Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows: (a) The Company's By-laws will be amended to include the provisions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"): (i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be: (A) the Company's directors in office immediately prior to the effective time; (B) two (2) designees of Parent's chief executive officer; and (C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard. (ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board. (iii) The size of the Company Board will not be altered (other than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board. (a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board. (b) The parties agree further that for the Period: (i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies; (ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities; (iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time; (iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent; (a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and (vi) Parent will involve the management of the Company in the future management of the Parent group. (c) Following the execution of this Agreement, the Company and Parent will form an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.
Appears in 2 contracts
Samples: Share Acquisition Agreement (Franklin Resources Inc), Share Acquisition Agreement (Franklin Resources Inc)
Certain Agreements. Parent envisages that The Guarantor covenants and agrees that, as a condition to the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light acceptability of the importance of this independence, Parent Guarantee to the Trustee and the Company agree as followsHolders, it will:
(a) The Company's By-laws will preserve and maintain its existence, rights (contractual and statutory) and franchises; provided, however, that the Guarantor shall not be amended required to include preserve any right or franchise if the provisions set forth in clauses (i) -- (iii) board of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on Guarantor shall determine that the Company Board shall be:
(A) preservation thereof is no longer desirable in the Company's directors conduct of the business of the Guarantor and the loss thereof is not disadvantageous in office immediately prior any material respect to the effective time;
(B) two (2) designees of Parent's chief executive officerGuarantor or such Holders; and
(Cb) upon not consolidate with or merge with or into (whether or not such Guarantor is the departures of persons referred to in clause (Asurviving Person) by reason of death, retirement, resignation, another Person whether or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
(ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection affiliated with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the PeriodGuarantor unless:
(i) The the Person formed by or surviving any such consolidation, unless such successor entity is the Company shall be maintained as or the Guarantor, unconditionally assumes all the obligations of the Guarantor, pursuant to a separate wholly-owned Subsidiary of Parent. Subject supplemental indenture in form and substance satisfactory to the provisions of subsection (b)(ii) belowTrustee, Parent shall consult with under the Company Board with regard to any reorganization of Securities, the operations Indenture and corporate structures of the Subsidiaries of Guarantee on the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;terms set forth herein or therein; and
(ii) The global high net-worth individual businesses immediately after giving effect to such transaction, no default or Event of Default exists. Any such consolidation, merger, sale, lease or conveyance is subject to the condition that the Trustee receive an Officer's Certificate of the Company Guarantor and Parent as an Opinion of Counsel to the effect that the merger, sale, lease or conveyance, and the assumption by any successor entity, complies with the provisions of this Article and that all conditions precedent herein provided for relating to such transactions have been complied with. In case of any such consolidation, merger, sale or conveyance and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Effective Time, excluding Parent's wrap-fee business, will Guarantee endorsed upon the Securities and the due and punctual performance of all of the covenants and conditions of this Indenture to be developed and managed performed by the Company Guarantor, such successor Person shall succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as the Guarantor. Such Guarantor's Guarantee shall in consultation all respects have the same legal rank and benefit under this Indenture theretofore and thereafter issued in accordance with Parent. Parent will advance the expansion terms of this Indenture as though such Guarantee had been issued at the date of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent groupexecution hereof.
(c) Following the execution of this Agreement, the Company and Parent will form an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.
Appears in 2 contracts
Samples: Indenture (Heinz H J Co), Indenture (Heinz Hj Finance Co)
Certain Agreements. Parent envisages Adelphia, for itself and each of its Debtors, the Issuer and TWE Holdings II agree that if the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light 363 Sale occurs, then notwithstanding any provision of the importance of this independence, Parent and Adelphia Registration Rights Agreement to the Company agree as followscontrary:
(a) The Company's By-laws will be amended the Stockholder shall not have the right to include any of its Registrable Securities or any other securities of the provisions Issuer in any takedown under the Comcast Shelf Registration Statement;
(b) if Comcast Shares and Registrable Securities of the Stockholder are included in the same offering, such Comcast Shares shall have priority over such Registrable Securities, and none of such Comcast Shares shall be excluded from such registration or offering pursuant to any “cutback”, “priority” or similar provision (including, without limitation, Section 6.9 of the Adelphia Registration Rights Agreement) unless all such Registrable Securities have also been excluded;
(c) if the book-running manager of any underwritten public offering pursuant to the Comcast Registration Rights Agreement requires or recommends that Comcast Stockholders execute Comcast Lock-up Agreements in connection with such underwritten public offering, then the Stockholder shall execute and deliver a Lock-up Agreement that (i) contains the same disposition restrictions and other terms and conditions as are included in such Comcast Lock-up Agreement, provided that (A) such disposition restrictions shall not have a duration of more than 180 days after the completion of the first such offering or more than 90 days after the completion of any subsequent offering, (B) in no event shall such disposition restrictions be in effect prior to November 1, 2006 or after February 16, 2008, (C) no such Lock-up Agreement shall prohibit the filing or effectiveness of the Final Registration Statement (and the Registration Actions related thereto) or the solicitation of votes of the Adelphia Claimants with respect to the approval of the Final Distribution, (D) with respect to any distribution under section 1145 of the Bankruptcy Code, if agreed to by such book-running manager, the disposition restriction on the Stockholder may be shorter than that applicable to the Comcast Stockholders and (E) TWE Holdings II shall not avail itself of any early termination of such disposition restrictions agreed to by such book-running manager except to the extent that such book-running manager shall have agreed to an equivalent early termination of such disposition restrictions applicable to the Stockholder, (ii) names the Comcast Stockholders as intended third-party beneficiaries thereof and (iii) requires the prior written consent of the Majority Stockholders (as defined in the Comcast Registration Rights Agreement) for any amendments thereto or waivers thereof;
(d) the Stockholder shall notify TWE Holdings II (and the Issuer, if not already notified) in writing at least 15 days prior to effecting any Transfer of Registrable Securities (other than pursuant to Section 2.5, 2.7 or 8.7 of the Adelphia Registration Rights Agreement) (an “Adelphia Offering”) of the Stockholder’s intent to effect such Adelphia Offering (it being understood that such notice (each, an “Adelphia Notice”) shall describe in reasonable detail the intended size and manner of such Adelphia Offering). If (i) any public offering of Comcast Shares by a Comcast Stockholder (or associated registration) pursuant to the Comcast Registration Rights Agreement shall then be pending or any Comcast Stockholder shall determine to commence such an offering (or associated registration) upon receipt of such Adelphia Notice (each such offering described in this clause (i), a “Comcast Offering”), (ii) the Comcast Lockup Period is no longer in effect as of the date of such Adelphia Notice, (iii) such Adelphia Offering would reasonably be expected to occur before November 18, 2007 and (iv) unless the Issuer shall otherwise consent, with respect to any Comcast Offering occurring prior to the completion of the earlier of (x) the Initial Sale, (y) the occurrence of a Termination Event and (z) the first sale of Comcast Shares pursuant to a Comcast Offering, the reasonably expected net proceeds to the Comcast Stockholders from such Comcast Offering are at least $1.5 billion in the aggregate, then TWE Holdings II shall have the right (the “Deferral Right”), exercisable upon delivery of a written notice to Adelphia and the Issuer within five Business Days (such five Business Day period, the “Notice Period”) after the receipt by TWE Holdings II of such Adelphia Notice, to prohibit the Stockholder from Transferring any Registrable Securities in such Adelphia Offering or conducting marketing efforts in connection therewith until the earlier of (A) such time as such Comcast Stockholder shall have ceased to pursue such Comcast Offering in good faith (it being understood that (1) such Comcast Stockholder shall be deemed to have ceased to pursue such Comcast Offering in good faith if it shall have ceased to take material steps in furtherance thereof and (2) such Comcast Stockholder shall provide the Issuer and the Stockholder with prompt written notice if it shall cease to pursue such Comcast Offering) and (B) 45 days (plus (1) the number of days in any Deferral Period (as defined in the Comcast Registration Rights Agreement) relating to such Comcast Offering and (2) without duplication, the number of days that elapse after the Notice Period during which the Comcast Shelf Registration Statement is not effective or sales thereunder cannot be made) from the date of such notice delivered by TWE Holdings II. If TWE Holdings II does not exercise its Deferral Right with respect to an Adelphia Offering and the Stockholder has not completed such Adelphia Offering within 45 days of the end of the Notice Period relating to such Deferral Right, then the Stockholder shall again comply with this paragraph 2(d) prior to Transferring any Registrable Securities (whether pursuant to such Adelphia Offering or otherwise) or conducting any marketing efforts in connection therewith. In addition, the Stockholder shall provide an Adelphia Notice and otherwise comply with this paragraph 2(d) with respect to any Adelphia Offering (i) if the Comcast Lock-up Period terminates during the period the Stockholder is pursuing such Adelphia Offering and (ii) the Stockholder has not entered into a customary firm commitment underwriting agreement specifying the price applicable to the Registrable Securities included in such Adelphia Offering prior to the fifteenth day following the termination of the Comcast Lock-up Period. For the avoidance of doubt, in no event shall the Deferral Right be exercisable by TWE Holdings II prior to November 1, 2006 or after November 17, 2007;
(e) unless the Initial Sale or the Termination Event has already occurred or the Issuer otherwise consents, the Comcast Stockholders shall not consummate the first Comcast Offering unless the reasonably expected net proceeds to the Comcast Stockholders from such first Comcast Offering are at least $1.5 billion in the aggregate;
(f) prior to November 17, 2007, no Stockholder shall Transfer any Purchase Shares to any Person (other than the Escrow Agent) unless such Person shall be bound (in the Comcast Stockholder’s reasonable determination) by all of the obligations of the Stockholder set forth in clauses this letter agreement; provided that (i) -- such requirement shall not apply with respect to Transfers (iiiA) to Adelphia Claimants pursuant to the Remainder Plan, (B) to Permitted Assignees (but subject to paragraph 2(g) below) and (C) pursuant to an underwritten public offering, Section 4.3(b) of this subsection the Adelphia Registration Rights Agreement or Rule 144 under the Securities Act (abut in each case subject to paragraph 2(d) of Section 6.20(aabove) and (ii) notwithstanding paragraphs 2(a) and 2(b), the "6.20(A) PROVISIONS"):
(i) The Parent, as U.S Government shall have the holder of all of right to include Purchase Shares received by it pursuant to the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
SEC/DOJ Settlement in (A) the Company's directors in office immediately prior first takedown under the Comcast Shelf Registration Statement on a pro rata basis with the Comcast Stockholders (relative to the effective time;
total number of shares of Class A Common Stock proposed to be sold in such takedown by the U.S. Government, on the one hand, and the Comcast Stockholders, on the other hand), except that the Comcast Stockholders shall have priority to include in such takedown (and shall not be subject to any “cutback”, “priority” or similar provision in favor of the U.S. Government) such number of Comcast Shares as would reasonably be expected to result in the Comcast Stockholders receiving net proceeds of at least $2.0 billion from such takedown and (B) two (2) designees of Parent's chief executive officer; and
(C) upon any subsequent takedown under the departures of persons referred to Comcast Shelf Registration Statement, it being understood that the Comcast Shares included in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated such takedown shall have priority over all Purchase Shares included by the Nominating Committee U.S. Government in such takedown, and none of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent such Comcast Shares shall be entitled excluded from such takedown pursuant to vote the any to “cutback”, “priority” or similar provision unless all such Purchase Shares in its discretion in have also been excluded. No such Transfer under this regard.
(iiparagraph 2(f) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection the transferee is the U.S. Government) shall relieve Adelphia of its obligations hereunder with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the Period:
(i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard respect to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of ParentPurchase Shares; and
(vig) Parent will involve neither Adelphia nor any of its subsequent assignees may assign the management Adelphia Registration Rights Agreement or any of its rights thereunder or Transfer any Purchase Shares (or the right to receive any Purchase Shares) to a Permitted Assignee unless the applicable assignee, shall have agreed in writing to be bound by the obligations of Adelphia set forth in this letter agreement. No such assignment shall relieve Adelphia of any of its obligations and Liabilities under this letter agreement with respect to Registrable Securities that it continues to hold, but such assignment shall relieve Adelphia of any further obligation and Liability under this letter agreement arising after the date of assignment with respect to the rights or Registrable Securities so assigned if, but only if, Adelphia provides TWE Holdings II with an indemnification agreement (in form and substance reasonably satisfactory to TWE Holdings II, it being understood that the amount or nature of the Company remaining assets or liabilities of Adelphia shall not be a factor in the future management such determination) indemnifying TWE Holdings II for any breach of the Parent groupobligations and Liabilities of such assignee under this letter agreement. In addition, no Person shall be permitted to become a party to the Adelphia Registration Rights Agreement unless such Person shall have agreed in writing to be bound by the obligations of the Stockholder set forth in this letter agreement.
(c) Following the execution of this Agreement, the Company and Parent will form an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Adelphia Communications Corp), Asset Purchase Agreement (Comcast Corp)
Certain Agreements. Parent envisages that The Guarantor covenants and agrees that, as a condition to the Company will continue acceptability of its Guaranty to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent Trustee and the Company agree as followsHolders, it will:
(a) The Company's By-laws will be amended comply in all material respects with all applicable laws, rules, regulations and orders, such compliance to include the provisions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parentpaying when due all taxes, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior assessments and governmental charges imposed upon it or upon its property except to the effective time;
(B) two (2) designees of Parent's chief executive officerextent contested in good faith; and
(Cb) upon preserve and maintain its existence, rights (contractual and statutory) and franchises; provided, however, that the departures Guarantor shall not be required to preserve any right or franchise if the board of persons referred to in clause (A) by reason of death, retirement, resignation, directors or removal for cause, persons nominated by the Nominating Committee general partner of the Company Board. For each vacancy Guarantor shall determine that the Nominating Committee preservation thereof is no longer desirable in the conduct of the Company Board shall nominate three persons. The Parent shall be entitled business of the Guarantor and the loss thereof is not disadvantageous in any material respect to vote the Shares in its discretion in this regardGuarantor or such Holders.
(iic) The corporate name, bank regulatory status and location of not consolidate with or merge with or into (whether or not the principal place of business of Guarantor is the Company in New York shall surviving Person) another Person whether or not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection affiliated with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the PeriodGuarantor unless:
(i) The Company shall be maintained as the Person formed by or surviving any such consolidation or merger is organized under the laws of the United States of America or any state thereof or the District of Columbia and, unless such successor entity is the Issuer, unconditionally assumes all the obligations of the Guarantor pursuant to a separate wholly-owned Subsidiary of Parent. Subject supplemental indenture in form and substance satisfactory to the provisions Trustee, under the Securities of subsection (b)(ii) beloweach series, Parent shall consult with the Company Board with regard to any reorganization of Indenture and its Guaranty on the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;terms set forth herein or therein; and
(ii) The global high net-worth individual businesses immediately after giving effect to such transaction, no default or Event of Default with respect to the Securities of any series exists. Any such consolidation or merger is subject to the condition that the Trustee receive an Officers' Certificate of the Company Guarantor and Parent as an Opinion of Counsel to the effect that the consolidation or merger and the assumption by any successor entity, complies with the provisions of this Article and that all conditions precedent herein provided for relating to such transactions have been complied with. In case of any such consolidation or merger and upon the assumption by the successor Person, by supplemental indenture, executed and delivered to the Trustee and satisfactory in form to the Trustee, of the Effective Time, excluding Parent's wrap-fee business, will Guaranty endorsed upon the Securities of each series and the due and punctual performance of all of the covenants and conditions of this Indenture to be developed and managed performed by the Company Guarantor, such successor Person shall succeed to and be substituted for the Guarantor with the same effect as if it had been named herein as a Guarantor. The Guarantor's Guaranty shall in consultation all respects have the same legal rank and benefit under this Indenture theretofore and thereafter issued in accordance with Parent. Parent will advance the expansion terms of this Indenture as though such Guaranty had been issued at the date of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent groupexecution hereof.
(c) Following the execution of this Agreement, the Company and Parent will form an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.
Appears in 2 contracts
Samples: Indenture (Regency Centers Lp), Indenture (Regency Centers Lp)
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name The Guarantor hereby additionally represents, warrants and Company Board. In light of the importance of this independence, Parent and the Company agree covenants as follows:
(a) The Company's By-laws will be amended to include the provisions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
(ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the Period:
(i) The Company Guarantor agrees to comply with each of the covenants contained in the Facility Agreement that impose or purport to impose, through agreements with the Account Party, restrictions or obligations on the Guarantor and (ii) the Guarantor hereby agrees that Clause 33.11 of the Facility Agreement shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject applicable to this Agreement, and references therein to “Obligor” shall be deemed to be references to the provisions Guarantor for the purposes of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergiesthis Section 4.06(a);
(iib) The global high net-worth individual businesses Guarantor acknowledges that any default in the due observance or performance by the Guarantor of any covenant, condition or agreement contained herein may constitute an Event of Default under Clause 26 (Events of Default) of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securitiesFacility Agreement;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent group.
(c) Following The Guarantor has, independently and without reliance upon any Guaranteed Finance Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. The Guarantor has investigated fully the benefits and advantages which will be derived by it from execution of this Agreement, and the Board of Directors (or persons performing similar functions in case of the Guarantor which is not a corporation) of the Guarantor has decided that a direct or an indirect benefit will accrue to the Guarantor by reason of the execution of this Agreement;
(i) This Agreement is not given with actual intent to hinder, delay or defraud any Person to which the Guarantor is or will become, on or after the date hereof, indebted; and (ii) the Guarantor has received at least a reasonably equivalent value in exchange for the giving of this Agreement;
(e) The Guarantor agrees and acknowledges that the Facility Agent is acting as an agent on behalf of itself and the other Guaranteed Finance Parties pursuant to Clause 29 (Role of the Facility Agent and the Arrangers) of the Facility Agreement, and the Security Agent is acting as an agent on behalf of the Overdraft Provider pursuant to Clause 30 (Role of the Security Agent) of the Facility Agreement; and
(f) If the Guarantor agrees after the date hereof to any covenants in the Hanover Credit Agreement that are more stringent or restrictive as to the Guarantor than such limitations or covenants in this Agreement, then this Agreement will be deemed amended automatically, without any further action by the Guarantor, the Company Facility Agent or any other Person, to benefit from such covenants that are more stringent or restrictive, as the case may be, such that a breach thereof shall constitute a breach of this Agreement, regardless of any waiver or forbearance granted by the creditors under the Hanover Credit Agreement; provided that such limitations and financial covenants shall be deemed included in this Agreement for only so long as the same shall be in effect in the Hanover Credit Agreement. The Guarantor agrees to inform the Facility Agent promptly of any such amendments to the Hanover Credit Agreement and to furnish a copy of the documentation containing such covenants. The Guarantor and the Facility Agent further agree to enter into such amendments to this Agreement as reasonably requested by the Facility Agent or the Guarantor so as to conform this Agreement to the changes contemplated by the first sentence of this Section 4.06(f) (including its proviso), it being understood that the failure to effect any such amendment shall not limit the effectiveness of the first sentence of this Section 4.06(f) (including its proviso). Parent will form an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.Guaranty DC 58448
Appears in 2 contracts
Samples: Guaranty Agreement, Guaranty (Hanover Insurance Group, Inc.)
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name The Guarantor hereby additionally represents, warrants and Company Board. In light of the importance of this independence, Parent and the Company agree covenants as follows:
(a) The Company's By-laws will be amended to include the provisions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
(ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the Period:
(i) The Company Guarantor agrees to comply with each of the covenants contained in the Facility Agreement that impose or purport to impose, through agreements with the Borrower, restrictions or obligations on the Guarantor and (ii) the Guarantor hereby agrees that Clause 33.11 of the Facility Agreement shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject applicable to this Agreement, and references therein to “Obligor” shall be deemed to be references to the provisions Guarantor for the purposes of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergiesthis Section 4.06(a);
(iib) The global high net-worth individual businesses Guarantor acknowledges that any default in the due observance or performance by the Guarantor of any covenant, condition or agreement contained herein may constitute an Event of Default under Clause 26 (Events of Default) of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securitiesFacility Agreement;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent group.
(c) Following The Guarantor has, independently and without reliance upon any Guaranteed Finance Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. The Guarantor has investigated fully the benefits and advantages which will be derived by it from execution of this Agreement, and the Board of Directors (or persons performing similar functions in case of the Guarantor which is not a corporation) of the Guarantor has decided that a direct or an indirect benefit will accrue to the Guarantor by reason of the execution of this Agreement;
(i) This Agreement is not given with actual intent to hinder, delay or defraud any Person to which the Guarantor is or will become, on or after the date hereof, indebted; and (ii) the Guarantor has received at least a reasonably equivalent value in exchange for the giving of this Agreement;
(e) The Guarantor agrees and acknowledges that the Facility Agent is acting as an agent on behalf of itself and the other Guaranteed Finance Parties pursuant to Clause 29 (Role of the Facility Agent, the Company Arrangers and Parent will form the Reference Banks) of the Facility Agreement, and the Security Agent is acting as an integration committeeagent on behalf of the Overdraft Provider pursuant to Clause 30 (Role of the Security Agent) of the Facility Agreement; and
(f) If the Guarantor agrees after the date hereof to any covenants in the Hanover Credit Agreement that are more stringent or restrictive as to the Guarantor than such limitations or covenants in this Agreement, whose members then this Agreement will be jointly agreed upon but will include William Y. Yun deemed amended automatically, without any further action by the Guarantor, the Facility Agent or any other Person, to benefit from such covenants that are more stringent or restrictive, as the case may be, such that a breach thereof shall constitute a breach of this Agreement, regardless of any waiver or forbearance granted by the creditors under the Hanover Credit Agreement; provided that such limitations and Michael O.financial covenants shall be deemed included in this Agreement for only so long as the same shall be in effect in the Hanover Credit Agreement. The Guarantor agrees to inform the Facility Agent promptly of any such amendments to the Hanover Credit Agreement and to furnish a copy of the documentation containing such covenants. The Guarantor and the Facility Agent further agree to enter into such amendments to this Agreement as reasonably requested by the Facility Agent or the Guarantor so as to conform this Agreement to the changes contemplated by the first sentence of this Section 4.06(f) (including its proviso), it being understood that the failure to effect any such amendment shall not limit the effectiveness of the first sentence of this Section 4.06(f) (including its proviso).
Appears in 2 contracts
Certain Agreements. Parent envisages that the The Company will continue to function as an independent Subsidiary with its current name represents, warrants and Company Board. In light of the importance of this independence, Parent and the Company agree covenants as follows:
(a) The Company's By-laws will be amended to include the provisions set forth in clauses 10.1 Except for (i) -- (iii) of this subsection (a) of Section 6.20(a) (any securities offering registered under the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, Securities Act or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
(ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the Period:
(i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed securities offering contemplated by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equitiesSelect Advisors Commitment Letter, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly not agree to enter, enter into, or consummate any subsequent securities offering ("Future Offering") from the Chief Executive Officer period commencing with Closing Date and terminating on September 30, 1997, without first offering the Subscriber the opportunity (which shall remain open for a period of Parent. Personnel decisions and five (5) business days from the reporting structure concerning date the executives, officers and employees Subscriber receives notice thereof) to purchase up to all of Company shall be such additional securities (in the discretion of the Chief Executive Officer Subscriber) on the terms and provisions which the Company proposes to offer such additional securities to such third parties. Any proposed sale of securities on terms and conditions different from those offered to the Subscriber, as well as any subsequent proposed sale of any such additional securities by the Company, shall again be subject to the first refusal rights of the Subscriber and shall require compliance by the Company within with the framework procedures described in this Agreement. The Company further covenants and agrees to provide the Subscriber with prompt notice (in any event not later than two (2) business days after the fact) of an overall budget and within a context jointly developed by Parent the date of closing and the Company. In furtherance substantive terms and provisions of any such offering with any third party which was the subject of the foregoing, the policies and procedures applicable to the executives, officers and employees right of first offer described in this Section 10.
10.2 Should the Company consummate any Future Offering providing for the registration and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment resale of the Company's Chief Executive Officer shall not be modified without securities prior to the prior approval of Parent. Any vacancy in the office of Chief Executive Officer effectiveness of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent group.
(c) Following the execution of this AgreementRegistration Statement, the Company shall so notify the Subscriber, whereupon the Subscriber shall have the right, exercisable upon 10 days' written notice at any time prior to the effectiveness of the Registration Statement, to require the Company to redeem the Debentures and Parent will form an integration committeethe 6% Convertible Debentures issued pursuant to the Prior Subscription Agreement for a price equal to 120% of the then outstanding principal amount plus accrued interest, whose members will such redemption to be jointly agreed upon but will include William Y. Yun and Michael O.effected within five business days of such notice.
Appears in 1 contract
Samples: Subscription Agreement (Computerized Thermal Imaging Inc)
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will be amended to include Borrower agrees, for the provisions set forth in clauses (i) -- (iii) benefit of this subsection (a) of Section 6.20(a) the Revolving Credit Lenders only, that, until the first date (the "6.20(A“Additional Conditions End Date”) PROVISIONS"):the Borrower shall have delivered the financial statements required by Section 5.01(a) or (b) and the corresponding Compliance Certificate required by Section 5.01(c) demonstrating that the Consolidated Net Leverage Ratio shall have been less than 7.00 to 1.00 at the end of any fiscal quarter ending after the Amendment No. 8 Effective Date, without the consent of the Required Revolving Lenders, the Revolving Credit Lenders shall not be required to fund a Revolving Loan or Swingline Loan under the Revolving Credit Commitments if, at the time of the making of such Loan, either of the following shall be true:
(i) The Parent, as the holder There shall then be outstanding Indebtedness of all Foreign Restricted Subsidiaries and Permitted Subsidiary Preferred Stock under clause (14) of the outstanding Shares, shall elect directors definition of “Permitted Indebtedness” in Section 1.01 of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors Amended Credit Agreement in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to an aggregate principal amount and liquidation preference, respectively, in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee excess of the Company Board. For each vacancy the Nominating Committee greater of (i) $225,000,000 and (ii) 10% of the Company Board shall nominate three persons. The Parent shall be entitled Consolidated EBITDA of the Borrower for the most recently ended period of four fiscal quarters for which financial statements have been delivered pursuant to vote Section 5.01(a) or (b) of the Shares in its discretion in this regard.Amended Credit Agreement; or
(ii) The corporate name, bank regulatory status and location Borrower shall have made any Restricted Payment after the Amendment No. 8 Effective Date pursuant to paragraph (7) of Section 6.02 of the principal place Amended Credit Agreement at a time when, after giving pro forma effect to such Restricted Payment, the aggregate Unrestricted Cash of business all Loan Parties and their Restricted Subsidiaries, as the same would be reflected on a consolidated balance sheet in accordance with GAAP as of the Company in New York shall not date of such Restricted Payment, would be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other less than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board$400,000,000.
(b) The parties agree further that In connection with any request for a Revolving Credit Borrowing or Swingline Loan under the Period:
(i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject Revolving Credit Commitments made prior to the provisions of subsection (b)(ii) belowAdditional Conditions End Date, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, Borrower will be developed and managed by the Company certify in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly writing to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be Agent that such Borrowing or Loan is then being requested in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent compliance with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent groupthis Section 7.
(c) Following the execution of this Agreement, the Company and Parent will form an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.
Appears in 1 contract
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws Each party agrees that Xxxxxx X. Xxxxx will be amended to include appointed the provisions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee officer of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
(ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of hold such office for as long as he is employed by the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The Company agrees that, unless on an arms-length basis, no affiliated transaction between the Company and Apollo Management, L.P. ("Apollo") or any affiliate of Apollo which is material to the Company or which, combined with all other affiliated transactions between the Company and Apollo or any affiliate of Apollo would be material to the Company, will be undertaken without the consent of the chief executive officer of the Company. Notwithstanding the foregoing, the parties agree further that for following shall be specifically excluded from the Period:
foregoing limitation on Affiliate transactions: (i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject all amounts payable to Apollo pursuant to the terms and provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization that certain Management Agreement of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of even date herewith between the Company and Parent Apollo (the "Management Agreement") (as it may be extended); provided, that (x) -------- the fees set forth in such Management Agreement may not be increased unless approved in accordance with the first sentence of this Paragraph 15(b) and (y) the Effective Time, excluding Parent's wrap-$500,000 management fee business, will shall not be developed and managed by the Company in consultation with Parent. Parent will advance the expansion deducted for purposes of the global institutional separate account businesses calculating net income of the Company for a full range purposes of growth equitiescomputing awards under any bonus or stock option plans of the Company, fixed income and real estate securities;
(ii) customary board fees payable to members of the Board of Directors designated by Coyote; (iii) The Chief Executive Officer of any expense reimbursements; (iv) the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of Registration Rights Agreement between the Company and Coyote, dated as of even date herewith; (v) indemnification rights in favor of Coyote or its Subsidiaries on a functional basis shall be consistent with the analogous policies Affiliates; and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent groupsecurities issued to Coyote as to which preemptive rights pursuant to Section 16 hereof are available.
(c) Following The parties agree that with respect to the execution right of this Agreementeach of the Management Shareholders to be an "Offeree" for purposes of Paragraphs 2 through 6, as well as the Company rights set forth in Paragraphs 11 and Parent will form 16, any notice required to be provided pursuant to such Paragraphs by any party hereto to any Management Shareholder who is no longer an integration committeeemployee of Pacer, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.sufficient as to any such Management Shareholder if such notice is delivered to Pacer International, Inc., 0000 Xx. Xxxxxx Xxxx., Xxxxx 000, Xxxxxxxxx, XX 00000, Attention: Xxxxxx X.
Appears in 1 contract
Certain Agreements. Parent envisages Without the prior written consent of Lender, Borrower shall not modify or terminate (i) any of the ML&P Agreements, (ii) any of the Marketing Agreements, (iii) the Ground Lease, (iv) the ER Purchase Agreement, (v) the Rxxx-Xxxxxxx Consent Agreement, (vi) the ML&P Consent Agreement, (vii) any of the Development Documents, or (viii) the Condominium Documents. Borrower shall timely observe and perform all of its obligations under the foregoing agreements. Promptly after receipt thereof, Borrower shall furnish Lender with a copy of any material notice received or delivered by Borrower under any of the foregoing agreements, including, without limitation, any notice of default. The execution of a Contract of Sale for an individual Unit to be purchased by Exclusive Resorts under the ER Purchase Agreement shall not be deemed such a modification or termination as contemplated under this Section 16.1(r); provided that the Company will continue to function purchase price for such Unit is the same as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will be amended to include the provisions set forth in clauses the ER Purchase Agreement. Notwithstanding anything to the contrary in this Agreement, Lender acknowledges that (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(Ax) the Company's directors in office immediately Borrower and Exclusive Resorts have the right to modify the ER Purchase Agreement and individual purchase agreements entered into pursuant thereto prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee initial execution of the Company Board. For each vacancy individual purchase agreements without Lender consent provided that such changes are not inconsistent with the Nominating Committee of First Amendment to the Company Board shall nominate three persons. The Parent shall be entitled to vote ER Purchase Agreement between the Shares in its discretion in parties dated June __, 2006, that the purchase prices identified therein are not modified and further provided that this regard.
(ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York section shall not be changed deemed to waive Lender’s consent rights to any amendment negotiated after the individual agreements are signed, and (y) Borrower may make modifications or amendments to the aforementioned agreements without the prior approval Lender consent provided that such amendments or modifications will solely affect portions of the Company Board.
(iii) The size of Property that are to be released by Lender pursuant to this Agreement from and after the Company Board will not be altered (other than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the Period:
(i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration effective date of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent grouprelease.
(c) Following the execution of this Agreement, the Company and Parent will form an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.
Appears in 1 contract
Samples: Construction Loan Agreement (Maui Land & Pineapple Co Inc)
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will be amended HSB shall maintain in effect for three years from the Merger Effective Date the current directors’ and officers’ liability insurance policy maintained by MBL or provide a policy providing comparable coverage and amounts on terms and conditions no less favorable for the officers and directors currently covered by MBL’s existing policy with respect to include the provisions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately matters occurring prior to the effective time;
(B) two (2) designees Closing Date; provided however, that in no event shall HSB be obligated to expend, to maintain or provide insurance coverage pursuant to this Section 5.05(a), an amount in aggregate in excess of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee 150% of the Company Board. For each vacancy the Nominating Committee amount of annual premium paid by MBL as of the Company Board shall nominate three persons. The Parent shall be entitled to vote date hereof for such insurance (“Maximum Insurance Amount”); provided, further; that if the Shares in its discretion in this regard.
(ii) The corporate name, bank regulatory status and location aggregate amount of the principal place of business of annual premiums necessary to maintain or procure such insurance coverage exceeds the Company in New York Maximum Insurance Amount, HSB shall not be changed without obtain the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than most advantageous coverage obtainable for an appropriate premium equal to the extent necessary in Maximum Insurance Amount. In connection with the appointment foregoing, MBL agrees to provide such insurer or substitute insurer with such representations as such insurer may request with respect to the reporting of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Boardany prior claims.
(b) The parties For a period of six years from the Merger Effective Date, HSB and HSB MHC agree further that for to indemnify, defend and hold harmless each present and former director and officer of MBL and the Period:
(i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the MBL Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent determined as of the Effective TimeClosing Date (the “Indemnified Parties”) against all losses, excluding Parent's wrap-fee businessclaims, will be developed damages, costs, expenses (including reasonable attorneys’ fees and managed by the Company expenses), liabilities, judgments or amounts paid in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
settlement (iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies approval of HSB and procedures of Parent in existence from time to time;
(iv) The salaryHSB MHC, benefits and terms of employment of the Company's Chief Executive Officer which approval shall not be modified without unreasonably withheld or delayed) or in connection with any claim, action, suit, proceeding or investigation arising out of matters existing or occurring at or prior to the Merger Effective Date (a “Claim”) in which an Indemnified Party is, or is threatened to be made, a party or a witness based in whole or in part on, or arising in whole or in part out of, the fact that such person is or was a director or officer of MBL, regardless of whether such Claim is asserted or claimed prior approval to, at or after the Closing Date, to the fullest extent to which directors and officers of ParentMBL are entitled under applicable law, MBL’s articles and bylaws, (and HSB shall pay expenses in advance of the final disposition of any such action or proceeding to each Indemnified Party to the extent permissible to an Illinois savings bank, or MBL’s articles and bylaws; provided, that the person to whom expenses are advanced provides an undertaking to repay such expenses if it is ultimately determined that such person is not entitled to indemnification). Any vacancy All rights to indemnification in respect of a Claim asserted or made within the period described in the office preceding sentence shall continue until the final disposition of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent groupClaim.
(c) Following Any Indemnified Party wishing to claim indemnification under Section 5.05(b), upon learning of any Claim, shall promptly notify HSB, but the execution failure to so notify shall not relieve HSB of any liability it may have to such Indemnified Party except to the extent that such failure materially prejudices HSB. In the event of any Claim, (i) HSB shall have the right to assume the defense thereof (with counsel reasonably satisfactory to the Indemnified Party) and shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that, if HSB elects not to assume such defense or counsel for the Indemnified Parties advises that there are issues which raise conflicts of interest between HSB and the Indemnified Parties, the Indemnified Parties may retain counsel satisfactory to them, and HSB shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received, provided further that HSB shall in all cases be obligated pursuant to this paragraph to pay for only one firm of counsel for all Indemnified Parties, (ii) the Indemnified Parties will cooperate in the defense of any such Claim and (iii) HSB shall not be liable for any settlement effected without its prior written consent (which consent shall not unreasonably be withheld or delayed).
(d) In the event HSB or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not continue or survive such consolidation or merger, or (ii) liquidates, dissolves, transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of HSB assume the obligations set forth in this Section 5.05.
(e) The provisions of this AgreementSection 5.05 are intended to be for the benefit of, the Company and Parent will form an integration committeeshall be enforceable by, whose members will be jointly agreed upon but will include William Y. Yun each Indemnified Party and Michael O.his or her heirs and personal representatives.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Harvard Illinois Bancorp, Inc.)
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will be amended Borrower, the Administrative Agent and the Lenders acknowledge and agree that, during the Amendment Period, the Lenders shall make Extensions of Credit only to include the provisions set forth in clauses extent that such Extensions of Credit do not exceed the lesser of (i) -- the Borrowing Base or (iiiii) $45,000,000.
(1) The Borrower hereby acknowledges and agrees that, during the Amendment Period, the Borrower shall not, and shall not permit any of its Subsidiaries to, make any Restricted Payments on any class of the Capital Stock of the Borrower (other than as permitted under subsections 7.7(a), (b) and (c) of this subsection the Credit Agreement) or make any optional payment or prepayment or redemption, defeasance or purchase of any Senior Subordinated Notes or any other Subordinated Indebtedness (if any) of the Borrower. 2
(2) The Borrower hereby acknowledges and agrees that, during the Amendment Period, the Borrower shall not, and shall not permit any of its Subsidiaries to, make any Permitted Acquisitions.
(3) The Borrower hereby agrees to keep the Administrative Agent and the Lenders informed of the progress of the status of the Borrower's discussions concerning entering into an alternative credit facility that will replace the Credit Agreement, including, without limitation, prompt notice of the receipt and execution of any commitment letter, the completion by the relevant lender of its due diligence and collateral audit review, and the setting of any closing date, or, as the case may be, the decision by the Borrower or any new lender not to pursue such alternative credit facility.
(4) Failure to comply with the agreement contained in paragraph (a) of this Section 6.20(a3 shall constitute an Event of Default under Section 10(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible Credit Agreement and failure to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
(ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection comply with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
agreements contained in paragraphs (b) The parties agree further that for the Period:
(i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent group.
(c) Following the execution of this Section 3 shall constitute an Event of Default under Section 10(c) of the Credit Agreement, the Company and Parent will form an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O..
Appears in 1 contract
Samples: Credit Agreement (Twinlab Corp)
Certain Agreements. Parent envisages Without the prior written consent of the Lenders, Borrower shall not modify or terminate (i) any of the ML&P Agreements, (ii) any of the Marketing Agreements, (iii) the Ground Lease, (iv) the ER Purchase Agreement, (v) the Xxxx-Xxxxxxx Consent Agreement, (vi) the ML&P Consent Agreement, (vii) any of the Development Documents, or (viii) the Condominium Documents. Borrower shall timely observe and perform all of its obligations under the foregoing agreements. Promptly after receipt thereof, Borrower shall furnish the Agent with a copy of any material notice received or delivered by Borrower under any of the foregoing agreements, including, without limitation, any notice of default. The execution of a Contract of Sale for an individual Unit to be purchased by Exclusive Resorts under the ER Purchase Agreement shall not be deemed such a modification or termination as contemplated under this Section 15.1(p); provided that the Company will continue to function purchase price for such Unit is the same as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will be amended to include the provisions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the CompanyER Purchase Agreement. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior Notwithstanding anything to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to contrary in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
(ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the Period:
(i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent group.
(c) Following the execution of this Agreement, the Company Agent and Parent the Lenders acknowledge that (x) the Borrower and Exclusive Resorts have the right to modify the ER Purchase Agreement and individual purchase agreements entered into pursuant thereto prior to the initial execution of the individual purchase agreements without the Lenders’ consent provided that such changes are not inconsistent with the First Amendment to the ER Purchase Agreement between the parties dated June 28, 2006, that the purchase prices identified therein are not modified and further provided that this Section shall not be deemed to waive the Lenders’ consent rights to any amendment negotiated after the individual agreements are signed, and (y) Borrower may make modifications or amendments to the aforementioned agreements without the Lenders’ consent provided that such amendments or modifications will form an integration committee, whose members will solely affect portions of the Property that are to be jointly agreed upon but will include William Y. Yun released by the Agent pursuant to this Agreement from and Michael O.after the effective date of such release.
Appears in 1 contract
Samples: Construction Loan Agreement (Maui Land & Pineapple Co Inc)
Certain Agreements. Parent envisages (a) From the date hereof and at all times thereafter, the Borrowers agree that the Company will continue reports in Sections 6(a) and (b) of the Schedule to function the Credit Agreement shall be provided within the time periods set forth in such Section, regardless of whether such reports contain material non-public information. The Borrowers shall not refute or otherwise claim any defense to providing a Compliance Certificate within 30 days of the end of each month and shall not redact any information from such Compliance Certificate.
(b) From the date hereof and at all times thereafter, the Borrowers agree that the Amortization Right shall be exercisable by Grace Bay upon receiving knowledge that the Minimum Revenues test for the applicable fiscal quarter has not been met, regardless of whether a Compliance Certificate or any other report providing information regarding Minimum Revenues for such fiscal quarter has been delivered to Grace Bay or any other Person. For the avoidance of doubt, subject to the terms, conditions, modifications and amendments set forth in this Agreement and any documents or instruments executed in connection herewith, Grace Bay, subject to the provisions of Section 3(c), has agreed to forbear, during the Forbearance Period, from exercising its rights and remedies under the Credit Agreement and other Loan Documents or applicable law in respect of or arising out of the its Amortization Right with respect to the Missed December Revenues Threshold and the Missed Forbearance Period Minimum Revenues Test.
(c) From the date hereof and at all times thereafter, the Borrowers shall deliver to Grace Bay: (i) as soon as available, but no later than thirty (30) days after the last day of each month, a consolidated balance sheet and income statement prepared by the Borrowers covering the Borrowers’ and their Subsidiaries’ consolidated operations for such month certified by the chief financial officer of Comverge in form satisfactory to Grace Bay; (ii) as soon as available, but no later than forty-five (45) days after the last day of each fiscal quarter, a consolidated balance sheet and income statement prepared by the Issuers covering the Issuers’ and their Subsidiaries’ consolidated operations for such fiscal quarter certified by the chief financial officer of Comverge and in form satisfactory to Grace Bay; (iii) as soon as available, but no later than ninety (90) days after the last day of each Issuer’s fiscal year, audited consolidated financial statements of Comverge prepared under GAAP, consistently applied, together with an unqualified opinion (except for the opinion delivered in connection with the financial statements for the 2011 fiscal year, which opinion may be qualified) on the financial statements from an independent Subsidiary certified public accounting firm acceptable to Grace Bay in its reasonable discretion (it being acknowledged and agreed that PricewaterhouseCoopers or any other nationally recognized accounting firm is acceptable to Grace Bay); (iv) to the extent not already delivered to Grace Bay, (a) copies of all notices of default delivered to or received from Senior Lender within two days of the receipt or delivery thereof, (b) amendments, restatements, or other modifications of the Senior Debt Documents or any other material agreements entered into between any Borrower or guarantor and Senior Lender in connection with the Senior Debt Documents on the same day as such amendment, restatement or modification is entered into, and (c) copies of all financial reporting and borrowing base certificates delivered to Senior Lender, on the same day as delivered to Senior Lender (iv) in the event that any Borrower becomes subject to the reporting requirements under the Securities Exchange Act of 1934 (as in effect from time to time) within five (5) days of filing, all reports on Form 10-K, 10-Q and 8-K filed with the United States Securities and Exchange Commission (and any successor thereto) or a link thereto on such Borrower’s or another website on the Internet; (vi) a prompt report of any legal actions pending or threatened against any Borrower or any of its current name Subsidiaries which, if adversely determined, could reasonably be expected to cause a Material Adverse Change; (vii) prompt notice of an event that materially and Company Board. In adversely affects the value of the intellectual property owned or licensed by any Borrower; and (viii) budgets, sales projections, operating plans and other financial information reasonably requested by Grace Bay within the time period provided at the time of such request (provided such time period shall be reasonable in light of the importance of this independence, Parent and the Company agree as follows:information requested).
(ad) The Company's By-laws will be amended to include From the provisions set forth in clauses date hereof and at all times thereafter, the Borrowers shall deliver on every other Wednesday (or if Wednesday is not a Business Day, on the next succeeding Business Day) (i) -- (iii) of this subsection (a) of Section 6.20(a) (a rolling 13 week cash flow, reflecting actual results from the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible prior week period compared to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior preceding rolling 13 week cash flow delivered to the effective time;
Grace Bay and (B) any annual forecast delivered pursuant to Section 5(c)(viii) of this Agreement and (ii) the projected results for the subsequent 13 week period, together with management’s discussion of any variance from the prior cash flow or any annual forecast. A breach (which shall continue to exist for a period of (a) five (5) days with respect to Sections 5(a), 5(b) and 5(c) of this Agreement and (b) two (2) designees of Parent's chief executive officer; and
(CBusiness Days with respect to Section 5(d) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
(ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the Period:
(i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent group.
(c) Following the execution of this Agreement, after the Company and Parent will form occurrence of such breach) by any Borrower of any of the foregoing provisions of this Section 5 shall constitute an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.Event of Default under the Credit Agreement.
Appears in 1 contract
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws Guarantor hereby agrees that it will be amended to include the provisions set forth not make any further payments of any kind on behalf of any borrower in clauses respect of a Financed Loan (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parentincluding, as the holder of all of the outstanding Shareswithout limitation, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior any payments to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of deathSecured Party, retirement, resignation, or removal for cause, persons nominated not contemplated by the Nominating Committee Basic Documents, which would have the effect of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall causing Financed Loans which would otherwise constitute Defaulted Loans not to be entitled to vote the Shares in its discretion in this regard.
(ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive OfficerDefaulted Loans), and that any such payments in lieu of making Specified Guaranteed Payments would constitute a breach of the terms of the Guarantee Agreement and an Event of Default under the Indenture and Credit Agreement. Without limiting the generality of existing provisions of the Company's By-Laws regarding Basic Documents, the removal of directors without cause will Guarantor agrees not be amended or altered without to take any action to attempt to change the approval of a majority Program Guidelines (as in effect as of the Company Board.
(a) Provisions will date hereof), or to direct or attempt to direct the Servicer to take action under the existing Program Guidelines, in order to cause Financed Loans that otherwise would constitute Defaulted Loans not to be modified or removed from for the Company's By-laws without purpose of circumventing the approval import of a majority provisions of the Company Boardpreceding sentence of this Section 3(a).
(b) The parties agree further In the event (and only in the event) that for each Senior Creditor shall have executed and delivered this Agreement (and that the Period:
other conditions to effectiveness set forth in Section 7 of this Agreement shall have been satisfied), the Secured Party hereby waives (i) The Company shall be maintained any breach of the Guarantee Agreement or the Indenture and Credit Agreement caused by the Guarantor making any Loan Payments prior to the date of this Agreement (including any failure to make any Specified Guaranteed Payments as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(iiresult thereof) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses any Event of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation Default that may have arisen or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized resulted under the Delaware General Corporation Law Indenture and (b) Credit Agreement as a result of such breach or the Chief Executive Officer failure of the Company will be a member any person to take any action in respect of office such Event of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent groupDefault.
(c) Following Each Senior Creditor party hereto agrees that it will not, nor will it direct the execution Secured Party to, and the Senior Creditors party hereto, collectively constituting the Majority Priority Class Creditors, hereby direct the Secured Party not to, take any action, seek any remedies or declare any default or Event of Default with respect to (i) any breach of the Guarantee Agreement or the Indenture and Credit Agreement caused by the Guarantor making any Loan Payments prior to the date of this Agreement (including any failure to make any Specified Guaranteed Payments as a result thereof) and (ii) any Event of Default that may have arisen or resulted under the Indenture and Credit Agreement as a result of such breach or the failure of any person to take any action in respect of such Event of Default. Notwithstanding any provision of the Basic Documents to the contrary, each Senior Creditor party hereto agrees that it shall not transfer any Senior Notes unless the transferee of such Senior Notes agrees in writing with the Guarantor to be bound by such Senior Creditor's covenants and obligations under this Section 3(c).
(d) The Guarantor hereby agrees to pay, within three Business Days following the date on which the Senior Creditors collectively constituting the Majority Priority Class Creditors shall have executed and delivered to the Indenture Trustee (or its counsel) duly executed counterparts hereof (the “Payment Effective Date”), a sum of $40,000,000 in immediately available funds to the account of the Secured Party identified in Annex I to this Letter Agreement. Such payment shall be considered a Guaranteed Payment made pursuant to Section 1(a)(vi) of the Guarantee Agreement and shall be applied to make a mandatory prepayment of the Senior Credit in accordance with Sections 2.07(c) and (d) of the Indenture and Credit Agreement.
(e) Each Senior Creditor party hereto hereby consents to the actions of the Secured Party under Section 3(b) of this Agreement, the Company and Parent will form an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O..
Appears in 1 contract
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will If any Tax Indemnitee shall realize a tax benefit with respect to Taxes paid or indemnified against by the Borrower pursuant to this Article XIII (whether by way of deduction, credit, allocation or apportionment of income or otherwise) except to the extent previously taken into account in computing the indemnity or other payment for such Taxes, such Tax Indemnitee shall pay to the Borrower an amount that, after subtraction of any further Tax savings such Tax Indemnitee realizes as a result of the payment thereof, is equal to the amount of such Tax benefit; provided that (x) no Default or Event of Default has occurred and is continuing, (y) any subsequent loss of any Tax benefit for which a payment has been made to the Borrower hereunder (or which was taken into account in computing the amount of the Borrower’s indemnity hereunder) shall be amended treated as an indemnifiable Tax hereunder without regard to include the provisions exclusions set forth in clauses Section 13.2 and (iz) -- such Tax Indemnitee shall not be obligated to make any payment pursuant to this sentence to the extent that the amount of such payment would exceed (iii1) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder aggregate amount of all of prior payments by the outstanding SharesBorrower to such Tax Indemnitee pursuant to this Article XIII, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior to the effective time;
(B) two less (2) designees the aggregate amount of Parent's chief executive officer; and
(C) upon all prior payments by such Tax Indemnitee to the departures of persons referred Borrower pursuant to this Article XIII. Each Tax Indemnitee shall use reasonable endeavors in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated filing its Tax returns and in dealing with taxing authorities to seek and claim each such identifiable Tax benefit and Tax savings and to minimize the Taxes indemnifiable by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent Borrower hereunder; provided, however, that no Tax Indemnitee shall be entitled to vote the Shares restricted in its discretion right to make available Tax elections and otherwise arrange its Tax affairs as it, in this regard.
(ii) The corporate nameits sole discretion, bank regulatory status deems appropriate and location of the principal place of business of the Company in New York no Tax Indemnitee shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than obligated to re-arrange its Tax affairs or to disclose any information regarding its Tax affairs or computations to the extent necessary Borrower or any other Person. Any amount payable by any Tax Indemnitee pursuant to this Section 13.3(a) with respect to any saving in connection with Taxes shall be paid as soon as reasonably practicable after such Tax Indemnitee realizes the appointment identifiable Tax benefit (including making any estimated Tax payment reflecting (or that would reflect but for the use of deductions or credits attributable to activities unrelated to the two transactions contemplated by the Operative Documents) such identifiable Tax benefit or, if an Event of Default is then continuing, within 45 Business Days after the date such Event of Default ceases to be continuing (2) designees of Parent's Chief Executive Officerassuming that such identifiable Tax benefit has been realized by such Tax Indemnitee), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that Borrower shall pay any Tax for which it is liable pursuant to this Article XIII directly to the Period:
(i) The Company appropriate taxing authority, if allowable, on or before the due date for such Tax or, if not so allowable, directly to the Tax Indemnitee. Any indemnity payable directly to any Tax Indemnitee pursuant to this Article XIII shall be maintained as paid to such Tax Indemnitee within 10 Business days after receipt of a separate wholly-owned Subsidiary written demand therefor from such Tax Indemnitee accompanied by a written statement describing in reasonable detail the Taxes that are the subject of Parent. Subject such indemnity and the computation of the amount so payable (which written statement shall be subject to verification in accordance with the provisions of subsection Section 13.3(c)), but not prior to the later of (b)(iix) below, Parent shall consult with two Business Days prior to the Company Board with regard to any reorganization of due date for the operations and corporate structures of the Subsidiaries of the Company and/or the integration payment of such operations and corporate structures Taxes or (y) in the case of amounts which are being contested in accordance with Parent's businesses and Subsidiaries that Parent may wish Section 13.3(c), the time such contest (including all appeals, if any) is finally resolved. If requested by a Tax Indemnitee in writing, the Borrower shall furnish to effect following such Tax Indemnitee the Effective Time, with the goal original or a certified copy of achieving maximum efficiencies and synergies;
a receipt (ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly if any is reasonably available to the Chief Executive Officer Borrower) or such other evidence of Parent. Personnel decisions payment as is reasonably acceptable to such Tax Indemnitee and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable reasonably available to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent groupBorrower.
(c) Following If written claim is made against any Tax Indemnitee or if any proceeding is commenced against any Tax Indemnitee (by a written notice of such proceeding) for any Tax for which the execution Borrower is obligated pursuant to this Article XIII, such Tax Indemnitee shall notify the Borrower in writing promptly and shall not take any action with respect to such claim or Tax without the consent of the Borrower for 30 days after the receipt of such notice by the Borrower, except in the case of any such claim or proceeding, if action shall be required by law or regulation to be taken prior to the end of such 30-day period. If requested by the Borrower in writing within 30 days after the receipt of such notice by the Borrower or such shorter period as is specified above, such Tax Indemnitee shall in good faith diligently contest through appropriate administrative and judicial proceedings (including pursuing all judicial appeals, but not to the United States Supreme Court) in the name of such Tax Indemnitee (or, if requested by the Borrower and permitted by applicable law, and if such contest does not involve net income Taxes or Taxes that are not indemnified by the Borrower hereunder, permit the Borrower to contest in the name of the Borrower or such Tax Indemnitee, unless the Tax Indemnitee determines that permitting the Borrower to control the contest could have a material adverse effect on such Tax Indemnitee), the validity, applicability and amount of such Tax by (x) resisting payment thereof, (y) not paying the same except under protest, if protest be necessary or proper, or (z) if payment be made, seeking a refund thereof in appropriate administrative and judicial proceedings; provided that no such contest shall be commenced or continued unless (A) the Borrower shall have agreed in writing to indemnify such Tax Indemnitee for, and pay on a current basis, all reasonable out-of-pocket costs and expenses which such Tax Indemnitee may incur in connection with contesting such claim, including, without limitation, all reasonable legal, accountants’ and investigatory fees and disbursements, (B) if such contest is to be initiated by the payment of, and the claiming of a refund for, such Tax by such Tax Indemnitee, then the Borrower shall provide such Tax Indemnitee (on an interest-free basis) with the amount of such payment (including interest, penalties and additions to Tax with respect thereto) and shall agree to (and shall on demand) indemnify such Tax Indemnitee against any adverse Tax consequences to such Tax Indemnitee resulting from such interest-free loan, (C) such Tax Indemnitee shall have reasonably determined that the action to be taken will not result in the risk of imposition of criminal penalties or any material risk of forfeiture, sale or loss of, or the creation of any Security Interest (other than a Permitted Encumbrance) on any Collateral, (D) no Default or Event of Default shall have occurred and be continuing, (E) the amount of the potential indemnity (together with the amount of all logically related claims that have been or could be raised in any audit involving such Tax Indemnitee for which the Borrower may be liable to pay an indemnity under this Article XIII) exceeds $25,000.00, (F) the Borrower shall have acknowledged its liability under this Article XIII for such Taxes to the extent such contest is not successful provided that the Borrower will not be bound by its acknowledgment of liability if the contest is resolved with a written judicial decision on an articulated basis that clearly and unambiguously demonstrates that the Borrower has no liability under this Article XIII with respect to such Tax, (G) prior to the Borrower commencing any judicial action on behalf of any Tax Indemnitee, the Borrower shall have provided to such Tax Indemnitee at the Borrower’s expense an opinion of independent Tax counsel selected by the Borrower and reasonably acceptable to the Tax Indemnitee that a reasonable basis exists to contest such claim or, in the case of any appeal of an adverse court decision, to the effect that it is more likely than not such appeal will be successful and (H) if the contested Tax is of a continuing nature and the Tax Indemnitee’s liability for such Tax shall have been determined in a manner adverse to the Tax Indemnitee by a court after a contest conducted pursuant to this Section 13.3(c), there shall have been a change in applicable law since the date of the previous judicial decision and the Tax Indemnitee shall have received at the Borrower’s expense, an opinion of independent Tax counsel selected by the Borrower and reasonably acceptable to the Tax Indemnitee that as a result of such change in applicable law the contest is more likely than not to be successful. The party in control of the contest shall consider in good faith the reasonable requests of the other party, including the request to participate in the contest. The Tax Indemnitee shall not be required by this Section 13.3(c) or any other provision in the Operative Documents (unless required by applicable law or necessary in order to pursue the contest) to disclose to the Borrower or any other Person such Tax Indemnitee’s tax returns, books or records, or any other document or information that such Tax Indemnitee in its sole opinion considers to be confidential. If any Tax Indemnitee shall obtain a refund (the amount of such refund to be determined in the good faith discretion of such Tax Indemnitee) (including a credit or other offset against liability for Tax) of all or any part of any Tax paid by the Borrower or for which the Borrower shall have reimbursed such Tax Indemnitee, such Tax Indemnitee shall pay the Borrower an amount which, after subtraction of any further savings of Taxes actually realized by such Tax Indemnitee as a result of such payment, shall be equal to the amount of such refund, including any interest actually received by or credited to such Tax Indemnitee on such refund attributable to such Tax that is properly attributable to the period subsequent to such payment or reimbursement by the Borrower, less any Taxes payable by such Tax Indemnitee as a result of the receipt of such refund and/or interest; provided that no Default or Event of Default shall have occurred and be continuing and that such amount (other than the portion thereof representing interest on such refund) shall not exceed the amount paid or advanced by the Borrower to or on behalf of the Tax Indemnitee with respect to such refunded Tax. If any Tax Indemnitee is required to repay to any taxing authority all or any part of a refund with respect to which such Tax Indemnitee shall have made a payment to the Borrower pursuant to this Section 13.3(c), then the Borrower shall pay to such Tax Indemnitee on an After-Tax Basis the amount of such repayment without regard to Section 13.2. A Tax Indemnitee may at any time elect, in writing, not to contest any Tax pursuant to this Section 13.3(c); provided that such election shall constitute a waiver by such Tax Indemnitee of any right to indemnification by the Borrower pursuant to this Article XIII with respect to such Tax (and with respect to similar Taxes relating to any other taxable period to the extent that such failure to contest causes any contest of any claim for such Taxes to be precluded) and such Tax Indemnitee shall refund to the Borrower any amounts paid or advanced by the Borrower with respect to such Tax (other than any expenses of the contest).
(d) If any report, return or statement is required to be filed with respect to any Tax that is subject to indemnification under this Article XIII, the Borrower shall, if permitted by applicable law to do so, timely file such report, return or statement (except for any such report, return or statement that a Tax Indemnitee has notified the Borrower that such Tax Indemnitee intends to file); provided that such Tax Indemnitee shall have furnished the Borrower, at the Borrower’s request, with such information, not within the control of the Borrower, as is in such Tax Indemnitee’s control and is reasonably available to such Tax Indemnitee and necessary to file such report, return or statement (it being understood that the Tax Indemnitee shall not be required to furnish copies of its tax returns, books, or records). If the Borrower is not permitted by applicable law to file any such report, return or statement, or has insufficient information, the Borrower will promptly notify the relevant Tax Indemnitee of such requirement and prepare and deliver to such Tax Indemnitee a proposed form of such report, return or statement, within a reasonable time prior to the time such report, return or statement is to be filed. No Tax Indemnitee shall be required to provide the Borrower with any information which such Tax Indemnitee determines in its sole discretion to be confidential. The Borrower shall hold each Tax Indemnitee harmless from and against all liabilities arising out of any insufficiency or inaccuracy of any report, return or statement described in this Section 13.3(d) unless such insufficiency or inaccuracy results from the insufficiency or inaccuracy of any information supplied by the Tax Indemnitee pursuant to this Section 13.3(d).
(e) At the written request of the Borrower within 20 days after receipt by the Borrower of a Tax Indemnitee’s request for an indemnity payment and the written statement described in Section 13.3(b), or of a Tax Indemnitee’s statement regarding an amount payable by the Tax Indemnitee to the Borrower pursuant to Section 13.3(a), any amount or statement determined or prepared by a Tax Indemnitee pursuant to this Article XIII shall be verified by a nationally recognized firm of independent accountants selected by the relevant Tax Indemnitee and reasonably acceptable to the Borrower, and in order to enable such firm to verify such Tax Indemnitee’s computations, such Tax Indemnitee shall provide to such firm (for their own confidential use and not be disclosed to the Borrower or any other Person) all information reasonably necessary for such verification; provided, however, that neither such firm, the Borrower nor any other person will have any right to examine any tax return, books or records of such Tax Indemnitee. The costs of any verification shall be payable by the Borrower unless such firm determines that any amount payable by the Borrower is less, or that any amount payable by the relevant Tax Indemnitee is more, than the amount stated by the relevant Tax Indemnitee by at least 5%. Such firm shall be requested to make its determination within 30 days. In the event such firm shall determine that such amount or statement is incorrect, then such firm shall determine what it believes to be the correct amount, and such determination shall be binding upon the parties. The sole responsibility of such firm shall be to verify the computation of the amounts payable hereunder; the interpretation of this Agreement, Agreement or any other Operative Document shall not be within the Company and Parent will form scope of such firm’s responsibilities.
(f) Each payment by the Borrower to a Tax Indemnitee pursuant to this Article XIII shall be made on an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.After-Tax Basis.
Appears in 1 contract
Samples: Facility Agreement (Atlas Air Worldwide Holdings Inc)
Certain Agreements. Parent envisages The Holder agrees that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light upon delivery of the importance of this independence, Parent Shares and Replacement Warrant to the Company agree as follows:
(a) The Company's By-laws will be amended to include the provisions set forth in clauses Holder (i) -- any and all security interests, liens and rightsof set-off under the Security Agreement is hereby terminated, discharged and forever released with respect to the Holder, (ii) all obligations and liabilities of the Company and Guarantor under or in respect of the Note, the Warrant, the Subscription Agreement, the Security Agreement, the Subsidiary Guarantee and any other agreement, document or instrument delivered by the Company in connection therewith (the “Transaction Documents”) is hereby terminated and deemed satisfied and paid-in-full, (iii) the Holder hereby agrees that (x) the transactions contemplated by this Agreement including, without limitation, the issuance or sale of this subsection (a) the Shares, the issuance or sale of Section 6.20(a) the Replacement Warrant and the issuance or sale of the shares underlying the Replacement Warrant upon exercise of the Replacement Warrant (the "6.20(A“Replacement Warrant Shares”) PROVISIONS"):
and (iy) The Parent, as the any transaction with any other holder of all of notes and warrants issued in the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
Offering (A) the Company's directors in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons such notes and warrants hereinafter referred to in clause (Aas “Other Notes” and “Other Warrants”, respectively) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
(ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection with the appointment maturity of the two (2) designees Other Notes, including without limitation, the issuance or sale of Parent's Chief Executive Officer), and the provisions any shares of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority Common Stock of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that securities convertible into or exercisable for the Period:
(i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses Common Stock of the Company for a full range of growth equitiesconsideration, fixed income and real estate securities;
conversion price or exercise price less than the Warrant Price (iii) The Chief Executive Officer as defined in the Replacement Warrant), shall not in any of the Company shall report directly cases set forth in (x) and (y) give rise to an adjustment to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion Warrant Price under Section 5 of the Chief Executive Officer of Replacement Warrant, and (iv) the Company within the framework of an overall budget Holder hereby releases and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of forever discharges the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies Guarantor of and procedures from all any and all manner of Parent actions, suits, debts, sums of money, contracts, agreements, claims and demands at law or in existence equity, that Holder had, or may have arising from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly related to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent groupTransaction Documents.
(c) Following the execution of this Agreement, the Company and Parent will form an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.
Appears in 1 contract
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will Terex acknowledges that the Incremental Lenders intend to syndicate the Incremental Term Loans made hereunder and agrees to actively assist the Incremental Lenders in completing a satisfactory syndication. Such assistance shall include direct contact between senior management, representatives and advisors of Terex and the proposed syndicate members and the assistance by Terex in the preparation of marketing materials to be amended to include the provisions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
(ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary used in connection with the appointment syndication. Terex further agrees that all information prepared or furnished by it to the Incremental Lenders in connection with this Agreement or for use in connection with the syndication of the two (2) designees of Parent's Chief Executive Officer), and Incremental Term Loans shall be subject to the provisions representation set forth in Section 3.15 of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company BoardCredit Agreement.
(b) The parties agree further Terex agrees that, until the Incremental Lenders shall have notified Terex of the completion of the syndication of the Incremental Term Loans (which notice shall be given as promptly as practicable and, in any event, shall be deemed given on the 30th day following the Incremental Term Loan Closing Date), Terex shall not engage or participate in any competing offering, placement or arrangement of any debt securities of, or bank financing by, Terex or any of its subsidiaries in the U.S. capital or bank markets; provided, however, that for the Period:
foregoing shall not prohibit (i) The Company shall be maintained as a separate wholly-owned Subsidiary the borrowing of Parent. Subject to Revolving Loans, Swingline Loans or the provisions issuance of subsection (b)(ii) belowLetters of Credit under the Credit Agreement, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses any sale of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed receivables permitted by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
Credit Agreement or (iii) The Chief Executive Officer the establishment of, or borrowings under, local lines of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed credit by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent groupForeign Subsidiaries.
(c) Following For the avoidance of doubt and without limiting the application thereof, the parties hereto hereby agree that the provisions of Section 9.05 of the Credit Agreement shall apply to the execution and delivery of, and the performance of the parties' respective obligations under, this Agreement, the Company making and Parent will form an integration committeesyndication of the Incremental Term Loans, whose members will be jointly agreed upon but will include William Y. Yun the use of the proceeds thereof and Michael O.the other transactions contemplated hereby.
Appears in 1 contract
Samples: Incremental Term Loan Assumption Agreement (Terex Corp)
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will be amended Borrower, the Administrative Agent and the Lenders acknowledge and agree that, during the Amendment Period, the Lenders shall make Extensions of Credit only to include the provisions set forth in clauses extent that such Extensions of Credit do not exceed the lesser of (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
Borrowing Base and (ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board$47,000,000.
(b) The parties agree further that for Borrower hereby acknowledges and agrees that, during the Amendment Period:
(i) The Company , the Borrower shall be maintained as a separate wholly-owned Subsidiary not, and shall not permit any of Parent. Subject to the provisions of subsection (b)(ii) belowits Subsidiaries to, Parent shall consult with the Company Board with regard to make any reorganization Restricted Payments on any class of the operations and corporate structures Capital Stock of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective TimeBorrower (other than as permitted under subsections 7.7(a), with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer and (c) of the Company will be a member Credit Agreement) or make any optional payment or prepayment or redemption, defeasance or purchase of office any Senior Subordinated Notes or any other Subordinated Indebtedness (if any) of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent groupBorrower.
(c) Following The Borrower hereby acknowledges and agrees that, during the Amendment Period, the Borrower shall not, and shall not permit any of its Subsidiaries to, make any Permitted Acquisitions.
(d) The Borrower hereby agrees to keep the Administrative Agent and the Lenders informed of the progress of the status of the Borrower's discussions concerning entering into an alternative credit facility that will replace the Credit Agreement, including, without limitation, prompt notice of the receipt and execution of this Agreementany commitment letter, the Company completion by the relevant lender of its due diligence and Parent will form collateral audit review, and the setting of any closing date, or, as the case may be, the Borrower's decision not to pursue such alternative credit facility.
(e) The Borrower hereby agrees to deliver a detailed budget to the Administrative Agent, with a copy for each Lender, on or before December 31, 2000.
(f) Failure to comply with the agreements contained in paragraphs (d) and (e) of this Section 19 shall constitute an integration committeeEvent of Default, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.if such default shall continue unremedied for a period of five Business Days.
Appears in 1 contract
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light Section 5.1 Conduct of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will be amended to include the provisions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors Business of the Company. Persons eligible During the period from ---------------------------------- the date of this Agreement to serve on the Closing Date, the Company Board shall be:
will conduct its operations and will cause the Subsidiaries to conduct their respective operations in the ordinary course of business. Notwithstanding the immediately preceding sentence, pending the Closing Date and except as may be first approved by Purchaser (Asuch approval not to be unreasonably withheld) or as is otherwise permitted, contemplated or required by this Agreement or set forth on Schedule 5.1 hereto, (a) the Company's directors and the Subsidiaries' respective Certificates of Incorporation and By-Laws will be maintained in office immediately prior their respective forms on the date of this Agreement, (b) the compensation payable or to become payable by the effective time;
Company and the Subsidiaries to any of their directors, officers or employees being paid $1,000,000 per year or more will be maintained at the amount existing on the date of this Agreement except for normal periodic increases in the ordinary course of business consistent with past practice, (Bc) two the Company and the Subsidiaries will refrain from making any bonus, pension, retirement or insurance payment or arrangement to or with any such Persons except those that have been accrued or accrue in the ordinary course of business (2) designees including, without limitation, any payments to employees under the MGM Savings Plan, the MGM Retirement Plan, the MGM Retirement Plan for Canadian Employees, the MGM Management Incentive Plan, the MGM Group Insurance Plan, the MGM Dependent Care Plan and each of Parent's chief executive officer; and
(C) upon the departures of persons Benefit Assurance Programs referred to in clause Section 5.5), (Ad) by reason the Company and the Subsidiaries will refrain from entering into any material contract or commitment except material contracts and commitments in the ordinary course of deathbusiness, retirement(e) the Company and the Subsidiaries will refrain from increasing their indebtedness for borrowed money, resignationexcept borrowings in the ordinary course of business, (f) the Company and the Subsidiaries will refrain from cancelling or removal for causewaiving any claim or right of substantial value which individually or in the aggregate is material to the Company and the Subsidiaries taken as a whole, persons nominated by other than in the Nominating Committee ordinary course of business, (g) the Company will refrain from declaring or paying any dividends in respect of any capital stock of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
(ii) The corporate nameor redeem, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions purchase or otherwise acquire any of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of capital stock (except for dividends described on Schedule 5.1 attached hereto), (h) the Company Board.
(a) Provisions and the Subsidiaries will not be modified refrain from making any material change in accounting methods or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the Period:
practices, except as required by law or generally accepted accounting principles, (i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and the Subsidiaries will refrain from issuing or selling any shares of their capital stock or any other securities, or issuing any securities convertible into, or options, warrants or rights to purchase or subscribe to, or entering into any arrangement or contract with respect to the issue and sale of, any shares of their capital stock or any other securities, or making any other changes in their capital structures, except for issuances or commitments by any Subsidiary to issue any such securities to the Company or any other Subsidiary, (j) the Company and the Subsidiaries will refrain from settling any pending litigation, other than any settlement which will not have a Material Adverse Effect, (k) except as required by, or to give effect to, any liquidation of Parent as of the Effective Timeprovided for in Section ll.15, excluding Parent's wrap-fee businessParent and Seller, will be developed as applicable, and managed by the Company in consultation and its Subsidiaries will refrain from (i) the making or changing of any material Tax election with Parent. Parent will advance the expansion of the global institutional separate account businesses of respect to the Company for a full range or any of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer its Subsidiaries or the filing of any Tax Return which is not consistent with the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees prior practice of the Company and its Subsidiaries on a functional basis shall be consistent with Subsidiaries, as applicable, and (ii) the analogous policies and procedures settling of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer any material liability for Taxes of the Company by reason or any of deathits Subsidiaries, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b1) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent group.
(c) Following the execution of this Agreement, the Company and Parent the Subsidiaries will form an integration committeenot agree, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.whether or not in writing, to do any of the foregoing.
Appears in 1 contract
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will be amended to include the provisions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The ParentCompany covenants and agrees that it will not, without the prior written consent of the Buyer, enter into any subsequent or further offer or sale of Common Stock or securities convertible into Common Stock with any third party ("Subsequent Financing") until the earlier of (a) the date which is one hundred eighty (180) days after the Effective Date (as defined below) or (b) the date on which 85% of the Preferred Stock shares have been converted into shares of Common Stock (the "Non-Financing Period"). If the Company receives a proposal for a Subsequent Financing during the Non-Financing Period, upon receipt of such proposed terms the Company covenants and agrees to promptly furnish a notice to the Buyer which sets forth the terms of the proposed Subsequent Financing. The Buyer shall have the right, exercisable for a period of ten (10) days after receipt of the written notice from the Company, to consummate the Subsequent Financing with the Company on the same terms and conditions as the holder proposed Subsequent Financing within ten (10) days after making the election. If the Buyer does not exercise its right to consummate the Subsequent Financing as set forth herein, the Company shall be free to enter into the proposed Subsequent Financing on substantially the same terms as disclosed to the Buyer. If the Buyer exercises its right within such ten (10) day period but do not close the Subsequent Financing, other than due to a breach by the Company, the Buyer shall be liable to the Company if the counterparty to the Subsequent Financing no longer wishes to engage in the transaction. Notwithstanding the foregoing, the Company may enter into a Subsequent Financing without the prior written consent of the Buyer if such Subsequent Financing is exempt from securities registration under Regulation D and the Company is not required to file a registration statement with respect to the underlying securities within one hundred twenty (120) days of the Effective Date (as defined below) or if the proceeds from such Subsequent Financing are used to redeem all of the then outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regardPreferred Stock.
(ii) The corporate name, bank regulatory status and location provisions of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
subparagraph (iiii)(i) The size of the Company Board will not be altered apply to (x) the issuance of securities (other than to the extent necessary for cash) in connection with a merger, consolidation, strategic alliance, sale of assets, disposition or entering into a binding agreement with an investment banking firm of recognized regional or national status to obtain financing and provide investment banking services or (y) the appointment exchange of the two (2) designees of Parent's Chief Executive Officer)capital stock for assets, and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended stock or altered without the approval of a majority of the Company Boardother joint venture interests.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the Period:
(i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent group.
(c) Following the execution of this Agreement, the Company and Parent will form an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.
Appears in 1 contract
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will be amended Borrower, the Administrative Agent and the Lenders acknowledge and agree that, during the Amendment Period, the Lenders shall make Extensions of Credit only to include the provisions set forth in clauses extent that such Extensions of Credit do not exceed the lesser of (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
Borrowing Base and (ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the Period:
(i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent group$47,000,000.
(c) Following The Borrower hereby acknowledges and agrees that, during the Amendment Period, the Borrower shall not, and shall not permit any of its Subsidiaries to, make any Permitted Acquisitions.
(d) The Borrower hereby agrees to keep the Administrative Agent and the Lenders informed of the progress of the status of the Borrower's discussions concerning entering into an alternative credit facility that will replace the Credit Agreement, including, without limitation, prompt notice of the receipt and execution of this Agreementany commitment letter, the Company completion by the relevant lender of its due diligence and Parent collateral audit review, and the setting of any closing date, or, as the case may be, the decision by the Borrower or any new lender not to pursue such alternative credit facility.
(e) The Borrower hereby agrees (i) to deliver to the Administrative Agent, with a copy for each Lender, a revised, detailed budget for 2001, promptly, but in any event, no later than ten Business Days after the Amendment Effective Date and (ii) to use reasonable best efforts (A) to obtain copies of all recent appraisals of real or other property of the Borrower and its Subsidiaries (including any appraisals undertaken in connection with the Borrower's discussions concerning entering into an alternative credit facility that will form replace the Credit Agreement), (B) to receive permission, if necessary, to deliver such appraisals to the Administrative Agent and, if such permission is obtained, to deliver such appraisals to the Administrative Agent promptly, but in any event, no later than three Business Days after receipt thereof.
(f) Failure to comply with the agreement contained in paragraph (a) of this Section 3 shall constitute an integration committeeEvent of Default under Section 10(a) of the Credit Agreement and failure to comply with the agreements contained in paragraphs (b) and/or (c) of this Section 3 shall constitute an Event of Default under Section 10(c) of the Credit Agreement. Failure to comply with the agreements contained in paragraphs (d) and/or (e) of this Section 3 shall constitute an Event of Default, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.if such default shall continue unremedied for a period of five Business Days.
Appears in 1 contract
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will be amended Company covenants and agrees that it shall not directly or indirectly, without the prior consent of the Purchaser, offer, sell, grant any option to include the provisions set forth in clauses purchase, or otherwise dispose (i) -- (iiior announce any offer, sale, grant or any option to purchase or other disposition) of any of its or its Affiliates equity or equity-equivalent securities to a third party (other than in connection with a financing of an acquisition of assets or securities and other than in connection with payment of services rendered to the Company by such third party and other than securities issued upon exercise of any currently outstanding options or warrants or upon conversion of any currently outstanding convertible debt or preferred stock disclosed in Schedule 2.1(c) or shares of Common Stock issuable upon conversion of Shares or upon exercise of the Warrant in accordance herewith and the Warrant issued to Xxxxx Xxxxxxx, LLC in connection with the sale of the Shares) at a price which is, on the face thereof or implied therein, less than the market price or fair market value for such securities (a "Subsequent Discounted Financing") for a period of 120 days after the date of this subsection Agreement without first offering the Purchaser the opportunity (awhich shall remain open for a period of five business days from the date the Purchaser receives notice thereof) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of to purchase all but not less than all of the outstanding Sharessuch additional equity or equity- equivalent securities, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
unless (A) the Company's directors Company provides the Purchaser a written notice (the "Subsequent Financing Notice") of its intention to effect such Subsequent Discounted Financing, which Subsequent Financing Notice shall describe in office immediately prior reasonable detail the proposed terms of such Subsequent Discounted Financing and the amount of proceeds intended to the effective time;
be raised thereunder and (B) two (2i) designees the Purchaser shall not have notified the Company within five business days of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee its receipt of the Company Board. For each vacancy the Nominating Committee Subsequent Financing Notice of its willingness to enter into good faith negotiations to provide (or to cause its sole designee to provide) financing to the Company Board shall nominate three persons. The Parent shall be entitled to vote on substantially the Shares terms set forth in its discretion in this regard.
the Subsequent Financing Notice or (ii) The corporate name, bank regulatory status and location of if the principal place of business of Purchaser notifies the Company of its willingness to provide such financing in New York shall accordance with paragraph (B)(i) of this Section, the Purchaser does not be changed without the prior approval provide such financing in a commercial reasonably and expeditious period of time, provided that such failure is not attributable to a failure by the Company Board.
(iii) The size of to act reasonably and expeditiously with respect to such negotiations. If the Purchaser shall fail to notify the Company Board will of its intention to enter into such negotiations within the time period contemplated by paragraph (B)(i) of this Section or does not be altered provide the funding in accordance with paragraph (other than B)(ii) of this Section, the Company may effect the Subsequent Discounted Financing substantially upon the terms set forth in the Subsequent Financing Notice (to persons, or their Affiliates, specified in such Subsequent Financing Notice); provided, that the extent necessary in connection Company shall provide the Purchaser with the appointment of the two (2) designees of Parent's Chief Executive Officer)a second Subsequent Financing Notice, and the provisions Purchaser shall again have the right of first refusal set forth above in this Section 3.9(a), if the Subsequent Discounted Financing subject to the initial Subsequent Financing Notice shall not for any reason have been consummated substantially on the terms set forth in such Subsequent Financing Notice (or with persons different than those specified in such Subsequent Financing Notice unless such different persons are Affiliates of those persons specified) within 60 days after the date of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of initial Subsequent Financing Notice and the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Boarddesires to consummate such Subsequent Discounted Financing.
(b) The parties agree further Company covenants and agrees that for the Period:
(i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer it shall not be modified directly or indirectly, without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
the Purchaser, offer, sell, grant any option to purchase, or otherwise dispose (aor announce any offer, sale, grant or any option to purchase or other disposition) Anne M. Tatlock will be of any of its or its Affiliates equity or equity-equivalent securities to a member third party, at a price which is equal to or greater than (both on the face thereof and implied in such transaction), the market price or fair market value for such securities (a "Subsequent Non-Discounted Financing") for a period of 120 days after the Parent Board, as long as xxx xxxxx xxx requirements to be date of this Agreement without providing the Purchaser a director notice thereof which describes the material terms of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent group.Subsequent Non-Discounted Financing..
(c) Following From the execution of this Agreementdate hereof through the final Closing Date, the Company shall not and Parent will form an integration committeeshall cause the Subsidiaries not to, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.without the consent of the Purchaser, (i) amend its certificate of incorporation, bylaws or other charter documents so as to adversely affect any rights of the Purchaser (provided, that amendments to the Company's certificate of incorporation solely to increase the authorized capitalization of the Company, or subject to the other terms hereof, to effect stock splits or reverse stock splits of the Common Stock, shall not require the consent of the Purchaser); (ii) declare, authorize, set aside or pay any dividend or other distribution with respect to the Common Stock; (iii) repay, repurchase or offer to repay, repurchase or otherwise acquire shares of its Common Stock; or (iv) enter into any agreement with respect to any of the foregoing.
Appears in 1 contract
Samples: Convertible Preferred Stock Purchase Agreement (Amnex Inc)
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The CompanySubject to Section 4.11 hereof, as soon as practicable after the Effective Date, all employees of WJB and WJB Subsidiaries whose employment is continued shall be employed upon their existing terms and conditions with appropriate changes in title to be consistent with Sovereign's By-laws will be amended to include management structure and the provisions set forth in clauses (i) -- (iii) operation of this subsection (a) WJCB as a division of Section 6.20(a) (the "6.20(A) PROVISIONS"):Sovereign Bank.
(i) The ParentExcept for any liability for trading in WJB Common Stock while in possession of material nonpublic information or disclosing material nonpublic information, directly or indirectly, to any party who trades in WJB Common Stock, for a period of six years from and after the Effective Date, Sovereign shall indemnify, and advance expenses in matters that may be subject to indemnification to, persons who served as directors and officers of WJB or any WJB Subsidiary on or before the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible Effective Date with respect to serve on the Company Board shall be:
liabilities and claims (Aand related expenses) the Company's directors in office immediately made against them resulting from their service as such prior to the effective time;
(B) two (2) designees Effective Date in accordance with and subject to the requirements and other provisions of ParentSovereign's chief executive officer; and
(C) upon articles of incorporation and bylaws in effect on the departures date of persons referred this Agreement and applicable provisions of law to in clause (A) by reason of death, retirement, resignation, or removal the same extent as Sovereign is obliged thereunder to indemnify and advance expenses to its own directors and officers with respect to liabilities and claims made against them resulting from their service as such for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regardSovereign.
(ii) The corporate nameSovereign shall maintain WJB's existing directors' and officers' liability insurance policy (or a policy providing comparable coverage amount on terms no less favorable, bank regulatory status including Sovereign's existing policy if it meets the foregoing standard) covering (A) persons who are currently covered by such insurance for costs set forth in (i) above arising in connection with events prior to the Effective Date for a period of six (6) years after the Effective Date and location (B) for all officers and directors of WJB for service in such capacity with Sovereign after the principal place of business of the Company in New York shall not be changed without the prior approval of the Company BoardEffective Date.
(iii) The size of the Company Board will not be altered (other than Any Indemnified Party wishing to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officerclaim indemnification under Section 4.05(b), and upon learning of any claim, action, suit, proceeding or investigation described above, shall promptly notify Sovereign thereof; provided that the provisions failure so to notify shall not affect the obligations of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company BoardSovereign under Section 4.05(b).
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the Period:
(i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) Sovereign shall pay all reasonable costs, including attorney's fees, that may be incurred by an Indemnified Party in enforcing the indemnity and other obligations provided for in this Section 4.05(b). The salary, benefits and terms rights of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise each Indemnified Party hereunder shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements in addition to be a director of a corporation organized any other rights such Indemnified Party may have under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent groupapplicable law.
(c) Following Sovereign agrees to honor all terms and conditions of the execution employment contracts of Messrs. Van Voorhis and Riker and to extend xxx xxrm of xxxx contracts on the same terms and conditions (including without limitation equivalent employee benefits) (except as otherwise provided herein) at the then current salaries (subject to adjustment as provided therein) so that they expire no earlier than the date three (3) years after the Effective Date. Sovereign agrees to (i) amend the terms of the employment agreements of Messrs. Van Voorhis and Riker to provide thxx xx xither xxxxoyee's employment is terminated without cause or for good reason (each as defined in such employment agreements except that the definition of good reason shall be appropriately amended to be consistent with the post- merger structure contemplated by this Agreement), the Company terminated employee shall have the right to receive all payments which would have been due under his employment agreement through the remainder of the full term as amended pursuant hereto, and Parent will form an integration committee(ii) amend any section thereof relating to incentive compensation to account for the changes in the operation of WJB resulting from the Merger so as to provide Messrs. Van Voorhis and Riker with benefits xxxxxxlent xx xxose that they would have received under such sections had the Merger not occurred. Sovereign agrees to honor all terms and conditions of the employment contract of Mr. McGrath, whose members Jr. and the severaxxx xxxxxxxnt of Mr. McGrath, Sr.
(x) Xxllowing the Effective Date, WJCB will be jointly agreed upon but will include William Y. Yun and Michael O.operated as a separate autonomous commercial bank division of Sovereign Bank for at least three years.
Appears in 1 contract
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will be amended Borrower, the Administrative Agent and the Lenders hereby acknowledge and agree that, during the period from and including the 2 2 Amendment Effective Date (as defined below) to include and including December 15, 2000, the provisions set forth in clauses Lenders shall make Extensions of Credit only to the extent that such Extensions of Credit do not exceed the lesser of (i) -- (iii) a borrowing base of this subsection (a) 70% of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parentnet accounts receivable and 40% of net inventory, in each case as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent same shall be entitled to vote the Shares calculated on a consolidated basis in its discretion in this regard.
accordance with GAAP, and (ii) The corporate name$47,000,000. During such period, bank regulatory status and location of the principal place of business of Borrower agrees to prepay forthwith the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than Revolving Credit Commitments to the extent necessary that the Extensions of Credit exceed such lesser amount on any Business Day. The Borrower shall furnish to the Administrative Agent 30 days after the end of each calendar month a report setting forth in connection with reasonable detail a calculation of such borrowing base and such report shall be effective for purposes of this section until the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not next such report is due to be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Boardfurnished.
(b) The parties agree further that for Borrower hereby also acknowledges and agrees that, during the Period:
(i) The Company period from and including the Amendment Effective Date to and including December 15, 2000, the Borrower shall be maintained as a separate wholly-owned Subsidiary not, and shall not permit any of Parent. Subject to the provisions of subsection (b)(ii) belowits Subsidiaries to, Parent shall consult with the Company Board with regard to make any reorganization Restricted Payments on any class of the operations and corporate structures Capital Stock of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective TimeBorrower (other than as permitted under subsections 7.7(a), with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer and (c) of the Company will be a member Credit Agreement) or make any optional payment or prepayment or redemption, defeasance or purchase of office any Senior Subordinated Notes or any other Subordinated Indebtedness (if any) of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent groupBorrower.
(c) Following Failure to comply with the execution prepayment requirements of this section shall constitute an Event of Default under Section 10(a) of the Credit Agreement, and failure to comply with the Company and Parent will form other agreements in this Section shall constitute an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.Event of Default under Section 10(d) of the Credit Agreement.
Appears in 1 contract
Samples: Credit Agreement (Twinlab Corp)
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will be amended to include Companies agree with the provisions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (several Underwriters and the "6.20(A) PROVISIONS"):Selling Shareholders that:
(i) The Parent, as If the holder of all Effective Time of the outstanding SharesInitial Registration Statement is prior to the execution and delivery of this Agreement, shall elect directors the Companies will file the Prospectus with the Commission pursuant to and in accordance with subparagraph (1) (or, if applicable, and upon consultation with the Global Coordinator and JPMorgan, subparagraph (4)) of Rule 424(b) not later than the Company. Persons eligible to serve on the Company Board shall be:
earlier of (A) the Company's directors in office immediately second business day following the execution and delivery of this Agreement or (B) the fifteenth business day after the Effective Date of the Initial Registration Statement. The Companies will advise the Global Coordinator and JPMorgan promptly of any such filing pursuant to Rule 424(b). If the Effective Time of the Initial Registration Statement is prior to the execution and delivery of this Agreement and an additional registration statement is necessary to register a portion of the Units (including Units in the form of GDSs) under the Act but the Effective Time thereof has not occurred as of such execution and delivery, the Companies will file the additional registration statement or, if filed, will file a post-effective amendment thereto with the Commission pursuant to and in accordance with Rule 462(b) on or prior to 10:00 A.M., New York time;
(B) two (2) designees , on the date of Parent's chief executive officer; and
(C) upon this Agreement or, if earlier, on or prior to the departures of persons referred time either Prospectus is printed and distributed to in clause (A) by reason of death, retirement, resignationany Underwriter, or removal for cause, persons nominated will make such filing at such later date as shall have been consented to by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regardGlobal Coordinator and JPMorgan.
(ii) The corporate nameCompanies will advise the Global Coordinator and JPMorgan promptly of any proposal to amend or supplement the initial or any Additional Registration Statement as filed or the related prospectus or the Initial Registration Statement, bank regulatory status the Additional Registration Statement (if any) or the Prospectus or the GDS Registration Statement and location will not effect such amendment or supplementation without the Global Coordinator's and JPMorgan's prior consent; and the Companies will also advise the Global Coordinator and JPMorgan promptly of the principal place effectiveness of business each Registration Statement (if its Effective Time is subsequent to the execution and delivery of this Agreement) and the GDS Registration Statement (if its effectiveness is subsequent to the execution and delivery of this Agreement) and of any amendment or supplementation of a Registration Statement or the Prospectus or the GDS Registration Statement and of the Company institution by the Commission of any stop order proceedings in New York shall not be changed without respect of a Registration Statement or the prior approval GDS Registration Statement and will use its reasonable best efforts to prevent the issuance of the Company Boardany such stop order and to obtain as soon as possible its lifting, if issued.
(iii) The size If, at any time when a prospectus relating to the Units (including Units in the form of GDSs) is required to be delivered under the Act in connection with sales by any Underwriter or dealer, any event occurs as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the Company Board circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Prospectus to comply with the Act, the Companies will not be altered promptly notify the Global Coordinator and JPMorgan of such event and will promptly prepare and, in the case of the Prospectus, file with the Commission, at the Companies' own expense, an amendment or supplement which will correct such statement or omission or an amendment which will effect such compliance. Neither the Global Coordinator's or JPMorgan's consent to, nor the Underwriters' delivery of, any such amendment or supplement shall constitute a waiver of any of the conditions set forth in Section 6.
(other than iv) As soon as practicable, the Companies will make generally available to their respective securityholders an earnings statement covering a period of at least 12 months beginning after the Effective Date of the Initial Registration Statement (or, if later, the Effective Date of the Additional Registration Statement) that will satisfy the provisions of Section 11(a) of the Act.
(v) The Companies will furnish to the extent necessary Representatives copies of the Registration Statement and the GDS Registration Statement (each of which will be signed and will include all exhibits), each preliminary prospectus relating to the Units (including Units in the form of GDSs), and, so long as a prospectus relating to the Units (including Units in the form of GDSs) is required to be delivered under the Act in connection with sales by any Underwriter or dealer, the Prospectus and all amendments and supplements to such documents, in each case in such quantities as the Global Coordinator or JPMorgan requests. The Prospectus shall be so furnished in New York City on or prior to 3:00 P.M., New York time, on the business day following the pricing of the International Securities. All other such documents shall be so furnished as soon as available.
(vi) The Companies will cooperate with the International Underwriters in arranging for the qualification of the Units (including Units in the form of GDSs) for sale under the laws of such jurisdictions in the United States and elsewhere as the Global Coordinator designates (and to which the Companies agree) and will continue such qualifications in effect so long as required for the distribution.
(vii) No action has been or, prior to the completion of the distribution of the Units (including Units in the form of GDSs), will be taken by the Companies that would permit a public offering of the Units (including Units in the form of GDSs), or possession or distribution of any prospectus, or any amendment or supplement thereto, or any related preliminary prospectus issued in connection with the appointment Global Offering of the two Units (2) designees including Units in the form of Parent's Chief Executive OfficerGDSs), and the provisions or any other offering material, in any country or jurisdiction where action for that purpose is required, except under circumstances that will result in compliance with all applicable rules or regulations of the Company's By-Laws regarding the removal of directors without cause will not be amended any such country or altered without the approval of a majority of the Company Boardjurisdiction.
(aviii) Provisions For a period of 180 days after the date of the initial public offering of the Securities, the Companies will not be modified offer, sell, contract to sell, pledge or removed from otherwise dispose of, directly or indirectly, or file with the Company's By-laws Commission a registration statement under the Act relating to, any additional Underlying Preferred Shares or Units or GDSs or securities convertible into or exchangeable or exercisable for any Underlying Preferred Shares or Units or GDSs, or publicly disclose the intention to make any such offer, sale, pledge, disposition or filing, without the approval of a majority prior written consent of the Company BoardGlobal Coordinator and JPMorgan.
(ix) The Companies will comply with the terms of the Deposit Agreement so that the GDRs evidencing the GDSs will be executed by the Depositary and delivered to the International Underwriters, pursuant to this Agreement, on the applicable Closing Date.
(b) The parties agree further that for Each of the PeriodSelling Shareholders, severally and not jointly, agrees with the several Underwriters, Unibanco, and Unibanco Holdings that:
(i) The Company Such Selling Shareholder will, severally and not jointly, indemnify and hold harmless the Underwriters against 43% (in the case of Commerzbank) and 57% (in the case of Mizuho) of any documentary, stamp or any other taxes or levies of any kind imposed by any Governmental Authority (other than income or gross receipts taxes), including any interest and penalties, on the deposit of Underlying Shares with the Registrar, the issuance and sale of the Units (including Units in the form of GDSs) and on the execution and delivery of this Agreement. All payments to be made by such Selling Shareholder under this clause (i) shall be maintained made without withholding or deduction for or on account of any present or future taxes, duties or governmental charges whatsoever unless such Selling Shareholder is compelled by law to deduct or withhold such taxes, duties or charges. In that event, each Selling Shareholder shall pay such additional amounts as a separate wholly-owned Subsidiary of Parent. Subject to may be necessary in order that the provisions of subsection (b)(ii) below, Parent net amounts received after such withholding or deduction shall consult with equal the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries amounts that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;would have been received if no withholding or deduction had been made.
(ii) The global high net-worth individual businesses For a period of 180 days after the date of the Company and Parent as initial public offering of the Effective TimeSecurities, excluding Parent's wrap-fee businessCommerzbank will not offer, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equitiessell, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report contract to sell, pledge or otherwise dispose of, directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executivesor indirectly, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent or file with the analogous policies and procedures of Parent in existence from time Commission a registration statement under the Act relating to, any additional Underlying Preferred Shares or Units or GDSs or securities convertible into or exchangeable or exercisable for any Underlying Preferred Shares or Units or GDSs, or publicly disclose the intention to time;
(iv) The salarymake any such offer, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified sale, pledge, disposition or filing, without the prior approval written consent of Parent. Any vacancy the Global Coordinator and JPMorgan, except for the sale of Securities in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent groupBrazilian Offering.
(c) Following The Companies and the execution Selling Shareholders shall pay (i) all expenses incident to the performance of their own obligations under this Agreement, the Company Brazilian Underwriting Agreement and Parent will form an integration committeethe Deposit Agreement, whose members will including any travel expenses and other expenses incidental to attending or hosting meetings with prospective purchasers of the International Securities, (ii) all transfer taxes on the sale of the International Securities, the deposit of Underlying Shares against Units or the deposit of Units against GDSs, (iii) any CVM, SEC, ANBID, stock exchange or NASD registration and filing fees and (iv) the costs of preparing, word processing, printing and distributing the Registration Statement or any Additional Registration Statement, either Prospectus and any amendments or supplements to any thereof. The Companies and the Selling Shareholders agree, as between themselves, that the expenses set forth in the preceding paragraph shall be jointly agreed upon but will include William Y. Yun divided between them in accordance with the letter agreement dated August 1, 2003, relating to the expenses of the offering of Units by the Selling Shareholders (the "Expense Letter") and Michael O.that, to the extent that either of the Companies or any Selling Shareholder is required to pay any expense required to be paid by any other party to the Expense Letter, such party shall be entitled to seek reimbursement therefor from such other party. Nothing contained in this paragraph shall derogate from the obligations to the Underwriters of the Companies and the Selling Shareholders set forth in the preceding paragraph.
Appears in 1 contract
Samples: International Underwriting Agreement (Unibanco Union of Brazilian Banks Sa)
Certain Agreements. Parent envisages that On or before the Closing Date, the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light shall obtain the agreement (each, a "Principal's Agreement") of each of the importance Keerx Xxxncipals that, without the prior written consent of this independencethe Lender in each instance, Parent such Keerx Xxxncipal, individually and jointly with the Company agree as follows:
other Keerx Xxxncipals, will not sell or otherwise transfer or offer to sell or otherwise transfer (a) The Company's By-laws will except in a private transaction in which the transferee agrees in writing for the benefit of Lender and enforceable by Lender, a copy of which written agreement is provided to Lender, to be amended to include bound by the provisions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:Principal's Agreement as if such transferee were a Keerx Xxxncipal; a "Permitted Keerx Xxxnsfer")
(A) the Company's directors in office immediately prior to the effective time;Effective Date, any shares of Common Stock directly or indirectly held by such Keerx Xxxncipal, and
(B) two thereafter, not more than three and one-half percent (23.5%) designees of Parent's chief executive officer; and
(C) upon any shares of Common Stock directly or indirectly held by such Keerx Principal during any calendar quarter prior to the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee expiration of the Company Board. For each vacancy the Nominating Committee Specified Period; provided, further, that any such sale or other transfer of the Company Board shall nominate three persons. The Parent any shares of Common Stock shall be entitled to vote made only after the Shares in its discretion in this regard.
Keerx Xxxncipal shall have given the Lender at least thirty (ii30) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York days' advance written notice thereof . Each such Principal's Agreement shall not be changed without the prior approval of the Company Board.
(iiiw) The size of the Company Board will not be altered (other than specify that it is entered into as an inducement to the extent necessary in connection with Lender's execution, delivery and performance of this Agreement, (x) name the appointment of the two Lender as a third party beneficiary thereof, (2y) designees of Parent's Chief Executive Officer), and the provisions of acknowledge that the Company's By-Laws regarding transfer agent will be provided with instructions that, except for Permitted Keerx Xxxnsfers (where the removal of directors without cause will not transferee is then deemed to be amended or altered without a Keerx Xxxncipal), transfers by a Keerx Xxxncipal require the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the Period:
(i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses consent of the Company and Parent as of the Effective TimeLender, excluding Parentand (z) contemplate that, in addition to any other damages or remedies that may be appropriate, the Principal's wrap-fee business, will Agreement shall be developed and managed enforceable by injunction sought by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees Lender or any one or more of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent groupthem.
(c) Following the execution of this Agreement, the Company and Parent will form an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.
Appears in 1 contract
Samples: Securities Purchase Agreement (Titan Motorcycle Co of America Inc)
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will be amended to include Upon the provisions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all reasonable request of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
(ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of Investor Shareholders holding Voting Securities representing a majority of the Total Voting Power of all Voting Securities then held by the Investor Shareholders (with respect to which the Company Board.
(a) Provisions will shall not be modified or removed from unreasonably object), the Company shall, with regard to any Subsidiaries of the Company's By-laws without , cause the approval directors nominated to the Board by the Investor Shareholders pursuant to Article III (considered as a group) to be appointed or elected to the boards or governing bodies of a majority such Subsidiaries of the Company (other than KMGP, KMP, KMR, EPGP, EPB or any of their Subsidiaries) so that the Investor Shareholders (as a group) have, as closely as is practicable, the same proportionate representation on such boards or governing bodies (or, with respect to Subsidiaries of the Company that become publicly traded after the date hereof (other than any Subsidiaries of KMR, KMP or EPB) on the seats of such boards or governing bodies for which the Company has the right to designate directors; provided, that the Investor Shareholders shall have agreed to the limitation on the ability of the Company to designate directors of such Subsidiaries) as they do on the Board.
(b) The parties agree further Company shall (i) permit the Board nominees chosen by the Investor Shareholders and each Observer of the Investor Shareholders permitted to attend meetings of the Board pursuant to Section 3.2 (together, the “Partnership Observers”) to attend each meeting of the KMGP board, the EPGP board and the KMR board and any committees thereof, (ii) send to each Partnership Observer notice of the time and place of such meeting, (iii) provide to each Partnership Observer copies of all notices, reports, minutes and consents at the time and in the manner as they are provided to the members of the KMGP, EPGP and KMR boards and the relevant committees thereof; provided, however, that the KMGP, EPGP and KMR boards, and committees thereof, shall have the right to exclude the Partnership Observers from access to any board or committee meeting (or portion thereof) or any materials distributed to any board or committee members in the sole discretion of a majority of the members of such board or committee in attendance at such board or committee meeting (or, with respect to materials to be provided in advance of any meeting, a majority of the members of such board or committee, as applicable). A Partnership Observer shall recuse himself or herself from any portion of any board or committee meeting if (i) such Partnership Observer has actual knowledge that the Investor Shareholder that selected such Partnership Observer, or one of its controlled Affiliates, is engaged in, pursuing or evaluating any business opportunity that such Partnership Observer has actual knowledge that the Company or any of its Subsidiaries is either currently engaged in, pursuing or evaluating and the participation of such Partnership Observer would create a conflict of interest and (ii) such business opportunity is being discussed during such portion of such meeting (provided, that for the Period:
(i) The Company avoidance of doubt, no Partnership Observer shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject deemed to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion breach of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable his or her obligations pursuant to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for this sentence so long as such office Partnership Observer recuses himself or herself from such portion of such meeting as promptly as practicable following the time in which it becomes reasonably apparent that such business opportunity is being discussed). All Partnership Observers, in existenceconnection with exercising their rights under this Section 3.6(b), reporting directly shall be required (i) to execute and deliver to KMGP, EPGP or KMR, as applicable, a customary (for observers of public corporations) confidentiality agreement that is reasonably acceptable to such Partnership Observer and to KMGP, EPGP or KMR, as applicable, (ii) to undergo any training required by KMP’s, KMGP’s, KMR’s, EPB’s or EPGP’s policies regarding FERC standards of conduct that are applicable to KMGP , EPGP or KMR directors, as applicable, and (iii) to comply with any other regulatory requirements to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company extent applicable to such Partnership Observer in the future management of the Parent grouphis or her capacity as a Partnership Observer.
(c) Following the execution of this AgreementSo long as an Investor Shareholder constitutes an Eligible Investor Shareholder, the Company shall inform such Eligible Investor Shareholder promptly of any action or proposed action by the Company or any of its Affiliates (including KMP, EPB and Parent KMR) that the Chief Executive Officer reasonably believes could impose any filing obligation, restriction or other regulatory burden (e.g., bank holding company registration, or public utility holding company registration) on such Eligible Investor Shareholder or its Affiliates. In addition, neither the Company nor any of its Subsidiaries or Affiliates (other than KMP, KMP’s operating partnerships, KMR, EPB or any of their respective Subsidiaries or controlled Affiliates, or KMGP (solely to the extent that KMGP (i) is acting in its capacity as a holder of shares of KMR or in its capacity as General Partner pursuant to Section 1.4 of the Delegation of Control Agreement to approve any action taken by KMR, or (ii) is acting in its capacity as the general partner of KMP or any of its operating partnerships to approve any matter on behalf of KMP or any of its operating partnerships (and not to the extent acting in another capacity, such as acting to amend or waive a right or obligation of KMGP (or of its direct or indirect parent entities) under any organizational document of KMP or its operating partnerships)) or EPGP (solely to the extent that EPGP is acting in its capacity as the general partner of EPB with respect to the business and affairs of EPB or to approve any matter on behalf of EPB (and not to the extent acting in another capacity, such as acting to amend or waive a right or obligation of EPGP (or of its direct or indirect parent entities) under any organizational document of EPB)) or KMGP Services Company, Inc. to the extent it is taking action related to carrying out the terms of the Employee Services Agreement dated as of January 1, 2001 (not including amendments or waivers), among KMGP Services Company, Inc., KMGP and KMP) will form take any action (or authorize any of, commit, agree or propose to take any of, consent to or vote in favor of any action) that would impose any filing obligation, restriction or other regulatory burden (e.g., bank holding company registration, or public utility holding company registration) on any Eligible Investor Shareholder or its Affiliates that such Eligible Investor Shareholder reasonably determines could have a significant impact on the interests of such Eligible Investor Shareholder or its Affiliates (other than its interests as a Shareholder), without approval by such Eligible Investor Shareholder (it being understood that such limitation shall not be read to prohibit acquisitions that may prohibit future acquisitions by such Investor Shareholder or its Affiliates due to antitrust overlaps).
(d) So long as an integration committeeInvestor Shareholder constitutes an Eligible Investor Shareholder, whose members the Company shall keep such Eligible Investor Shareholder informed, on a current basis, of any events or changes with respect to any criminal or regulatory investigation or action involving the Company or any of its Affiliates, so that such Eligible Investor Shareholder and its Affiliates will have the opportunity to take appropriate steps to avoid or mitigate any regulatory consequences to them that might arise from such investigation or action.
(e) So long as an Investor Shareholder constitutes an Eligible Investor Shareholder, the Company shall reasonably cooperate with such Eligible Investor Shareholder and its Affiliates in efforts to mitigate consequences of circumstances described in clause (c) or (d) (i.e., coordinating and assistance in meeting with regulators). Each Investor Shareholder who receives any non-public information pursuant to clause (c) or (d) agrees (i) to use it only in connection with purposes related to the subject matter of clauses (c), (d) or (e), as applicable, and (ii) to maintain the disclosed information in confidence, except as required by applicable law or applicable national securities exchange rule or to the extent that such information (A) enters the public domain through no fault of such Investor Shareholder or (B) is later lawfully acquired by such Investor Shareholder on a non-confidential basis from sources other than the Company and its Subsidiaries.
(f) Each Executive Management Shareholder agrees that he or she shall not, during the Non-Compete Period, directly or indirectly (other than on behalf of or at the request of the Company or its Subsidiaries):
(i) engage in, have an interest in, or otherwise be jointly agreed upon but will include William Y. Yun and Michael O.employed by (whether as an owner, operator, partner, member, manager, employee, officer, director, consultant, advisor, or representative), provide consulting or management services to, or permit his or her name to be used in connection with the activities of, any business or organization, engaged in a business that is competitive with a business in which the Company or any of its Subsidiaries engages (a “Competitive Business”); provided, that ownership of less than one percent (1%) of the outstanding stock of any publicly traded corporation shall not be deemed to be a violation of this Section 3.6(f) solely by reason thereof; provided, further, that, providing investment banking or legal services to a Competitive Business as an independent consultant, independent advisor or independent representative shall not be deemed to be a violation of this Section
Appears in 1 contract
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name The Guarantor hereby additionally represents, warrants and Company Board. In light of the importance of this independence, Parent and the Company agree covenants as follows:
(a) The Company's By-laws will be amended to include the provisions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
(ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the Period:
(i) The Company Guarantor agrees to comply with each of the covenants contained in the Facility Agreement that impose or purport to impose, through agreements with the Borrower, restrictions or obligations on the Guarantor and (ii) the Guarantor hereby agrees that Clause 33.11 (Payment Mechanics, Impaired Agent) of the Facility Agreement shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject applicable to this Agreement, and references therein to "Obligor" shall be deemed to be references to the provisions Guarantor for the purposes of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergiesthis Section 4.06(a);
(iib) The global high net-worth individual businesses Guarantor acknowledges that any default in the due observance or performance by the Guarantor of any representation and warranty, covenant, condition or agreement contained herein may constitute an Event of Default under Clause 26 (Events of Default) of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securitiesFacility Agreement;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent group.
(c) Following The Guarantor has, independently and without reliance upon any Guaranteed Finance Party and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. The Guarantor has investigated fully the benefits and advantages which will be derived by it from execution of this Agreement, and the Board of Directors (or persons performing similar functions in case of the Guarantor which is not a corporation) of the Guarantor has decided that a direct or an indirect benefit will accrue to the Guarantor by reason of the execution of this Agreement;
(i) This Agreement is not given with actual intent to hinder, delay or defraud any Person to which the Guarantor is or will become, on or after the date hereof, indebted; and (ii) the Guarantor has received at least a reasonably equivalent value in exchange for the giving of this Agreement;
(e) The Guarantor agrees and acknowledges that the Facility Agent is acting as an agent on behalf of itself and the other Guaranteed Finance Parties pursuant to Clause 29 (Role of the Facility Agent, the Company Arrangers and Parent will form the Reference Banks) of the Facility Agreement, and the Security Agent is acting as an integration committeeagent on behalf of the Guaranteed Finance Parties pursuant to Clause 30 (Role of the Security Agent) of the Facility Agreement; and
(f) If the Guarantor agrees after the date hereof to any covenants in the Hanover Credit Agreement that are more stringent or restrictive as to the Guarantor than such limitations or covenants in this Agreement, whose members then this Agreement will be jointly agreed upon but will include William Y. Yun deemed amended automatically, without any further action by the Guarantor, the Facility Agent or any other Person, to benefit from such covenants that are more stringent or restrictive, as the case may be, such that a breach thereof shall constitute a breach of this Agreement, regardless of any waiver or forbearance granted by the creditors under the Hanover Credit Agreement; provided that such limitations and Michael O.financial covenants shall be deemed included in this Agreement for only so long as the same shall be in effect in the Hanover Credit Agreement. The Guarantor agrees to inform the Facility Agent promptly of any such amendments to the Hanover Credit Agreement and to furnish a copy of the documentation containing such covenants. The Guarantor and the Facility Agent further agree to enter into such amendments to this Agreement as reasonably requested by the Facility Agent or the Guarantor so as to conform this Agreement to the changes contemplated by the first sentence of this Section 4.06(f) (including its proviso), it being understood that the failure to effect any such amendment shall not limit the effectiveness of the first sentence of this Section 4.06(f) (including its proviso).
Appears in 1 contract
Certain Agreements. Parent envisages that the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as follows:
(a) The Company's By-laws will be amended to include the provisions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The ParentCompany covenants and agrees that it will not, without the prior written consent of the Buyers, enter into any subsequent or further offer or sale of Common Stock or securities convertible into Common Stock with any third party ("Subsequent Financing") until the earlier of (a) the date which is one hundred eighty (180) days after the Effective Date (as defined below) or (b) the date on which 85% of the Preferred Stock shares have been converted into shares of Common Stock (the "Non-Financing Period"). If the Company receives a proposal for a Subsequent Financing during the Non-Financing Period, upon receipt of such proposed terms the Company covenants and agrees to promptly furnish a notice to the Buyers which sets forth the terms of the proposed Subsequent Financing. The Buyers shall have the right, exercisable for a period of ten (10) days after receipt of the written notice from the Company, to consummate the Subsequent Financing with the Company on the same terms and conditions as the holder proposed Subsequent Financing within ten (10) days after making the election. If the Buyers do not exercise their right to consummate the Subsequent Financing as set forth herein, the Company shall be free to enter into the proposed Subsequent Financing on substantially the same terms as disclosed to the Buyers. If the Buyers exercise their right within such ten (10) day period but do not close the Subsequent Financing, other than due to a breach by the Company, the Buyers shall be liable to the Company if the counterparty to the Subsequent Financing no longer wishes to engage in the transaction. Notwithstanding the foregoing, the Company may enter into a Subsequent Financing without the prior written consent of the Buyers if such Subsequent Financing is exempt from securities registration under Regulation D and the Company is not required to file a registration statement with respect to the underlying securities within one hundred twenty (120) days of the Effective Date (as defined below) or if the proceeds from such Subsequent Financing are used to redeem all of the then outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regardPreferred Stock.
(ii) The corporate nameSubject to the conditions of subparagraph (i)(iv), bank regulatory status and location the provisions of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
subparagraph (iiii)(i) The size of the Company Board will not be altered apply to (x) the issuance of securities (other than to the extent necessary for cash) in connection with a merger, consolidation, strategic alliance, sale of assets, disposition or entering into a binding agreement with an investment banking firm of recognized regional or national status to obtain financing and provide investment banking services or (y) the appointment exchange of the two (2) designees of Parent's Chief Executive Officer)capital stock for assets, and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended stock or altered without the approval of a majority of the Company Boardother joint venture interests.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board.
(b) The parties agree further that for the Period:
(i) The Company shall be maintained as a separate wholly-owned Subsidiary of Parent. Subject to the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment of the Company's Chief Executive Officer shall not be modified without the prior approval of Parent. Any vacancy in the office of Chief Executive Officer of the Company by reason of death, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will be a member of office of the chairman of Parent, for so long as such office is in existence, reporting directly to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent group.
(c) Following the execution of this Agreement, the Company and Parent will form an integration committee, whose members will be jointly agreed upon but will include William Y. Yun and Michael O.
Appears in 1 contract
Certain Agreements. Parent envisages that The Issuers agree with the Company will continue to function as an independent Subsidiary with its current name and Company Board. In light of the importance of this independence, Parent and the Company agree as followsseveral Purchasers that:
(a) The CompanyIssuers will advise CSFBC promptly of any proposal to amend or supplement the Offering Document and will not effect such amendment or supplementation without CSFBC's By-laws consent, which consent shall not be unreasonably withheld. If, at any time prior to the completion of the resale of the Offered Securities by the Purchasers, any event occurs as a result of which the Offering Document as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, the Issuers promptly will be amended notify CSFBC of such event and promptly will prepare, at their own expense, an amendment or supplement which will correct such statement or omission. Neither CSFBC's consent to, nor the Purchasers' delivery to include offerees or investors of, any such amendment or supplement shall constitute a waiver of any of the provisions conditions set forth in clauses (i) -- (iii) of this subsection (a) of Section 6.20(a) (the "6.20(A) PROVISIONS"):
(i) The Parent, as the holder of all of the outstanding Shares, shall elect directors of the Company. Persons eligible to serve on the Company Board shall be:
(A) the Company's directors in office immediately prior to the effective time;
(B) two (2) designees of Parent's chief executive officer; and
(C) upon the departures of persons referred to in clause (A) by reason of death, retirement, resignation, or removal for cause, persons nominated by the Nominating Committee of the Company Board. For each vacancy the Nominating Committee of the Company Board shall nominate three persons. The Parent shall be entitled to vote the Shares in its discretion in this regard.
(ii) The corporate name, bank regulatory status and location of the principal place of business of the Company in New York shall not be changed without the prior approval of the Company Board.
(iii) The size of the Company Board will not be altered (other than to the extent necessary in connection with the appointment of the two (2) designees of Parent's Chief Executive Officer), and the provisions of the Company's By-Laws regarding the removal of directors without cause will not be amended or altered without the approval of a majority of the Company Board.
(a) Provisions will not be modified or removed from the Company's By-laws without the approval of a majority of the Company Board6.
(b) The parties agree further that for Issuers will furnish to CSFBC copies of any Preliminary Offering Circular, the Period:
(i) The Company shall be maintained Offering Circular and all amendments and supplements to such documents, in each case as a separate wholly-owned Subsidiary of Parent. Subject soon as available and in such quantities as CSFBC requests, and the Issuers will furnish to CSFBC on the provisions of subsection (b)(ii) below, Parent shall consult with the Company Board with regard to any reorganization date hereof three copies of the operations and corporate structures of the Subsidiaries of the Company and/or the integration of such operations and corporate structures with Parent's businesses and Subsidiaries that Parent may wish to effect following the Effective Time, with the goal of achieving maximum efficiencies and synergies;
(ii) The global high net-worth individual businesses of the Company and Parent as of the Effective Time, excluding Parent's wrap-fee business, will be developed and managed Offering Document signed by the Company in consultation with Parent. Parent will advance the expansion of the global institutional separate account businesses of the Company for a full range of growth equities, fixed income and real estate securities;
(iii) The Chief Executive Officer of the Company shall report directly to the Chief Executive Officer of Parent. Personnel decisions and the reporting structure concerning the executives, officers and employees of Company shall be in the discretion of the Chief Executive Officer of the Company within the framework of an overall budget and within a context jointly developed by Parent and the Company. In furtherance of the foregoing, the policies and procedures applicable to the executives, officers and employees of the Company and its Subsidiaries on a functional basis shall be consistent with the analogous policies and procedures of Parent in existence from time to time;
(iv) The salary, benefits and terms of employment duly authorized officer of the Company's Chief Executive Officer shall , one of which will include the independent accountants' reports therein manually signed by such independent accountants (except that the Issuers do not be modified without need to provide an independent accountants' report of Deloitte & Touche for the prior approval of ParentPreliminary Offering Circular). Any vacancy in At any time when the office of Chief Executive Officer Company is not subject to Section 13 or 15(d) of the Company by reason of deathExchange Act, retirement, resignation or otherwise shall be filled by the Company Board with the prior consent of Parent;
(a) Anne M. Tatlock will be a member of the Parent Board, as long as xxx xxxxx xxx requirements to be a director of a corporation organized under the Delaware General Corporation Law and (b) the Chief Executive Officer of the Company will promptly furnish or cause to be a member of office furnished to CSFBC and, upon request, to each of the chairman other Purchasers and, upon request of Parentholders and prospective purchasers of the Offered Securities, for so long as to such office is holders and purchasers, copies of the information required to be delivered to holders and prospective purchasers of the Offered Securities pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision thereto) in existence, reporting directly order to permit compliance with Rule 144A in connection with resales by such holders of the Offered Securities. The Company will pay the expenses of printing and distributing to the Chief Executive Officer of Parent; and
(vi) Parent will involve the management of the Company in the future management of the Parent groupPurchasers all such documents.
(c) Following The Issuers will arrange for the execution qualification of the Offered Securities for sale and the determination of their eligibility for investment under the laws of such jurisdictions in the United States and Canada as CSFBC designates and will continue such qualifications in effect so long as required for the resale of the Offered Securities by the Purchasers, provided that none of the Issuers will be required to qualify as a foreign corporation or to file a general consent to service of process in any such state.
(d) During the period of ten years hereafter, the Company will furnish to CSFBC and, upon request, to each of the other Purchasers, as soon as practicable after the end of each fiscal year, a copy of its annual report to shareholders for such year; and the Company will furnish to CSFBC and, upon request, to each of the other Purchasers (i) as soon as available, a copy of each report and any definitive proxy statement of the Company filed with the Commission under the Exchange Act or mailed to shareholders, and (ii) from time to time, such other information concerning the Company as CSFBC may reasonably request.
(e) During the period of two years after the Closing Date, the Issuers will, upon request, furnish to CSFBC, each of the other Purchasers and any holder of Offered Securities a copy of the restrictions on transfer applicable to the Offered Securities.
(f) During the period of two years after the Closing Date, the Issuers will not, and will not permit any of its affiliates (as defined in Rule 144 under the Securities Act) to, resell any of the Offered Securities that have been reacquired by any of them.
(g) During the period of two years after the Closing Date, the Issuers will not be or become an open-end investment company, unit investment trust or face-amount certificate company that is or is required to be registered under Section 8 of the Investment Company Act.
(h) The Company will pay all expenses incidental to the performance of the Issuers' obligations under this Agreement, the Indenture and the Registration Rights Agreement, including (i) the fees and expenses of the Trustee and its professional advisers, (ii) all expenses in connection with the execution, issue, authentication, packaging and initial delivery of the Offered Securities and, as applicable, the Exchange Securities (as defined in the Registration Rights Agreement), the preparation and printing of this Agreement, the Registration Rights Agreement, the Indenture, the Offering Document and amendments and supplements thereto, and any other document relating to the issuance, offer, sale and delivery of the Offered Securities and as applicable, the Exchange Securities, (iii) the cost of listing the Offered Securities and qualifying the Offered Securities for trading in The Portal/SM/ Market ("PORTAL") and any expenses incidental thereto, (iv) the cost of any advertising approved by the Company in connection with the issue of the Offered Securities (v) any expenses (including fees and disbursements of counsel) incurred in connection with qualification of the Offered Securities or the Exchange Securities for sale under the laws of such jurisdictions in the United States and Canada as CSFBC designates and the printing of memoranda relating thereto, (vi) for any fees charged by investment rating agencies for the rating of the Offered Securities or the Exchange Securities, and (vii) expenses incurred in distributing Preliminary Offering Circulars and the Offering Document (including any amendments and supplements thereto) to the Purchasers. The Company will also pay (to the extent incurred by them) or reimburse the Purchasers for all travel expenses of the Company's officers and employees and any other expenses of the Issuers in connection with attending or hosting meetings with prospective purchasers of the Offered Securities from the Purchasers.
(i) In connection with the offering, until CSFBC shall have notified the Company and Parent the other Purchasers of the completion of the resale of the Offered Securities, none of the Issuers and any of their affiliates has or will, either alone or with one or more other persons, bid for or purchase for any account in which it or any of its affiliates has a beneficial interest any Offered Securities or attempt to induce any person to purchase any Offered Securities; and neither it nor any of its affiliates will form an integration committeemake bids or purchases for the purpose of creating actual, whose members or apparent, active trading in, or of raising the price of, the Offered Securities.
(j) For a period of 180 days after the Closing Date, none of the Issuers will offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any U.S. dollar-denominated debt securities issued or guaranteed by any of the Issuers and having a maturity of more than one year from the date of issue. None of the Issuers will at any time offer, sell, contract to sell, pledge or otherwise dispose of, directly or indirectly, any securities under circumstances where such offer, sale, pledge, contract or disposition would cause the exemption afforded by Section 4(2) of the Securities Act or the safe harbor of Regulation S thereunder to cease to be jointly agreed upon but applicable to the offer and sale of the Offered Securities.
(k) The Company shall apply the net proceeds of the sale of the Offered Securities as set forth in the Offering Document.
(l) The Company will include William Y. Yun and Michael O.use best efforts to have the Offered Securities admitted for trading in PORTAL.
Appears in 1 contract
