Consent Rights. (a) Following the earlier of receipt of the third party consents set forth on Schedule 2.2 to this Agreement (the “Third Party Consents”) or the determination by the Company that such Third Party Consents are no longer required, and then for so long as the Investors, together with their Affiliates, Beneficially Own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock , prior written consent of the Investors will be required for: (i) Any modification or amendment of the Company’s Governing Documents, operating agreement or similar organizational documents (whether by merger, consolidation or otherwise) in any manner adverse to the Investor; (ii) Any individual or series of related retention agreements, signing bonuses, stock option awards, stock incentive rights (including any phantom stock) or any similar employee compensation related agreements or arrangements to the extent that the aggregate of all of the foregoing would exceed in the aggregate during any calendar year 10% of the Company’s Market Capitalization as of the day after the Closing Date or that, in the aggregate, exceeds $5,000,000 in value during any calendar year, determined as of the date of grant with respect to equity awards and as of the date of payment with respect to cash awards or similar arrangements; (iii) Any purchase of shares of Common Stock or Capital Stock from members of the Board, Company’s management or their respective Affiliates (other than deemed repurchases in connection with the surrender of shares by members of the Board, the Company’s management or their respective Affiliates to the Company to satisfy any customary tax withholding in connection with vesting of restricted stock or cashless exercises of stock options); (iv) Any Equity Issuance at a (net of any discounts, commissions, or other direct or indirect payments, whether in cash or other value) price per share or deemed price per share (i.e. conversion, exchange or exercise price) of Common Stock less than $6.33 per share; (v) Any transaction, including any modification of rights, involving the existing preferred shares or preferred shareholders; (vi) Any guarantees of, incurrences of or issuances of recourse Debt or recourse Capital Stock that is redeemable at any time by the Company or Trade Street Operating Partnership, LP (the “Operating Partnership”) which guarantees, incurrences or issuances during any calendar year are in a principal amount or create an obligation or potential obligation of the Company for a payment amount greater than $50,000,000 (not counting a guarantee and its related Debt more than once); and for any issuance of Capital Sock other than Common Stock for consideration or value greater than $50,000,000 in the aggregate in any calendar year; (vii) Any acquisition or series of related acquisitions, the purchase price of which would equal more than fifty percent (50%) of the Company’s Market Capitalization immediately prior to execution of definitive documentation for any such acquisition; (viii) The hiring or firing of the Company’s Chief Executive Officer, Chief Financial Officer, Chief Investment Officer, Chief Operating Officer or President or any similar position; and (ix) Determination by the Board that it is no longer in the Company’s best interest to qualify as a Real Estate Investment Trust. (b) The rights of the Investors and their Affiliates set forth in this Section 2.2 shall be in addition to, and not in limitation of, such voting rights that the Investors and their Affiliates may otherwise have as holders of Capital Stock of the Company, subject to Section 5.1. (c) If the Third Party Consents are not obtained and it is not determined by the Company that such Third Party Consents are no longer required on or prior to the date that is one hundred eighty (180) days following the date of this Agreement (the “Consent Default” and the date of such Consent Default, the “Consent Default Date”), then, as liquidated damages to any Investor for the failure to obtain the Third Party Consents (or determination that they are no longer required) by such date (which remedy shall be the exclusive remedy available at law or in equity only for a period of one hundred eighty (180) days following the Consent Default Date, but which shall not be exclusive of any other remedies available at law or in equity after the date that is one hundred eighty (180) days following the Consent Default Date) the Company shall (i) issue to such Investor on the first 30 day anniversary of the Consent Default and on each subsequent 30 day anniversary of the Consent Default (pro rated for periods totaling less than 30 calendar days), or, if earlier, no later than five (5) Business Days following the date that such Consent Default is cured, until the Third Party Consents are obtained (or determination that they are no longer required), additional shares of Common Stock, the number of which shall equal one percent (1.0%) (the “Consent Rate”) of the aggregate purchase price paid by such Investor pursuant to the Standby Purchase Agreement for its Acquired Shares and the Backstop Acquired Shares divided by the arithmetic average of the VWAPs over the ten (10) Trading Days prior to the issuance of such shares (all shares issuable by the Company for any Consent Default are referred to herein as the “Consent Fee Shares”) or (ii) pay an amount of cash by wire of immediately available funds equal to the Consent Rate times the aggregate purchase price paid by such Investor pursuant to the Standby Purchase Agreement for the Acquired Shares and the Backstop Acquired Shares (such cash payments, the “Consent Delay Payments”). In the event the Company fails to issue the Consent Fee Shares or pay the Consent Delay Payments in a timely manner, the Consent Fee Shares issued or the Consent Delay Payments paid, as the case may be, to each Investor shall be increased at the rate of one and one-half percent (1.5%) of the Consent Rate per month until such Consent Fee Shares are issued in full, or such Consent Delay Payments are paid in full, as applicable.
Appears in 2 contracts
Samples: Standby Purchase Agreement (Trade Street Residential, Inc.), Stockholders Agreement (Trade Street Residential, Inc.)
Consent Rights. (a) Following the earlier of receipt of the third party consents set forth on Schedule 2.2 to this Agreement (the “Third Party Consents”) or the determination by the Company that such Third Party Consents are no longer required, and then for so So long as the InvestorsShareholders collectively, together with their Affiliatesdirectly or indirectly, Beneficially Own own at least four and nine-tenths percent (4.9%) 40% of the outstanding Common Stock Outstanding Voting Shares, the Company shall not take and shall take all necessary action to cause any member of the Company Group not to take, directly or indirectly (whether by amendment, merger, consolidation, reorganization or otherwise) any of the following actions (or enter into an agreement to take such actions) without the prior written consent of LandBridge Holdings, which consent may be withheld in its discretion, in addition to the Investors will be required for:Board of Directors’ approval (or, as applicable, the approval of the requisite governing body of any Subsidiary of the Company or any requisite statutory vote):
(i) Any modification terminating the chief executive officer of the Company and/or hiring or amendment appointing his or her successor;
(ii) removing the Chairman of the Board and/or appointing his or her successor;
(iii) increasing or decreasing the size of the Board of Directors or any committee of the Board of Directors or taking any such action with respect to the governing body of any member of the Company Group;
(iv) agreeing to or entering into any transaction that, if consummated, would constitute a Change of Control or entering into any definitive agreement or series of related agreements that govern any transaction or series of related transactions that, if consummated, would result in a Change of Control;
(v) incurring debt for borrowed money (or liens securing such debt) in an amount that would result in outstanding debt for borrowed money that exceeds the Company’s Governing DocumentsConsolidated Adjusted EBITDA for the four quarter period immediately prior to the proposed date of incurrence of such debt by 4.00 to 1.00;
(vi) authorizing, operating agreement or similar organizational documents creating (whether by way of reclassification, merger, consolidation or otherwise) in or issuing any manner adverse equity securities of the Company (other than (x) pursuant to any equity compensation plan approved by the InvestorBoard of Directors or a committee thereof or (y) intra-company issuances among the members of the Company Group);
(iivii) Any individual Making any voluntary election to liquidate or dissolve or commence bankruptcy or insolvency proceedings or the adoption of a plan with respect to any of the foregoing or any determination not to oppose such action or proceeding commenced by a third party;
(viii) Selling, transferring or disposing of assets outside the ordinary course of business in a transaction or series of related retention agreements, signing bonuses, stock option awards, stock incentive rights (including any phantom stock) or any similar employee compensation related agreements or arrangements to the extent that the aggregate transactions with a fair market value in excess of all of the foregoing would exceed in the aggregate during any calendar year 102% of the Company’s Market Capitalization as of the day after the Closing Date or that, in the aggregate, exceeds $5,000,000 in value during any calendar year, Consolidated Net Tangible Assets determined as of the date of grant with respect to equity awards and as end of the date of payment with respect to cash awards or similar arrangements;
(iii) Any purchase of shares of Common Stock or Capital Stock from members of the Board, Company’s management or their respective Affiliates (other than deemed repurchases in connection with the surrender of shares by members of the Board, the Company’s management or their respective Affiliates to the Company to satisfy any customary tax withholding in connection with vesting of restricted stock or cashless exercises of stock options);
(iv) Any Equity Issuance at most recently completed fiscal period for which a (net of any discounts, commissions, or other direct or indirect payments, whether in cash or other value) price per share or deemed price per share (i.e. conversion, exchange or exercise price) of Common Stock less than $6.33 per share;
(v) Any transaction, including any modification of rights, involving the existing preferred shares or preferred shareholders;
(vi) Any guarantees of, incurrences of or issuances of recourse Debt or recourse Capital Stock that is redeemable at any time by the Company or Trade Street Operating Partnership, LP (the “Operating Partnership”) which guarantees, incurrences or issuances during any calendar year are in a principal amount or create an obligation or potential obligation consolidated balance sheet of the Company for a payment amount greater than $50,000,000 (not counting a guarantee and its related Debt more than once); and for any issuance of Capital Sock other than Common Stock for consideration or value greater than $50,000,000 in the aggregate in any calendar year;
(vii) Any acquisition or series of related acquisitions, the purchase price of which would equal more than fifty percent (50%) of the Company’s Market Capitalization immediately prior to execution of definitive documentation for any such acquisition;
(viii) The hiring or firing of the Company’s Chief Executive Officer, Chief Financial Officer, Chief Investment Officer, Chief Operating Officer or President or any similar positionconsolidated Subsidiaries is available; and
(ix) Determination by the Board that it is no longer in the Company’s best interest to qualify as a Real Estate Investment Trustany amendment, modification or waiver of this Section 5.21.
(b) The rights So long as the Shareholders collectively, directly or indirectly, own at least 10% of the Investors Outstanding Voting Shares, the Company shall not and their Affiliates set forth shall take all necessary action to cause each member of the Company Group not to, directly or indirectly (whether by amendment, merger, consolidation, reorganization or otherwise) make (or enter into an agreement to make) any amendment, modification or waiver of this Agreement or any other governing documents of the Company that materially and adversely affects any member of the Sponsor Group or its rights under this Agreement without the prior consent of LandBridge Holdings, which consent may be withheld in its discretion. Nothing in this Section 2.2 shall be in addition to5.21, and not in limitation of, such voting rights that or the Investors and their Affiliates may otherwise have as holders of Capital Stock exercise of the Company, subject to Section 5.1.
rights contemplated hereby (c) If the Third Party Consents are not obtained and it is not determined by the Company that such Third Party Consents are no longer required on including any grant or prior to the date that is one hundred eighty (180) days following the date withholding of this Agreement (the “Consent Default” and the date of such Consent Default, the “Consent Default Date”), then, as liquidated damages to any Investor for the failure to obtain the Third Party Consents (or determination that they are no longer required) by such date (which remedy shall be the exclusive remedy available at law or in equity only for a period of one hundred eighty (180) days following the Consent Default Date, but which shall not be exclusive of any other remedies available at law or in equity after the date that is one hundred eighty (180) days following the Consent Default Date) the Company shall (i) issue to such Investor on the first 30 day anniversary of the Consent Default and on each subsequent 30 day anniversary of the Consent Default (pro rated for periods totaling less than 30 calendar days), or, if earlier, no later than five (5) Business Days following the date that such Consent Default is cured, until the Third Party Consents are obtained (or determination that they are no longer required), additional shares of Common Stock, the number of which shall equal one percent (1.0%) (the “Consent Rate”) of the aggregate purchase price paid by such Investor pursuant to the Standby Purchase Agreement for its Acquired Shares and the Backstop Acquired Shares divided by the arithmetic average of the VWAPs over the ten (10) Trading Days prior to the issuance of such shares (all shares issuable by the Company for any Consent Default are referred to herein as the “Consent Fee Shares”) or (ii) pay an amount of cash by wire of immediately available funds equal to the Consent Rate times the aggregate purchase price paid by such Investor pursuant to the Standby Purchase Agreement for the Acquired Shares and the Backstop Acquired Shares (such cash payments, the “Consent Delay Payments”). In the event the Company fails to issue the Consent Fee Shares or pay the Consent Delay Payments in a timely manner, the Consent Fee Shares issued or the Consent Delay Payments paidconsent, as the case may be), to each Investor shall be increased at deemed to create or otherwise result in any duty, obligation or liability on the rate part of one and one-half percent (1.5%) any member of the Consent Rate per month until Sponsor Group, express or implied, in equity or otherwise. In addition, with respect to any Director who is also a director, officer, employee or principal of any member of the Sponsor Group, no act or omission of such Consent Fee Shares are issued director, officer, employee or principal of any member of the Sponsor Group in fullhis or her capacity as such shall (i) be deemed to be an act or omission of such person in his or her capacity as a Director or (ii) be deemed to create or otherwise result in any duty, obligation or liability on the part of such Consent Delay Payments are paid person in fullhis or her capacity, as applicableexpress or implied, in equity or otherwise.
Appears in 1 contract
Samples: Limited Liability Company Agreement (LandBridge Co LLC)
Consent Rights. (a) Following Subject to Section 5.05(b), the earlier of receipt of the third party consents set forth on Schedule 2.2 to this Agreement (the “Third Party Consents”) or the determination following actions shall not be taken by the Company that such Third Party Consents are no longer requiredor any Subsidiary without the prior written consent of the Buyers:
(i) any acquisition or disposition of assets (including the acquisition of shares of capital stock of another Person, whether by merger, stock purchase or otherwise) other than in the ordinary course of business or involving an amount of consideration in excess of $15,000,000 in any single instance (including any series of related transactions);
(ii) the incurrence of any additional debt obligations by the Company or any Subsidiary other than in the ordinary course of business or in excess of $15,000,000 in any single instance (including any series of related transactions) or in excess of $50,000,000 in the aggregate;
(iii) the discharge of the chief executive officer, the chief operating officer or the chief financial officer of the Company other than for cause (as determined by a majority of the entire Board), and then the hiring of any replacement thereof;
(iv) changing the principal business of the Company;
(v) any amendment or modification of the certificate of incorporation or by-laws of the Company that materially and adversely affects the rights of the Buyers set forth in this Agreement, the Stock Purchase Agreement, the Buy/Sell Agreement or the Registration Rights Agreement, or any amendment or modification that reduces or limits the provisions relating to the exculpation or indemnification of directors or officers of the Company or any amendment or modification of the certificate of incorporation of the Company that creates any securities of the Company which (x) would impair or render substantially more cumbersome the rights of the Buyers under this Agreement or the Buy/Sell Agreement, or (y) provides for the payment of cash dividends or mandatory redemption, in each case, prior to the third anniversary of the Closing Date; provided, that for so long as the InvestorsBuyers have the right to nominate any director to the Board as provided in Section 5.02, together with their Affiliatesany amendment or modification of the certificate of incorporation or by-laws of the Company that changes the number of directors on the Board (other than any amendment or modification to effectuate the provisions of Section 5.02(b) or 5.02(c)) shall be deemed automatically to so adversely affect the rights of the Buyers;
(1) any material transaction (provided, Beneficially Own that any transaction involving an amount, or obligations, equal to or exceeding $1,000,000 shall be deemed to be per se material) between the Company or any Subsidiary, on the one hand, and any Stockholder or any Affiliate of a Stockholder, on the other hand, that is on terms materially less favorable than those that might have been reasonably obtained in a comparable transaction at such time from a Person which is not an Affiliate; provided, that HWH shall be required to give at least four 15 days advance notice of any transaction between HWH or any of its Affiliates (other than XxxXxxxxxXxx.xxx, Inc., a Delaware corporation ("XxxXxxxxxXxx.xxx")), on the one hand, and nine-tenths percent the Company and any Subsidiary, on the other hand, or (4.9%2) any material transaction between the Company or any Subsidiary, on the one hand, and XxxXxxxxxXxx.xxx, on the other hand, including but not limited to, (i) the making of any loan to XxxXxxxxxXxx.xxx, or (ii) the outstanding Common making of any equity investment in XxxXxxxxxXxx.xxx (including but not limited to pursuant to the exercise of any rights to purchase additional shares of capital stock of XxxXxxxxxXxx.xxx pursuant to the Equity Option Agreement described on Schedule 3.19 to the Stock Purchase Agreement), prior written provided, that the performance by the Company under the agreements set forth on Schedule 3.19 to the Stock Purchase Agreement in substantially the manner being currently performed shall not require the consent of the Investors will Buyers, and provided, further, however, that the Company shall not be required for:permitted to amend or modify such agreements between the Company and XxxXxxxxxXxx.xxx without the consent of the Buyers;
(vii) any voluntary liquidation of the Company (except any such liquidation, dissolution, merger or consolidation of the Company in connection with (x) the disposition of any assets of the Company or any Subsidiary, or (y) the acquisition by the Company of the assets or business of any other Person, subject, in either case, to the consent rights in clause (i) Any modification or amendment of the Company’s Governing DocumentsSection 5.05(a), operating agreement or similar organizational documents (whether by merger, consolidation or otherwise) in any manner adverse to the Investorif applicable);
(iiviii) Any individual or series the issuance of related retention agreements, signing bonuses, stock option awards, stock incentive rights (including any phantom stock) or any similar employee compensation related agreements or arrangements options to acquire shares of Common Stock pursuant to the extent that Option Plans (x) which would cause the aggregate of all of the foregoing would exceed in the aggregate during any calendar year 10% of the Company’s Market Capitalization as of the day after the Closing Date or that, in the aggregate, exceeds $5,000,000 in value during any calendar year, determined as of the date of grant with respect to equity awards and as of the date of payment with respect to cash awards or similar arrangements;
(iii) Any purchase number of shares of Common Stock or Capital Stock from members issuable under options issued pursuant to the Option Plans to exceed the sum of (A) 7.5% of the Board, Company’s management or their respective Affiliates (other than deemed repurchases in connection with the surrender of issued and outstanding shares by members of the Board, the Company’s management or their respective Affiliates to the Company to satisfy any customary tax withholding in connection with vesting of restricted stock or cashless exercises of stock options);
(iv) Any Equity Issuance at a (net of any discounts, commissions, or other direct or indirect payments, whether in cash or other value) price per share or deemed price per share (i.e. conversion, exchange or exercise price) of Common Stock (on a fully-diluted, as converted basis), plus (B) the total number of shares of Common Stock issuable under options permitted to be issued under the Option Plans as of the date hereof, or (y) with an exercise price less than $6.33 per share;
(v) Any transaction, including any modification the fair market value of rights, involving the existing preferred shares or preferred shareholders;
(vi) Any guarantees of, incurrences of or issuances of recourse Debt or recourse Capital Common Stock that is redeemable at any time issuable thereunder as determined by the Company or Trade Street Operating Partnership, LP (the “Operating Partnership”) which guarantees, incurrences or issuances during any calendar year are in a principal amount or create an obligation or potential obligation of the Company for a payment amount greater than $50,000,000 (not counting a guarantee and its related Debt more than once); and for any issuance of Capital Sock other than Common Stock for consideration or value greater than $50,000,000 in the aggregate in any calendar yearBoard;
(vii) Any acquisition or series of related acquisitions, the purchase price of which would equal more than fifty percent (50%) of the Company’s Market Capitalization immediately prior to execution of definitive documentation for any such acquisition;
(viii) The hiring or firing of the Company’s Chief Executive Officer, Chief Financial Officer, Chief Investment Officer, Chief Operating Officer or President or any similar position; and
(ix) Determination by the Board that it is no longer in the Company’s best interest to qualify as a Real Estate Investment Trust.
(b) The rights sale of all or substantially all of the Investors and their Affiliates set forth in this Section 2.2 shall be in addition to, and not in limitation of, such voting rights that the Investors and their Affiliates may otherwise have as holders of Capital Stock assets of the Company, subject to Section 5.1.
(c) If unless upon the Third Party Consents are not obtained and it is not determined by prompt distribution of the Company that such Third Party Consents are no longer required on or prior to the date that is one hundred eighty (180) days following the date of this Agreement (the “Consent Default” and the date proceeds of such Consent Defaultsale, the “Consent Default Date”), then, as liquidated damages to any Investor for the failure to obtain the Third Party Consents (or determination that they are no longer required) by such date (which remedy shall be the exclusive remedy available at law or Buyers would receive gross proceeds per Share in equity only for a period of one hundred eighty (180) days following the Consent Default Date, but which shall not be exclusive of any other remedies available at law or in equity after the date that is one hundred eighty (180) days following the Consent Default Date) the Company shall (i) issue to such Investor on the first 30 day anniversary of the Consent Default and on each subsequent 30 day anniversary of the Consent Default (pro rated for periods totaling less than 30 calendar days), or, if earlier, no later than five (5) Business Days following the date that such Consent Default is cured, until the Third Party Consents are obtained (or determination that they are no longer required), additional shares of Common Stock, the number of which shall equal one percent (1.0%) (the “Consent Rate”) of the aggregate purchase price paid by such Investor pursuant to the Standby Purchase Agreement for its Acquired Shares and the Backstop Acquired Shares divided by the arithmetic average of the VWAPs over the ten (10) Trading Days prior to the issuance of such shares (all shares issuable by the Company for any Consent Default are referred to herein as the “Consent Fee Shares”) or (ii) pay an amount of cash by wire of immediately available funds at least equal to the Consent Rate times the aggregate purchase price paid by such Investor pursuant to the Standby Purchase Agreement minimum amount required for the Acquired Shares and the Backstop Acquired Shares (such cash payments, the “Consent Delay Payments”exercise by HWH of its rights under Section 3.01(a) or 3.01(b). In the event the Company fails to issue the Consent Fee Shares or pay the Consent Delay Payments in a timely manner, the Consent Fee Shares issued or the Consent Delay Payments paid, as the case may be, subject to each Investor shall be increased at any escrow permitted under such Section; or
(x) the rate declaration or payment of one any dividends on, or the redemption of, any securities of, the Company (other than the declaration and one-half percent payment of dividends pro rata on the outstanding shares of Common Stock), or the issuance of any securities of the Company which would impair or render substantially more cumbersome the rights of the Buyers under the Buy/Sell Agreement.
(1.5%b) The Buyer's consent rights described in (x) clauses (i), (ii), (iii) and (x) of Section 5.05(a) shall, subject to Section 8.01(b), terminate on the Consent Rate per month until such Consent Fee Shares are third anniversary of the Closing Date, (y) all clauses of Section 5.05(a) (except clause (vi)) shall terminate if the Buyers cease to own, in the aggregate, at least 10% of the issued and outstanding Shares, and (z) all clauses of Section 5.05(a) shall terminate on the date the Buyers cease to own, in fullthe aggregate, any Shares, or such Consent Delay Payments are paid in full, as applicableotherwise contemplated by Section 8.01(b).
Appears in 1 contract
Consent Rights. (a) Following the earlier of receipt of the third party consents set forth on Schedule 2.2 to this Agreement (the “Third Party Consents”) or the determination by the Company that such Third Party Consents are no longer required, and then for so long as the Investors, together with their Affiliates, Beneficially Own at least four and nine-tenths percent (4.9%) of the outstanding Common Stock Stock, prior written consent of the Investors will be required for:
(i) Any modification or amendment of the Company’s Governing Documents, operating agreement or similar organizational documents (whether by merger, consolidation or otherwise) in any manner adverse to the Investor;
(ii) Any individual or series of related retention agreements, signing bonuses, stock option awards, stock incentive rights (including any phantom stock) or any similar employee compensation related agreements or arrangements to the extent that the aggregate of all of the foregoing would exceed in the aggregate during any calendar year 10% of the Company’s Market Capitalization as of the day after the Closing Date or that, in the aggregate, exceeds $5,000,000 in value during any calendar year, determined as of the date of grant with respect to equity awards and as of the date of payment with respect to cash awards or similar arrangements;
(iii) Any purchase of shares of Common Stock or Capital Stock from members of the Board, Company’s management or their respective Affiliates (other than deemed repurchases in connection with the surrender of shares by members of the Board, the Company’s management or their respective Affiliates to the Company to satisfy any customary tax withholding in connection with vesting of restricted stock or cashless exercises of stock options);
(iv) Any Equity Issuance at a (net of any discounts, commissions, or other direct or indirect payments, whether in cash or other value) price per share or deemed price per share (i.e. conversion, exchange or exercise price) of Common Stock less than $6.33 per share;
(v) Any transaction, including any modification of rights, involving the existing preferred shares or preferred shareholders;
(vi) Any guarantees of, incurrences of or issuances of recourse Debt or recourse Capital Stock that is redeemable at any time by the Company or Trade Street Operating Partnership, LP (the “Operating Partnership”) which guarantees, incurrences or issuances during any calendar year are in a principal amount or create an obligation or potential obligation of the Company for a payment amount greater than $50,000,000 (not counting a guarantee and its related Debt more than once); and for any issuance of Capital Sock other than Common Stock for consideration or value greater than $50,000,000 in the aggregate in any calendar year;
(vii) Any acquisition or series of related acquisitions, the purchase price of which would equal more than fifty percent (50%) of the Company’s Market Capitalization immediately prior to execution of definitive documentation for any such acquisition;
(viii) The hiring or firing of the Company’s Chief Executive Officer, Chief Financial Officer, Chief Investment Officer, Chief Operating Officer or President or any similar position; and
(ix) Determination by the Board that it is no longer in the Company’s 's best interest to qualify as a Real Estate Investment Trust.
(b) The rights of the Investors and their Affiliates set forth in this Section 2.2 shall be in addition to, and not in limitation of, such voting rights that the Investors and their Affiliates may otherwise have as holders of Capital Stock of the Company, subject to Section 5.1.
(c) If the Third Party Consents are not obtained and it is not determined by the Company that such Third Party Consents are no longer required on or prior to the date that is one hundred eighty (180) days following the date of this Agreement (the “"Consent Default” " and the date of such Consent Default, the “Consent Default Date”), then, as liquidated damages to any Investor for the failure to obtain the Third Party Consents (or determination that they are no longer required) by such date (which remedy shall be the exclusive remedy available at law or in equity only for a period of one hundred eighty (180) days following the Consent Default Date, but which shall not be exclusive of any other remedies available at law or in equity after the date that is one hundred eighty (180) days following the Consent Default Date) ), the Company shall (i) issue to such Investor on the first 30 day anniversary of the Consent Default and on each subsequent 30 day anniversary of the Consent Default (pro rated for periods totaling less than 30 calendar days), or, if earlier, no later than five (5) Business Days following the date that such Consent Default is cured, until the Third Party Consents are obtained (or determination that they are no longer required), additional shares of Common Stock, the number of which shall equal one percent (1.0%) (the “Consent Rate”) of the aggregate purchase price paid by such Investor pursuant to the Standby Purchase Agreement for its Acquired Shares and the Backstop Acquired Shares divided by the arithmetic average of the VWAPs over the ten (10) Trading Days prior to the issuance of such shares (all shares issuable by the Company for any Consent Default are referred to herein as the “Consent Fee Shares”) or (ii) pay an amount of cash by wire of immediately available funds equal to the Consent Rate times the aggregate purchase price paid by such Investor pursuant to the Standby Purchase Agreement for the Acquired Shares and the Backstop Acquired Shares (such cash payments, the “"Consent Delay Payments”"). In the event the Company fails to issue the Consent Fee Shares or pay the Consent Delay Payments in a timely manner, the Consent Fee Shares issued or the Consent Delay Payments paid, as the case may be, to each Investor shall be increased at the rate of one and one-half percent (1.5%) of the Consent Rate per month until such Consent Fee Shares are issued in full, or such Consent Delay Payments are paid in full, as applicable.
Appears in 1 contract
Samples: Stockholders Agreement (Trade Street Residential, Inc.)
Consent Rights. (a) Following Notwithstanding anything else contained in this Amended and Restated Certificate of Incorporation to the earlier contrary, and in addition to any other voting requirements specified in this Amended and Restated Certificate of receipt Incorporation, until such time as the Indirect LLC Beneficial Ownership of the third party consents set forth on Schedule 2.2 to this Agreement (the “Third Party Consents”) or the determination by the Company that such Third Party Consents are no longer required, and then for so long as the Investorsholders of Class C Common Stock, together with their Affiliates, Beneficially Own at least four and nine-tenths percent (4.9is less than 17.5%) , the following actions may only be taken by the Corporation with the approval of the outstanding Common Stock , prior written consent holders of a majority of the Investors will be required forClass C Common Stock:
(i) Any the approval of any modification to or amendment deviation from the Corporation’s lines of the Company’s Governing Documents, operating agreement or similar organizational documents (whether by merger, consolidation or otherwise) in any manner adverse to the Investorbusiness;
(ii) Any individual the approval of any modification or series deviation from the business plan approved by the Board of related retention agreements, signing bonuses, stock option awards, stock incentive rights Directors (including any phantom stockthe Class C Directors) by (A) 15% or any similar employee compensation related agreements or arrangements to the extent that the aggregate of all of the foregoing would exceed in the aggregate during any calendar year 10% of the Company’s Market Capitalization as of the day after the Closing Date or that, in the aggregate, exceeds $5,000,000 in value during any calendar year, determined as of the date of grant more with respect to equity awards and as any individual expense line item of the date of payment any such annual operating or capital budget or (B) 10% or more with respect to cash awards or similar arrangementsthe aggregate expenses set forth in such business plan; provided, that notwithstanding the foregoing, any deviation from such business plan in any fiscal year permitted pursuant to (A) and (B) above shall only be permitted if it does not obligate the Corporation to incur expenses in any subsequent fiscal year;
(iii) Any acquisition, by merger or consolidation, or by purchase of shares of Common Stock of, or Capital Stock from members investments in, all or substantially all of the Boardassets or stock or other equity interest of, Company’s management any business or their respective Affiliates (any corporation, partnership, joint venture, limited liability company, association or other than deemed repurchases business organization or division thereof, in connection with the surrender excess of shares by members 5% of the BoardCorporation’s and its Subsidiaries’ annual consolidated revenue for the most recently completed calendar year for any one transaction or series or related transactions, the Company’s management or their respective Affiliates to the Company to satisfy any customary tax withholding in connection with vesting 10% of restricted stock or cashless exercises of stock options)such amount for all acquisitions per calendar year;
(iv) Any Equity Issuance at a (net amendments to this Amended and Restated Certificate of any discountsIncorporation, commissions, or other direct or indirect payments, whether in cash or other value) price per share or deemed price per share (i.e. conversion, exchange or exercise price) including by way of Common Stock less than $6.33 per sharemerger;
(v) Any any (A) sale of all or substantially all of the assets of, or liquidation, dissolution or recapitalization of, the Corporation or any individual chain of restaurants owned by the Corporation or (B) change of control of the Corporation, whether through merger or sale of common stock or otherwise, the result of which is Persons owning Class A/B Common Stock prior to such transaction do not hold more than 50% of the Class A/B Common Stock after giving effect to such transaction, including any modification of rights, involving the existing preferred shares or preferred shareholders;
(vi) Any guarantees ofauthorizing or issuing, incurrences or committing to authorize or issue, any shares of capital stock or issuances of recourse Debt or recourse Capital Stock that is redeemable at any time by the Company or Trade Street Operating Partnership, LP (the “Operating Partnership”) which guarantees, incurrences or issuances during any calendar year are in a principal amount or create an obligation or potential obligation of the Company for a payment amount greater than $50,000,000 (not counting a guarantee and its related Debt more than once); and for any issuance of Capital Sock other than Common Stock for consideration or value greater than $50,000,000 equity interest in the aggregate Corporation (including interests convertible or exchangeable into equity interests in any calendar yearthe Corporation);
(vii) Any acquisition authorizing or series of related acquisitions, approving the purchase price of which would equal more than fifty percent (50%) entry by the Corporation into any transaction with any of the CompanyCorporation’s Market Capitalization immediately prior to execution Affiliates or any stockholder of definitive documentation the Corporation or any of its Affiliates, except for any such acquisitioncustomary employment arrangements and benefits programs on arms-length terms and transactions between the Corporation and its Subsidiaries;
(viii) The hiring entering into any contract or firing transaction which would reasonably be expected to involve annual service revenue to the Corporation in any year of more than 10% of the CompanyCorporation’s Chief Executive Officerannual consolidated revenue for the most recently completed calendar year, Chief Financial Officerbetween the Corporation, Chief Investment Officeron the one hand, Chief Operating Officer and any customer of the Corporation, on the other hand;
(ix) offering for sale to the public of any capital stock or President other equity or debt interest in the Corporation pursuant to a registration statement in the United States or comparable document in any other jurisdiction;
(x) any (A) commencement of a case, proceeding or other action (1) under any existing or future law of any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency, reorganization or relief of debtors, seeking to have an order for relief entered with respect to the Corporation, or seeking to adjudicate the Corporation bankrupt or insolvent, or seeking reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to the Corporation or its debts, or (2) seeking appointment of a receiver, trustee, custodian or other similar official for the Corporation or for all or any similar positionsubstantial part of its assets, or (B) making of a general assignment for the benefit of the Corporation’s creditors;
(xi) any redemption, repurchase or other acquisition of any capital stock of the Corporation;
(xii) the declaration or payment of any dividend or other distribution on or in respect of shares of capital stock of the Corporation other than on a pro-rata basis to all holders thereof; and
(ixxiii) Determination by the Board that it is no longer in the Company’s best interest making or entering into any agreement, arrangement, commitment or understanding to qualify as a Real Estate Investment Trust.
(b) The rights do or cause to be done any of the Investors and their Affiliates set forth in this Section 2.2 shall be in addition to, and not in limitation of, such voting rights that the Investors and their Affiliates may otherwise have as holders of Capital Stock of the Company, subject to Section 5.1foregoing.
(c) If the Third Party Consents are not obtained and it is not determined by the Company that such Third Party Consents are no longer required on or prior to the date that is one hundred eighty (180) days following the date of this Agreement (the “Consent Default” and the date of such Consent Default, the “Consent Default Date”), then, as liquidated damages to any Investor for the failure to obtain the Third Party Consents (or determination that they are no longer required) by such date (which remedy shall be the exclusive remedy available at law or in equity only for a period of one hundred eighty (180) days following the Consent Default Date, but which shall not be exclusive of any other remedies available at law or in equity after the date that is one hundred eighty (180) days following the Consent Default Date) the Company shall (i) issue to such Investor on the first 30 day anniversary of the Consent Default and on each subsequent 30 day anniversary of the Consent Default (pro rated for periods totaling less than 30 calendar days), or, if earlier, no later than five (5) Business Days following the date that such Consent Default is cured, until the Third Party Consents are obtained (or determination that they are no longer required), additional shares of Common Stock, the number of which shall equal one percent (1.0%) (the “Consent Rate”) of the aggregate purchase price paid by such Investor pursuant to the Standby Purchase Agreement for its Acquired Shares and the Backstop Acquired Shares divided by the arithmetic average of the VWAPs over the ten (10) Trading Days prior to the issuance of such shares (all shares issuable by the Company for any Consent Default are referred to herein as the “Consent Fee Shares”) or (ii) pay an amount of cash by wire of immediately available funds equal to the Consent Rate times the aggregate purchase price paid by such Investor pursuant to the Standby Purchase Agreement for the Acquired Shares and the Backstop Acquired Shares (such cash payments, the “Consent Delay Payments”). In the event the Company fails to issue the Consent Fee Shares or pay the Consent Delay Payments in a timely manner, the Consent Fee Shares issued or the Consent Delay Payments paid, as the case may be, to each Investor shall be increased at the rate of one and one-half percent (1.5%) of the Consent Rate per month until such Consent Fee Shares are issued in full, or such Consent Delay Payments are paid in full, as applicable.
Appears in 1 contract
Samples: Merger Agreement (Alexanders J Corp)
Consent Rights. (a) Following the earlier of receipt of the third party consents set forth on Schedule 2.2 to this Agreement (the “Third Party Consents”) or the determination by the Company that such Third Party Consents are no longer required, and then for so So long as the InvestorsShareholders collectively, together with their Affiliatesdirectly or indirectly, Beneficially Own own at least four and nine-tenths percent (4.9%) 40% of the outstanding Common Stock Outstanding Voting Shares, the Company shall not take and shall take all necessary action to cause any member of the Company Group not to take, directly or indirectly (whether by amendment, merger, consolidation, reorganization or otherwise) any of the following actions (or enter into an agreement to take such actions) without the prior written consent of LandBridge Holdings, which consent may be withheld in its discretion, in addition to the Investors will be required for:Board of Directors’ approval (or, as applicable, the approval of the requisite governing body of any Subsidiary of the Company or any requisite statutory vote):
(i) Any modification terminating the chief executive officer of the Company and/or hiring or amendment appointing his or her successor;
(ii) removing the Chairman of the Board and/or appointing his or her successor;
(iii) increasing or decreasing the size of the Board of Directors or any committee of the Board of Directors or taking any such action with respect to the governing body of any member of the Company Group;
(iv) agreeing to or entering into any transaction that, if consummated, would constitute a Change of Control or entering into any definitive agreement or series of related agreements that govern any transaction or series of related transactions that, if consummated, would result in a Change of Control;
(v) incurring debt for borrowed money (or liens securing such debt) in an amount that would result in outstanding debt for borrowed money that exceeds the Company’s Governing DocumentsConsolidated Adjusted EBITDA for the four quarter period immediately prior to the proposed date of incurrence of such debt by 4.00 to 1.00;
(vi) authorizing, operating agreement or similar organizational documents creating (whether by way of reclassification, merger, consolidation or otherwise) in or issuing any manner adverse equity securities of the Company (other than (x) pursuant to any equity compensation plan approved by the InvestorBoard of Directors or a committee thereof or (y) intra-company issuances among the members of the Company Group);
(iivii) Any individual Making any voluntary election to liquidate or dissolve or commence bankruptcy or insolvency proceedings or the adoption of a plan with respect to any of the foregoing or any determination not to oppose such action or proceeding commenced by a third party;
(viii) Selling, transferring or disposing of assets outside the ordinary course of business in a transaction or series of related retention agreements, signing bonuses, stock option awards, stock incentive rights (including any phantom stock) or any similar employee compensation related agreements or arrangements to the extent that the aggregate transactions with a fair market value in excess of all of the foregoing would exceed in the aggregate during any calendar year 102% of the Company’s Market Capitalization as of the day after the Closing Date or that, in the aggregate, exceeds $5,000,000 in value during any calendar year, Consolidated Net Tangible Assets determined as of the date of grant with respect to equity awards and as end of the date of payment with respect to cash awards or similar arrangements;
(iii) Any purchase of shares of Common Stock or Capital Stock from members of the Board, Company’s management or their respective Affiliates (other than deemed repurchases in connection with the surrender of shares by members of the Board, the Company’s management or their respective Affiliates to the Company to satisfy any customary tax withholding in connection with vesting of restricted stock or cashless exercises of stock options);
(iv) Any Equity Issuance at most recently completed fiscal period for which a (net of any discounts, commissions, or other direct or indirect payments, whether in cash or other value) price per share or deemed price per share (i.e. conversion, exchange or exercise price) of Common Stock less than $6.33 per share;
(v) Any transaction, including any modification of rights, involving the existing preferred shares or preferred shareholders;
(vi) Any guarantees of, incurrences of or issuances of recourse Debt or recourse Capital Stock that is redeemable at any time by the Company or Trade Street Operating Partnership, LP (the “Operating Partnership”) which guarantees, incurrences or issuances during any calendar year are in a principal amount or create an obligation or potential obligation consolidated balance sheet of the Company for a payment amount greater than $50,000,000 (not counting a guarantee and its related Debt more than once); and for any issuance of Capital Sock other than Common Stock for consideration or value greater than $50,000,000 in the aggregate in any calendar year;
(vii) Any acquisition or series of related acquisitions, the purchase price of which would equal more than fifty percent (50%) of the Company’s Market Capitalization immediately prior to execution of definitive documentation for any such acquisition;
(viii) The hiring or firing of the Company’s Chief Executive Officer, Chief Financial Officer, Chief Investment Officer, Chief Operating Officer or President or any similar positionconsolidated Subsidiaries is available; and
(ix) Determination by the Board that it is no longer in the Company’s best interest to qualify as a Real Estate Investment Trustany amendment, modification or waiver of this Section 5.21.
(b) The rights So long as the Shareholders collectively, directly or indirectly, own at least 10% of the Investors Outstanding Voting Shares, the Company shall not and their Affiliates set forth shall take all necessary action to cause each member of the Company Group not to, directly or indirectly (whether by amendment, merger, consolidation, reorganization or otherwise) make (or enter into an agreement to make) any amendment, modification or waiver of this Agreement or any other governing documents of the Company that materially and adversely affects any member of the Sponsor Group or its rights under this Agreement without the prior consent of LandBridge Holdings, which consent may be withheld in its discretion. Nothing in this Section 2.2 shall be in addition to5.21, and not in limitation of, such voting rights that or the Investors and their Affiliates may otherwise have as holders of Capital Stock exercise of the Company, subject to Section 5.1.
rights contemplated hereby (c) If the Third Party Consents are not obtained and it is not determined by the Company that such Third Party Consents are no longer required on including any grant or prior to the date that is one hundred eighty (180) days following the date withholding of this Agreement (the “Consent Default” and the date of such Consent Default, the “Consent Default Date”), then, as liquidated damages to any Investor for the failure to obtain the Third Party Consents (or determination that they are no longer required) by such date (which remedy shall be the exclusive remedy available at law or in equity only for a period of one hundred eighty (180) days following the Consent Default Date, but which shall not be exclusive of any other remedies available at law or in equity after the date that is one hundred eighty (180) days following the Consent Default Date) the Company shall (i) issue to such Investor on the first 30 day anniversary of the Consent Default and on each subsequent 30 day anniversary of the Consent Default (pro rated for periods totaling less than 30 calendar days), or, if earlier, no later than five (5) Business Days following the date that such Consent Default is cured, until the Third Party Consents are obtained (or determination that they are no longer required), additional shares of Common Stock, the number of which shall equal one percent (1.0%) (the “Consent Rate”) of the aggregate purchase price paid by such Investor pursuant to the Standby Purchase Agreement for its Acquired Shares and the Backstop Acquired Shares divided by the arithmetic average of the VWAPs over the ten (10) Trading Days prior to the issuance of such shares (all shares issuable by the Company for any Consent Default are referred to herein as the “Consent Fee Shares”) or (ii) pay an amount of cash by wire of immediately available funds equal to the Consent Rate times the aggregate purchase price paid by such Investor pursuant to the Standby Purchase Agreement for the Acquired Shares and the Backstop Acquired Shares (such cash payments, the “Consent Delay Payments”). In the event the Company fails to issue the Consent Fee Shares or pay the Consent Delay Payments in a timely manner, the Consent Fee Shares issued or the Consent Delay Payments paidconsent, as the case may be), to each Investor shall be increased at deemed to create or otherwise result in any duty, obligation or liability on the rate part of one and one-half percent (1.5%) any member of the Consent Rate per month until Sponsor Group, express or implied, in equity or otherwise. In addition, with respect to any Director who is also a director, officer, employee or principal of any member of the Sponsor Group, no act or omission of such Consent Fee Shares are issued director, officer, employee or principal of any member of the Sponsor Group in fullhis or her capacity as such shall (i) be deemed to be an act or omission of such person in his or her capacity as a Director or (ii) be deemed to create or otherwise result in any duty, obligation or liability on the part of such Consent Delay Payments are paid person in fullhis or her capacity , as applicableexpress or implied, in equity or otherwise.
Appears in 1 contract
Samples: Limited Liability Company Agreement (LandBridge Co LLC)
