Certain Company Actions. Prior to the Effective Time, each of the Company and Parent shall take all such steps as may be required (to the extent permitted under applicable Law) to cause any dispositions of shares of Company Common Stock (including derivative securities with respect to shares of Company Common Stock) resulting from the transactions contemplated by this Article IV by each individual who is subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to the Company to be exempt under Rule 16b-3 promulgated under the Exchange Act.
Certain Company Actions. Prior to the Effective Time, the Company ----------------------- shall take all such steps as may be required to cause any dispositions of Company Shares (including derivative securities with respect to Company Shares) resulting from the transactions contemplated by Article III of this Agreement by each individual who is subject to the reporting requirements of Section 16(a) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), with respect to the Company to be exempt under Rule 16b-3 promulgated under the Exchange Act, such steps to be taken in accordance with the No-Action Letter dated January 12, 1999 issued by the SEC to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP.
Certain Company Actions. 14 3.12 Withholding.................................................................................. 15 ARTICLE IV -- REPRESENTATIONS AND WARRANTIES OF THE COMPANY.................................................... 15 4.1 Corporate Organization and Qualification..................................................... 15 4.2 Capitalization............................................................................... 15 4.3 Authority Relative to This Agreement......................................................... 16 4.4 Consents and Approvals; No Violation......................................................... 16 4.5 SEC Reports; Financial Statements............................................................ 17 4.6 Absence of Certain Changes or Events......................................................... 18 4.7 Litigation................................................................................... 18 4.8 Insurance.................................................................................... 19 4.9 Taxes........................................................................................ 19 4.10 Employee Benefit Plans; Labor Matters........................................................ 21 4.11 Environmental Laws and Regulations........................................................... 23 4.12
Certain Company Actions. (a) Until the next duly convened annual meeting of the Company stockholders, without Purchaser’s consent, and except as contemplated by this Agreement, the Company shall not change the number of directors constituting the entire Board of Directors or fill any vacancy in the Board (except as set forth above in this Agreement), change the nature of Company’s operations, incur any debt for borrowed money, guarantee any obligation of any third party, issue any capital stock other than pursuant to obligations to issue Common Stock listed on Schedule 3.1(g) or pursuant to any Company equity incentive plan, issue or grant any instrument exercisable for or convertible into capital stock, or otherwise enter into any transaction other than in the ordinary course of business, amend its articles of incorporation, or bylaws, establish any account at any bank other than that set forth on Schedule 4.11 or change the banking signature authority from that set forth on Schedule 4.11, or agree to any of the foregoing.
(b) By no later than December 16, 2024, the Company will hold an annual or special meeting of the stockholders of the Company (the “Stockholders Meeting”) which will include, among other things, proposals for(i) obtaining Stockholder Approval, (ii) approving a reverse stock split of the Common Stock of the Company at a ratio of up to approximately 1 for 6, to be determined by the Board of Directors of the Company prior to finalizing the proxy statement for the Stockholders Meeting, and, following stockholder approval, to be implemented at the sole and absolute discretion of the Board of Directors, and (iii) increasing the number of shares of Common Stock available under the existing equity incentive plan.
(c) In the event all of the actions in Section IV.11(b) are not approved by the stockholders at the Stockholders Meeting, the Company shall use its reasonable best efforts to call another stockholder meeting (the “Second Meeting”) within seventy (70) days of the Stockholders Meeting for the purpose of obtaining the Required Approvals, with the recommendation of the Company’s Board of Directors that such proposals are approved, and the Company shall solicit proxies from its stockholders in connection therewith in the same manner as all other management proposals in such proxy statement. If the Company does not obtain the Required Approvals at the Second Meeting, the Company shall call a meeting every seventy (70) days thereafter to seek the Required Approvals u...
Certain Company Actions. (a) The Selling Member (in connection with a proposed Drag-Along Transaction) or any Transferor (in connection with a proposed Tag-Along Sale) shall each have the right in connection with such a prospective transaction (or in connection with the investigation or consideration of any such prospective transaction) to require the Company to cooperate fully with potential acquirers in such prospective transaction by taking all customary and other actions reasonably requested by such holders or such potential acquirers, including making the Company’s properties, books and records, and other assets reasonably available for inspection by such potential acquirers, establishing a physical or electronic data room including materials customarily made available to potential acquirers in connection with such processes and making its employees reasonably available for presentations, interviews and other diligence activities, in each case, subject to reasonable and customary confidentiality provisions. In addition, a Member holding at least a majority of the outstanding Membership Interests shall be entitled to take all steps reasonably necessary to carry out an auction of the Company, including selecting an investment bank, providing confidential information (pursuant to confidentiality agreements), selecting the winning bidder and negotiating the requisite documentation. The Company shall provide assistance with respect to these actions as reasonably requested.
(b) Notwithstanding anything to the contrary in this Agreement, at any time after the six-months (6) anniversary of (i) the date of delivery of the Inclusion Notice with respect to each proposed Tag-Along Sale pursuant to Section 7.5 or (ii) the date of the delivery of the New Issue Notice with respect to each proposed issuance of New Securities pursuant to Section 7.7, the Board shall be entitled to waive, on behalf of (x) with respect to clause (i) above, each Eligible Seller, each former Eligible Seller and each of their respective Affiliates, successors and assigns and the members, partners, stockholders, directors, managers, officers, liquidators and employees of each of the foregoing (collectively the “Eligible Seller Persons”) any and all claims such Eligible Sellers Persons have, had or may have or had with respect to any non-compliance or violation of Section 7.5 by any Person with respect to such Tag-Along Sale (whether or not any Units were Disposed of pursuant to Section 7.5 and (y) with respect to c...
Certain Company Actions. (a) Company shall use best efforts to cause, within fifteen (15) business days after the Closing, the vacancies created pursuant to Section 2.2(a)(ix) to be filled by individuals designated by Purchaser and those individuals to be appointed to constitute the majority of the nominating committee of the Board of Directors.
(b) Until the Company has filled the vacancies created pursuant to Section 2.2(a)(ix) by individuals designated by Purchaser, and those individuals have been appointed to constitute the majority of the nominating committee of the Board of Directors, without Purchaser’s consent, the Company shall not (i) change the number of directors constituting the entire Board of Directors or fill any vacancy in the Board (except as set forth above), (ii) change the nature of Company’s operations, (iii) incur any debt for borrowed money, (iv) guarantee any obligation of any third party, (v) issue any capital stock other than pursuant to obligations to issue Common Stock listed on Schedule 3.1(g), (vi) issue or grant any instrument exercisable for or convertible into capital stock, (vii) otherwise enter into any transaction other than in the ordinary course of business, (viii) amend its certificate of incorporation, or bylaws, (ix) use the proceeds from sale of the Securities, except as set forth in Schedule 4.9, (x) establish any account at any bank other than that of Exhibit D or the banking signature authority from that set forth on Exhibit D, or (xi) agree to any of the foregoing. Thereafter, until June 30, 2024, Company shall not do or agree to do any of the foregoing unless authorized by not less than six out of the seven members of the Board of Directors.
(c) Within three days after Closing:
(i) Company shall cause Company Counsel to deliver a legal opinion in the form of Exhibit C; and
(ii) Purchaser shall cause Purchaser’s qualified counsel in the state of its incorporation to deliver a legal opinion or other similar legal confirmation covering the matters set forth in paragraphs 4 through 7 in the form of legal opinion attached hereto as Exhibit C, such paragraphs to be revised and adjusted, mutatis mutandis, with respect to the Promissory Note.
(d) Company will hold its annual meeting for election of directors by April 30, 2024. At the meeting, the Company shall also submit to stockholders approval of an amendment of the Certificate of Designations removing the Beneficial Ownership Limitations and such other matters as Purchaser deems stockhol...
Certain Company Actions. (a) Until the next duly convened annual meeting of the Company stockholders, without Purchaser’s consent, the Company shall not change the number of directors constituting the entire Board of Directors or fill any vacancy in the Board (except as set forth above), change the nature of Company’s operations, incur any debt for borrowed money, guarantee any obligation of any third party, issue any capital stock other than pursuant to obligations to issue Common Stock listed on Schedule 3.1(g), issue or grant any instrument exercisable for or convertible into capital stock, file any application for bankruptcy, receivership or similar proceeding, or otherwise enter into any transaction other than in the ordinary course of business, amend its certificate of incorporation, or bylaws, use the proceeds from sale of the Securities, except as set forth in Schedule 4.11, establish any account at any bank other than that set forth on Exhibit D or change the banking signature authority from that set forth on Exhibit D, or agree to any of the foregoing.
(b) By no later than February 28, 2024, the Company will hold a special meeting of the shareholders of the Company for purposes of approving (i) a one for three reverse stock split of the Common Stock of the Company, (ii) the increase in authorized shares of preferred stock to 10,000,000, (iii) an amendment of the Certificate of Designations establishing the rights and preferences of the Series A Preferred Stock and removing the Beneficial Ownership Limitations and such other matters as Purchaser deems stockholder approval necessary to comply with Nasdaq listing standards, with respect to the transactions contemplated hereby, including any approvals required under Nasdaq Rule 5635, and (iv) an amendment to the Certificate of Incorporation of the Company removing the limitations on action by written consent of the stockholders in lieu of a meeting of the stockholders(the “Shareholders Meeting”).
Certain Company Actions. 11 ARTICLE IV.
Certain Company Actions. In the event that the Company receives from the Initiating Holders, a written demand that the Company effect a shelf registration in accordance with Section 1.3(a), the Company will (i) promptly give written notice of the proposed shelf registration to all other Holders; and (ii) permit any other Holder of Registrable Securities to join in such demand provided that such Holders so request inclusion in a writing received by the Company within ten days after written notice from the Company.
Certain Company Actions. Notwithstanding the provisions of Section 5.7.1, except as provided in or contemplated by the budget of the Company attached to this Agreement as Exhibit "C" or in any revised or subsequent budget approved in writing by the Members (in each case, an "Approved Budget"), the following actions shall not be deemed to be within the scope of the ordinary day-to-day business and operations of the Company and shall require the unanimous written approval of one-hundred percent (100%) of the Members:
5.9.1 the sale of all or substantially all of the Company's assets or of any asset with a selling price of more than $2,500;
5.9.2 the borrowing of money by the Company, other than accounts payable of the Company incurred in the normal course of the Company's business;
5.9.3 the lending of Company funds to any person or entity, other than accounts receivable arising out of the normal course of the Company's business;
5.9.4 the purchase or lease of any real property;
5.9.5 the purchase of any personal property costing in excess of $2,500 as to any item or group of related items or the lease of any item or group of related items of personal property requiring annual lease payments in excess of $5,000 or with a term in excess of one year;
5.9.6 the institution or settlement of any claim or litigation;
5.9.7 any merger, business combination, joint venture or acquisition or the entry into any line of business not contemplated by Section 2.3;
5.9.8 any commitment of funds in excess of $5,000 for any item or matter or any group of related items or matters;
5.9.9 subject to Section 6.2, any commitment for the Company to provide services to a Client, or any commitment by the Company to obtain services, in excess of $150,000;
5.9.10 the grant or acquisition of any license, franchise or similar right to or from (as the case may be) any Person or entity;
5.9.11 the pledge, mortgage or encumbrance of any asset or property of the Company;
5.9.12 the entry into any contract or commitment with any Affiliate of a Member;
5.9.13 the selection and engagement of legal counsel;
5.9.14 a decision to continue the business of the Company after dissolution of the Company;
5.9.15 approval of the transfer of a Membership Interest and admission of an assignee as a Member; and
5.9.16 an amendment to the Certificate of Formation or this Agreement.
