Acts of the Company. (a) The respective liabilities of each of the Obligors under the Finance Documents shall not be in any way affected by:
(i) any actual or purported irregularity in any act done, or failure to act, by the Company;
(ii) the Company acting (or purporting to act) in any respect outside any authority conferred upon it by any Obligor; or
(iii) any actual or purported failure by, or inability of, the Company to inform any Obligor of receipt by it of any notification under the Finance Documents.
(b) In the event of any conflict between any notices or other communications of the Company and any other Obligor, those of the Company shall prevail.
Acts of the Company. Until the earlier of (i) the Investor owning less than 10% of the issued and outstanding Common Stock and (ii) the aggregate market capitalization of the Company exceeding $250 million, the Company shall not take any of the following actions or cause any Group Company to take the following actions without the approval of the Investor (which approval may be evidenced by the affirmative vote or consent of the Investor Director), which approval shall not be unreasonably withheld:
(a) adopt a plan of liquidation, dissolution, merger, consolidation, restructuring, recapitalization or other reorganization of the Company or any Group Company;
(b) effect a sale of all or substantially all of the Company’s assets or which results in the Shareholders prior to the transaction owning less than a majority of the voting power of the Company’s common stock after the transaction other than an equity financing in which the Company is the surviving corporation;
(c) incur any indebtedness for borrowed money or issue any debt security, assume, guarantee or create any liability for borrowed money, if the aggregate indebtedness of the Company and its Subsidiaries following such action would exceed $1,000,000 not including (i) capital lease and purchase money debt and (ii) debt of the Company and its Subsidiaries outstanding on the date of this Agreement or any debt incurred hereafter solely to refinance such outstanding debt;
(d) create or take any action that results in the Company holding the capital stock of any Subsidiary that is not wholly owned (directly or indirectly) by the Company, other than those Subsidiaries in existence as of the date of this Agreement;
(e) transfer or license any of the Company’s proprietary technology to a third party;
(f) amend, alter, waive or repeal any provision of the Articles of Incorporation or any other constitutional documents of the Company or any Group Company;
(g) substantially change the scope of the Company’s business from that described in the Company’s Form S-1 filed with the SEC on July 1, 2011; or
(h) amend or waive any non-competition or non-solicitation provision of the applicable to the Company’s Chief Executive Officer or Chief Operating Officer.
Acts of the Company. 6.1 In addition to, and subject always to complying with any other requirements set out in the Articles, the Shareholders Agreement and/or the laws of the Cayman Islands and/or other laws at competent jurisdiction, the following acts of the Company shall require the prior written approval of at least a majority of the holders of the Series A-1 Senior Preferred Shares:
(a) Any action that authorizes, creates or issues any class of the Company securities having preferences superior to or on parity with the Series A-1 Senior Preferred Shares or any other securities of the Company (other than with respect to any Series A-1 Option Shares);
(b) Any action that reclassifies any outstanding shares into shares having preferences or priority as to dividends or assets senior to or on parity with the preference of the Series A-1 Senior Preferred Shares;
(c) Consolidation or merger with or into any other business entity, or the disposition of assets in excess of US$2,000,000 (individually or in the aggregate), or the sale or the license out of all or substantially all of the Company’s intellectual property rights;
(d) Any amendment to the Articles;
(e) Any amendment or change of the rights, preferences, privileges or powers of, or the restrictions provided for the benefit of, the Series A-1 Senior Preferred Shares;
(f) Any action that repurchases, redeems or retires any of the Company’s voting securities;
(g) Approving the Company’s initial public offering, including, selection of the listing exchange, any financial advisors, underwriters, or approval of the valuation and terms and conditions for a the Company’s initial public offering;
(h) Approving any form of merger or consolidation;
(i) Any Liquidation Event; and
(j) Issuance of debt over US$2,000,000 in a single transaction or series of related transactions.
6.2 In addition to, and subject always to complying with any other requirements set out in the Articles and/or the laws of the Cayman Islands and/or other laws at competent jurisdiction, the following acts of the Company shall require the prior written approval of the holders of more than sixty-seven percent (67%) of the Series A Preferred Shares:
(a) Any action that authorizes, creates or issues any class of the Company securities having preferences superior to or on parity with the Series A Preferred Shares or any other securities of the Company (other than with respect to any Series A-1 Option Shares);
(b) Any action that reclassifies any outstanding shares...
Acts of the Company. Subject to Section 9.6, in addition to any other vote or consent required in the Memorandum and Articles or by the Companies Law, no Group Company shall take any of the following actions without the prior approval of the Board of Directors including in each case the affirmative vote (or written consent) of at least one of the Series A Directors (where transactions below are denominated in U.S. currency, the equivalent RMB amount shall be calculated based on the average of the US$ buying and selling rates announced by the People’s Bank of China on the Business Day immediately preceding the date of such transaction):
(a) the merger, amalgamation or consolidation of the Company or any other Group Company with any Person or any transaction in which the members of the Company or the members of any other Group Company immediately before such transaction together with their Affiliates do not own or control at least a majority of the voting power of the surviving entity immediately after such transaction, or the sale, lease, exchange, transfer, contribution, mortgage, pledge, encumbrance or other disposition of all or substantially all of the assets of the Company or any other Group Company (whether in an individual transaction or a series of related transactions)
(b) the purchase or other acquisition by any Group Company (whether individually or in combination with the Company or any other Group Company) of all or substantially all of the assets of another Person, or the making of any joint venture or partnership arrangement, or the formation of any subsidiary, or any voluntary dissolution, winding-up, liquidation of the Company or any other Group Company, or any increase, reduction, alteration or re-classification of authorized share capital of the Company or any other Group Company;
(c) any sale, mortgage, pledge, lease, transfer or other disposition of any assets of the Company or any other Group Company (i) if such sale, mortgage, pledge, lease, transfer or other disposition is outside the ordinary course of business of the Company or any Group Company, and (ii) if the total value of such assets, when combined with the total value of assets otherwise sold, mortgaged, pledged, leased, transferred or otherwise disposed of during the immediately preceding 12 months in similar transactions, exceeds US$300,000;
(d) other than the approval of grants of any securities pursuant to the ESOP that are not on non-standard terms (including the subsequent issuance of secur...
Acts of the Company. All decisions made for and on behalf of the Company by the Manager shall be binding upon the Company. No Person dealing with the Manager shall be required to determine its authority to enter into any undertaking on behalf of the Company, nor to determine any fact or circumstance bearing upon the existence of such authority; PROVIDED, HOWEVER, that nothing herein shall extinguish, limit or condition the liability of the Manager to the other Members to discharge its obligations in accordance with this Agreement and the Act.
Acts of the Company. Notwithstanding anything to the contrary, the Parties (with the exception of the Company in relation to Sections 7.3(e), (f), (g), (v) and (w) below) hereby agree that the following acts of any Group Company shall require the prior written approval, in addition to approval by the shareholders as required by law, of the holders of more than sixty-seven percent (67%) of the Series A Preferred Shares, the holders of more than forty-five percent (45%) of the Series B Preferred Shares (which holders shall include JAFCO) and the holders of more than sixty-seven percent 67% of the Series C Preferred Shares (which holders shall include the Series C Investor), or by way of a written resolution signed by all holders of the Preferred Shares:
(a) any approval of the business plan and change in the business plan or scope of principal business of any Group Company, or engaging in any new line of business by any Group Company, or ceasing to conduct or carry on the business of any Group Company substantially as now conducted;
(b) any purchase or disposal of assets (including intangible assets) and businesses by any Group Company worth more than one million U.S. dollars (US$1,000,000) per transaction or, in the aggregate, more than three million U.S. dollars (US$3,000,000) in a period of twelve (12) months;
(c) any disposal or dilution of the Company’s interest, directly or indirectly, in any Domestic Company or in any of its subsidiaries;
(d) any capital commitment of any Group Company, in one or a series of transactions, exceeding the amount of fifty thousand U.S. dollars (US$50,000) (or its equivalent in other currency) or any non-core business investments (other than in prime commercial paper, money market funds, certificates of deposit in an international bank having net worth in excess of one hundred million U.S. dollars (US$100,000,000) or obligations issued or guaranteed by a sovereign government, in each case having a maturity not in excess of two (2) years), or any-acquisition of assets or equity interests outside the PRC (including Hong Kong Special Administrative Region and Macau Special Administrative Region);
(e) any merger, consolidation, scheme of arrangement, recapitalization, sale or disposal of the whole or a substantial part of the undertaking, goodwill or the assets of any Group Company;
(f) any increase of the authorized or issued share capital or registered capital (where applicable) of any Group Company save for increase of authorized capital of the...
Acts of the Company. The Company agrees that, from the date hereof to the Closing, except to the extent that KLA-Tencor shall otherwise give its written consent, which
Acts of the Company. In order to achieve the purposes set forth in, and subject to. Section 3.1, the Company may engage in any lawful business permitted by the Act or the laws of any jurisdiction in which the Company may do business. Without limiting the generality of the foregoing, the Company may do all things permitted by law and exercise all authority within or incidental to the purposes stated in this Operating Agreement and the Articles of Organization.
Acts of the Company. (a) In respect of actions taken by the Company pursuant to Clause 2.3 (Obligors’ Agent), the respective liabilities of each of the other Obligors (aside from the Company) under the Finance Documents shall not be in any way affected by:
(i) any actual or purported irregularity in any act done, or failure to act, by the Company; or
(ii) the Company acting (or purporting to act) in any respect outside any authority conferred upon it by any Obligor.
(b) In the event of any conflict between any notices or other communications of the Company and any other Obligor, those of the Company shall prevail.
Acts of the Company. The Executive agrees that the Executive may not, as an officer, director or shareholder of the Company, take any action on behalf of the Company with respect to this Agreement and the matters of the business of the Company which relate to the Executive personally or to his family without approval of the Board.
