Certain Actions by the Company. Upon the exercise of any Company Warrant, the Company shall, in accordance with the provisions of the Opco LLC Agreement, exercise a corresponding Opco Warrant on the same terms on which such Opco Warrant was exercised. Upon the exercise of any Opco Warrants (other than by the Company or any of its subsidiaries), the Company shall issue to Opco, for delivery to the person exercising such Opco Warrants, a number of shares of Class B Common Stock, equal to the number of Class A Units issued upon the exercise of such Opco Warrants.
Certain Actions by the Company. The Company shall not take any of the following actions without the prior consent of the Board of Directors of the Company (including the consent of at least one of the Preferred Directors (as defined in the Restated Certificate) for subsection (c) below):
(a) incur indebtedness other than in the ordinary course of business, including without limitation, normal course trade debt;
(b) enter into any material transaction with its affiliates which is not in the ordinary course of business; or
(c) issue, after the date of the Initial Closing (as defined in the Purchase Agreement), additional shares of Common Stock (or options to purchase Common Stock) to Xxxxx Xxxxx, Xxxxxxx Xxxxxx or Xxxxx Xxxx.
Certain Actions by the Company. (a) At or prior to the Closing, the Company shall amend and restate its limited liability company agreement to read substantially as set forth in the Company LLC Agreement.
(b) By executing this Agreement, each of the Investors consents and agrees, on behalf of themselves and any of their Affiliates that hold units of the Company, to the amendment and restatement of the Company’s limited liability company agreement as contemplated herein.
Certain Actions by the Company. Upon the request of the Selling Holders, the Company shall, and shall cause its officers to, participate in customary "road shows" for purposes of assisting in the sale of Registrable Securities by the Selling Holders, including by meeting with potential investors and making presentations reasonably requested by the Selling Holders and taking such actions as reasonably required by any Underwriter participating in such sale; provided that (i) the dollar value of the Registrable Securities being offered for sale is in excess of $10 million and (ii) the Company shall not be required to participate in more than two (2) such road shows per year in connection with offerings of Registrable Securities. The Company shall bear all costs and expenses incurred in connection with the performance of its obligations under this Section 5.10.
Certain Actions by the Company. The Company shall, promptly after the date hereof, use its best efforts to cause the following to become effective immediately prior to the Merger:
5.2.1 the incorporation of a wholly-owned subsidiary of the Company within the State of Delaware ("Newco") and the merger of the Company into Newco and/or such other actions as may be necessary under applicable law to cause the Company to be reincorporated in the State of Delaware, to the extent such reincorporation may be accomplished immediately prior to the Merger under applicable law, and upon such reincorporation, the qualification of Newco to do business in the States of New York and New Jersey (and it is agreed that any representations, warranties, covenants and agreements of and references to the Company or the Surviving Corporation contained herein shall be deemed to be applicable to and to refer to
5.2.2 the amendment of the bylaws of the Company in a manner which is acceptable to eCom and which is not inconsistent with the terms and provisions of this Agreement;
5.2.3 the receipt by the Company of the consent of all of the holders of Existing Preferred Stock (the "Existing Company Preferred Holders") to the conversion of all of the outstanding shares of Existing Preferred Stock into shares of Company Common Stock (or shares of common stock of Newco) on terms and conditions acceptable to eCom, and the conversion of such Existing Preferred Stock in accordance with such terms and conditions (provided that if any of the Existing Company Preferred Holders do not consent to such conversion, the Company may terminate this Agreement, without incurring the break-up fee set forth in Section 8.3 below, unless eCom waives the covenants contained in this Section 5.2.3 with respect to such holder); and
5.2.4 the authorization and designation of additional series of Company Preferred Stock which, to the maximum extent possible, shall have the same terms as the eCom Preferred Stock (such new series of Company Preferred Stock being the Company Preferred Stock to be delivered to the holders of the eCom Preferred Stock in exchange therefor, in accordance with this Agreement).
Certain Actions by the Company. For so long as the Percentage Ownership of the Sponsor Group is at least twenty-five percent (25%), the Company shall not (and shall cause each of the Company’s subsidiaries not to), in each case, without the prior written consent of the Sponsor Group:
(a) adopt or propose any amendment, modification or restatement of or supplement to the Company’s Amended and Restated Certificate of Incorporation that would reasonably be expected to be adverse to the Sponsor Group or any of their respective Affiliates;
(b) adopt or propose any amendment, modification or restatement of or supplement to the Company’s Amended and Restated By-laws that would reasonably be expected to be adverse to the Sponsor Group or any of their respective Affiliates;
(c) commence a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or similar law or of any other case or proceeding to be adjudicated as bankrupt or insolvent, or consent to the entry of a decree or order for relief or in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it or them, or the file a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or consent to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or its subsidiaries or of any substantial part of its or their property, or make an assignment for the benefit of creditors, or admit in writing of its or their inability to pay its or their debts generally as they become due, or take any action in furtherance of any such action;
(d) change the size of the Board, except as required by Applicable Law, NYSE rules (or the rules of the principal market on which the Common Stock is then listed) or pursuant to the terms of this Agreement;
(e) agree to or consummate any Change-in-Control Transaction;
(f) agree to or consummate any acquisition, whether by purchase, contribution, merger, consolidation or otherwise, of any property, assets or equity interests for consideration with a Fair Market Value, as determined in good faith by the Board, of greater than $[•] in any single transaction or series of related transactions;
(g) terminate, replace or appoint the Chief Executive Off...
Certain Actions by the Company. In addition, except ------------------------------ as is set forth in Article 4 of the Company Disclosure Schedules notwithstanding Section 4.1 above, without the prior written consent of the Parent, which consent will not be unreasonably withheld or delayed, the Company shall not do any of the following, nor shall the Company permit its Subsidiaries to do any of the following:
1. Enter into any partnership arrangements, joint development agreements or strategic alliances;
2. Grant any severance or termination pay to any officer or employee except payments pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing to the Parent, or adopt any new severance plan;
Certain Actions by the Company. From the date of the Closing, as long as the Investor (i) holds the Note or the Warrant and (ii) maintains ownership of an aggregate amount of not less than 78,000,000 Ordinary Shares comprised of the Note Shares and/or the Warrant Shares or such Ordinary Shares into which the Note then held by the Investor is convertible and for which the Warrant held by the Investor is exercisable, the Company shall not, without prior written consent of the Investor:
(a) change the terms of the Note or the Warrant;
(b) (i) authorize or issue any security senior to or pari passu with the Note (including any security convertible into, exercisable for or exchangeable for any such security) or any security senior to the Ordinary Shares (including any security convertible into, exercisable for or exchangeable for any such security); (ii) enter into any agreement for indebtedness, including guarantees and like contingent obligations or (iii) authorize or issue any Ordinary Shares (including any security convertible into, exercisable for or exchangeable for Ordinary Shares) for an amount less than US$0.125 per Ordinary Share (or US$5 per ADS), such that the amounts of securities or obligations described in (i), (ii) and (iii) above would exceed US$10,000,000, either individually or in the aggregate;
(c) engage in any Related Party Transaction. For purposes herein, a “Related Party Transaction” means a transaction between the Company or any of its Subsidiaries and (i) any shareholder of the Company that (A) owns of record, as reflected in the Register of Members of the Company, or (B) owns beneficially, as reflected in disclosure on Schedules 13D or 13G filed with the Commission in accordance with Section 13(d) of the Exchange Act, 5% or more of the voting shares of the Company, (ii) any executive officer of the Company, (iii) any director of the Company or (iv) any affiliate of either the Company or any such shareholder, executive officer or director, in each case other than any transaction in the ordinary course of business of the Company; or
Certain Actions by the Company. The Company has not: (i) made a general assignment for the benefit of creditors; (ii) filed any voluntary petition in bankruptcy or suffered the filing of an involuntary petition by the Company's creditors; (iii) suffered the appointment of receiver to take possession of all or substantially all of the Company's assets; (iv) suffered the attachment or other judicial seizure of all or substantially all of the Company's assets; (v) admitted in writing the Company's inability to pay its debts as they become due; or (vi) made an offer of settlement, extension or composition to its creditors generally. 10 12
Certain Actions by the Company. In addition, except as is set forth in Article 4 of the Company Disclosure Schedules notwithstanding Section 4.1 above, without the prior written consent of the Parent, which consent will not be unreasonably withheld or delayed, the Company shall not do any of the following, nor shall the Company permit its Subsidiaries to do any of the following:
(a) Enter into any partnership arrangements, joint development agreements or strategic alliances;
(b) Grant any severance or termination pay to any officer or employee except payments pursuant to written agreements outstanding, or policies existing, on the date hereof and as previously disclosed in writing to the Parent, or adopt any new severance plan;
(c) Make any filings with any government authority regarding its rates or charges, standards of service, accounting matters or services it provides, except in the ordinary course of business consistent with past practices or as required by law;
(d) Declare or pay any dividends on or make any other distributions (whether in cash, stock or property) in respect of any capital stock or split, combine or reclassify any capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital stock, other than the declaration and payment of regular quarterly cash dividends on the Company Common Stock with record and payment dates consistent with past practice and at rates not in excess, in any fiscal year, of the dividends for the prior fiscal year increased at a rate consistent with past practice, and dividends payable by a Subsidiary to the Company, other than a dividend or distribution in connection with the adoption of a replacement shareholders rights plan or in connection with any redemption under the Rights Plan;
(e) Repurchase or otherwise acquire, directly or indirectly, any shares of capital stock;
(f) Issue, deliver, sell, authorize or propose the issuance, delivery or sale of, any shares of Company capital stock or any securities convertible into shares of Company capital stock, or subscriptions, rights, warrants or options to acquire any shares of Company capital stock or any securities convertible into shares of Company capital stock, or enter into other agreements or commitments of any character obligating it to issue any such shares or convertible securities, other than pursuant to the Company Plans consistent with past practice;
(g) Cause, permit or propose any amendments to its Articles of Inc...
