Approval Rights. (a) Until the Trigger Date (or such other period as specified in clauses (iii) and (xv) below), the Company shall not (either directly or indirectly through a Subsidiary), take any of the following actions (including by merger, consolidation or otherwise) without the prior written approval of Genworth, except if and to the extent that such action is required by applicable Law: (i) adopt any plan or proposal or take any action for a complete or partial liquidation, dissolution or winding up of the Company or any of its Subsidiaries or commence any case, proceeding or action seeking relief under any existing or future laws relating to bankruptcy, insolvency, conservatorship or relief of debtors; (ii) buy back any of the Company Common Stock or reduce or reorganize the Company’s capital or the capital of any of the Company’s Subsidiaries; (iii) effect (whether in a single transaction or series of related transactions) any acquisition of, or any interests or assets of, any company or business (whether by merger, consolidation, amalgamation, scheme of arrangement, purchase of assets, purchase of securities, or otherwise) involving consideration of $50 million or more (or book value of $100 million or more with respect to acquisitions effected through reinsurance that permanently transfers the economic risk on the reinsured business to the assuming reinsurer, but excluding reinsurance entered into in the ordinary course of the Company Group’s business, such as excess of loss, quota share and insurance linked note transactions); provided, however, that the foregoing shall not apply to (A) any acquisition of a Wholly Owned Subsidiary by the Company or another Wholly Owned Subsidiary and (B) any acquisition in the ordinary course of the Company Group’s business involving assets invested in the Company’s consolidated general account and approved in accordance with the Company’s established policies and procedures to monitor invested assets; (iv) directly or indirectly sell, convey, transfer, lease, pledge, grant a Security Interest in, or otherwise dispose of any of their respective assets (including Stock and Stock Equivalents) or any interest therein to any Person, or permit or suffer any other Person to acquire any interest in any of their respective assets, in each case in a single transaction or series of related transactions involving consideration (whether in cash, securities, assets or otherwise, and including Indebtedness assumed by any other Person and Indebtedness of any entity acquired by such other Person) of $50 million or more (or book value of $100 million or more with respect to dispositions effected through reinsurance that permanently transfers the economic risk on the reinsured business to the assuming reinsurer, but excluding reinsurance entered into in the ordinary course of the Company Group’s business, such as excess of loss, quota share and insurance linked note transactions) paid to or received by the Company and/or its Subsidiaries; provided, however, that the foregoing shall not apply to (A) any disposition of a Wholly Owned Subsidiary to the Company or another Wholly Owned Subsidiary, (B) any disposition in the ordinary course of the Company Group’s business involving assets invested in the Company’s consolidated general account and approved in accordance with the Company’s established policies and procedures to monitor invested assets, and (C) dispositions of receivables in the ordinary course of the Company Group’s business not to exceed $50 million (at the time of such disposition); (v) issue new debt or incur or enter into new borrowings or Indebtedness or guarantees in respect of any borrowings or Indebtedness, other than trade or similar debt incurred in the ordinary course of business; (vi) increase or decrease the authorized capital stock of the Company, or the creation of any new class or series of capital stock of the Company; (vii) issue, grant, acquire or settle (or establish the method of settlement for, whether in the form of shares of Company Common Stock, cash or other property or a combination thereof, and whether any shares of Company Common Stock issued in respect of such settlement shall be in the form of authorized but unissued shares or shares that shall have been or may be reacquired by the Company in the open market, in private transactions or otherwise) any Stock or any Stock Equivalents of the Company or any of its Subsidiaries, including any issuances or grants by the Company pursuant to any Genworth Stock Plan or any stock plan of the Company, including authorized stock plans and equity awards; (viii) unless otherwise required to comply with applicable Law, alter, amend, terminate or repeal, or adopt any provision inconsistent with, in each case whether directly or indirectly, or by merger, consolidation or otherwise, the Company’s Charter or the Company’s Amended and Restated By-Laws; (ix) adopt or implement any stockholder rights plan or similar takeover defense measure; (x) declare or pay any dividend or other distribution in respect of Company Common Stock (whether payable in cash, shares of Company Common Stock or other property); (xi) purchase, redeem or otherwise acquire or retire for value any shares of Company Common Stock or any warrants, options or other rights to acquire Company Common Stock other than (A) the repurchase of Company Common Stock deemed to occur upon exercise of stock options or stock appreciation rights to the extent that shares of Company Common Stock represent a portion of the exercise price of the stock options or stock appreciation rights or are withheld by the Company to pay applicable withholding taxes and (B) the repurchase of Company Common Stock deemed to occur to the extent shares of Company Common Stock are withheld by the Company to pay applicable withholding taxes in connection with any grant or vesting of restricted stock, restricted stock units or similar equity-based awards; (xii) until such time when Genworth beneficially owns less than twenty percent (20%) of the outstanding shares of Company Common Stock, change the size of the Company Board from eleven (11) directors; (xiii) elect, appoint, hire, dismiss or remove the Company’s Chief Executive Officer; (xiv) establish an executive committee of the Company Board (or a committee having the powers customarily delegated to an executive committee); (xv) establish any Operational Plan in accordance with Section 5.7(d); (xvi) dismiss or effect a change in the current independent registered public accounting firm of the Company or engage an independent registered public accounting firm for the Company that is different from the independent registered public accounting firm for Genworth; (xvii) so long as Genworth remains on its current general ledger solution and system, change the general ledger solution and system for the Company; (xviii) so long as Genworth remains on its current business performance management software solution, change the business performance management software solution for the Company; and (xix) authorize or enter into any agreement to do any of the foregoing. (b) For the avoidance of doubt, (i) nothing in this Section 8.1 shall be construed in a manner inconsistent with Section 5.8(b)(ii) and (ii) Genworth shall have the right, in its sole discretion, to waive any and all of the rights granted to it under this Section 8.1, by delivery of written notice to the Company in accordance with Section 10.5. (c) For so long as Genworth beneficially owns at least twenty percent (20%) of the Company’s common stock, the Company will be required to consult with Genworth with respect to the foregoing matters; however, Genworth will no longer have consent rights with respect to such matters other than as described this Section 8.1.
Appears in 2 contracts
Samples: Master Agreement (Genworth Mortgage Holdings, Inc.), Master Agreement (Genworth Mortgage Holdings, Inc.)
Approval Rights. (a) Until From the Trigger Date (or such other period date hereof and until the final closing date as specified described in clauses (iii) and (xv) belowSection 1(c), the Company shall not (either directly or indirectly through a Subsidiary), take any of the following actions (including by merger, consolidation or otherwise) without the prior written approval consent of Genworththe Purchaser, except if and to the extent that such action is required by applicable Lawwhich consent will not be unreasonably withheld or delayed:
(i) adopt any plan or proposal or take any action for 1. sell a complete or partial liquidation, dissolution or winding up material portion of the assets of the Company or any of its Subsidiaries subsidiaries or commence merge the Company or any case, proceeding of its subsidiaries into or action seeking relief under any existing or future laws relating to bankruptcy, insolvency, conservatorship or relief of debtorswith another unaffiliated company;
(ii) buy back any 2. change the articles of incorporation, bylaws or other charter documents of the Company Common Stock or reduce or reorganize the Company’s capital or the capital of any of the Company’s Subsidiariesits subsidiaries, except as contemplated hereby;
(iii) effect (whether in a single transaction 3. change substantially or series materially the nature of related transactions) any acquisition of, or any interests or assets of, any company or the business (whether by merger, consolidation, amalgamation, scheme of arrangement, purchase of assets, purchase of securities, or otherwise) involving consideration of $50 million or more (or book value of $100 million or more with respect to acquisitions effected through reinsurance that permanently transfers the economic risk on the reinsured business to the assuming reinsurer, but excluding reinsurance entered into in the ordinary course of the Company Group’s business, such as excess or any of loss, quota share and insurance linked note transactions); provided, however, that the foregoing shall not apply to (A) its subsidiaries;
4. issue any acquisition equity securities or securities convertible into equity securities of a Wholly Owned Subsidiary by the Company or another Wholly Owned Subsidiary and (B) any acquisition in the ordinary course of the Company Group’s business involving assets invested in the Company’s consolidated general account and approved in accordance with the Company’s established policies and procedures to monitor invested assets;
(iv) directly or indirectly sell, convey, transfer, lease, pledge, grant a Security Interest in, or otherwise dispose of any of their respective assets (including Stock and Stock Equivalents) or any interest therein to any Person, or permit or suffer any other Person to acquire any interest in any of their respective assets, in each case in a single transaction or series of related transactions involving consideration (whether in cash, securities, assets or otherwise, and including Indebtedness assumed by any other Person and Indebtedness of any entity acquired by such other Person) of $50 million or more (or book value of $100 million or more with respect to dispositions effected through reinsurance that permanently transfers the economic risk on the reinsured business to the assuming reinsurer, but excluding reinsurance entered into in the ordinary course of the Company Group’s business, such as excess of loss, quota share and insurance linked note transactions) paid to or received by the Company and/or its Subsidiaries; provided, however, that the foregoing shall not apply to (A) any disposition of a Wholly Owned Subsidiary to the Company or another Wholly Owned Subsidiary, (B) any disposition in the ordinary course of the Company Group’s business involving assets invested in the Company’s consolidated general account and approved in accordance with the Company’s established policies and procedures to monitor invested assets, and (C) dispositions of receivables in the ordinary course of the Company Group’s business not to exceed $50 million (at the time of such disposition);
(v) issue new debt or incur or enter into new borrowings or Indebtedness or guarantees in respect of any borrowings or Indebtednesssubsidiaries, other than trade the Series B Preferred Stock, Series C Preferred Stock and the Warrants pursuant to this Agreement;
5. make any acquisition or similar debt incurred any capital expenditure or agree to a schedule of spending or payments for assets which, in the aggregate, exceeds or would exceed $50,000 over a consecutive twelve month period, except for the acquisition of inventory or other related assets in the ordinary course of business;
(vi) increase 6. enter into any credit facility or decrease incur any material amount of debt, other than incurring obligations for purchases of inventory or other related assets in the authorized capital stock ordinary course of business;
7. offer or sell any securities of the Company, Company or its subsidiaries;
8. expand the creation number of any new class or series members of capital stock the board of directors of the Company;
(vii) issue, grant, acquire or settle (or establish the method of settlement for, whether in the form of shares of Company Common Stock, cash or other property or a combination thereof, and whether any shares of Company Common Stock issued in respect of such settlement shall be in the form of authorized but unissued shares or shares that shall have been or may be reacquired by the Company in the open market, in private transactions or otherwise) any Stock or any Stock Equivalents of the Company or any of its Subsidiaries, including any issuances or grants by the Company pursuant to any Genworth Stock Plan or any stock plan of the Company, including authorized stock plans and equity awards;
(viii) unless otherwise required to comply with applicable Law, alter, amend, terminate or repeal, or adopt any provision inconsistent with, in each case whether directly or indirectly, or by merger, consolidation or otherwise, the Company’s Charter or the Company’s Amended and Restated By-Laws;
(ix) adopt or implement any stockholder rights plan or similar takeover defense measure;
(x) 9. declare or pay any dividend dividends or other distribution in respect of Company Common Stock (whether payable in cashredeem securities, shares of Company Common Stock or other property);
(xi) purchase, redeem or otherwise acquire or retire except for value any shares of Company Common Stock or any warrants, options or other rights to acquire Company Common Stock other than (A) the repurchase of Company Common Stock deemed to occur upon exercise of stock options or stock appreciation rights to the extent that shares of Company Common Stock represent a portion of the exercise price of the stock options or stock appreciation rights or are withheld by the Company to pay applicable withholding taxes and (B) the repurchase of Company Common Stock deemed to occur to the extent shares of Company Common Stock are withheld by the Company to pay applicable withholding taxes in connection with any grant or vesting of restricted stock, restricted stock units or similar equity-based awards;
(xii) until such time when Genworth beneficially owns less than twenty percent (20%) of the outstanding shares of Company Common Stock, change the size of the Company Board from eleven (11) directors;
(xiii) elect, appoint, hire, dismiss or remove the Company’s Chief Executive Officer;
(xiv) establish an executive committee of the Company Board (or a committee having the powers customarily delegated to an executive committee);
(xv) establish any Operational Plan in accordance with Section 5.7(d);
(xvi) dismiss or effect a change in the current independent registered public accounting firm of the Company or engage an independent registered public accounting firm for the Company that is different from the independent registered public accounting firm for Genworth;
(xvii) so long as Genworth remains on its current general ledger solution and system, change the general ledger solution and system for the Company;
(xviii) so long as Genworth remains on its current business performance management software solution, change the business performance management software solution for the Company; and
(xix) authorize or enter into any agreement to do any of the foregoing.
(b) For the avoidance of doubt, (i) nothing in this Section 8.1 shall be construed in a manner inconsistent with Section 5.8(b)(ii) and the dividends relating to the Series A preferred stock pursuant to the terms of the relevant certificate of designation; or (ii) Genworth shall have the right, in its sole discretion, to waive any and all of the rights granted to it under this Section 8.1, by delivery of written notice transaction relating to the Company in accordance with Section 10.5Series B Preferred Stock or Warrants; or
10. enter into or modify a related-party transaction.
(c) For so long as Genworth beneficially owns at least twenty percent (20%) of the Company’s common stock, the Company will be required to consult with Genworth with respect to the foregoing matters; however, Genworth will no longer have consent rights with respect to such matters other than as described this Section 8.1.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Tangible Asset Galleries Inc), Securities Purchase Agreement (Tangible Asset Galleries Inc)
Approval Rights. (a) Until Subject to Section 10.3(b) hereof, for so long as the Trigger Date (or such other period as specified in clauses (iii) and (xv) below)Company is obligated to nominate the Purchaser Designees pursuant to Section 10.1 hereof, the Company shall not (either directly or indirectly through a Subsidiary)take, take and shall not permit any of its subsidiaries to take, any of the following actions (including by merger, consolidation or otherwiseeach a "Major Event") without the prior written approval consent of Genworthat least one of the Purchasers' Designees (or if, except if and to for any reason, there are no such designees at such time, the extent that such action is required written consent of the Purchasers then holding a majority of all Shares then held by applicable Law:all the Purchasers):
(i) adopt declare or pay any plan dividend on, or proposal make any payment on account of, or take set apart any action assets (other than setting aside Common Stock for exercise of options or conversion rights) for a complete sinking or partial other analogous fund for, the purchase, redemption, defeasance, retirement, or other acquisition of, any shares of any class of capital stock of the Company or any warrants or options to purchase any such capital stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or in obligations or other securities of the Company, except that the Company may:
(A) make cash payments of up to $10,000,000 in any fiscal year of the Company to redeem any shares of any class of capital stock of the Company or any warrants or options to purchase any such capital stock, whether now or hereafter outstanding; and
(B) make any redemptions of any shares of any class of capital stock of the Company or any warrants or options to purchase any such capital stock to the extent such redemption is expressly permitted pursuant to any of the agreements listed in Section 10.3 of the Schedule of Exceptions or the Company's Executive Restricted Stock Plan or pursuant to any amendment to any such agreement or any other agreement which is expressly approved by the Purchasers' Designees (or if, for any reason, there are no such designees at such time, the Purchasers holding the majority of the Shares);
(i) merge or consolidate with or into any other corporation or entity, or (ii) convey, sell, lease or otherwise dispose of in any transaction or related series of transactions all or substantially all of the property, business or assets of the Company and its subsidiaries (including the capital stock or assets of its subsidiaries);
(iii) acquire by purchase the business, assets or stock of any business for an aggregate purchase price (as determined in good faith by the Board) of more than $100 million; or
(iv) effect any voluntary liquidation, dissolution or winding up of the Company or any of its Subsidiaries or commence any case, proceeding or action seeking relief under any existing or future laws relating to bankruptcy, insolvency, conservatorship or relief of debtors;
(ii) buy back any of the Company Common Stock or reduce or reorganize the Company’s capital or the capital of any of the Company’s Subsidiaries;
(iii) effect (whether in a single transaction or series of related transactions) any acquisition of, or any interests or assets of, any company or business (whether by merger, consolidation, amalgamation, scheme of arrangement, purchase of assets, purchase of securities, or otherwise) involving consideration of $50 million or more (or book value of $100 million or more with respect to acquisitions effected through reinsurance that permanently transfers the economic risk on the reinsured business to the assuming reinsurer, but excluding reinsurance entered into in the ordinary course of the Company Group’s business, such as excess of loss, quota share and insurance linked note transactions); provided, however, that the foregoing shall not apply to (A) any acquisition of a Wholly Owned Subsidiary by the Company or another Wholly Owned Subsidiary and (B) any acquisition in the ordinary course of the Company Group’s business involving assets invested in the Company’s consolidated general account and approved in accordance with the Company’s established policies and procedures to monitor invested assets;
(iv) directly or indirectly sell, convey, transfer, lease, pledge, grant a Security Interest in, or otherwise dispose of any of their respective assets (including Stock and Stock Equivalents) or any interest therein to any Person, or permit or suffer any other Person to acquire any interest in any of their respective assets, in each case in a single transaction or series of related transactions involving consideration (whether in cash, securities, assets or otherwise, and including Indebtedness assumed by any other Person and Indebtedness of any entity acquired by such other Person) of $50 million or more (or book value of $100 million or more with respect to dispositions effected through reinsurance that permanently transfers the economic risk on the reinsured business to the assuming reinsurer, but excluding reinsurance entered into in the ordinary course of the Company Group’s business, such as excess of loss, quota share and insurance linked note transactions) paid to or received by the Company and/or its Subsidiaries; provided, however, that the foregoing shall not apply to (A) any disposition of a Wholly Owned Subsidiary to the Company or another Wholly Owned Subsidiary, (B) any disposition in the ordinary course of the Company Group’s business involving assets invested in the Company’s consolidated general account and approved in accordance with the Company’s established policies and procedures to monitor invested assets, and (C) dispositions of receivables in the ordinary course of the Company Group’s business not to exceed $50 million (at the time of such disposition);
(v) issue new debt or incur or enter into new borrowings or Indebtedness or guarantees in respect of any borrowings or Indebtedness, other than trade or similar debt incurred in the ordinary course of business;
(vi) increase or decrease the authorized capital stock of the Company, or the creation of any new class or series of capital stock of the Company;
(vii) issue, grant, acquire or settle (or establish the method of settlement for, whether in the form of shares of Company Common Stock, cash or other property or a combination thereof, and whether any shares of Company Common Stock issued in respect of such settlement shall be in the form of authorized but unissued shares or shares that shall have been or may be reacquired by the Company in the open market, in private transactions or otherwise) any Stock or any Stock Equivalents of the Company or any of its Subsidiaries, including any issuances or grants by the Company pursuant to any Genworth Stock Plan or any stock plan of the Company, including authorized stock plans and equity awards;
(viii) unless otherwise required to comply with applicable Law, alter, amend, terminate or repeal, or adopt any provision inconsistent with, in each case whether directly or indirectly, or by merger, consolidation or otherwise, the Company’s Charter or the Company’s Amended and Restated By-Laws;
(ix) adopt or implement any stockholder rights plan or similar takeover defense measure;
(x) declare or pay any dividend or other distribution in respect of Company Common Stock (whether payable in cash, shares of Company Common Stock or other property);
(xi) purchase, redeem or otherwise acquire or retire for value any shares of Company Common Stock or any warrants, options or other rights to acquire Company Common Stock other than (A) the repurchase of Company Common Stock deemed to occur upon exercise of stock options or stock appreciation rights to the extent that shares of Company Common Stock represent a portion of the exercise price of the stock options or stock appreciation rights or are withheld by the Company to pay applicable withholding taxes and (B) the repurchase of Company Common Stock deemed to occur to the extent shares of Company Common Stock are withheld by the Company to pay applicable withholding taxes in connection with any grant or vesting of restricted stock, restricted stock units or similar equity-based awards;
(xii) until such time when Genworth beneficially owns less than twenty percent (20%) of the outstanding shares of Company Common Stock, change the size of the Company Board from eleven (11) directors;
(xiii) elect, appoint, hire, dismiss or remove the Company’s Chief Executive Officer;
(xiv) establish an executive committee of the Company Board (or a committee having the powers customarily delegated to an executive committee);
(xv) establish any Operational Plan in accordance with Section 5.7(d);
(xvi) dismiss or effect a change in the current independent registered public accounting firm of the Company or engage an independent registered public accounting firm for the Company that is different from the independent registered public accounting firm for Genworth;
(xvii) so long as Genworth remains on its current general ledger solution and system, change the general ledger solution and system for the Company;
(xviii) so long as Genworth remains on its current business performance management software solution, change the business performance management software solution for the Company; and
(xix) authorize or enter into any agreement to do any of the foregoing.
(b) For If there is a proposed Major Event which is not approved by or otherwise consented to by the avoidance Purchasers' Designees or the Purchasers, as the case may be, pursuant to Section 10.1 hereof, the Company and the Purchasers shall thereafter consult with one another in good faith for a period of doubtat least one week to attempt to resolve their differences concerning such Major Event. If the parties are unable to resolve such differences during such one-week period, the Company shall have the option of either not proceeding with such Major Event, in which case the remaining provisions of this Section 10.3 shall not apply, or proceeding with such Major Event, in which case the Company may consummate such Major Event if (and only if) (i) nothing in this Section 8.1 shall be construed in such Major Event is re-authorized by a manner inconsistent with Section 5.8(b)(ii) majority of the members of the Board (any such re-authorization being referred to herein as a "Triggering Event"), and (ii) Genworth shall have prior to the righttaking or consummation of such Major Event, the Company makes a Dispute Resolution Offer with respect to such Major Event in its sole discretion, to waive any the manner required by Section 10.3(c) hereof and purchases all of the rights granted Shares which are duly tendered to it under this Section 8.1, by delivery of written notice any Purchaser in response to the Company in accordance with Section 10.5such Dispute Resolution Offer.
(c) For so long as Genworth beneficially owns Upon the occurrence of a Triggering Event, each Purchaser shall have the right to require the Company to repurchase all or any part of such Purchaser's Shares at least twenty percent (20%) a purchase price in cash equal to 107% of the Company’s common stockaggregate liquidation value of such shares, as further described below.
(i) Within 10 days following any Triggering Event and, in any event, prior to the taking or consummation of the Major Event to which such Triggering Event relates, the Company will shall mail a notice (a "Dispute Resolution Offer") to each Purchaser stating (1) that a Triggering Event has occurred and that such Purchaser therefore has the right to require the Company to purchase all or any part of such Purchaser's Shares at a purchase price in cash equal to 107% of the aggregate liquidation value thereof, (2) the circumstances and relevant facts regarding such Triggering Event and the related Major Event and (3) the repurchase date (which shall be no earlier than 15 days nor later than 30 days from the date such notice is mailed).
(ii) Purchasers electing to have all or any portion of its Preferred Stock purchased shall be required to consult with Genworth with respect surrender such Preferred Stock to the foregoing matters; howeverCompany at the address specified in the Dispute Resolution Offer at least two business days prior to the purchase date. Purchasers shall be entitled to withdraw their election if the Company receives not later than one business day prior to the purchase date a facsimile transmission or letter setting forth the name of the Purchaser, Genworth will no longer the number of Shares which were previously delivered for purchase by such Purchaser and a statement specifying the portion of such Shares for which such Purchaser is withdrawing its election to have consent rights with respect to such matters other than as described Shares purchased.
(iii) On the purchase date, all Shares purchased by the Company under this Section 8.1shall be delivered to the Company for cancellation or purchase, properly endorsed and free of any Liens and with full warranties of title, and the Company shall pay the purchase price, together with any amounts payable pursuant to Section 12.10 hereof, to the Purchasers entitled thereto in immediately available funds to an account or accounts previously specified by the Purchasers.
Appears in 1 contract
Samples: Preferred Stock Purchase and Option Agreement (Imc Mortgage Co)
Approval Rights. (a) Until From the Trigger date hereof and until the Final Closing Date (or such other period as specified described in clauses (iii) and (xv) belowSection 1(c), neither the Company Company, its subsidiaries nor Stronghold shall not (either directly or indirectly through a Subsidiary), take any of the following actions (including by merger, consolidation or otherwise) without the prior written approval consent of Genworththe Purchaser, except if and to the extent that such action is required by applicable Lawwhich consent will not be unreasonably withheld or delayed:
(i) adopt any plan or proposal or take any action for sell a complete or partial liquidation, dissolution or winding up material portion of the Company assets of the Company, any subsidiaries or Stronghold or merge the Company, any of its Subsidiaries subsidiaries or commence any caseStronghold into or with another unaffiliated company, proceeding or action seeking relief under any existing or future laws relating to bankruptcy, insolvency, conservatorship or relief of debtorsexcept as contemplated hereby;
(ii) buy back any change the certificate of the Company Common Stock incorporation, bylaws or reduce or reorganize the Company’s capital or the capital of any other charter documents of the Company’s Subsidiaries, any of its subsidiaries or Stronghold, except as contemplated hereby;
(iii) effect (whether in a single transaction change substantially or series materially the nature of related transactions) any acquisition of, or any interests or assets ofthe business of the Company, any company of its subsidiaries or business (whether by merger, consolidation, amalgamation, scheme of arrangement, purchase of assets, purchase of securities, or otherwise) involving consideration of $50 million or more (or book value of $100 million or more with respect to acquisitions effected through reinsurance that permanently transfers the economic risk on the reinsured business to the assuming reinsurer, but excluding reinsurance entered into in the ordinary course of the Company Group’s business, such as excess of loss, quota share and insurance linked note transactions); provided, however, that the foregoing shall not apply to (A) any acquisition of a Wholly Owned Subsidiary by the Company or another Wholly Owned Subsidiary and (B) any acquisition in the ordinary course of the Company Group’s business involving assets invested in the Company’s consolidated general account and approved in accordance with the Company’s established policies and procedures to monitor invested assetsStronghold;
(iv) directly issue any equity securities or indirectly sellsecurities convertible into equity securities of the Company, convey, transfer, lease, pledge, grant a Security Interest in, or otherwise dispose of any of their respective assets (including its subsidiaries or Stronghold, other than the Series A Preferred Stock and Stock Equivalents) or any interest therein the Warrants pursuant to any Person, or permit or suffer any other Person to acquire any interest in any of their respective assets, in each case in a single transaction or series of related transactions involving consideration (whether in cash, securities, assets or otherwise, and including Indebtedness assumed by any other Person and Indebtedness of any entity acquired by such other Person) of $50 million or more (or book value of $100 million or more with respect to dispositions effected through reinsurance that permanently transfers the economic risk on the reinsured business to the assuming reinsurer, but excluding reinsurance entered into in the ordinary course of the Company Group’s business, such as excess of loss, quota share and insurance linked note transactions) paid to or received by the Company and/or its Subsidiaries; provided, however, that the foregoing shall not apply to (A) any disposition of a Wholly Owned Subsidiary to the Company or another Wholly Owned Subsidiary, (B) any disposition in the ordinary course of the Company Group’s business involving assets invested in the Company’s consolidated general account and approved in accordance with the Company’s established policies and procedures to monitor invested assets, and (C) dispositions of receivables in the ordinary course of the Company Group’s business not to exceed $50 million (at the time of such disposition)this Agreement;
(v) issue new debt make any acquisition or incur any capital expenditure or enter into new borrowings agree to a schedule of spending or Indebtedness payments for assets which, in the aggregate, exceeds or guarantees in respect would exceed $200,000 over a consecutive 12-month period, except for the acquisition of any borrowings inventory or Indebtedness, other than trade or similar debt incurred related assets in the ordinary course of business;
(vi) increase enter into any credit facility or decrease incur any material amount of debt, other than incurring obligations for purchases of inventory or other related assets in the authorized capital stock ordinary course of business;
(vii) offer or sell any securities of the Company, its subsidiaries or Stronghold;
(viii) expand the creation number of any new class or series members of capital stock the board of directors of the Company;
(vii) issue, grant, acquire or settle (or establish the method of settlement for, whether in the form of shares of Company Common Stock, cash or other property or a combination thereof, and whether any shares of Company Common Stock issued in respect of such settlement shall be in the form of authorized but unissued shares or shares that shall have been or may be reacquired by the Company in the open market, in private transactions or otherwise) any Stock or any Stock Equivalents of the Company or any of its Subsidiaries, including any issuances or grants by the Company pursuant to any Genworth Stock Plan or any stock plan of the Company, including authorized stock plans and equity awards;
(viii) unless otherwise required to comply with applicable Law, alter, amend, terminate or repeal, or adopt any provision inconsistent with, in each case whether directly or indirectly, or by merger, consolidation or otherwise, the Company’s Charter or the Company’s Amended and Restated By-Laws;
(ix) adopt declare or implement pay dividends or make any stockholder rights plan other distribution or similar takeover defense measure;redeem securities; or
(x) declare or pay any dividend or other distribution in respect of Company Common Stock (whether payable in cash, shares of Company Common Stock or other property);
(xi) purchase, redeem or otherwise acquire or retire for value any shares of Company Common Stock or any warrants, options or other rights to acquire Company Common Stock other than (A) the repurchase of Company Common Stock deemed to occur upon exercise of stock options or stock appreciation rights to the extent that shares of Company Common Stock represent a portion of the exercise price of the stock options or stock appreciation rights or are withheld by the Company to pay applicable withholding taxes and (B) the repurchase of Company Common Stock deemed to occur to the extent shares of Company Common Stock are withheld by the Company to pay applicable withholding taxes in connection with any grant or vesting of restricted stock, restricted stock units or similar equity-based awards;
(xii) until such time when Genworth beneficially owns less than twenty percent (20%) of the outstanding shares of Company Common Stock, change the size of the Company Board from eleven (11) directors;
(xiii) elect, appoint, hire, dismiss or remove the Company’s Chief Executive Officer;
(xiv) establish an executive committee of the Company Board (or a committee having the powers customarily delegated to an executive committee);
(xv) establish any Operational Plan in accordance with Section 5.7(d);
(xvi) dismiss or effect a change in the current independent registered public accounting firm of the Company or engage an independent registered public accounting firm for the Company that is different from the independent registered public accounting firm for Genworth;
(xvii) so long as Genworth remains on its current general ledger solution and system, change the general ledger solution and system for the Company;
(xviii) so long as Genworth remains on its current business performance management software solution, change the business performance management software solution for the Company; and
(xix) authorize or enter into any agreement to do any of the foregoingor modify a related-party transaction.
(b) For the avoidance of doubt, (i) nothing in this Section 8.1 shall be construed in a manner inconsistent with Section 5.8(b)(ii) and (ii) Genworth shall have the right, in its sole discretion, to waive any and all of the rights granted to it under this Section 8.1, by delivery of written notice to the Company in accordance with Section 10.5.
(c) For so long as Genworth beneficially owns at least twenty percent (20%) of the Company’s common stock, the Company will be required to consult with Genworth with respect to the foregoing matters; however, Genworth will no longer have consent rights with respect to such matters other than as described this Section 8.1.
Appears in 1 contract
Samples: Securities Purchase Agreement (TDT Development Inc)
Approval Rights. (a) Until From the Trigger Date (or such other period as specified in clauses (iii) date hereof and (xv) below)until the Last Closing Date, the Company shall not (either directly or indirectly through a Subsidiary), take any of the following actions (including by merger, consolidation or otherwise) without the prior written approval consent of Genworththe Purchaser, except if and to the extent that such action is required by applicable Lawwhich consent will not be unreasonably withheld or delayed:
(i) adopt any plan or proposal or take any action for 1. sell a complete or partial liquidation, dissolution or winding up material portion of the assets of the Company or any of its Subsidiaries subsidiaries or commence merge the Company or any case, proceeding of its subsidiaries into or action seeking relief under any existing or future laws relating to bankruptcy, insolvency, conservatorship or relief of debtorswith another unaffiliated company;
(ii) buy back any 2. change the articles of incorporation, bylaws or other charter documents of the Company Common Stock or reduce or reorganize the Company’s capital or the capital of any of the Company’s Subsidiariesits subsidiaries, except as contemplated hereby;
(iii) effect (whether in a single transaction 3. change substantially or series materially the nature of related transactions) any acquisition of, or any interests or assets of, any company or the business (whether by merger, consolidation, amalgamation, scheme of arrangement, purchase of assets, purchase of securities, or otherwise) involving consideration of $50 million or more (or book value of $100 million or more with respect to acquisitions effected through reinsurance that permanently transfers the economic risk on the reinsured business to the assuming reinsurer, but excluding reinsurance entered into in the ordinary course of the Company Group’s business, such as excess or any of loss, quota share and insurance linked note transactions); provided, however, that the foregoing shall not apply to (A) its subsidiaries;
4. issue any acquisition equity securities or securities convertible into equity securities of a Wholly Owned Subsidiary by the Company or another Wholly Owned Subsidiary and (B) any acquisition in the ordinary course of the Company Group’s business involving assets invested in the Company’s consolidated general account and approved in accordance with the Company’s established policies and procedures to monitor invested assets;
(iv) directly or indirectly sell, convey, transfer, lease, pledge, grant a Security Interest in, or otherwise dispose of any of their respective assets (including Stock and Stock Equivalents) or any interest therein to any Person, or permit or suffer any other Person to acquire any interest in any of their respective assets, in each case in a single transaction or series of related transactions involving consideration (whether in cash, securities, assets or otherwise, and including Indebtedness assumed by any other Person and Indebtedness of any entity acquired by such other Person) of $50 million or more (or book value of $100 million or more with respect to dispositions effected through reinsurance that permanently transfers the economic risk on the reinsured business to the assuming reinsurer, but excluding reinsurance entered into in the ordinary course of the Company Group’s business, such as excess of loss, quota share and insurance linked note transactions) paid to or received by the Company and/or its Subsidiaries; provided, however, that the foregoing shall not apply to (A) any disposition of a Wholly Owned Subsidiary to the Company or another Wholly Owned Subsidiary, (B) any disposition in the ordinary course of the Company Group’s business involving assets invested in the Company’s consolidated general account and approved in accordance with the Company’s established policies and procedures to monitor invested assets, and (C) dispositions of receivables in the ordinary course of the Company Group’s business not to exceed $50 million (at the time of such disposition);
(v) issue new debt or incur or enter into new borrowings or Indebtedness or guarantees in respect of any borrowings or Indebtednesssubsidiaries, other than trade the Series D Preferred Stock and Warrant Stock pursuant to this Agreement and any Common Stock issued upon conversion of the Series B Preferred Stock or similar debt incurred Series D Preferred Stock held by the Purchaser;
5. make any acquisition or any capital expenditure, services of related expenditures or agree to a schedule of spending or payments for assets which, in the aggregate, exceeds or would exceed $50,000 over a consecutive twelve month period, except for the acquisition of inventory or other related assets in the ordinary course of business;
(vi) increase 6. enter into any credit facility or decrease incur any material amount of debt, other than incurring obligations for purchases of inventory or other related assets in the authorized capital stock ordinary course of business;
7. offer or sell any securities of the Company, Company or its subsidiaries other than permitted in clause (4) above;
8. expand the creation number of any new class or series members of capital stock the board of directors of the Company;
(vii) issue, grant, acquire or settle (or establish the method of settlement for, whether in the form of shares of Company Common Stock, cash or other property or a combination thereof, and whether any shares of Company Common Stock issued in respect of such settlement shall be in the form of authorized but unissued shares or shares that shall have been or may be reacquired by the Company in the open market, in private transactions or otherwise) any Stock or any Stock Equivalents of the Company or any of its Subsidiaries, including any issuances or grants by the Company pursuant to any Genworth Stock Plan or any stock plan of the Company, including authorized stock plans and equity awards;
(viii) unless otherwise required to comply with applicable Law, alter, amend, terminate or repeal, or adopt any provision inconsistent with, in each case whether directly or indirectly, or by merger, consolidation or otherwise, the Company’s Charter or the Company’s Amended and Restated By-Laws;
(ix) adopt or implement any stockholder rights plan or similar takeover defense measure;
(x) 9. declare or pay any dividend dividends or other distribution in respect of Company Common Stock (whether payable in cashredeem securities, shares of Company Common Stock or other property);
(xi) purchase, redeem or otherwise acquire or retire except for value any shares of Company Common Stock or any warrants, options or other rights to acquire Company Common Stock other than (A) the repurchase of Company Common Stock deemed to occur upon exercise of stock options or stock appreciation rights to the extent that shares of Company Common Stock represent a portion of the exercise price of the stock options or stock appreciation rights or are withheld by the Company to pay applicable withholding taxes and (B) the repurchase of Company Common Stock deemed to occur to the extent shares of Company Common Stock are withheld by the Company to pay applicable withholding taxes in connection with any grant or vesting of restricted stock, restricted stock units or similar equity-based awards;
(xii) until such time when Genworth beneficially owns less than twenty percent (20%) of the outstanding shares of Company Common Stock, change the size of the Company Board from eleven (11) directors;
(xiii) elect, appoint, hire, dismiss or remove the Company’s Chief Executive Officer;
(xiv) establish an executive committee of the Company Board (or a committee having the powers customarily delegated to an executive committee);
(xv) establish any Operational Plan in accordance with Section 5.7(d);
(xvi) dismiss or effect a change in the current independent registered public accounting firm of the Company or engage an independent registered public accounting firm for the Company that is different from the independent registered public accounting firm for Genworth;
(xvii) so long as Genworth remains on its current general ledger solution and system, change the general ledger solution and system for the Company;
(xviii) so long as Genworth remains on its current business performance management software solution, change the business performance management software solution for the Company; and
(xix) authorize or enter into any agreement to do any of the foregoing.
(b) For the avoidance of doubt, (i) nothing in this Section 8.1 shall be construed in a manner inconsistent with Section 5.8(b)(ii) and the dividends relating to the Series A preferred stock pursuant to the terms of the relevant certificate of designation; or (ii) Genworth shall have the right, in its sole discretion, to waive any and all of the rights granted to it under this Section 8.1, by delivery of written notice transaction relating to the Company in accordance with Section 10.5Series B Preferred Stock or Series D Preferred Stock; or
10. enter into or modify a related-party transaction.
(c) For so long as Genworth beneficially owns at least twenty percent (20%) of the Company’s common stock, the Company will be required to consult with Genworth with respect to the foregoing matters; however, Genworth will no longer have consent rights with respect to such matters other than as described this Section 8.1.
Appears in 1 contract
Samples: Series D Preferred Stock Purchase and Warrant Exercise Agreement (Tangible Asset Galleries Inc)
Approval Rights. (a) Until From the Trigger date hereof and until the Final Closing Date (or such other period as specified described in clauses (iii) and (xv) belowSection 1(c), neither the Company Company, its subsidiaries nor Stronghold shall not (either directly or indirectly through a Subsidiary), take any of the following actions (including by merger, consolidation or otherwise) without the prior written approval consent of Genworththe Purchaser, except if and to the extent that such action is required by applicable Lawwhich consent will not be unreasonably withheld or delayed:
(i) adopt any plan or proposal or take any action for sell a complete or partial liquidation, dissolution or winding up material portion of the Company or assets of the Company, any of its Subsidiaries subsidiaries or commence Stronghold or merge the Company, any caseof its subsidiaries or Stronghold into or with another unaffiliated company, proceeding or action seeking relief under any existing or future laws relating to bankruptcy, insolvency, conservatorship or relief of debtorsexcept as contemplated hereby;
(ii) buy back any change the certificate of the Company Common Stock incorporation, bylaws or reduce or reorganize the Company’s capital or the capital of any other charter documents of the Company’s Subsidiaries, any of its subsidiaries or Stronghold, except as contemplated hereby;
(iii) effect (whether in a single transaction change substantially or series materially the nature of related transactions) any acquisition of, or any interests or assets ofthe business of the Company, any company of its subsidiaries or business (whether by merger, consolidation, amalgamation, scheme of arrangement, purchase of assets, purchase of securities, or otherwise) involving consideration of $50 million or more (or book value of $100 million or more with respect to acquisitions effected through reinsurance that permanently transfers the economic risk on the reinsured business to the assuming reinsurer, but excluding reinsurance entered into in the ordinary course of the Company Group’s business, such as excess of loss, quota share and insurance linked note transactions); provided, however, that the foregoing shall not apply to (A) any acquisition of a Wholly Owned Subsidiary by the Company or another Wholly Owned Subsidiary and (B) any acquisition in the ordinary course of the Company Group’s business involving assets invested in the Company’s consolidated general account and approved in accordance with the Company’s established policies and procedures to monitor invested assetsStronghold;
(iv) directly issue any equity securities or indirectly sellsecurities convertible into equity securities of the Company, convey, transfer, lease, pledge, grant a Security Interest in, or otherwise dispose of any of their respective assets (including its subsidiaries or Stronghold, other than the Series A Preferred Stock and Stock Equivalents) or any interest therein the Warrants pursuant to any Person, or permit or suffer any other Person to acquire any interest in any of their respective assets, in each case in a single transaction or series of related transactions involving consideration (whether in cash, securities, assets or otherwise, and including Indebtedness assumed by any other Person and Indebtedness of any entity acquired by such other Person) of $50 million or more (or book value of $100 million or more with respect to dispositions effected through reinsurance that permanently transfers the economic risk on the reinsured business to the assuming reinsurer, but excluding reinsurance entered into in the ordinary course of the Company Group’s business, such as excess of loss, quota share and insurance linked note transactions) paid to or received by the Company and/or its Subsidiaries; provided, however, that the foregoing shall not apply to (A) any disposition of a Wholly Owned Subsidiary to the Company or another Wholly Owned Subsidiary, (B) any disposition in the ordinary course of the Company Group’s business involving assets invested in the Company’s consolidated general account and approved in accordance with the Company’s established policies and procedures to monitor invested assets, and (C) dispositions of receivables in the ordinary course of the Company Group’s business not to exceed $50 million (at the time of such disposition)this Agreement;
(v) issue new debt make any acquisition or incur any capital expenditure or enter into new borrowings agree to a schedule of spending or Indebtedness payments for assets which, in the aggregate, exceeds or guarantees in respect would exceed $200,000 over a consecutive 12-month period, except for the acquisition of any borrowings inventory or Indebtedness, other than trade or similar debt incurred related assets in the ordinary course of business;
(vi) increase enter into any credit facility or decrease incur any material amount of debt, other than incurring obligations for purchases of inventory or other related assets in the authorized capital stock ordinary course of business;
(vii) offer or sell any securities of the Company, its subsidiaries or Stronghold;
(viii) expand the creation number of any new class or series members of capital stock the board of directors of the Company;
(vii) issue, grant, acquire or settle (or establish the method of settlement for, whether in the form of shares of Company Common Stock, cash or other property or a combination thereof, and whether any shares of Company Common Stock issued in respect of such settlement shall be in the form of authorized but unissued shares or shares that shall have been or may be reacquired by the Company in the open market, in private transactions or otherwise) any Stock or any Stock Equivalents of the Company or any of its Subsidiaries, including any issuances or grants by the Company pursuant to any Genworth Stock Plan or any stock plan of the Company, including authorized stock plans and equity awards;
(viii) unless otherwise required to comply with applicable Law, alter, amend, terminate or repeal, or adopt any provision inconsistent with, in each case whether directly or indirectly, or by merger, consolidation or otherwise, the Company’s Charter or the Company’s Amended and Restated By-Laws;
(ix) adopt declare or implement pay dividends or make any stockholder rights plan other distribution or similar takeover defense measure;redeem securities; or
(x) declare or pay any dividend or other distribution in respect of Company Common Stock (whether payable in cash, shares of Company Common Stock or other property);
(xi) purchase, redeem or otherwise acquire or retire for value any shares of Company Common Stock or any warrants, options or other rights to acquire Company Common Stock other than (A) the repurchase of Company Common Stock deemed to occur upon exercise of stock options or stock appreciation rights to the extent that shares of Company Common Stock represent a portion of the exercise price of the stock options or stock appreciation rights or are withheld by the Company to pay applicable withholding taxes and (B) the repurchase of Company Common Stock deemed to occur to the extent shares of Company Common Stock are withheld by the Company to pay applicable withholding taxes in connection with any grant or vesting of restricted stock, restricted stock units or similar equity-based awards;
(xii) until such time when Genworth beneficially owns less than twenty percent (20%) of the outstanding shares of Company Common Stock, change the size of the Company Board from eleven (11) directors;
(xiii) elect, appoint, hire, dismiss or remove the Company’s Chief Executive Officer;
(xiv) establish an executive committee of the Company Board (or a committee having the powers customarily delegated to an executive committee);
(xv) establish any Operational Plan in accordance with Section 5.7(d);
(xvi) dismiss or effect a change in the current independent registered public accounting firm of the Company or engage an independent registered public accounting firm for the Company that is different from the independent registered public accounting firm for Genworth;
(xvii) so long as Genworth remains on its current general ledger solution and system, change the general ledger solution and system for the Company;
(xviii) so long as Genworth remains on its current business performance management software solution, change the business performance management software solution for the Company; and
(xix) authorize or enter into any agreement to do any of the foregoingor modify a related-party transaction.
(b) For the avoidance of doubt, (i) nothing in this Section 8.1 shall be construed in a manner inconsistent with Section 5.8(b)(ii) and (ii) Genworth shall have the right, in its sole discretion, to waive any and all of the rights granted to it under this Section 8.1, by delivery of written notice to the Company in accordance with Section 10.5.
(c) For so long as Genworth beneficially owns at least twenty percent (20%) of the Company’s common stock, the Company will be required to consult with Genworth with respect to the foregoing matters; however, Genworth will no longer have consent rights with respect to such matters other than as described this Section 8.1.
Appears in 1 contract
Samples: Securities Purchase Agreement (Stronghold Technologies Inc)
Approval Rights. (a) Until From the Trigger Date (or such other period as specified in clauses (iii) date hereof and (xv) below)until the Closing Date, the Company shall not (either directly or indirectly through a Subsidiary), take any of the following actions (including by merger, consolidation or otherwise) without the prior written approval consent of Genworththe Purchaser, except if and to the extent that such action is required by applicable Lawwhich consent will not be unreasonably withheld or delayed:
(i) adopt any plan or proposal or take any action for 1. sell a complete or partial liquidation, dissolution or winding up material portion of the assets of the Company or any of its Subsidiaries future subsidiary or commence merge the Company or any case, proceeding future subsidiaries into or action seeking relief under any existing or future laws relating to bankruptcy, insolvency, conservatorship or relief of debtorswith another unaffiliated company;
(ii) buy back 2. change the articles of incorporation, bylaws or other charter documents of the Company, except as contemplated hereby;
3. change substantially or materially the nature of the business of the Company;
4. issue any equity securities or securities convertible into equity securities of the Company other than: (1) the Series E Preferred Stock pursuant to this Agreement; (2) any Common Stock issued upon conversion of the outstanding Series B Preferred Stock or Series D Preferred Stock; (3) Common Stock or reduce other securities issuable under presently outstanding options or reorganize warrants as described in the Financial Statements contained in the Registration Statement; and (4) options (and Common Stock or other securities issuable upon the exercise thereof) under the any stock option plan approved by the Company’s capital or the capital Board of any of the Company’s SubsidiariesDirectors;
(iii) effect (whether in a single transaction or series of related transactions) 5. enter into any acquisition of, or any interests or assets of, any company or business (whether by merger, consolidation, amalgamation, scheme of arrangement, purchase of assets, purchase of securities, or otherwise) involving consideration of $50 million or more (or book value of $100 million or more with respect to acquisitions effected through reinsurance that permanently transfers the economic risk on the reinsured business to the assuming reinsurer, but excluding reinsurance entered into in the ordinary course of the Company Group’s business, such as excess of loss, quota share and insurance linked note transactions); provided, however, that the foregoing shall not apply to (A) any acquisition of a Wholly Owned Subsidiary by the Company or another Wholly Owned Subsidiary and (B) any acquisition in the ordinary course of the Company Group’s business involving assets invested in the Company’s consolidated general account and approved in accordance with the Company’s established policies and procedures to monitor invested assets;
(iv) directly or indirectly sell, convey, transfer, lease, pledge, grant a Security Interest in, or otherwise dispose of any of their respective assets (including Stock and Stock Equivalents) or any interest therein to any Person, or permit or suffer any other Person to acquire any interest in any of their respective assets, in each case in a single transaction or series of related transactions involving consideration (whether in cash, securities, assets or otherwise, and including Indebtedness assumed by any other Person and Indebtedness of any entity acquired by such other Person) of $50 million or more (or book value of $100 million or more with respect to dispositions effected through reinsurance that permanently transfers the economic risk on the reinsured business to the assuming reinsurer, but excluding reinsurance entered into in the ordinary course of the Company Group’s business, such as excess of loss, quota share and insurance linked note transactions) paid to or received by the Company and/or its Subsidiaries; provided, however, that the foregoing shall not apply to (A) any disposition of a Wholly Owned Subsidiary to the Company or another Wholly Owned Subsidiary, (B) any disposition in the ordinary course of the Company Group’s business involving assets invested in the Company’s consolidated general account and approved in accordance with the Company’s established policies and procedures to monitor invested assets, and (C) dispositions of receivables in the ordinary course of the Company Group’s business not to exceed $50 million (at the time of such disposition);
(v) issue new debt credit facility or incur or enter into new borrowings or Indebtedness or guarantees in respect any material amount of any borrowings or Indebtednessdebt, other than trade incurring obligations for purchases of inventory or similar debt incurred other related assets in the ordinary course of business;
(vi) increase 6. offer or decrease the authorized capital stock sell any securities of the Company, or Company other than permitted in clause (4) above;
7. expand the creation number of any new class or series members of capital stock the board of directors of the Company;
(vii) issue, grant, acquire or settle (or establish the method of settlement for, whether in the form of shares of Company Common Stock, cash or other property or a combination thereof, and whether any shares of Company Common Stock issued in respect of such settlement shall be in the form of authorized but unissued shares or shares that shall have been or may be reacquired by the Company in the open market, in private transactions or otherwise) any Stock or any Stock Equivalents of the Company or any of its Subsidiaries, including any issuances or grants by the Company pursuant to any Genworth Stock Plan or any stock plan of the Company, including authorized stock plans and equity awards;
(viii) unless otherwise required to comply with applicable Law, alter, amend, terminate or repeal, or adopt any provision inconsistent with, in each case whether directly or indirectly, or by merger, consolidation or otherwise, the Company’s Charter or the Company’s Amended and Restated By-Laws;
(ix) adopt or implement any stockholder rights plan or similar takeover defense measure;
(x) 8. declare or pay any dividend dividends or other distribution in respect of Company Common Stock (whether payable in cashredeem securities, shares of Company Common Stock or other property);
(xi) purchase, redeem or otherwise acquire or retire except for value any shares of Company Common Stock or any warrants, options or other rights to acquire Company Common Stock other than (A) the repurchase of Company Common Stock deemed to occur upon exercise of stock options or stock appreciation rights to the extent that shares of Company Common Stock represent a portion of the exercise price of the stock options or stock appreciation rights or are withheld by the Company to pay applicable withholding taxes and (B) the repurchase of Company Common Stock deemed to occur to the extent shares of Company Common Stock are withheld by the Company to pay applicable withholding taxes in connection with any grant or vesting of restricted stock, restricted stock units or similar equity-based awards;
(xii) until such time when Genworth beneficially owns less than twenty percent (20%) of the outstanding shares of Company Common Stock, change the size of the Company Board from eleven (11) directors;
(xiii) elect, appoint, hire, dismiss or remove the Company’s Chief Executive Officer;
(xiv) establish an executive committee of the Company Board (or a committee having the powers customarily delegated to an executive committee);
(xv) establish any Operational Plan in accordance with Section 5.7(d);
(xvi) dismiss or effect a change in the current independent registered public accounting firm of the Company or engage an independent registered public accounting firm for the Company that is different from the independent registered public accounting firm for Genworth;
(xvii) so long as Genworth remains on its current general ledger solution and system, change the general ledger solution and system for the Company;
(xviii) so long as Genworth remains on its current business performance management software solution, change the business performance management software solution for the Company; and
(xix) authorize or enter into any agreement to do any of the foregoing.
(b) For the avoidance of doubt, (i) nothing in this Section 8.1 shall be construed in a manner inconsistent with Section 5.8(b)(ii) and (ii) Genworth shall have dividends upon or the right, in its sole discretion, to waive any and all of the rights granted to it under this Section 8.1, by delivery of written notice to the Company in accordance with Section 10.5.
(c) For so long as Genworth beneficially owns at least twenty percent (20%) redemption of the Company’s common stock, the Company will be required to consult with Genworth with respect outstanding Series A Preferred Stock pursuant to the foregoing mattersterms of the relevant certificate of designation; howeveror (ii) any dividend or transaction relating to the Series B Preferred Stock, Genworth will no longer have consent rights with respect to such matters other than as described this Section 8.1Series D Preferred Stock or Series E Preferred Stock; or
9. enter into or modify a related-party transaction.
Appears in 1 contract
Samples: Series E Preferred Stock Purchase Agreement (Stanford Venture Capital Holdings Inc)