Approval Required for Certain Actions. The approval of the Investor, as shareholder, such approval, if given, not to be unreasonably delayed, shall be required for the Company or any of its subsidiaries to do or effect any of the following prior to the latest of (x) the Final Closing Date and (y) the date on which the Investor Percentage Interest ceases to be at least 25% (in addition to any other Board or shareholder approval required by any law, rule or regulation or the constituent documents of the Company and its subsidiaries): (a) the entry by the Company or any of its subsidiaries into any Discriminatory Transaction; (b) until the Fall Away Date, (i) any consolidation or merger of the Company with or into any other entity, or the consolidation or merger of any other entity with or into the Company or any of its subsidiaries, in each case under this clause (i) that would result in a change of control of the Company, or (ii) any liquidation, dissolution or winding-up of the business and affairs of the Company, or the sale of all or substantially all of the Company and its subsidiaries’ consolidated property or business or other assets, taken as a whole, or the sale of all or substantially all of the stock of the Company, taken as a whole (collectively, a “Sale”), where such Sale does not result in the holders of the Common Stock receiving in such Sale for each share of Common Stock held by them at least an amount (in cash, securities or a combination thereof) equal to the product of (x) $5.37 and (y) the sum of (A) 100% plus (B) the product of (1) 10% and (2) the number of anniversaries of the Initial Closing Date that have occurred on or prior to the closing of such Sale; (c) conducting or engaging in any business in any material respect other than the business in which the Company and its subsidiaries are engaged as of the date hereof and any business reasonably related or complementary thereto; (d) except as provided for in this Agreement, increasing or decreasing the total number of Directors constituting the Board (e) issuing any voting preferred Equity Securities (other than convertible preferred Equity Securities that have no more Voting Power than the Common Stock into which they are convertible); or (f) entering into an agreement for, or committing to agree to take, or consenting to, any of the foregoing actions.
Appears in 2 contracts
Samples: Investor Rights Agreement (DHT Holdings, Inc.), Vessel Acquisition Agreement (DHT Holdings, Inc.)
Approval Required for Certain Actions. The approval (a) Without -------------------------------------- prejudice to TDF's rights under clauses three and six of the InvestorCTSH Shareholders Agreement, as shareholderin the case of a Simple Majority Event, such approval, if given, not to be unreasonably delayed, shall be required for the Company or any Subsidiary of its subsidiaries the Company may take any action set forth in clauses (i) through (ix) below without the approval of a Special Majority Vote of the Board. In the absence of a Simple Majority Event, without prejudice to do TDF's rights under clauses three and six of the CTSH Shareholders Agreement, so long as TDF is Qualified, no action by the Company or effect any Subsidiary of the Company (including but not limited to any action by their respective boards of directors or any committee thereof) shall be taken with respect to any of the following prior to matters without the latest approval of the Board, which approval shall be by a Special Majority Vote of the Board:
(xi) the Final Closing Date and amendment of the Charter or By-laws;
(yii) the date on which the Investor Percentage Interest ceases to be at least 25% any acquisition of any assets, business, operations or securities (in addition other than with respect to any other Board or shareholder approval required by any law, rule or regulation or the constituent documents redemption of the Senior Preferred Stock in accordance with its terms) by the Company and its subsidiaries):
or any Subsidiary thereof by merger, joint venture or otherwise (awhether in one transaction or a series of related transactions, including without limitation any enforceable right of any other person to require the deferred acquisition thereof) the entry other than any such acquisition by the Company or any of its subsidiaries into Subsidiaries if the Company's and/or any Discriminatory Transactionsuch Subsidiary's pro rata Total Enterprise Value in respect of such acquisition, prior to giving effect thereto, is less than or equal to the greater of $20 million and 2% of the Total Enterprise Value of the Company and its Subsidiaries taken as a whole (it being understood that at the time of any subsequent optional purchase relating to such acquisition, the value of the Company's and/or any such Subsidiary's pro rata Total Enterprise Value shall be the pro forma value of the entire interest);
(b) until the Fall Away Date, (iiii) any consolidation disposition (other than with respect to Asset Swaps) of any assets, business, operations or merger of securities by the Company with or into any Subsidiary thereof (whether in one transaction or a series of related transactions, including without limitation any enforceable right any other entity, or person to require the consolidation or merger of any deferred disposition thereof) other entity with or into than a disposition by the Company or any of its subsidiariesSubsidiaries where the Company's and/or any such Subsidiary's pro rata Total Enterprise Value in the consideration received in respect of such disposition, in each case under this clause prior to giving effect thereto, (i) that would result in a change including the assumption of control any Indebtedness of the Company, Company in connection therewith) is less than or (ii) any liquidation, dissolution or winding-up equal to whichever is the greater of $20 million and 2% of the business and affairs of the Company, or the sale of all or substantially all Total Enterprise Value of the Company and its subsidiaries’ consolidated property or business or other assetsSubsidiaries taken as a whole;
(iv) any Strategic Alliance which is material to the Company and its Subsidiaries, taken as a whole;
(v) any incurrence, assumption or issuance by the Company or any of its Subsidiaries of Indebtedness other than (A) Indebtedness existing on the date hereof and any Permitted Indebtedness (including in each case any refinancings which do not increase the principal amount thereof), (B) any other Indebtedness if the Company's Debt to Adjusted Consolidated Cash Flow Ratio at the time of incurrence of such Indebtedness, after giving pro forma effect to such incurrence or issuance as of such date and to the use of proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarterly periods of the Company for which internal financial statements are available, would have been no greater than 5.5 to 1 and (C) any refinancing of any Indebtedness the incurrence of which was approved by the Board in accordance with this Section 4.01(a), which refinancing does not increase the principal amount of such Indebtedness;
(vi) any transaction between (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder or Affiliate of the Company (other than any Subsidiary of the Company and other than TDF and its Affiliates), on the other hand (other than as contemplated by the Transaction Documents);
(vii) the issuance of any Equity Security of the Company or any Subsidiaries of the Company (other than (i) the grant or exercise of options to purchase Common Stock to employees, directors or consultants of the Company or any of its Subsidiaries prior to the date of the Exchange Agreement and listed on Schedule 6.32 to the Exchange Agreement or otherwise pursuant to a stock option or similar executive employee benefit plan in existence on the date hereof; (ii) the grant or exercise of options to purchase Common Stock or the issuance of shares of Common Stock as compensation in the ordinary course of business consistent with practice for public companies of a similar size and nature (e.g., high growth ---- companies), as determined by approval of a Special Majority Vote of the Board with a statement to such effect, as the Company to employees or directors of the Company or any of its Subsidiaries or otherwise pursuant to a stock option or similar executive or employee benefit plan adopted by the Board after the Closing in the ordinary course of business consistent with such practice; (iii) the grant or exercise of options to purchase or issuance of Common Stock of the Company as compensation in the ordinary course of business consistent with past practice to consultants of the Company or any of its Subsidiaries representing not more than 1% of the aggregate amount of the Common Stock outstanding at the time of such grant or issuance; (iv) the issuance of shares of Common Stock issuable upon conversion of, or in respect of dividends on, the sale of all Senior Preferred Stock, or substantially all upon exercise of the Senior Preferred Warrants; (v) securities issued pursuant to any stock split, stock dividend, rights offering, recapitalization, reclassification or similar transaction, which securities are issued pro rata among and pro rata within all classes of stock which are subject to such stock split, stock dividend, rights offering, recapitalization, reclassification or similar transaction; (vi) securities issued upon conversion or exchange of any Equity Security in connection with which TDF had been granted Anti-dilutive Rights upon the issuance thereof in accordance with Section 2.01(a); (vii) Voting Securities issued upon exercise of the Rights (as defined in the Stockholders Agreement) pursuant to the Rights Plan (as defined in the Stockholders Agreement); (viii) the issuance of shares of Common Stock issuable upon conversion of, or in respect of dividends on, the Senior Preferred Stock, the exercise of the Senior Preferred Warrants, or upon the conversion or exercise of Equity Securities the issuance of which was approved in accordance with this Section 4.01(a)(vii); provided that the actions referred to in clauses -------- (ii), (iii) or (v) of this Section 4.01(a)(vii), as the case may be, shall have been approved (to the extent required) in accordance with the provisions of this Agreement).
(viii) any Business Combination entered into by the Company;
(ix) the dissolution of the Company, the adoption of a plan of liquidation of the Company or any action by the Company to commence any suit, case, proceeding or other action (i) under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors seeking to have an order for relief entered with respect to the Company, or seeking to adjudicate the Company bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition or other relief with respect to the Company or (ii) seeking appointment of a receiver, trustee, custodian or other similar official for the Company, or making a general assignment for the benefit of the creditors of the Company; or
(x) any amendment to the Rights Plan (as defined in the Stockholders Agreement) other than any such amendment (A) for the purpose of permitting any transaction (and only to the extent necessary to permit such transaction) which is permitted under the terms of this Agreement or (B) required by applicable law or any ruling or order of any court or governmental body.
(b) Without prejudice to TDF's rights under clauses three and six of the CTSH Shareholders' Agreement, following the fifth anniversary of the Closing, the Company or any of its Subsidiaries may take any of the actions set forth in clauses (ii), (iii), (iv) and (v) below without the prior written consent of TDF, and following the tenth anniversary of the Closing, the Company or any of its Subsidiaries may take the action set forth in clauses (i), (vi) and (vii) below without the prior written consent of TDF. Prior to such fifth or tenth anniversary, as applicable, so long as TDF is Qualified, no action by the Company or any Subsidiary (including but not limited to any action by their respective boards of directors or any committee thereof), other than, in the case of clauses (iii)
(A) the creation or issuance of any new class of security of the Company or any class of security of a Subsidiary of the Company (other than where all such Subsidiary's securities are issued to the Company), or any right to acquire such security, (B) the issuance of any Class A Stock to any person other than TDF or any member of the TDF Group or (C) any amendment to the Charter or By-laws (other than any amendment required by applicable law or any ruling or order of any court or governmental body) (including without limitation any such amendment to increase the number of directors constituting the entire Board), with, in the case of clauses (A) or (B), the intent or effect of materially adversely affecting the legal rights of TDF under this Agreement or the Stockholders Agreement;
(ii) the acquisition in one or a series of related transactions, including without limitation any enforceable right of any other person to require any deferred acquisition (whether by merger, consolidation, joint venture, the purchase of stock or assets or otherwise) of a business, operations, securities or assets not in a Permitted Business Line, which acquisition by the Company or any of its Subsidiaries if the Company's and/or any such Subsidiary's pro rata Total Enterprise Value in respect of such acquisition, immediately prior to giving effect thereto, would constitute more than 10% of the Total Enterprise Value of the Company and its Subsidiaries taken as a whole (collectively, a “Sale”), where it being understood that at the time of any subsequent optional purchase relating to such Sale does not result in acquisition the holders value of the Common Stock receiving Company's and/or any such Subsidiary's pro rata Total Enterprise Value shall be the pro forma value of the entire interest);
(iii) the acquisition in such Sale for each share one or a series of Common Stock held related transactions, including without limitation any enforceable right of any other person to require any deferred acquisition (whether by them at least an amount (in cashmerger, consolidation, joint venture, the purchase of stock or assets or otherwise) of a business, operations, securities or assets which is (or are) in a combination thereof) equal Permitted Business Line (other than any part thereof which is not material in relation to the product whole of (x) $5.37 and (y) such business, operations, securities or assets), which acquisition, by the sum Company or any of its Subsidiaries if the value of the Company's and/or any such Subsidiary's pro rata Total Enterprise Value in respect of such acquisition, immediately prior to giving effect thereto, would constitute, (A) 100prior to December 31, 1999, the greater of $750 million and more than 25% plus (B) the product of (1) 10% and (2) the number of anniversaries of the Initial Closing Date that have occurred on or prior to the closing Total Enterprise Value of such Sale;
(c) conducting or engaging in any business in any material respect other than the business in which the Company and its subsidiaries are engaged Subsidiaries taken as a whole and (B) following December 31, 1999, more than 25% of the date hereof Total Enterprise Value of the Company and its Subsidiaries taken as a whole (it being understood that at the time of any business reasonably related or complementary theretosubsequent optional purchase relating to such acquisition the value of the Company's and/or any such Subsidiary's pro rata Total Enterprise Value shall be the pro forma value of the entire interest);
(div) except any Strategic Alliance with any Restricted Party;
(v) the disposition (other than with respect to Asset Swaps) in one or a series of related transactions, including without limitation any enforceable right of any other person to require any deferred disposition (whether by merger, consolidation, the sale or distribution of stock or assets or otherwise) of a business or assets, if the value of the Company's and/or any such Subsidiary's pro rata Total Enterprise Value in the consideration received in respect of such disposition, immediately prior to giving effect thereto, (including the assumption of any Indebtedness of the Company in connection therewith) exceeds 10% of the Total Enterprise Value of the Company and its Subsidiaries taken as provided for a whole; provided, however, -------- ------- that there shall be excluded from the foregoing any disposition by the Company or any of its Subsidiaries of any specific interest of the Company and/or any of its Subsidiaries in any acquisition permitted under the terms of this Agreement, increasing or decreasing the total number of Directors constituting which interest the Board, as evidenced by resolution duly adopted by the Board prior to such acquisition, firmly intended to dispose of following such acquisition, and which is disposed of by the Company or any Subsidiary of the Company within twelve months of such acquisition;
(evi) issuing any voting preferred Business Combination, except as permitted pursuant to Section 5.01(a);
(vii) the issuance by the Company to any person in one or more transactions of Equity Securities or the right to purchase Equity Securities (other than convertible preferred with respect to the Rights (as defined in the Stockholders Agreement) issued under the Rights Plan (as defined in the Stockholders Agreement)) representing the Relevant Percentage or more of the aggregate amount of the outstanding Equity Securities of the Company (it being understood that have no more Voting Power than any such issuance the Common Stock into consummation of which they are convertiblewould result in a Business Combination shall be treated solely under the foregoing clause (vi); or).
(fc) entering into Prior to proposing to take any action set forth in Sections 4.01(a) or 4.01(b) at any meeting of the Board, the Secretary of the Company shall cause (i) to be included in the Board Agenda a statement that such proposed action is an agreement foraction set forth in such Section 4.01(a) or 4.01(b), as applicable, the vote required by the Board to approve such action in accordance with this Agreement and the party or parties proposing such action, which party or parties shall provide the Secretary of the Company with all relevant information relating to such action to accompany such Board Agenda and the Secretary of the Company shall cause such Board Agenda to be supplied to each director at least five Business Days prior to such Board meeting and (ii) shall cause a copy of such Board Agenda to be supplied to TDF in accordance with Section 7.07 at least five Business Days prior to such Board Meeting, and TDF shall deliver to the Company Secretary notice of its intent to consent to or Veto such Significant Action prior to such Board Meeting (provided that the -------- failure to deliver such notice shall not impair TDF's right to Veto such Significant Action under Section 4.01(b)). Following the approval of such Significant Action by the Board, the Company Secretary shall promptly deliver to TDF notice of such approval in accordance with Section 7.07 and TDF shall have three Business Days following delivery of such notice to deliver to the Company Secretary its consent to, or committing Veto of, such Significant Action; provided, -------- however, that if TDF shall Veto any proposed Business Combination which has been ------- approved by the Board, the Company may override such Veto pursuant to agree Section 5.01. If TDF shall fail to takedeliver to the Company Secretary notice of its consent to, or consenting toVeto of, any such Significant Action prior to 5:00 p.m. U.S. Central time on the third Business Day following the date of delivery by the Company Secretary to TDF of notice of the foregoing actionsBoard's approval of such Significant Action in accordance with the preceding sentence, TDF shall be deemed to have consented to such Significant Action and the Company may thereafter consummate such Significant Action.
Appears in 1 contract
Samples: Governance Agreement (Crown Castle International Corp)
Approval Required for Certain Actions. The approval (a) Without -------------------------------------- prejudice to TDF's rights under clauses three and six of the InvestorCTSH Shareholders Agreement, as shareholderin the case of a Simple Majority Event, such approval, if given, not to be unreasonably delayed, shall be required for the Company or any Subsidiary of its subsidiaries the Company may take any action set forth in clauses (i) through (ix) below without the approval of a Special Majority Vote of the Board. In the absence of a Simple Majority Event, without prejudice to do TDF's rights under clauses three and six of the CTSH Shareholders Agreement, so long as TDF is Qualified, no action by the Company or effect any Subsidiary of the Company (including but not limited to any action by their respective boards of directors or any committee thereof) shall be taken with respect to any of the following prior to matters without the latest approval of the Board, which approval shall be by a Special Majority Vote of the Board:
(xi) the Final Closing Date and amendment of the Charter or By-laws;
(yii) the date on which the Investor Percentage Interest ceases to be at least 25% any acquisition of any assets, business, operations or securities (in addition other than with respect to any other Board or shareholder approval required by any law, rule or regulation or the constituent documents redemption of the Senior Preferred Stock in accordance with its terms) by the Company and its subsidiaries):
or any Subsidiary thereof by merger, joint venture or otherwise (awhether in one transaction or a series of related transactions, including without limitation any enforceable right of any other person to require the deferred acquisition thereof) the entry other than any such acquisition by the Company or any of its subsidiaries into Subsidiaries if the Company's and/or any Discriminatory Transactionsuch Subsidiary's pro rata Total Enterprise Value in respect of such acquisition, prior to giving effect thereto, is less than or equal to the greater of $20 million and 2% of the Total Enterprise Value of the Company and its Subsidiaries taken as a whole (it being understood that at the time of any subsequent optional purchase relating to such acquisition, the value of the Company's and/or any such Subsidiary's pro rata Total Enterprise Value shall be the pro forma value of the entire interest);
(b) until the Fall Away Date, (iiii) any consolidation disposition (other than with respect to Asset Swaps) of any assets, business, operations or merger of securities by the Company with or into any Subsidiary thereof (whether in one transaction or a series of related transactions, including without limitation any enforceable right any other entity, or person to require the consolidation or merger of any deferred disposition thereof) other entity with or into than a disposition by the Company or any of its subsidiariesSubsidiaries where the Company's and/or any such Subsidiary's pro rata Total Enterprise Value in the consideration received in respect of such disposition, in each case under this clause prior to giving effect thereto, (i) that would result in a change including the assumption of control any Indebtedness of the Company, Company in connection therewith) is less than or (ii) any liquidation, dissolution or winding-up equal to whichever is the greater of $20 million and 2% of the business and affairs of the Company, or the sale of all or substantially all Total Enterprise Value of the Company and its subsidiaries’ consolidated property or business or other assetsSubsidiaries taken as a whole;
(iv) any Strategic Alliance which is material to the Company and its Subsidiaries, taken as a whole;
(v) any incurrence, assumption or issuance by the Company or any of its Subsidiaries of Indebtedness other than (A) Indebtedness existing on the date hereof and any Permitted Indebtedness (including in each case any refinancings which do not increase the principal amount thereof), (B) any other Indebtedness if the Company's Debt to Adjusted Consolidated Cash Flow Ratio at the time of incurrence of such Indebtedness, after giving pro forma effect to such incurrence or issuance as of such date and to the use of proceeds therefrom as if the same had occurred at the beginning of the most recently ended four full fiscal quarterly periods of the Company for which internal financial statements are available, would have been no greater than 5.5 to 1 and (C) any refinancing of any Indebtedness the incurrence of which was approved by the Board in accordance with this Section 4.01(a), which refinancing does not increase the principal amount of such Indebtedness;
(vi) any transaction between (A) the Company or any of its Subsidiaries, on the one hand, and (B) any Stockholder or Affiliate of the Company (other than any Subsidiary of the Company and other than TDF and its Affiliates), on the other hand (other than as contem plated by the Transaction Documents);
(vii) the issuance of any Equity Security of the Company or any Subsidiaries of the Company (other than (i) the grant or exercise of options to purchase Common Stock to employees, directors or consultants of the Company or any of its Subsidiaries prior to the date of the Exchange Agreement and listed on Schedule 6.32 to the Exchange Agreement or otherwise pursuant to a stock option or similar executive employee benefit plan in existence on the date hereof; (ii) the grant or exercise of options to purchase Common Stock or the issuance of shares of Common Stock as compensation in the ordinary course of business consistent with practice for public companies of a similar size and nature (e.g., high growth ---- companies), as determined by approval of a Special Majority Vote of the Board with a statement to such effect, as the Company to employees or directors of the Company or any of its Subsidiaries or otherwise pursuant to a stock option or similar executive or employee benefit plan adopted by the Board after the Closing in the ordinary course of business consistent with such practice; (iii) the grant or exercise of options to purchase or issuance of Common Stock of the Company as compensation in the ordinary course of business consistent with past practice to consultants of the Company or any of its Subsidiaries representing not more than 1% of the aggregate amount of the Common Stock outstanding at the time of such grant or issuance; (iv) the issuance of shares of Common Stock issuable upon conversion of, or in respect of dividends on, the sale of all Senior Preferred Stock, or substantially all upon exercise of the Senior Preferred Warrants; (v) securities issued pursuant to any stock split, stock dividend, rights offering, recapitalization, reclassification or similar transaction, which securities are issued pro rata among and pro rata within all classes of stock which are subject to such stock split, stock dividend, rights offering, recapitalization, reclassification or similar transaction; (vi) securities issued upon conversion or exchange of any Equity Security in connection with which TDF had been granted Anti-dilutive Rights upon the issuance thereof in accordance with Section 2.01(a); (vii) Voting Securities issued upon exercise of the Rights (as defined in the Stockholders Agreement) pursuant to the Rights Plan (as defined in the Stockholders Agreement); (viii) the issuance of shares of Common Stock issuable upon conversion of, or in respect of dividends on, the Senior Preferred Stock, the exercise of the Senior Preferred Warrants, or upon the conversion or exercise of Equity Securities the issuance of which was approved in accordance with this Section 4.01(a)(vii); provided that the actions referred to in clauses -------- (ii), (iii) or (v) of this Section 4.01(a)(vii), as the case may be, shall have been approved (to the extent required) in accordance with the provisions of this Agreement).
(viii) any Business Combination entered into by the Company;
(ix) the dissolution of the Company, the adoption of a plan of liquidation of the Company or any action by the Company to commence any suit, case, proceeding or other action (i) under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization or relief of debtors seeking to have an order for relief entered with respect to the Company, or seeking to adjudicate the Company bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding up, liquidation, dissolution, composition or other relief with respect to the Company or (ii) seeking appointment of a receiver, trustee, custodian or other similar official for the Company, or making a general assignment for the benefit of the creditors of the Company; or
(x) any amendment to the Rights Plan (as defined in the Stockholders Agreement) other than any such amendment (A) for the purpose of permitting any transaction (and only to the extent necessary to permit such transaction) which is permitted under the terms of this Agreement or (B) required by applicable law or any ruling or order of any court or governmental body.
(A) the creation or issuance of any new class of security of the Company or any class of security of a Subsidiary of the Company (other than where all such Subsidiary's securities are issued to the Company), or any right to acquire such security, (B) the issuance of any Class A Stock to any person other than TDF or any member of the TDF Group or (C) any amendment to the Charter or By-laws (other than any amendment required by applicable law or any ruling or order of any court or governmental body) (including without limitation any such amendment to increase the number of directors constituting the entire Board), with, in the case of clauses (A) or (B), the intent or effect of materially adversely affecting the legal rights of TDF under this Agreement or the Stockholders Agreement;
(ii) the acquisition in one or a series of related transactions, including without limitation any enforceable right of any other person to require any deferred acquisition (whether by merger, consolidation, joint venture, the purchase of stock or assets or otherwise) of a business, operations, securities or assets not in a Permitted Business Line, which acquisition by the Company or any of its Subsidiaries if the Company's and/or any such Subsidiary's pro rata Total Enterprise Value in respect of such acquisition, immediately prior to giving effect thereto, would constitute more than 10% of the Total Enterprise Value of the Company and its Subsidiaries taken as a whole (collectively, a “Sale”), where it being understood that at the time of any subsequent optional purchase relating to such Sale does not result in acquisition the holders value of the Common Stock receiving Company's and/or any such Subsidiary's pro rata Total Enterprise Value shall be the pro forma value of the entire interest);
(iii) the acquisition in such Sale for each share one or a series of Common Stock held related transactions, including without limitation any enforceable right of any other person to require any deferred acquisition (whether by them at least an amount (in cashmerger, consolidation, joint venture, the purchase of stock or assets or otherwise) of a business, operations, securities or assets which is (or are) in a combination thereof) equal Permitted Business Line (other than any part thereof which is not material in relation to the product whole of (x) $5.37 and (y) such business, operations, securities or assets), which acquisition, by the sum Company or any of its Subsidiaries if the value of the Company's and/or any such Subsidiary's pro rata Total Enterprise Value in respect of such acquisition, immediately prior to giving effect thereto, would constitute, (A) 100prior to December 31, 1999, the greater of $750 million and more than 25% plus (B) the product of (1) 10% and (2) the number of anniversaries of the Initial Closing Date that have occurred on or prior to the closing Total Enterprise Value of such Sale;
(c) conducting or engaging in any business in any material respect other than the business in which the Company and its subsidiaries are engaged Subsidiaries taken as a whole and (B) following December 31, 1999, more than 25% of the date hereof Total Enterprise Value of the Company and its Subsidiaries taken as a whole (it being understood that at the time of any business reasonably related or complementary theretosubsequent optional purchase relating to such acquisition the value of the Company's and/or any such Subsidiary's pro rata Total Enterprise Value shall be the pro forma value of the entire interest);
(div) except any Strategic Alliance with any Restricted Party;
(v) the disposition (other than with respect to Asset Swaps) in one or a series of related transactions, including without limitation any enforceable right of any other person to require any deferred disposition (whether by merger, consolidation, the sale or distribution of stock or assets or otherwise) of a business or assets, if the value of the Company's and/or any such Subsidiary's pro rata Total Enterprise Value in the consideration received in respect of such disposition, immediately prior to giving effect thereto, (including the assumption of any Indebtedness of the Company in connection therewith) exceeds 10% of the Total Enterprise Value of the Company and its Subsidiaries taken as provided for a whole; provided, however, that -------- ------- there shall be excluded from the foregoing any disposition by the Company or any of its Subsidiaries of any specific interest of the Company and/or any of its Subsidiaries in any acquisition permitted under the terms of this Agreement, increasing or decreasing the total number of Directors constituting which interest the Board, as evidenced by resolution duly adopted by the Board prior to such acquisition, firmly intended to dispose of following such acquisition, and which is disposed of by the Company or any Subsidiary of the Company within twelve months of such acquisition;
(evi) issuing any voting preferred Business Combination, except as permitted pursuant to Section 5.01(a);
(vii) the issuance by the Company to any person in one or more transactions of Equity Securities or the right to purchase Equity Securities (other than convertible preferred with respect to the Rights (as defined in the Stockholders Agreement) issued under the Rights Plan (as defined in the Stockholders Agreement)) representing the Relevant Percentage or more of the aggregate amount of the outstanding Equity Securities of the Company (it being understood that have no more Voting Power than any such issuance the Common Stock into consummation of which they are convertiblewould result in a Business Combination shall be treated solely under the foregoing clause (vi); or).
(fc) entering into Prior to proposing to take any action set forth in Sections 4.01(a) or 4.01(b) at any meeting of the Board, the Secretary of the Company shall cause (i) to be included in the Board Agenda a statement that such proposed action is an agreement foraction set forth in such Section 4.01(a) or 4.01(b), as applicable, the vote required by the Board to approve such action in accordance with this Agreement and the party or parties proposing such action, which party or parties shall provide the Secretary of the Company with all relevant information relating to such action to accompany such Board Agenda and the Secretary of the Company shall cause such Board Agenda to be supplied to each director at least five Business Days prior to such Board meeting and (ii) shall cause a copy of such Board Agenda to be supplied to TDF in accordance with Section 7.07 at least five Business Days prior to such Board Meeting, and TDF shall deliver to the Company Secretary notice of its intent to consent to or Veto such Significant Action prior to such Board Meeting (provided that the -------- failure to deliver such notice shall not impair TDF's right to Veto such Significant Action under Section 4.01(b)). Following the approval of such Significant Action by the Board, the Company Secretary shall promptly deliver to TDF notice of such approval in accordance with Section 7.07 and TDF shall have three Business Days following delivery of such notice to deliver to the Company Secretary its consent to, or committing Veto of, such Significant Action; provided, however, that if TDF shall Veto any -------- ------- proposed Business Combination which has been approved by the Board, the Company may override such Veto pursuant to agree Section 5.01. If TDF shall fail to takedeliver to the Company Secretary notice of its consent to, or consenting toVeto of, any such Significant Action prior to 5:00 p.m. U.S. Central time on the third Business Day following the date of delivery by the Company Secretary to TDF of notice of the foregoing actionsBoard's approval of such Significant Action in accordance with the preceding sentence, TDF shall be deemed to have consented to such Significant Action and the Company may thereafter consummate such Significant Action.
Appears in 1 contract
Samples: Governance Agreement (Crown Castle International Corp)
