary is a party or waive, release or assign any material rights or claims thereunder; or
(jxii) authorize any of, or commit or agree to take any of, the foregoing actions. Without limiting the generality of this Section 5.1, during the period from the date of this Agreement to the Effective Time, the Company shall and the Company shall cause its subsidiaries, where applicable, to exercise their rights to obtain all extensions through August 28, 1996, to the expiration of that certain Data Processing Services Agreement, dated October 28, 1991 by and among Xxxxx Systems Corporation ("Xxxxx"), Wabash Life Insurance Company and the Company, as amended ("the "DPS Agreement"); provided, however, that in the event the Company is unable to obtain an extension to the DPS Agreement from August 28, 1996 through the date of the Closing on terms acceptable to the Company, the Company shall be permitted to enter into a new data processing services agreement with such third party provider or providers and upon such terms as are acceptable to the Company in its sole discretion; provided further, however, that (i) prior to entering into such new agreement, the Company shall give Conseco written notice and Conseco shall have 15 days to arrange for alternative data processing services to be provided to the Company, which services must be mutually acceptable to Conseco and the Company, (ii) Conseco shall be presumptively acceptable to the Company as the provider of services under such new agreement if Conseco guarantees that the costs and other terms of such services will not be less favorable to the Company than those offered by any other prospective provider and (iii) if Conseco is not the provider of services under such new agreement, the Company shall use its best efforts consistent with negotiations to-date with Xxxxx and other possible providers and subsequent negotiations after the date hereof to obtain the lowest possible cost and the shortest term under any such new agreement.
Appears in 1 contract
Samples: Merger Agreement (Conseco Inc Et Al)
Covenants Relating to Conduct of Business Prior to Merger. Except 4.1 Conduct of Business of the Company. From the date of this Agreement ---------------------------------- to the Effective Time (except as contemplated herebyotherwise specifically required by the terms of this Agreement), during the period Company shall, and shall cause its subsidiaries to, act and carry on their respective businesses in the usual, regular and ordinary course of business consistent with past practice and, to the extent consistent therewith, use its best efforts to preserve intact their current business organizations, keep available the services of their current officers and employees and preserve their relationships with customers, suppliers, franchisees, licensors, licensees, advertisers, distributors and others having business dealings with them to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, from the date of this Agreement to the Effective Time, Summit shall, and shall cause its Subsidiaries to, act and carry on their respective businesses in the Ordinary Course of Business and, to the extent consistent therewith, use reasonable efforts to preserve intact their business organizations, keep available the services of their key officers and employees and preserve the goodwill of those engaged in material business relationships with them. Without limiting the generality of the foregoing, except as otherwise expressly contemplated by this Agreement, during the period from the date hereof to the Effective Time, Summit Company shall not, and shall not permit any of its Subsidiaries subsidiaries to, without the prior written consent of Liberty (which consent shall be given or withheld based on Liberty's reasonable business judgment):Parent:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of Summit's outstanding its capital stock, other than dividends and distributions by a direct or indirect wholly owned subsidiary of the Company to its parent, (ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (iii) purchase, redeem or otherwise acquire any shares of outstanding capital stock of the Company or any of its subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares or other securities, except, in the case of clause (other than iii), for the acquisition of shares of Summit Company Common Stock purchased as employee investments under from holders of Company Stock Options in full or partial payment of the Summit Holding Southeastexercise price payable by such holder or tax liability arising in connection therewith, Inc. Amended and Restated Retirement Plan dated September 1, 1997)upon exercise of Company Stock Options outstanding on the date of this Agreement in accordance with their present terms;
(b) authorize for issuance, issue, deliver, sell, grant, pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securitiessecurities or any other securities or equity equivalents (including without limitation stock appreciation rights), except for or contractual obligation valued or measured by the value or market price of Company Common Stock (other than the issuance of shares of Summit Company Common Stock upon the exercise of options to purchase shares of Summit Common Company Stock Options outstanding on the date hereofof this Agreement and in accordance with their present terms, such issuance, together with the acquisitions of shares of Company Common Stock permitted under clause (a) above, being referred to herein as "Permitted Changes");
(c) amend its chartercertificate of incorporation, by-laws or other comparable charter or organizational documents;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, limited liability company, partnership, joint venture, association association, or other business organization or division thereof;
(e) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets that are material material, individually or in the aggregate, to Summit the Company and its Subsidiaries subsidiaries taken as a whole, except in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(f) (i) incur any indebtedness for borrowed money (other than incurred in the Ordinary Course of Business pursuant to Summit's existing line of credit with SunTrust Bank, Tampa Bay) or guarantee any such indebtedness of another Person person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company or any of its subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice, or (ii) make any loans loans, advances or advances to capital contributions to, or investments in, any other Personperson, other than to the Company or any direct or indirect wholly-wholly owned Subsidiary subsidiary of Summit and other than routine advances to employeesthe Company;
(g) make acquire or agree to acquire any tax election (other than elections required by law and made assets that are material, individually or in the Ordinary Course of Business not giving rise aggregate, to additional material tax liabilities) or settle or compromise any tax liability that could reasonably be expected to be material to Summit the Company and its Subsidiaries subsidiaries taken as a whole, or make or agree to make any capital expenditures except in the ordinary course of business consistent with past practice;
(h) pay, discharge, settle discharge or satisfy any claimsclaims (including claims of stockholders), liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than except for the payment, discharge or satisfaction, of (i) liabilities or obligations in the Ordinary Course ordinary course of Business business consistent with past practice or in accordance with their terms as in effect on the date hereof, (or on terms more favorable to Summit), of ii) liabilities reflected or reserved against in, or contemplated by, the most recent consolidated audited financial statements (or the notes theretothereof) of Summit the Company included in the Recent SEC Documents Documents, or incurred since the date waive, release, grant, or transfer any rights of such financial statements material value or modify or change in any material respect any existing license, lease, contract or other document, other than in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(i) adopt or amend in any material respect (except as may be required by law or by this Agreement) any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or other arrangement (including any Company Benefit Plan) for the benefit or welfare of any employee, director or former director or employee or, other than increases for individuals (other than officers and directors) in the ordinary course of business consistent with past practice, increase the compensation or fringe benefits of any director, employee or former director or employee; pay any benefit not required by any existing plan, arrangement or agreement, grant any new or modified severance or termination arrangement or increase or accelerate any benefits payable under its severance or termination pay policies in effect on the date hereof, other than any such increase or acceleration provided for under such policies as in effect on the date of this Agreement;
(j) change any material accounting principle used by it, except for such changes as may be required to be implemented following the date of this Agreement pursuant to generally accepted accounting principles or rules and regulations of the SEC promulgated following the date hereof;
(k) take any action that would, or is reasonably likely to, result in any of its representations and warranties in this Agreement becoming untrue, or in any of the conditions to the Merger set forth in Article 6 not being satisfied;
(l) except in the Ordinary Course ordinary course of Businessbusiness and consistent with past practice, modifymake any tax election or settle or compromise any federal, amend state, local or terminate any material agreement, permit, concession, franchise, License or similar instrument to which Summit or any Subsidiary is a party or waive, release or assign any material rights or claims thereunderforeign income tax liability; orand
(jm) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Covenants Relating to Conduct of Business Prior to Merger. Except as contemplated hereby, during the period from 7.01 Conduct of OneLove. From the date of this Agreement and until the Effective Time, or until the prior termination of this Agreement, OneLove shall not, unless mutually agreed to in writing:
(a) engage in any transaction, except in the normal and ordinary course of business, or create or suffer to exist any lien or other encumbrance upon any of their respective assets or which will not be discharged in full prior to the Effective Time;
(b) sell, Summit shallassign or otherwise transfer any of their assets, or cancel or compromise any debts or claims relating to their assets, other than for fair value, in the ordinary course of business, and shall cause consistent with past practice;
(c) (i) directly or indirectly redeem, purchase or otherwise acquire to redeem, purchase or otherwise acquire any OneLove Membership Interests; (ii) issue or agree to issue any additional membership interests of, or options, warrants rights of any kind to acquire any Membership Interest of OneLove; or (iii) amend its Subsidiaries toCertificate of Formation or operating agreement, act and carry on their respective businesses or split, combine or reclassify the outstanding OneLove Membership Interests or declare, set aside or pay any dividend payable in the Ordinary Course of Business andcash, securities or property or make any distribution with respect to the extent consistent therewith, any such securities.
(d) fail to use reasonable efforts to preserve intact their present business organizations, keep available the services of their key officers and employees and preserve the goodwill of those engaged in its material business relationships with them. Without limiting customers, suppliers, licensors, licensees, distributors and others, to the generality of the foregoing, except as otherwise expressly contemplated by this Agreement, during the period from the date hereof end that its good will and on-going business not be impaired prior to the Effective Time, Summit shall not, and shall not permit any of its Subsidiaries to, without the prior consent of Liberty (which consent shall be given or withheld based on Liberty's reasonable business judgment):
(a) (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of Summit's outstanding capital stock, (ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (iii) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (other than shares of Summit Common Stock purchased as employee investments under the Summit Holding Southeast, Inc. Amended and Restated Retirement Plan dated September 1, 1997);
(b) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, except for the issuance of shares of Summit Common Stock upon exercise of options to purchase shares of Summit Common Stock outstanding on the date hereof;
(c) amend its charter, by-laws or other comparable charter or organizational documents;
(d) acquire any business or any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereof;
(e) sellexcept for matters related to complaints by former employees related to wages, mortgage suffer or otherwise encumber permit any Material Adverse Change to occur with respect to OneLove or subject to any Lien their respective business or otherwise dispose of any of its properties or assets that are material to Summit and its Subsidiaries taken as a whole, except in the Ordinary Course of Business;assets; or
(f) (i) incur any indebtedness for borrowed money (other than incurred in the Ordinary Course of Business pursuant to Summit's existing line of credit with SunTrust Bank, Tampa Bay) or guarantee any such indebtedness of another Person or (ii) make any loans material change with respect to their business in accounting or advances to any other Personbookkeeping methods, other than to any direct principles or indirect wholly-owned Subsidiary of Summit and other than routine advances to employees;
(g) make any tax election (other than elections practices, except as required by law and made in the Ordinary Course of Business not giving rise to additional material tax liabilities) or settle or compromise any tax liability that could reasonably be expected to be material to Summit and its Subsidiaries taken as a whole;
(h) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the Ordinary Course of Business or in accordance with their terms (or on terms more favorable to Summit), of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of Summit included in the SEC Documents or incurred since the date of such financial statements in the Ordinary Course of Business;
(i) except in the Ordinary Course of Business, modify, amend or terminate any material agreement, permit, concession, franchise, License or similar instrument to which Summit or any Subsidiary is a party or waive, release or assign any material rights or claims thereunder; or
(j) authorize any of, or commit or agree to take any of, the foregoing actionsGAAP.
Appears in 1 contract
Samples: Acquisition Agreement
Covenants Relating to Conduct of Business Prior to Merger. Except as contemplated hereby, during 4.1 Conduct of Business of the period from Company. From the date of this ---------------------------------- Agreement to the Effective TimeTime (except as otherwise specifically required by the terms of this Agreement), Summit the Company shall, and shall cause its Subsidiaries to, act and carry on their respective businesses in the Ordinary Course usual, regular and ordinary course of Business business consistent with past practice and, to the extent consistent therewith, use reasonable its best efforts to preserve intact their current business organizations, keep available the services of their key current officers and employees and preserve the goodwill of those engaged in material business their relationships with themcustomers, suppliers, franchisees, licensors, licensees, advertisers, distributors and others having business dealings with them to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, except as otherwise expressly contemplated by this Agreement, during the period from the date hereof of this Agreement to the Effective Time, Summit the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Liberty (which consent shall be given or withheld based on Liberty's reasonable business judgment):Parent:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of Summit's outstanding its capital stock, other than dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent, (ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (iii) purchase, redeem or otherwise acquire any shares of outstanding capital stock of the Company or any of its Subsidiaries or any other securities thereof or any rights, warrants or options to acquire any such shares (or other than shares of Summit Common Stock purchased as employee investments under the Summit Holding Southeast, Inc. Amended and Restated Retirement Plan dated September 1, 1997)securities;
(b) authorize for issuance, issue, deliver, sell, grant, pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securitiessecurities or any other securities or equity equivalents (including without limitation stock appreciation rights), except for or contractual obligation valued or measured by the value or market price of Company Common Stock (other than the issuance of shares of Summit Company Common Stock upon the exercise or conversion of options stock options, warrants or convertible securities or pursuant to purchase shares antidilution provisions of Summit Common Stock securities outstanding on the date hereofof this Agreement and in accordance with their present terms, such issuance, together with the acquisitions of shares of Company Common Stock permitted under clause (a) above, being referred to herein as "Permitted Changes");
(c) amend its charterarticles of incorporation, by-laws or other comparable charter or organizational documents;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, limited liability company, partnership, joint venture, association association, or other business organization or division thereof;
(e) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets that are material to Summit and its Subsidiaries taken as a whole, except in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(f) (i) incur any indebtedness for borrowed money (other than incurred in the Ordinary Course of Business pursuant to Summit's existing line of credit with SunTrust Bank, Tampa Bay) or guarantee any such indebtedness of another Person person, issue or sell any debt Securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice, or (ii) make any loans loans, advances or advances to capital contributions to, or investments in, any other Personperson, other than to the Company or any direct or indirect wholly-wholly owned Subsidiary of Summit and other than routine advances to employeesthe Company;
(g) acquire or agree to acquire any assets or make or agree to make any tax election (other than elections required by law and made capital expenditures except in the Ordinary Course ordinary course of Business not giving rise to additional material tax liabilities) or settle or compromise any tax liability that could reasonably be expected to be material to Summit and its Subsidiaries taken as a wholebusiness consistent with past practice;
(h) pay, discharge, settle discharge or satisfy any claimsclaims (including claims of shareholders), liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than except for the payment, discharge or satisfaction, of (i) liabilities or obligations in the Ordinary Course ordinary course of Business business consistent with past practice or in accordance with their terms as in effect on the date hereof, (or on terms more favorable to Summit), of ii) liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of Summit included the Company set forth in Section 3.1(e) of the Disclosure Schedule, or waive, release, grant, or transfer any rights of value or modify or change in any respect any existing license, lease, contract or other document, other than in the SEC Documents or incurred since the date ordinary course of such financial statements in the Ordinary Course of Businessbusiness consistent with past practice;
(i) adopt or amend in any respect (except as may be required by law or by this Agreement) any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or other arrangement for the benefit or welfare of any employee, director or former director or employee or, other than increases for individuals (other than officers and directors) in the ordinary course of business consistent with past practice, increase the compensation or fringe benefits of any director, employee or former director or employee; pay any benefit not required by any existing plan, arrangement or agreement, grant any new or modified severance or termination arrangement or increase or accelerate any benefits payable under its severance or termination pay policies in effect on the date hereof, other than any such increase or acceleration provided for under such policies as in effect on the date of this Agreement;
(j) change any material accounting principle used by it, except for such changes as may be required to be implemented following the date of this Agreement pursuant to generally accepted accounting principles or rules and regulations of the SEC;
(k) take any action that would, or is reasonably likely to, result in any of its representations and warranties in this Agreement becoming untrue, or result in any of the conditions to the Merger set forth in Article 6 not being satisfied;
(l) except in the Ordinary Course ordinary course of Businessbusiness and consistent with past practice, modifymake any tax election or settle or compromise any federal, amend state, local or terminate any material agreement, permit, concession, franchise, License or similar instrument to foreign income tax liability;
(m) do anything which Summit or any Subsidiary is would preclude the Company from being a party or waive, release or assign any material rights or claims thereunderto a pooling of interests transaction; orand
(jn) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Covenants Relating to Conduct of Business Prior to Merger. 5.1 Conduct of Business by the Company. Except as contemplated herebyby this Agreement or as set forth in Section 5.1 of the Disclosure Schedule, during the period from the date of this Agreement to the Effective Time, Summit the Company shall, and shall cause its Subsidiaries subsidiaries to, act and carry on their respective businesses in the Ordinary Course ordinary course of Business business and, to the extent consistent therewith, use reasonable efforts to preserve intact their current business organizations, keep available the services G:\LEGAL\AGREEMNT\MERGER\THI.3RD 28 of their current key officers and employees and preserve the goodwill of those engaged in material business relationships with them. In addition, the Company agrees to allow representatives of Conseco to have access to the management and other personnel of the Company so that Conseco can be fully informed at all times as to significant executive, legal, financial, marketing and other operational matters involving the Company, its subsidiaries or their businesses. Without limiting the generality of the foregoing, except as otherwise expressly contemplated by this Agreement, during the period from the date hereof of this Agreement to the Effective Time, Summit the Company shall not, and shall not permit any of its Subsidiaries subsidiaries to, without the prior consent of Liberty (which consent shall be given or withheld based on Liberty's reasonable business judgment):Conseco:
(ai) (ix) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of Summitthe Company's outstanding capital stock, (iiy) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (iiiz) purchase, redeem or otherwise acquire any shares of outstanding capital stock or any rights, warrants or options to acquire any such shares (other than shares shares; provided, however, that the Company may pay dividends on the outstanding Series A Preferred Shares in accordance with the terms of Summit Common Stock purchased as employee investments under such Series A Preferred Shares, and may, at its option, redeem any outstanding Series A Preferred Shares in accordance with the Summit Holding Southeast, Inc. Amended and Restated Retirement Plan dated September 1, 1997)terms of such Series A Preferred Shares;
(bii) issue, sell, grant, pledge or otherwise encumber any shares of its capital stock, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securities, except for securities other than upon the issuance of shares of Summit Common Stock upon exercise of options to purchase shares of Summit Common Company Stock Options outstanding on the date hereofof this Agreement;
(ciii) amend its charterarticles of organization, byBy-laws or other comparable charter or organizational documents;
(div) acquire acquire, form or commence the operations of any business or any corporation, limited liability company, partnership, joint venture, association or other business organization or division thereofthereof (including, but not limited to, the entering into of any reinsurance or coinsurance agreements involving Mid- America Reinsurance, Ltd.);
(ev) sell, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets that are material to Summit the Company and its Subsidiaries subsidiaries taken as a whole, except in the Ordinary Course ordinary course of Businessbusiness;
(fvi) (ix) incur any indebtedness for borrowed money (other than incurred in the Ordinary Course of Business pursuant to Summit's existing line of credit with SunTrust Bank, Tampa Bay) or guarantee any such indebtedness of another Person person, other than indebtedness owing to or guarantees of indebtedness owing to the Company or any direct or indirect wholly-owned subsidiary G:\LEGAL\AGREEMNT\MERGER\THI.3RD 29 of the Company or (iiy) make any loans or advances to any other Personperson, other than to the Company, or to any direct or indirect wholly-owned Subsidiary subsidiary of Summit the Company and other than routine advances to agents and employees;
(gvii) make any tax election (other than elections required by law and made in the Ordinary Course of Business not giving rise to additional material tax liabilities) or settle or compromise any income tax liability that could would reasonably be expected to be material to Summit the Company and its Subsidiaries subsidiaries taken as a whole;
(hviii) pay, discharge, settle or satisfy any claims, liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than the payment, discharge or satisfaction, in the Ordinary Course ordinary course of Business business consistent with past practice or in accordance with their terms (or on terms more favorable to Summit)terms, of liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of Summit the Company included in the Filed SEC Documents or incurred since the date of such financial statements in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(ix) invest its future cash flow, any cash from matured and maturing investments, any cash proceeds from the sale of its assets and properties, and any cash funds currently held by it, in any investments other than cash equivalent assets or in short-term investments (consisting of United States government issued or guaranteed securities, or commercial paper rated A-1 or P-1), except (i) as otherwise required by law, (ii) as required to provide cash (in the ordinary course of business and consistent with past practice) to meet its actual or anticipated obligations or (iii) publicly-traded corporate bonds that are rated investment grade by at least two nationally recognized statistical rating organizations;
(x) except as may be required by law,
(i) make any representation or promise, oral or written, to any employee or former director, officer or employee of the Company or any subsidiary which is inconsistent with the terms of any Benefit Plan;
(ii) make any change to, or amend in any way, the contracts, salaries, wages, or other compensation of any employee or any agent or consultant of the Company or any subsidiary other than changes or amendments that are required under existing contracts;
(iii) adopt, enter into, amend, alter or terminate, partially or completely, any Benefit Plan or any election made pursuant to the provisions of any Benefit Plan, to accelerate any G:\LEGAL\AGREEMNT\MERGER\THI.3RD 30 payments, obligations or vesting schedules under any Benefit Plan; or
(iv) approve any general or company-wide payincreases for employees;
(xi) except in the Ordinary Course ordinary course of Businessbusiness, modify, amend or terminate any material agreement, permit, concession, franchise, License license or similar instrument to which Summit the Company or any Subsidiary subsidiary is a party or waive, release or assign any material rights or claims thereunder;
(xii) hold any meeting of the board of directors of the Company or any subsidiary or any committee of any such board, or take any action by written consent of any such board or committee, without providing to Conseco (i) notice of any such meeting no later than the date notice is given to the board of directors or in advance of the date of any proposed action by written consent and (ii) with such notice, an agenda of the specific matters intended to be considered at such meeting or a copy of the proposed written consent, unless, in the reasonable good faith judgment of the President or Chairman of the Company, providing prior notice of any agenda item or any item of such written consent will prejudice the ability of the board of directors or any committee of the board of directors to discharge its duties, in which case such item may be omitted from the agenda or written consent provided to Conseco; or
(jxiii) authorize any of, or commit or agree to take any ofanyof, the foregoing actions.
Appears in 1 contract
Covenants Relating to Conduct of Business Prior to Merger. Except as contemplated hereby, during 4.1 Conduct of Business of the period from Company. From the date of this Agreement to the Effective TimeTime (except as otherwise specifically required by the terms of this Agreement), Summit the Company shall, and shall cause its Subsidiaries to, act and carry on their respective businesses in the Ordinary Course usual, regular and ordinary course of Business business consistent with past practice and, to the extent consistent therewith, use reasonable its best efforts to preserve intact their current business organizations, keep available the services of their key current officers and employees and preserve the goodwill of those engaged in material business their relationships with themcustomers, suppliers, franchisees, licensors, licensees, advertisers, distributors and others having business dealings with them to the end that their goodwill and ongoing businesses shall not be impaired in any material respect at the Effective Time. Without limiting the generality of the foregoing, except as otherwise expressly contemplated by this Agreement, during the period from the date hereof of this Agreement to the Effective Time, Summit the Company shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Liberty (which consent shall be given or withheld based on Liberty's reasonable business judgment):Parent:
(a) (i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property) in respect of, any of Summit's outstanding its capital stock, other than dividends and distributions by a direct or indirect wholly owned Subsidiary of the Company to its parent, (ii) split, combine or reclassify any of its outstanding capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its outstanding capital stock, or (iii) purchase, redeem or otherwise acquire any shares of outstanding capital stock of the Company or any of its Subsidiaries or any other securities thereof, other than the repurchase or cancellation of Company Common Stock held by a Subsidiary, or any rights, warrants or options to acquire any such shares (or other than shares of Summit Common Stock purchased as employee investments under the Summit Holding Southeast, Inc. Amended and Restated Retirement Plan dated September 1, 1997)securities;
(b) authorize for issuance, issue, deliver, sell, grant, pledge or otherwise encumber any shares of its capital stockstock or the capital stock of any of its Subsidiaries, any other voting securities or any securities convertible into, or any rights, warrants or options to acquire, any such shares, voting securities or convertible securitiessecurities or any other securities or equity equivalents (including without limitation stock appreciation rights), except for or contractual obligation valued or measured by the value or market price of Company Common Stock (other than the issuance of shares of Summit Company Common Stock upon the exercise or conversion of options stock options, warrants or convertible securities or pursuant to purchase shares antidilution provisions of Summit Common Stock securities outstanding on the date hereofof this Agreement and in accordance with their present terms, such issuance, together with the acquisitions of shares of Company Common Stock permitted under clause (a) above, being referred to herein as "Permitted Changes");
(c) amend its charterarticles of incorporation, by-laws or other comparable charter or organizational documents;
(d) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the stock or assets of, or by any other manner, any business or any corporation, limited liability company, partnership, joint venture, association association, or other business organization or division thereof;
(e) sell, lease, license, mortgage or otherwise encumber or subject to any Lien or otherwise dispose of any of its properties or assets that are material to Summit and its Subsidiaries taken as a whole, except in the Ordinary Course ordinary course of Businessbusiness consistent with past practice;
(f) (i) incur any indebtedness for borrowed money (other than incurred in the Ordinary Course of Business pursuant to Summit's existing line of credit with SunTrust Bank, Tampa Bay) or guarantee any such indebtedness of another Person person, issue or sell any debt Securities or warrants or other rights to acquire any debt securities of the Company or any of its Subsidiaries, guarantee any debt securities of another person, enter into any "keep well" or other agreement to maintain any financial statement condition of another person or enter into any arrangement having the economic effect of any of the foregoing, except for short-term borrowings incurred in the ordinary course of business consistent with past practice, or (ii) make any loans loans, advances or advances to capital contributions to, or investments in, any other Personperson, other than to the Company or any direct or indirect wholly-wholly owned Subsidiary of Summit and other than routine advances to employeesthe Company;
(g) acquire or agree to acquire any assets or make or agree to make any tax election (other than elections required by law and made capital expenditures except in the Ordinary Course ordinary course of Business not giving rise to additional material tax liabilities) or settle or compromise any tax liability that could reasonably be expected to be material to Summit and its Subsidiaries taken as a wholebusiness consistent with past practice;
(h) pay, discharge, settle discharge or satisfy any claimsclaims (including claims of shareholders), liabilities or obligations (absolute, accrued, asserted or unasserted, contingent or otherwise), other than except for the payment, discharge or satisfaction, of (i) liabilities or obligations in the Ordinary Course ordinary course of Business business consistent with past practice or in accordance with their terms as in effect on the date hereof, and (or on terms more favorable to Summit), of ii) liabilities reflected or reserved against in, or contemplated by, the most recent consolidated financial statements (or the notes thereto) of Summit included the Company set forth in Section 3.1(e) of the Disclosure Schedule, or waive, release, grant, or transfer any rights of value or modify or change in any respect any existing license, lease, contract or other document, other than in the SEC Documents or incurred since the date ordinary course of such financial statements in the Ordinary Course of Businessbusiness consistent with past practice;
(i) adopt or amend in any respect (except as may be required by law or by this Agreement) any bonus, profit sharing, compensation, stock option, pension, retirement, deferred compensation, employment or other employee benefit plan, agreement, trust, fund or other arrangement for the benefit or welfare of any employee, director or former director or employee or, other than increases for individuals (other than officers and directors) in the ordinary course of business consistent with past practice, increase the compensation or fringe benefits of any director, employee or former director or employee; pay any benefit not required by any existing plan, arrangement or agreement, grant any new or modified severance or termination arrangement or increase or accelerate any benefits payable under its severance or termination pay policies in effect on the date hereof, other than any such increase or acceleration provided for under such policies as in effect on the date of this Agreement;
(j) change any material accounting principle used by it, except for such changes as may be required to be implemented following the date of this Agreement pursuant to generally accepted accounting principles or rules and regulations of the SEC;
(k) knowingly take any action that would, or is reasonably likely to, result in any of its representations and warranties in this Agreement becoming untrue, or result in any of the conditions to the Merger set forth in Article 6 not being satisfied;
(l) except in the Ordinary Course ordinary course of Businessbusiness and consistent with past practice, modifymake any tax election or settle or compromise any federal, amend state, local or terminate any material agreement, permit, concession, franchise, License or similar instrument to which Summit or any Subsidiary is a party or waive, release or assign any material rights or claims thereunderforeign income tax liability; orand
(jm) authorize any of, or commit or agree to take any of, the foregoing actions.
Appears in 1 contract
Samples: Merger Agreement (Healthwatch Inc)
