Board Reserved Matters. The day-to-day operations of the Target Group shall be managed by CFGI’s management team, subject to the Shareholder Reserved Matters and the following matters to be determined in the manner described below (notwithstanding any resolutions passed by the shareholders of NewCo in respect of such matters) (each, a “Board Reserved Matter”): 1. the declaration, making or payment of any dividends or distributions by any member of the Target Group other than by any member of the Target Group that is wholly-owned by another member of the Target Group other than in accordance with the terms of any approved dividend policy; 2. approve or adopt any dividend policy; 3. any change in the size or composition of the board of directors of any member of the Target Group, and the delegation of any powers of the board of directors of any member of the Target Group to a committee or any other person (other than as expressly contemplated in the Shareholders Agreement); 4. the adoption, approval or modification of the annual business plan of the Target Group or any member thereof and any material deviation therefrom; 5. approve or adopt any capital expenditure budget with an aggregate value in excess of an amount to be initially agreed by the Majority Consenting Creditors; 6. if applicable, the adoption, approval, amendment, termination or non- renewal of the compliance policy of the Target Group; 7. the incurrence or assumption (including in connection with any acquisition) of any indebtedness in excess of $20 million, other than: (a) indebtedness already permitted under the annual business plan of the Target Group or any member thereof, and (b) any drawdown made under an existing credit facility previously approved by the Board; 8. the provision of loans, guarantees, security for debts or extension of credit (other than in the ordinary course of business on normal commercial terms) to, or making any investment in, any party (other than wholly-owned members of the Target Group) exceeding $20 million other than as contemplated by the annual business plan in effect at such time; 9. the purchase or acquisition of any asset (or any interest therein), or the sale or disposal of any asset (or any interest therein), in each case, other than a transaction: (a) in the ordinary course of business; or (b) where the net asset value of the transaction is less than the then-current net asset value of the Target Group at a percentage to be initially decided by the Majority Consenting Creditors; 10. entry into, amendment, termination or non-renewal of, or waiver or acceleration of rights or obligations or granting of consent or approval under any material contract, including any material joint venture, partnership, profit sharing or similar arrangement; 11. institution, release, discharge, compromise or settlement of any material litigation, arbitration, investigative or administrative (including tax or regulatory) proceedings of or before any court, arbitral body or agency with an amount in dispute that does not exceed US$20 million; 12. the selection, appointment or dismissal of the external auditors of NewCo and the Target Group (other than, in the case of the Target Group) the external auditors then appointed on the Restructuring Effective Date, and any material amendment to the accounting and tax policies; 13. adopting the annual accounts of NewCo and the annual consolidated accounts of the Target Group; 14. the determination or modification of the compensation of the GM and of any other “C-suite level” executive (including the general manager of Copeinca); 15. the adoption or amendment of the EIP (as defined below) or any other incentive plan; 16. in the event of the occurrence of a Key Man Event (as defined below), the selection of a replacement general manager or the determination of the process by which a replacement general manager is selected; 17. all material decisions relating to a material part of the workforce; and 18. the transfer of any NewCo Equity to a Restricted Party (as defined below). Each of the foregoing Board Reserved Matters shall apply in respect of each member of the Target Group and shall require the affirmative vote of a majority of the directors of NewCo. “Key Man Event” means Mr. Francisco Xxxxxx Xxxxxxxx Xxxx and/or Xx. Xxxx Xxxxxx Tirado Xxxxxx no longer being actively involved on a full-time basis in the business and affairs of the Target because of their respective death, incapacitation, resignation, illness, retirement or termination for cause. If a Key Man Event (other than a Key Man Event resulting from death or incapacitation) occurs, the Board shall have additional governance rights on terms to be agreed in the Shareholders Agreement.
Appears in 4 contracts
