Consent Rights. (a) In addition to any vote or consent of the Board or the stockholders of the Company required by law or the Charter, and notwithstanding anything in this Agreement to the contrary, the Company shall not, and to the extent applicable, shall not permit any Subsidiary of the Company to, take any of the following actions, or enter into any arrangement or contract to do any of the following actions, without the consent in writing of at least one CD&R Designee and one KKR Designee (the consent of the “Required Directors”), which shall be necessary for authorizing, effecting or validating such transactions; provided that if the CD&R Investors or the KKR Investors, as applicable, are no longer entitled to appoint a Stockholder Designee, any such action shall, subject to Section 2.8(a), require the written consent of the CD&R Investors or the KKR Investors, as applicable: (i) except as provided in Section 2.4, the selection, hiring, termination or removal of the CEO, any Person hired to replace the CEO, the continuation of a CD&R Designee as interim CEO for a period of greater than six months, and any determination of the compensation of the CEO of the Company or his or her direct reports; (ii) any (A) merger or consolidation with or into any other Person, or any acquisition of another Person, whether in a single transaction or a series of related transactions, other than any Exempt Transaction, (B) proposed transaction or series of related transactions involving a Change of Control of the Company, or (C) proposed Transfer by a Stockholder except to a Permitted Transferee; (iii) the incurrence of indebtedness for borrowed money (including through capital leases, the issuance of debt securities or the guarantee of indebtedness of another Person) other than the incurrence of trade payables arising in the ordinary course of operating the business; (iv) any authorization, creation (by way of reclassification, merger, consolidation or otherwise) or issuance of any securities of the Company and for the avoidance of doubt, in connection with an Exempt Transaction), other than (A) the issuance of Reserved Employee Shares, or (B) the issuance of any securities as consideration in, or in connection with, a transaction approved pursuant to Sections 2.5(a)(ii) or (xiii); (v) any redemption, acquisition or other purchase of any shares of Common Stock (a “Repurchase”) other than a Repurchase from an employee (not including the CEO) in connection with such employee’s termination of employment with the Company or any Subsidiary; (vi) any payment or declaration of any dividend or other distribution on any shares of Common Stock or entering into any recapitalization transaction the primary purpose of which is to pay a dividend; (vii) the creation of any non-wholly owned subsidiaries, or the Transfer or any sale or Transfer of a Subsidiary’s securities to any Person other than the Company or a wholly owned Subsidiary of the Company (other than any pledge of such Subsidiary’s stock pursuant to a financing approved by the Board in accordance with Section 2.5(a)(iii); (viii) the creation or amendment of any stock option, employee stock purchase or similar equity-based plan for management or employees, or any increase in the number of Reserved Employee Shares; (ix) [intentionally omitted]; (x) any transaction with or involving any Affiliate of the Company or any Affiliate of any stockholder of the Company that beneficially owns in excess of ten percent (10%) of the voting power of the Company, other than (A) a Transfer to a Permitted Transferee, (B) the Consulting Agreements, the Registration Rights Agreement and the Indemnification Agreements, but including any amendment, termination or material waiver under any such agreements, or (C) any transaction or series of related transactions in the ordinary course of business and on arms-length third-party terms with any “portfolio company” (as such term is customarily used among institutional investors) held or managed by any Affiliate of the Company and not involving amounts in excess of $5,000,000 per annum; (xi) any amendment, repeal or alteration of the Charter or the Bylaws or any organizational documents of any Subsidiary, whether by or in connection with a merger or consolidation or otherwise; (xii) any increase or decrease in the size or composition of the Board, committees of the Board, and boards and committees of Subsidiaries of the Company and any termination or removal of an Independent Director; (xiii) any (A) acquisition of the stock or assets of any Person, or the acquiring by any other manner of any business, properties, assets, or Persons, in one transaction or a series of related transactions, or (B) dispositions of assets of the Company or any Subsidiary, other than, in either case, an Exempt Transaction; (xiv) [intentionally omitted]; (xv) any voluntary election by the Company or any Subsidiary of the Company to liquidate or dissolve or to commence bankruptcy or insolvency proceedings or the adoption of a plan with respect to any of the foregoing; (xvi) any material change in a significant accounting policy of the Company and any termination or change of the Company’s independent auditor; (xvii) [intentionally omitted]; (xviii) [intentionally omitted]; (xix) [intentionally omitted]; (xx) the grant of registration rights to any Stockholder (including any Permitted Transferee of a Stockholder), other than (A) the transfer of demand registration rights permitted by the Registration Rights Agreement or (B) the grant of piggyback registration rights pursuant to any agreement entered into with any management stockholder after the date hereof in the ordinary course; (xxi) [intentionally omitted]; (xxii) the deregistration of the Company pursuant to Section 7 of the Registration Rights Agreement; (xxiii) settlement of any litigation to which the Company or any of its Subsidiaries is a party involving the payment by the Company or any of its Subsidiaries of an amount equal to or greater than $15 million; (xxiv) making a material tax election or entering into any agreement in respect of taxes, including the settlement of any material tax controversy, or similar action relating to the filing of any tax return or the payment of any tax, if such election, agreement or action would reasonably be expected to result in any direct tax liability for any of the Stockholders or any direct or indirect holder of equity in any of the Stockholders; and (xxv) any material change in the nature of the business of the Company or any Subsidiary, taken as a whole. (b) In connection with any vote or action by written consent of the stockholders of the Company relating to any matter requiring consent as specified in Section 2.5(a), each Stockholder agrees, with respect to any Voting Securities beneficially owned by such Stockholder with respect to which it has the power to vote, (i) to vote against (and not act by written consent to approve) such matter if such matter has not been consented to by the Required Directors in accordance with Section 2.5(a) and (ii) to take or cause to be taken, upon the written request of the CD&R Investors (if such matter has not been consented to by a CD&R Designee) or the KKR Investors (if such matter has not been consented to by a KKR Designee), all other reasonable actions, at the expense of the Company, required, to the extent permitted by law, to prevent the taking of any action by the Company with respect to a matter unless such matter has been consented to by the Required Directors in accordance with Section 2.5(a). (c) Each Stockholder (i) that is a Permitted Transferee, an Affiliate co-investor or a co-investment vehicle hereby irrevocably grants to and appoints the Principal Investor which is an Affiliate of such Stockholder and (ii) that is not a Person described in clause (i), hereby irrevocably grants to and appoints the Principal Investors collectively (to act by unanimous consent) such Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Stockholder, to vote or act by written consent with respect to such Stockholder’s Common Stock, and to grant a consent, proxy or approval in respect of such Common Stock, in the event that such Stockholder fails at any time to vote or act by written consent with respect to any of its Common Stock in the manner agreed by such Stockholder in this Agreement, in each case in accordance with such Stockholder’s agreements contained in this
Appears in 2 contracts
Samples: Stockholders Agreement (Us Foods, Inc.), Stockholders Agreement (US Foods Holding Corp.)
Consent Rights. (a) In addition to any other vote or consent of the Board required herein or the stockholders of the Company required by law or the Charter, and notwithstanding anything in this Agreement to the contrarylaw, the Company shall not, and to the extent applicable, shall not permit any Subsidiary of the Company to, take any of the following actions, or enter into any arrangement or contract to do any of the following actions, without the consent in writing of at least one CD&R Designee and one KKR Designee (the consent of the “Required Directors”), which shall be necessary for authorizing, effecting or validating such transactions; provided that if the CD&R Investors or the KKR Investors, as applicable, are no longer entitled to appoint a Stockholder Designee, any such action shall, subject to Section 2.8(a), require the prior written consent of the CD&R Investors Holder (which may be given or withheld in the KKR Investors, as applicable:Holder’s sole discretion):
(ia) except as provided amend (by merger or otherwise) the Restated Certificate or any other Transaction Document in Section 2.4, any manner adverse to the selection, hiring, termination or removal of the CEO, any Person hired to replace the CEO, the continuation of a CD&R Designee as interim CEO for a period of greater than six months, and any determination of the compensation of the CEO of the Company or his or her direct reportsHolder;
(iib) any (A) merger or consolidation with or into any other Personincur, or any acquisition of another Person, whether in a single transaction or a series of related transactions, other than any Exempt Transaction, (B) proposed transaction or series of related transactions involving a Change of Control of refinance on terms less favorable to the Company, or any indebtedness (C) proposed Transfer by a Stockholder except to a Permitted Transferee;
(iii) the other than incurrence of indebtedness for borrowed money (including through capital leases, the issuance of debt securities or the guarantee of indebtedness of another Person) other than the incurrence of trade payables arising in the ordinary course of operating the business;
(iv) any authorization, creation (by way of reclassification, merger, consolidation or otherwise) or issuance of any securities that is permitted pursuant to Section 6.1 of the Company and for Credit Agreement (as in effect on the avoidance of doubt, in connection with an Exempt Transactiondate hereof), other than (A) the issuance of Reserved Employee Shares, or (B) the issuance of any securities as consideration in, or in connection with, a transaction approved pursuant to Sections 2.5(a)(ii) or (xiii);
(vc) enter into, amend, terminate or fail to enforce (or abandon any redemption, acquisition or other purchase of any shares of Common Stock (a “Repurchase”) other than a Repurchase from an employee (not including the CEO) in connection with such employee’s termination of employment with the Company or any Subsidiary;
(vi) any payment or declaration of any dividend or other distribution on any shares of Common Stock or entering into any recapitalization transaction the primary purpose of which is to pay a dividend;
(vii) the creation of any non-wholly owned subsidiaries, or the Transfer or any sale or Transfer of a Subsidiary’s securities to any Person other than the Company or a wholly owned Subsidiary of the Company (other than any pledge of such Subsidiary’s stock pursuant to a financing approved by the Board in accordance with Section 2.5(a)(iii);
(viii) the creation or amendment of any stock option, employee stock purchase or similar equity-based plan for management or employees, or any increase in the number of Reserved Employee Shares;
(ix) [intentionally omitted];
(xright under) any transaction with any Insider or involving any Affiliate of the Company or any Affiliate of any stockholder of the Company that beneficially owns in excess of ten percent (10%) of the voting power of the Company, other than (A) a Transfer to a Permitted Transferee, (B) the Consulting Agreements, the Registration Rights Agreement and the Indemnification Agreements, but including any amendment, termination or material waiver under any such agreements, or (C) any transaction or series of related transactions compensation arrangements in the ordinary course of business and on arms-length third-party terms consistent with any “portfolio company” (as such term is customarily used past practice or transactions between or among institutional investors) held or managed by any Affiliate of the Company and not involving amounts in excess of $5,000,000 per annumits direct or indirect wholly-owned Subsidiaries;
(xid) commence any amendmentvoluntary bankruptcy proceedings;
(e) enter into or otherwise permit the occurrence of any Sale Transaction or dissolution, repeal liquidation or alteration winding-up of the Charter Company;
(f) acquire or redeem any Equity Securities of the Bylaws or Company;
(g) take any organizational documents of any Subsidiary, whether by or material action in connection with a merger regulatory proceedings or consolidation or otherwisematerial litigation;
(xiih) reclassify any increase debt or decrease in the size or composition of the Board, committees of the Board, and boards and committees of Subsidiaries of the Company and any termination or removal of an Independent Director;
(xiii) any (A) acquisition of the stock or assets of any Person, or the acquiring by any other manner of any business, properties, assets, or Persons, in one transaction or a series of related transactions, or (B) dispositions of assets Equity Securities of the Company or undertake any Subsidiaryother corporate restructuring or reorganization, other thanincluding any alteration of the rights, in either case, an Exempt Transactionpreferences or privileges of any Equity Securities of the Company;
(xivi) [intentionally omitted]change the principal line of business of the Company;
(xvj) any voluntary election by the Company commit or any Subsidiary of the Company to liquidate or dissolve or to commence bankruptcy or insolvency proceedings or the adoption of a plan with respect agree to any of the foregoing;; or
(xvik) any material change in a significant accounting policy of the Company and any termination or change of the Company’s independent auditor;
(xvii) [intentionally omitted];
(xviii) [intentionally omitted];
(xix) [intentionally omitted];
(xx) the grant of registration rights to any Stockholder (including any Permitted Transferee of a Stockholder), other than (A) the transfer of demand registration rights permitted by the Registration Rights Agreement or (B) the grant of piggyback registration rights pursuant to any agreement entered into with any management stockholder after the date hereof in the ordinary course;
(xxi) [intentionally omitted];
(xxii) the deregistration of the Company pursuant to Section 7 of the Registration Rights Agreement;
(xxiii) settlement of any litigation to which the Company or permit any of its Subsidiaries is a party involving the payment to take any action which, if taken by the Company or any of its Subsidiaries of an amount equal to or greater than $15 million;
(xxiv) making a material tax election or entering into any agreement in respect of taxesCompany, including would require the settlement of any material tax controversy, or similar action relating to the filing of any tax return or the payment of any tax, if such election, agreement or action would reasonably be expected to result in any direct tax liability for any of the Stockholders or any direct or indirect holder of equity in any of the Stockholders; and
(xxv) any material change in the nature of the business of the Company or any Subsidiary, taken as a whole.
(b) In connection with any vote or action by written consent of the stockholders of the Company relating to any matter requiring consent as specified in Section 2.5(a), each Stockholder agrees, with respect to any Voting Securities beneficially owned by such Stockholder with respect to which it has the power to vote, (i) to vote against (and not act by written consent to approve) such matter if such matter has not been consented to by the Required Directors in accordance with Section 2.5(a) and (ii) to take or cause to be taken, upon the written request of the CD&R Investors (if such matter has not been consented to by a CD&R Designee) or the KKR Investors (if such matter has not been consented to by a KKR Designee), all other reasonable actions, at the expense of the Company, required, to the extent permitted by law, to prevent the taking of any action by the Company with respect to a matter unless such matter has been consented to by the Required Directors in accordance with Section 2.5(a)Holder.
(c) Each Stockholder (i) that is a Permitted Transferee, an Affiliate co-investor or a co-investment vehicle hereby irrevocably grants to and appoints the Principal Investor which is an Affiliate of such Stockholder and (ii) that is not a Person described in clause (i), hereby irrevocably grants to and appoints the Principal Investors collectively (to act by unanimous consent) such Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Stockholder, to vote or act by written consent with respect to such Stockholder’s Common Stock, and to grant a consent, proxy or approval in respect of such Common Stock, in the event that such Stockholder fails at any time to vote or act by written consent with respect to any of its Common Stock in the manner agreed by such Stockholder in this Agreement, in each case in accordance with such Stockholder’s agreements contained in this
Appears in 1 contract
Samples: Purchase Warrant for Common Shares (Meridian Waste Solutions, Inc.)
Consent Rights. (a) In addition to any vote or consent of the Board or the stockholders of the Company required by law or the Charter, and notwithstanding anything in this Agreement to the contrarycontrary but subject to Section 2.6, the Company shall notnot take (or, and to the extent applicable, shall not permit any Subsidiary of the Company to, take to take) any of the following actions, or enter into any arrangement or contract to do any of the following actions, without (A) in the case of clauses (i)-(viii) below, the consent in writing at least one KKR Group Designee and either one Carlyle Group Designee or one Providence Group Designee, or (B) in the case of clauses (ix)-(xv) below, the consent in writing of at least one CD&R KKR Group Designee, one Carlyle Group Designee and one KKR Providence Group Designee (the applicable consent being the consent of the “Required Directors”), which shall be necessary for authorizing, effecting or validating such transactions; provided that if the CD&R Investors or the KKR Investors, as applicable, are no longer entitled to appoint a Stockholder Designee, any such action shall, subject to Section 2.8(a), require the written consent of the CD&R Investors or the KKR Investors, as applicable:
(i) except as provided in Section 2.4, the selection, hiring, termination or removal of the CEOChief Executive Officer of the Company;
(ii) the incurrence of indebtedness for borrowed money (including through capital leases, the issuance of debt securities or the guarantee of indebtedness of another Person) other than (1) the incurrence of trade payables arising in the ordinary course of operating the business or (2) the issuance of debt securities referred to in clause (2) of Section 2.3(a)(iii);
(iii) any authorization, creation (by way of reclassification, merger, consolidation or otherwise) or issuance of any securities of the Company, other than (1) the issuance of Reserved Employee Shares that have been reserved as of the date hereof or that are approved after the date hereof in accordance with Section 2.3(a)(vii), or (2) (A) the issuance of any securities as consideration in, or in connection with, a transaction approved pursuant to Sections 2.3(a) (xii) or (xiii) or (B) any debt securities or up to $25 million of equity securities, in each case issued as consideration in an Exempt Transaction;
(iv) any redemption, acquisition or other purchase of any shares of Common Stock (a “Repurchase”) pro rata from all Stockholders (a “Pro Rata Repurchase”);
(v) any payment or declaration of any dividend or other distribution on any shares of Common Stock;
(vi) the creation of any non-wholly owned subsidiaries, or the Transfer or any sale or other disposition of a Subsidiary’s securities to any Person hired other than the Company or a wholly owned Subsidiary of the Company (other than any pledge of such Subsidiary’s stock pursuant to replace a financing approved by the CEOBoard);
(vii) the creation or amendment of any stock option, employee stock purchase or similar equity-based compensation plan for management or employees, or any increase in the number of Reserved Employee Shares;
(viii) any amendment, modification or waiver of any provision contained in the Transaction Agreement, the continuation of a CD&R Designee as interim CEO for a period of greater than six monthsTax Separation Agreement, and or the Transition Services Agreement;
(ix) any determination of transaction by the compensation of the CEO Company or any Subsidiary with or involving any Affiliate of the Company or his any Affiliate of any stockholder of the Company that beneficially owns in excess of ten percent (10%) of the voting power of the Company other than any transaction between the Company or her direct reportsa wholly-owned Subsidiary of the Company, on the one hand, and another wholly-owned Subsidiary, on the other hand;
(iix) any amendment, repeal or alteration of the Charter or the Bylaws, whether by or in connection with a merger or consolidation or otherwise;
(xi) any increase or decrease in the size of the Board, committees of the Board, and boards and committees of subsidiaries of the Company;
(xii) any (A) acquisition by the Company or any Subsidiary of the stock, equity interests or assets of any Person, or the acquiring by the Company or any Subsidiary by any other manner of any business, properties, assets, or Persons, in one transaction or a series of related transactions, or (B) disposition of assets of the Company or any Subsidiary or the capital stock or other equity interests of any Subsidiary, other than, in either case, an Exempt Transaction;
(xiii) any (A) merger or consolidation with or into any other Person, or any acquisition of another Person, whether in a single transaction or a series of related transactions, other than any Exempt Transaction, (B) proposed transaction or series of related transactions involving a Change of Control of the Company, Company or (C) proposed Transfer by a Stockholder except to a Permitted TransfereeTransferee or a Transfer in accordance with Section 3.2 hereof;
(iiixiv) any plan of liquidation, dissolution or winding-up of the incurrence of indebtedness for borrowed money (including through capital leases, the issuance of debt securities or the guarantee of indebtedness of another Person) other than the incurrence of trade payables arising in the ordinary course of operating the businessCompany;
(ivxv) any authorization, creation (by way of reclassification, merger, consolidation or otherwise) or issuance of any securities of the Company and for the avoidance of doubt, in connection with an Exempt Transaction), Repurchase other than (A) the issuance of Reserved Employee Shares, a Pro Rata Repurchase or (B) the issuance of any securities as consideration in, or in connection with, a transaction approved pursuant to Sections 2.5(a)(ii) or (xiii);
(v) any redemption, acquisition or other purchase of any shares of Common Stock (a “Repurchase”) other than a Repurchase from an employee (not including the CEO) in connection with such employee’s termination of employment with the Company or any Subsidiary;
(vi) any payment or declaration of any dividend or other distribution on any shares of Common Stock or entering into any recapitalization transaction the primary purpose of which is to pay a dividend;
(vii) the creation of any non-wholly owned subsidiaries, or the Transfer or any sale or Transfer of a Subsidiary’s securities to any Person other than the Company or a wholly owned Subsidiary of the Company (other than any pledge of such Subsidiary’s stock pursuant to a financing approved by the Board in accordance with Section 2.5(a)(iii);
(viii) the creation or amendment of any stock option, employee stock purchase or similar equity-based plan for management or employees, or any increase in the number of Reserved Employee Shares;
(ix) [intentionally omitted];
(x) any transaction with or involving any Affiliate of the Company or any Affiliate of any stockholder of the Company that beneficially owns in excess of ten percent (10%) of the voting power of the Company, other than (A) a Transfer to a Permitted Transferee, (B) the Consulting Agreements, the Registration Rights Agreement and the Indemnification Agreements, but including any amendment, termination or material waiver under any such agreements, or (C) any transaction or series of related transactions in the ordinary course of business and on arms-length third-party terms with any “portfolio company” (as such term is customarily used among institutional investors) held or managed by any Affiliate of the Company and not involving amounts in excess of $5,000,000 per annum;
(xi) any amendment, repeal or alteration of the Charter or the Bylaws or any organizational documents of any Subsidiary, whether by or in connection with a merger or consolidation or otherwise;
(xii) any increase or decrease in the size or composition of the Board, committees of the Board, and boards and committees of Subsidiaries of the Company and any termination or removal of an Independent Director;
(xiii) any (A) acquisition of the stock or assets of any Person, or the acquiring by any other manner of any business, properties, assets, or Persons, in one transaction or a series of related transactions, or (B) dispositions of assets of the Company or any Subsidiary, other than, in either case, an Exempt Transaction;
(xiv) [intentionally omitted];
(xv) any voluntary election by the Company or any Subsidiary of the Company to liquidate or dissolve or to commence bankruptcy or insolvency proceedings or the adoption of a plan with respect to any of the foregoing;
(xvi) any material change in a significant accounting policy of the Company and any termination or change of the Company’s independent auditor;
(xvii) [intentionally omitted];
(xviii) [intentionally omitted];
(xix) [intentionally omitted];
(xx) the grant of registration rights to any Stockholder (including any Permitted Transferee of a Stockholder), other than (A) the transfer of demand registration rights permitted by the Registration Rights Agreement or (B) the grant of piggyback registration rights pursuant to any agreement entered into with any management stockholder after the date hereof in the ordinary course;
(xxi) [intentionally omitted];
(xxii) the deregistration of the Company pursuant to Section 7 of the Registration Rights Agreement;
(xxiii) settlement of any litigation to which the Company or any of its Subsidiaries is a party involving the payment by the Company or any of its Subsidiaries of an amount equal to or greater than $15 million;
(xxiv) making a material tax election or entering into any agreement in respect of taxes, including the settlement of any material tax controversy, or similar action relating to the filing of any tax return or the payment of any tax, if such election, agreement or action would reasonably be expected to result in any direct tax liability for any of the Stockholders or any direct or indirect holder of equity in any of the Stockholders; and
(xxv) any material change in the nature of the business of the Company or any Subsidiary, taken as a whole.
(b) In connection with any vote or action by written consent of the stockholders of the Company relating to any matter requiring consent as specified in Section 2.5(a2.3(a), each Stockholder agrees, with respect to any Voting Securities beneficially owned by such Stockholder with respect to which he or it has the power to vote, (i) to vote against (and not act by written consent to approve) such matter if such matter has not been consented to by the Required Directors in accordance with Section 2.5(a2.3(a) and (ii) to take or cause to be taken, upon the written request of the CD&R Investors (if such matter has not been consented to by a CD&R Designee) or the KKR Investors (if such matter has not been consented to by a KKR Designee)Stockholder, all other reasonable actions, at the expense of the Company, required, to the extent permitted by law, to prevent the taking of any action by the Company with respect to a matter unless such matter has been consented to by the Required Directors in accordance with Section 2.5(a2.3(a).
(c) Each Stockholder (i) that is a Permitted Transferee, an Affiliate co-investor or a co-investment vehicle hereby irrevocably grants to and appoints the Principal Investor which is an Affiliate of such Stockholder and (ii) that is not a Person described in clause (i), hereby irrevocably grants to and appoints the Principal Investors collectively (to act by unanimous consent) such Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Stockholder, to vote or act by written consent with respect to such Stockholder’s Common Stock, and to grant a consent, proxy or approval in respect of such Common Stock, in the event that such Stockholder fails at any time to vote or act by written consent with respect to any of its Common Stock in the manner agreed by such Stockholder in this Agreement, in each case in accordance with such Stockholder’s agreements contained in this
Appears in 1 contract
Consent Rights. (a) In addition to any vote or consent of the Board or the stockholders of the Company required by law or the Charter, and notwithstanding anything in this Agreement to the contrary, the Company shall not, and to the extent applicable, shall not permit any Subsidiary of the Company to, take any of the following actions, or enter into any arrangement or contract to do any of the following actions, without the consent in writing of at least one CD&R Designee and one KKR Designee (the consent of the “Required Directors”), which shall be necessary for authorizing, effecting or validating such transactions; provided that if the CD&R Investors or the KKR Investors, as applicable, are no longer entitled to appoint a Stockholder Designee, any such action shall, subject to Section 2.8(a), require the written consent of the CD&R Investors or the KKR Investors, as applicable:
(i) except as provided in Section 2.4, the selection, hiring, termination or removal of the CEO, any Person hired to replace the CEO, the continuation of a CD&R Designee as interim CEO for a period of greater than six months, and any determination of the compensation of the CEO of the Company or his or her direct reports;
(ii) any (A) merger or consolidation with or into any other Person, or any acquisition of another Person, whether in a single transaction or a series of related transactions, other than any Exempt Transaction, (B) proposed transaction or series of related transactions involving a Change of Control of the CompanyCompany (including for the avoidance of doubt, a Change of Control resulting from a Drag Transaction), or (C) proposed Transfer by a Stockholder except to a Permitted TransfereeTransferee or as permitted by Section 3.2 hereof;
(iii) the incurrence of indebtedness for borrowed money (including through capital leases, the issuance of debt securities or the guarantee of indebtedness of another Person) other than (A) the incurrence of trade payables arising in the ordinary course of operating the business, (B) the incurrence of indebtedness under debt facilities entered into in connection with the Acquisition not to exceed $100 million in the aggregate or (C) capital leases contemplated by an Annual Budget approved pursuant to clause (xvii) of this Section 2.5(a);
(iv) any authorization, creation (by way of reclassification, merger, consolidation or otherwise) or issuance of any securities of the Company (including any IPO (other than any IPO initiated pursuant to Section 3.6) and for the avoidance of doubt, in connection with an Exempt Transaction), other than (A) the issuance of Reserved Employee Shares, or (B) the issuance of any securities as consideration in, or in connection with, a transaction approved pursuant to Sections 2.5(a)(ii2.5(a) (ii) or (xiii);
(v) any redemption, acquisition or other purchase of any shares of Common Stock (a “Repurchase”) other than a Repurchase from an employee (not including the CEO) in connection with such employee’s 's termination of employment with the Company or any Subsidiary;
(vi) any payment or declaration of any dividend or other distribution on any shares of Common Stock or entering into any recapitalization transaction the primary purpose of which is to pay a dividend;
(vii) the creation of any non-wholly owned subsidiaries, or the Transfer or any sale or Transfer of a Subsidiary’s securities to any Person other than the Company or a wholly owned Subsidiary of the Company (other than any pledge of such Subsidiary’s stock pursuant to a financing approved by the Board in accordance with Section 2.5(a)(iii2 .5 (a)(iii);
(viii) the creation or amendment of any stock option, employee stock purchase or similar equity-based plan for management or employees, or any increase in the number of Reserved Employee Shares;
(ix) [intentionally omitted]any amendment, modification or waiver of any provision contained in the Purchase Agreement or the Litigation Allocation Agreement;
(x) any transaction with or involving any Affiliate of the Company or any Affiliate of any stockholder of the Company that beneficially owns in excess of ten percent (10%) of the voting power of the Company, other than (A) a Transfer to a Permitted Transferee, (B) the Consulting Agreements, the Registration Rights Agreement Agreement, the Indemnification Agreements, and the Indemnification Subscription Agreements, but including any amendment, termination or material waiver under any such agreements, or (C) any transaction or series of related transactions in the ordinary course of business and on arms-length third-party terms with any “portfolio company” (as such term is customarily used among institutional investors) held or managed by any Affiliate of the Company and not involving amounts in excess of $5,000,000 million per annumannum or (D) any transaction or series of related transactions with Capstone contemplated by Section 2.3;
(xi) any amendment, repeal or alteration of the Charter or the Bylaws or any organizational documents of any Subsidiary, whether by or in connection with a merger or consolidation or otherwise;
(xii) any increase or decrease in the size or composition of the Board, committees of the Board, and boards and committees of Subsidiaries of the Company and any termination or removal of an Independent independent Director;
(xiii) any (A) acquisition of the stock or assets of any Person, or the acquiring by any other manner of any business, properties, assets, or Persons, in one transaction or a series of related transactions, or (B) dispositions of assets of the Company or any Subsidiary, other than, in either case, an Exempt Transaction;
(xiv) [intentionally omitted];
(xv) any voluntary election by the Company or any Subsidiary of the Company to liquidate or dissolve or to commence bankruptcy or insolvency proceedings or the adoption of a plan with respect to any of the foregoing;
(xvi) any material change in a significant accounting policy of the Company and any termination or change of the Company’s independent auditor;
(xvii) [intentionally omitted]approval of the Annual Budget (as defined in Section 2.6(a)(ii));
(xviii) [intentionally omitted]following the Closing, any amendment to, or granting of any waiver under, the Purchase Agreement or any agreement entered into in connection with the Financing, in each case, in a manner materially adverse to the Company or any Subsidiary of the Company or that would adversely affect any Investor disproportionately when compared to the other Investor;
(xix) [intentionally omitted]until the sixth anniversary of the Closing Date, the commencement of an IPO;
(xx) the grant of registration rights to any Stockholder (including any Permitted Transferee of a Stockholder), other than (A) the transfer of demand registration rights permitted by the Registration Rights Agreement or (B) the grant of piggyback registration rights pursuant to any agreement entered into with any management stockholder after the date hereof in the ordinary course;
(xxi) [intentionally omitted];
(xxii) following an IPO, the deregistration of the Company pursuant to Section 7 of the Registration Rights Agreement;
(xxiiixxii) settlement of any litigation to which the Company or any of its Subsidiaries is a party involving the payment by the Company or any of its Subsidiaries of an amount equal to or greater than $15 million;
(xxivxxiii) making a material tax election or entering into any agreement in respect of taxes, including the settlement of any material tax controversy, or similar action relating to the filing of any tax return or the payment of any tax, if such election, agreement or action would reasonably be expected to result in any direct tax liability for any of the Stockholders or any direct or indirect holder of equity in any of the Stockholders; and
(xxvxxiv) any material change in the nature of the business of the Company or any Subsidiary, taken as a whole.
(b) In connection with any vote or action by written consent of the stockholders of the Company relating to any matter requiring consent as specified in Section 2.5(a), each Stockholder agrees, with respect to any Voting Securities beneficially owned by such Stockholder with respect to which it has the power to vote, (i) to vote against (and not act by written consent to approve) such matter if such matter has not been consented to by the Required Directors in accordance with Section 2.5(a) and (ii) to take or cause to be taken, upon the written request of the CD&R Investors (if such matter has not been consented to by a CD&R Designee) or the KKR Investors (if such matter has not been consented to by a KKR Designee), all other reasonable actions, at the expense of the Company, required, to the extent permitted by law, to prevent the taking of any action by the Company with respect to a matter unless such matter has been consented to by the Required Directors in accordance with Section 2.5(a).
(c) Each Stockholder (i) that is a Permitted Transferee, an Affiliate co-investor or a co-investment vehicle hereby irrevocably grants to and appoints the Principal Investor which is an Affiliate of such Stockholder and (ii) that is not a Person described in clause (i), hereby irrevocably grants to and appoints the Principal Investors collectively (to act by unanimous consent) such Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Stockholder, to vote or act by written consent with respect to such Stockholder’s 's Common Stock, and to grant a consent, proxy or approval in respect of such Common Stock, in the event that such Stockholder fails at any time to vote or act by written consent with respect to any of its Common Stock in the manner agreed by such Stockholder in this Agreement, in each case in accordance with such Stockholder’s 's agreements contained in thisthis Agreement. Each Stockholder (other than the Principal Investors) hereby affirms that the irrevocable proxy set forth in this Section 2.5(c) will be valid for the term of this Agreement and is given to secure the performance of the obligations of such Stockholder under this Agreement. Each such Stockholder hereby further affirms that each proxy hereby granted shall be irrevocable and shall be deemed coupled with an interest and shall extend for the term of this Agreement, or, if earlier, until the last date permitted by applicable law. For the avoidance of doubt, except as expressly contemplated by this Section 2.5(c), none of the Stockholders has been granted a proxy to any Person to exercise the rights of any such Stockholder under this Agreement or any other agreement to which such Stockholders is a party.
Appears in 1 contract
Consent Rights. (a) In addition to any vote or consent of the Board or the stockholders of the Company required by law or the Charter, and notwithstanding anything in this Agreement to the contrary, the Company shall not, and to the extent applicable, shall not permit any Subsidiary of the Company to, take any of the following actions, or enter into any arrangement or contract to do any of the following actions, without the consent in writing of at least one CD&R Designee and one KKR Designee (the consent of the “Required Directors”), which shall be necessary for authorizing, effecting or validating such transactions; provided that if the CD&R Investors or the KKR Investors, as applicable, are no longer entitled to appoint a Stockholder Designee, any such action shall, subject to Section 2.8(a), require the written consent of the CD&R Investors or the KKR Investors, as applicable:
(i) except as provided in Section 2.4, the selection, hiring, termination or removal of the CEO, any Person hired to replace the CEO, the continuation of a CD&R Designee as interim CEO for a period of greater than six months, and any determination of the compensation of the CEO of the Company or his or her direct reports;
(ii) any (A) merger or consolidation with or into any other Person, or any acquisition of another Person, whether in a single transaction or a series of related transactions, other than any Exempt Transaction, (B) proposed transaction or series of related transactions involving a Change of Control of the Company, or (C) proposed Transfer by a Stockholder except to a Permitted Transferee;
(iii) the incurrence of indebtedness for borrowed money (including through capital leases, the issuance of debt securities or the guarantee of indebtedness of another Person) other than the incurrence of trade payables arising in the ordinary course of operating the business;
(iv) any authorization, creation (by way of reclassification, merger, consolidation or otherwise) or issuance of any securities of the Company and for the avoidance of doubt, in connection with an Exempt Transaction), other than (A) the issuance of Reserved Employee Shares, or (B) the issuance of any securities as consideration in, or in connection with, a transaction approved pursuant to Sections 2.5(a)(ii) or (xiii);
(v) any redemption, acquisition or other purchase of any shares of Common Stock (a “Repurchase”) other than a Repurchase from an employee (not including the CEO) in connection with such employee’s termination of employment with the Company or any Subsidiary;
(vi) any payment or declaration of any dividend or other distribution on any shares of Common Stock or entering into any recapitalization transaction the primary purpose of which is to pay a dividend;
(vii) the creation of any non-wholly owned subsidiaries, or the Transfer or any sale or Transfer of a Subsidiary’s securities to any Person other than the Company or a wholly owned Subsidiary of the Company (other than any pledge of such Subsidiary’s stock pursuant to a financing approved by the Board in accordance with Section 2.5(a)(iii);
(viii) the creation or amendment of any stock option, employee stock purchase or similar equity-based plan for management or employees, or any increase in the number of Reserved Employee Shares;
(ix) [intentionally omitted];
(x) any transaction with or involving any Affiliate of the Company or any Affiliate of any stockholder of the Company that beneficially owns in excess of ten percent (10%) of the voting power of the Company, other than (A) a Transfer to a Permitted Transferee, (B) the Consulting Agreements, the Registration Rights Agreement and the Indemnification Agreements, but including any amendment, termination or material waiver under any such agreements, or (C) any transaction or series of related transactions in the ordinary course of business and on arms-length third-party terms with any “portfolio company” (as such term is customarily used among institutional investors) held or managed by any Affiliate of the Company and not involving amounts in excess of $5,000,000 per annum;
(xi) any amendment, repeal or alteration of the Charter or the Bylaws or any organizational documents of any Subsidiary, whether by or in connection with a merger or consolidation or otherwise;
(xii) any increase or decrease in the size or composition of the Board, committees of the Board, and boards and committees of Subsidiaries of the Company and any termination or removal of an Independent Director;
(xiii) any (A) acquisition of the stock or assets of any Person, or the acquiring by any other manner of any business, properties, assets, or Persons, in one transaction or a series of related transactions, or (B) dispositions of assets of the Company or any Subsidiary, other than, in either case, an Exempt Transaction;
(xiv) [intentionally omitted];
(xv) any voluntary election by the Company or any Subsidiary of the Company to liquidate or dissolve or to commence bankruptcy or insolvency proceedings or the adoption of a plan with respect to any of the foregoing;
(xvi) any material change in a significant accounting policy of the Company and any termination or change of the Company’s independent auditor;
(xvii) [intentionally omitted];
(xviii) [intentionally omitted];
(xix) [intentionally omitted];
(xx) the grant of registration rights to any Stockholder (including any Permitted Transferee of a Stockholder), other than (A) the transfer of demand registration rights permitted by the Registration Rights Agreement or (B) the grant of piggyback registration rights pursuant to any agreement entered into with any management stockholder after the date hereof in the ordinary course;
(xxi) [intentionally omitted];
(xxii) the deregistration of the Company pursuant to Section 7 of the Registration Rights Agreement;
(xxiii) settlement of any litigation to which the Company or any of its Subsidiaries is a party involving the payment by the Company or any of its Subsidiaries of an amount equal to or greater than $15 million;
(xxiv) making a material tax election or entering into any agreement in respect of taxes, including the settlement of any material tax controversy, or similar action relating to the filing of any tax return or the payment of any tax, if such election, agreement or action would reasonably be expected to result in any direct tax liability for any of the Stockholders or any direct or indirect holder of equity in any of the Stockholders; and
(xxv) any material change in the nature of the business of the Company or any Subsidiary, taken as a whole.
(b) In connection with any vote or action by written consent of the stockholders of the Company relating to any matter requiring consent as specified in Section 2.5(a), each Stockholder agrees, with respect to any Voting Securities beneficially owned by such Stockholder with respect to which it has the power to vote, (i) to vote against (and not act by written consent to approve) such matter if such matter has not been consented to by the Required Directors in accordance with Section 2.5(a) and (ii) to take or cause to be taken, upon the written request of the CD&R Investors (if such matter has not been consented to by a CD&R Designee) or the KKR Investors (if such matter has not been consented to by a KKR Designee), all other reasonable actions, at the expense of the Company, required, to the extent permitted by law, to prevent the taking of any action by the Company with respect to a matter unless such matter has been consented to by the Required Directors in accordance with Section 2.5(a).
(c) Each Stockholder (i) that is a Permitted Transferee, an Affiliate co-investor or a co-investment vehicle hereby irrevocably grants to and appoints the Principal Investor which is an Affiliate of such Stockholder and (ii) that is not a Person described in clause (i), hereby irrevocably grants to and appoints the Principal Investors collectively (to act by unanimous consent) such Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Stockholder, to vote or act by written consent with respect to such Stockholder’s Common Stock, and to grant a consent, proxy or approval in respect of such Common Stock, in the event that such Stockholder fails at any time to vote or act by written consent with respect to any of its Common Stock in the manner agreed by such Stockholder in this Agreement, in each case in accordance with such Stockholder’s agreements contained in thisthis Agreement. Each Stockholder (other than the Principal Investors) hereby affirms that the irrevocable proxy set forth in this Section 2.5(c) will be valid for the term of this Agreement and is given to secure the performance of the obligations of such Stockholder under this Agreement. Each such Stockholder hereby further affirms that each proxy hereby granted shall be irrevocable and shall be deemed coupled with an interest and shall extend for the term of this Agreement, or, if earlier, until the last date permitted by applicable law. For the avoidance of doubt, except as expressly contemplated by this Section 2.5(c), none of the Stockholders has been granted a proxy to any Person to exercise the rights of any such Stockholder under this Agreement or any other agreement to which such Stockholders is a party.
Appears in 1 contract
Consent Rights. (a) In addition to any vote or consent of the Board or the stockholders of the Company required by law or the Charter, and notwithstanding anything in this Agreement to the contrarycontrary but subject to Section 2.6, the Company shall notnot take (or, and to the extent applicable, shall not permit any Subsidiary of the Company to, take to take) any of the following actions, or enter into any arrangement or contract to do any of the following actions, without (A) in the case of clauses (i)-(viii) below, the consent in writing at least one KKR Group Designee and either one Carlyle Group Designee or one Providence Group Designee, or (B) in the case of clauses (ix)-(xv) below, the consent in writing of at least one CD&R KKR Group Designee, one Carlyle Group Designee and one KKR Providence Group Designee (the applicable consent being the consent of the “Required Directors”), which shall be necessary for authorizing, effecting or validating such transactions; provided that if the CD&R Investors or the KKR Investors, as applicable, are no longer entitled to appoint a Stockholder Designee, any such action shall, subject to Section 2.8(a), require the written consent of the CD&R Investors or the KKR Investors, as applicable:
(i) except as provided in Section 2.4, the selection, hiring, termination or removal of the CEOChief Executive Officer of the Company;
(ii) the incurrence of indebtedness for borrowed money (including through capital leases, the issuance of debt securities or the guarantee of indebtedness of another Person) other than (1) the incurrence of trade payables arising in the ordinary course of operating the business or (2) the issuance of debt securities referred to in clause (2) of Section 2.3(a)(iii);
(iii) any authorization, creation (by way of reclassification, merger, consolidation or otherwise) or issuance of any securities of the Company, other than (1) the issuance of Reserved Employee Shares that have been reserved as of the date hereof or that are approved after the date hereof in accordance with Section 2.3(a)(vii), or (2) (A) the issuance of any securities as consideration in, or in connection with, a transaction approved pursuant to Sections 2.3(a) (xii) or (xiii) or (B) any debt securities or up to $25 million of equity securities, in each case issued as consideration in an Exempt Transaction;
(iv) any redemption, acquisition or other purchase of any shares of Common Stock (a “Repurchase”) pro rata from all Stockholders (a “Pro Rata Repurchase”);
(v) any payment or declaration of any dividend or other distribution on any shares of Common Stock;
(vi) the creation of any non-wholly owned subsidiaries, or the Transfer or any sale or other disposition of a Subsidiary’s securities to any Person hired other than the Company or a wholly owned Subsidiary of the Company (other than any pledge of such Subsidiary’s stock pursuant to replace a financing approved by the CEOBoard);
(vii) the creation or amendment of any stock option, employee stock purchase or similar equity-based compensation plan for management or employees, or any increase in the number of Reserved Employee Shares;
(viii) any amendment, modification or waiver of any provision contained in the Transaction Agreement, the continuation of a CD&R Designee as interim CEO for a period of greater than six monthsTax Separation Agreement, and or the Transition Services Agreement;
(ix) any determination of transaction by the compensation of the CEO Company or any Subsidiary with or involving any Affiliate of the Company or his any Affiliate of any stockholder of the Company that beneficially owns in excess of ten percent (10%) of the voting power of the Company other than any transaction between the Company or her direct reportsa wholly-owned Subsidiary of the Company, on the one hand, and another wholly-owned Subsidiary, on the other hand;
(iix) any amendment, repeal or alteration of the Charter or the Bylaws, whether by or in connection with a merger or consolidation or otherwise;
(xi) any increase or decrease in the size of the Board, committees of the Board, and boards and committees of Subsidiaries of the Company;
(xii) any (A) acquisition by the Company or any Subsidiary of the stock, equity interests or assets of any Person, or the acquiring by the Company or any Subsidiary by any other manner of any business, properties, assets, or Persons, in one transaction or a series of related transactions, or (B) disposition of assets of the Company or any Subsidiary or the capital stock or other equity interests of any Subsidiary, other than, in either case, an Exempt Transaction;
(xiii) any (A) merger or consolidation with or into any other Person, or any acquisition of another Person, whether in a single transaction or a series of related transactions, other than any Exempt Transaction, (B) proposed transaction or series of related transactions involving a Change of Control of the Company, Company or (C) proposed Transfer by a Stockholder except to a Permitted TransfereeTransferee or a Transfer in accordance with Section 3.2 hereof;
(iiixiv) any plan of liquidation, dissolution or winding-up of the incurrence of indebtedness for borrowed money (including through capital leases, the issuance of debt securities or the guarantee of indebtedness of another Person) other than the incurrence of trade payables arising in the ordinary course of operating the businessCompany;
(ivxv) any authorization, creation (by way of reclassification, merger, consolidation or otherwise) or issuance of any securities of the Company and for the avoidance of doubt, in connection with an Exempt Transaction), Repurchase other than (A) the issuance of Reserved Employee Shares, a Pro Rata Repurchase or (B) the issuance of any securities as consideration in, or in connection with, a transaction approved pursuant to Sections 2.5(a)(ii) or (xiii);
(v) any redemption, acquisition or other purchase of any shares of Common Stock (a “Repurchase”) other than a Repurchase from an employee (not including the CEO) in connection with such employee’s termination of employment with the Company or any Subsidiary;
(vi) any payment or declaration of any dividend or other distribution on any shares of Common Stock or entering into any recapitalization transaction the primary purpose of which is to pay a dividend;
(vii) the creation of any non-wholly owned subsidiaries, or the Transfer or any sale or Transfer of a Subsidiary’s securities to any Person other than the Company or a wholly owned Subsidiary of the Company (other than any pledge of such Subsidiary’s stock pursuant to a financing approved by the Board in accordance with Section 2.5(a)(iii);
(viii) the creation or amendment of any stock option, employee stock purchase or similar equity-based plan for management or employees, or any increase in the number of Reserved Employee Shares;
(ix) [intentionally omitted];
(x) any transaction with or involving any Affiliate of the Company or any Affiliate of any stockholder of the Company that beneficially owns in excess of ten percent (10%) of the voting power of the Company, other than (A) a Transfer to a Permitted Transferee, (B) the Consulting Agreements, the Registration Rights Agreement and the Indemnification Agreements, but including any amendment, termination or material waiver under any such agreements, or (C) any transaction or series of related transactions in the ordinary course of business and on arms-length third-party terms with any “portfolio company” (as such term is customarily used among institutional investors) held or managed by any Affiliate of the Company and not involving amounts in excess of $5,000,000 per annum;
(xi) any amendment, repeal or alteration of the Charter or the Bylaws or any organizational documents of any Subsidiary, whether by or in connection with a merger or consolidation or otherwise;
(xii) any increase or decrease in the size or composition of the Board, committees of the Board, and boards and committees of Subsidiaries of the Company and any termination or removal of an Independent Director;
(xiii) any (A) acquisition of the stock or assets of any Person, or the acquiring by any other manner of any business, properties, assets, or Persons, in one transaction or a series of related transactions, or (B) dispositions of assets of the Company or any Subsidiary, other than, in either case, an Exempt Transaction;
(xiv) [intentionally omitted];
(xv) any voluntary election by the Company or any Subsidiary of the Company to liquidate or dissolve or to commence bankruptcy or insolvency proceedings or the adoption of a plan with respect to any of the foregoing;
(xvi) any material change in a significant accounting policy of the Company and any termination or change of the Company’s independent auditor;
(xvii) [intentionally omitted];
(xviii) [intentionally omitted];
(xix) [intentionally omitted];
(xx) the grant of registration rights to any Stockholder (including any Permitted Transferee of a Stockholder), other than (A) the transfer of demand registration rights permitted by the Registration Rights Agreement or (B) the grant of piggyback registration rights pursuant to any agreement entered into with any management stockholder after the date hereof in the ordinary course;
(xxi) [intentionally omitted];
(xxii) the deregistration of the Company pursuant to Section 7 of the Registration Rights Agreement;
(xxiii) settlement of any litigation to which the Company or any of its Subsidiaries is a party involving the payment by the Company or any of its Subsidiaries of an amount equal to or greater than $15 million;
(xxiv) making a material tax election or entering into any agreement in respect of taxes, including the settlement of any material tax controversy, or similar action relating to the filing of any tax return or the payment of any tax, if such election, agreement or action would reasonably be expected to result in any direct tax liability for any of the Stockholders or any direct or indirect holder of equity in any of the Stockholders; and
(xxv) any material change in the nature of the business of the Company or any Subsidiary, taken as a whole.
(b) In connection with any vote or action by written consent of the stockholders of the Company relating to any matter requiring consent as specified in Section 2.5(a2.3(a), each Stockholder agrees, with respect to any Voting Securities beneficially owned by such Stockholder with respect to which he or it has the power to vote, (i) to vote against (and not act by written consent to approve) such matter if such matter has not been consented to by the Required Directors in accordance with Section 2.5(a2.3(a) and (ii) to take or cause to be taken, upon the written request of the CD&R Investors (if such matter has not been consented to by a CD&R Designee) or the KKR Investors (if such matter has not been consented to by a KKR Designee)Stockholder, all other reasonable actions, at the expense of the Company, required, to the extent permitted by law, to prevent the taking of any action by the Company with respect to a matter unless such matter has been consented to by the Required Directors in accordance with Section 2.5(a2.3(a).
(c) Each Stockholder (i) that is a Permitted Transferee, an Affiliate co-investor or a co-investment vehicle hereby irrevocably grants to and appoints the Principal Investor which is an Affiliate of such Stockholder and (ii) that is not a Person described in clause (i), hereby irrevocably grants to and appoints the Principal Investors collectively (to act by unanimous consent) such Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Stockholder, to vote or act by written consent with respect to such Stockholder’s Common Stock, and to grant a consent, proxy or approval in respect of such Common Stock, in the event that such Stockholder fails at any time to vote or act by written consent with respect to any of its Common Stock in the manner agreed by such Stockholder in this Agreement, in each case in accordance with such Stockholder’s agreements contained in this
Appears in 1 contract
Samples: Stockholders Agreement (PanAmSat Satellite HGS 3, Inc.)
Consent Rights. (a) In addition to any vote or consent of the Board or of the stockholders of the Company required by law Applicable Law or the CharterOrganizational Documents of the Company, and notwithstanding anything in this Agreement to the contrary, the Company shall not, and to the extent applicable, shall not permit any Subsidiary of the Company to, take any of the following actions, or enter into any arrangement or contract to do any of the following actions, without the consent in writing of at least one CD&R Designee Director designated by each of Xxxxx and one KKR Designee Xxxxxx (the consent of the “Required Directors”), which shall be necessary for authorizing, effecting or validating such transactions; provided that if the CD&R Investors or the KKR Investors, as applicable, are no longer entitled to appoint a Stockholder Designee, any such action shall, subject to Section 2.8(a), require the written consent of the CD&R Investors or the KKR Investors, as applicable:):
(i) except as provided in Section 2.4, the selection, hiring, termination or removal of the CEO, any Person hired to replace the CEO, the continuation of a CD&R Designee as interim CEO for a period of greater than six months, and any determination of the compensation of the CEO of the Company or his or her direct reports;
(ii) any Any (A) merger or consolidation with or into any other Person, or any acquisition of another Person, whether in a single transaction or a series of related transactions, other than any Exempt Transaction, (B) proposed transaction or series of related transactions involving a Change sale of Control the Company to an unaffiliated third party (whether by merger, consolidation, reorganization, sale of all or substantially all of the Company’s assets, sale of a number of Shares equal to a majority or more of the issued and outstanding Shares, or other form of business combination (including for the avoidance of doubt, a transaction described in clause (i) and (ii) of Section 4.1(a)), or (C) proposed Transfer by a Stockholder except to a Permitted TransfereeTransferee or as permitted by Article III below;
(iiiii) the The incurrence of indebtedness for borrowed money (including through capital leases, the issuance of debt securities or the guarantee of indebtedness of another Person) other than (A) the incurrence of trade payables arising in the ordinary course of operating the business, (B) the incurrence of indebtedness under debt facilities or (C) capital leases contemplated by an annual budget of the Company and its Subsidiaries approved pursuant to clause (xiv) of this Section 2.3(a);
(iviii) any Any authorization, creation (by way of reclassification, merger, consolidation or otherwise) or issuance of any securities of the Company and for the avoidance of doubt, in connection with an Exempt Transactionor any Subsidiary (including any Initial Public Offering), other than (A) the issuance of Reserved Employee Shares, or (Bx) the issuance of any securities as consideration in, or in connection with, a transaction approved pursuant to Sections 2.5(a)(ii2.3(a)(i) or (xiii)xi) or (y) the grant of options, or issuance of securities, pursuant to an Equity Incentive Plan;
(viv) any Any redemption, acquisition or other purchase of any shares of Common Stock Shares or other securities (a “Repurchase”) other than (i) a Repurchase from an employee (not including the CEO) in connection with such employee’s termination of employment with the Company or any SubsidiarySubsidiary and (ii) a Repurchase of any Series A Preferred Stock pursuant to Article FOURTH(B)(6) of the Certificate of Incorporation;
(viv) any Any payment or declaration of any dividend or other distribution on any shares of Common Stock Shares or other securities or entering into any recapitalization transaction the primary purpose of which is to pay a dividend;
(viivi) the The creation of any non-wholly wholly-owned subsidiariesSubsidiaries, or the Transfer or any sale or Transfer of a Subsidiary’s securities to any Person other than the Company or a wholly wholly-owned Subsidiary of the Company (other than any pledge of such Subsidiary’s stock pursuant to a financing approved by the bythe Board in accordance with Section 2.5(a)(iii2.3(a)(ii));
(viiivii) the The creation or amendment of any stock option, employee stock purchase or similar equity-based plan for management management, advisors or employeesemployees (any such plan, an “Equity Incentive Plan”), or any increase in the number of Reserved Employee Sharessecurities available for issuance under an Equity Incentive Plan;
(viii) Any amendment to, or granting of any waiver under, any material agreement entered into in connection with the Stock Purchase Agreement, in each case, in a manner materially adverse to the Company or any Subsidiary of the Company or that would adversely affect any Initial Stockholder disproportionately when compared to any other Stockholder;
(ix) [intentionally omitted];
(x) any transaction with or involving any Affiliate of the Company or any Affiliate of any stockholder of the Company that beneficially owns in excess of ten percent (10%) of the voting power of the Company, other than (A) a Transfer to a Permitted Transferee, (B) the Consulting Agreements, the Registration Rights Agreement and the Indemnification Agreements, but including any amendment, termination or material waiver under any such agreements, or (C) any transaction or series of related transactions in the ordinary course of business and on arms-length third-party terms with any “portfolio company” (as such term is customarily used among institutional investors) held or managed by any Affiliate of the Company and not involving amounts in excess of $5,000,000 per annum;
(xi) any Any amendment, repeal or alteration of any Organizational Documents of the Charter Company or the Bylaws or any organizational documents of any Subsidiary, whether by or in connection with a merger or consolidation or otherwise;
(xiix) any Any increase or decrease in the size or composition of the Board, committees of the Board, and boards and committees of the Subsidiaries of the Company and any termination or removal of an Independent DirectorCompany;
(xiiixi) any Any (A) acquisition of the stock or assets of any Person, or the acquiring by any other manner of any business, properties, assets, or Persons, in one transaction or a series of related transactionstransaction, or (B) dispositions of assets of the Company or any Subsidiary, other than, in either case, an Exempt Transaction;
(xivxii) [intentionally omitted];
(xv) any Any voluntary election by the Company or any Subsidiary of the Company to liquidate or dissolve or to commence bankruptcy or insolvency proceedings or the adoption of a plan with respect to any of the foregoing;
(xvixiii) any material Any change in the accounting practices of the Company or any Subsidiary which has a significant accounting policy material effect on the financial statements of the Company or any Subsidiary;
(xiv) Approval of the annual budget of the Company and any termination or change of the Company’s independent auditorSubsidiary;
(xviixv) [intentionally omitted];
(xviii) [intentionally omitted];
(xix) [intentionally omitted];
(xx) the grant of registration rights to any Stockholder (including any Permitted Transferee of a Stockholder), other than (A) the transfer of demand registration rights permitted by the Registration Rights Agreement or (B) the grant of piggyback registration rights pursuant to any agreement entered into with any management stockholder after the date hereof in the ordinary course;
(xxi) [intentionally omitted];
(xxii) the deregistration of the Company pursuant to Section 7 of the Registration Rights Agreement;
(xxiii) settlement Settlement of any litigation to which the Company or any of its Subsidiaries is a party involving the payment by the Company or any of its Subsidiaries of an amount equal to or greater than $15 millionSubsidiaries;
(xxivxvi) making Making a material tax election or entering into any agreement in respect of taxes, including the settlement of any material tax controversy, or similar action relating to the filing of any tax return or the payment of any tax, if such election, agreement or action would reasonably be expected to result toresult in any direct tax liability for any of the Stockholders or any direct or indirect holder of equity in any inany of the Stockholders; and
(xxvxvii) any Any material change in the nature of the business of the Company or any Subsidiary, taken as a whole.
(b) In connection with any vote or action by written consent of the stockholders of the Company relating to any matter requiring consent as specified in Section 2.5(a2.3(a), each Stockholder agrees, with respect to any Voting Securities Shares beneficially owned by such Stockholder with respect to which it has the power to vote, (i) to vote against (and not act by written consent to approve) such matter if such matter has not been consented to by the Required Directors in accordance with Section 2.5(a) and (ii) to take or cause to be taken, upon the written request of the CD&R Investors (if such matter has not been consented to by a CD&R Designee) or the KKR Investors (if such matter has not been consented to by a KKR Designee), all other reasonable actions, at the expense of the Company, required, to the extent permitted by law, to prevent the taking of any action by the Company with respect to a matter unless such matter has been consented to by the Required Directors in accordance with Section 2.5(a2.3(a).
(c) Each Stockholder (i) that is a Permitted Transferee, an Affiliate co-investor or a co-investment vehicle hereby irrevocably grants to and appoints the Principal Investor which is an Affiliate of such Stockholder and (ii) that is not a Person described in clause (i), hereby irrevocably grants to and appoints the Principal Investors collectively (to act by unanimous consent) such Stockholder’s proxy and attorney-in-fact (with full power of substitution), for and in the name, place and stead of such Stockholder, to vote or act by written consent with respect to such Stockholder’s Common Stock, and to grant a consent, proxy or approval in respect of such Common Stock, in the event that such Stockholder fails at any time to vote or act by written consent with respect to any of its Common Stock in the manner agreed by such Stockholder in this Agreement, in each case in accordance with such Stockholder’s agreements contained in this
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Samples: Stockholders Agreement
