Investor Protection Matters. Except as specifically set forth herein, in accordance with the Company's Bye-laws, the Board shall act by the vote of a majority of the Directors present at a meeting, and the required quorum for a meeting of the Board shall be a majority of the whole Board. Notwithstanding the foregoing, and except as specifically set forth in the Subscription Agreement, (a) prior to the Approval Date, unless also approved by the Initial Warburg Director and the Initial H&F Director, and (b) following the Approval Date, unless also approved by (i) at least one Warburg Director, if at such time Warburg's Retained Percentage equals or exceeds 25%, and (ii) at least one H&F Director, if at such time H&F's Retained Percentage equals or exceeds 50%, the Company shall not (and shall not permit any of its Subsidiaries to): (1) amend, or propose to amend, its certificate of incorporation, memorandum of association, bye-laws, or other organizational documents, or amend, terminate or waive any provision under, the Subscription Agreement or any other Agreement entered into in connection therewith; (2) split, consolidate, combine, subdivide, redeem or reclassify its share capital or other equity interests, or amend any term of the outstanding securities of the Company or its Subsidiaries; (3) declare, set aside, make or pay any dividend or other distribution in respect of its share capital or other equity interests, or purchase or redeem, directly or indirectly, any share capital or other equity interests (other than (A) dividends by a Subsidiary of the Company to the Company or a Subsidiary of the Company, and (B) dividends or other distributions by any entity in which the Company or any Subsidiary owns a minority interest, made in the normal course of business, consistent with past practice); (4) other than (A) in respect of grants or exercises under the 1999 Long Term Incentive and Share Award Plan, the 1995 Long Term Incentive and Share Award Plan and the Long Term Incentive Plan for New Employees, (B) issuances of securities pursuant to the Subscription Agreement and the Management Subscription Agreement, and (C) issuances of securities upon conversion or exercise of securities issued pursuant to clause (B) or of securities outstanding on the date hereof, issue, deliver or sell, or authorize the issuance, delivery or sale of, any share capital of any class, any equity interest, or any options, warrants, conversion or other rights to purchase any such shares or equity interests, or any securities convertible into or exchangeable for such shares or equity interests, or issue or authorize the issuance of any other security in respect of or in lieu of or in substitution for shares of capital or equity interests, or enter into any agreements restricting the transfer of, or affecting the rights of holders of, Common Shares, grant any preemptive or anti-dilutive rights to any holder of any class of securities of the Company, or grant registration rights with respect to any of the Company's securities; (5) amend or waive any rights under any grants made under the Long Term Incentive Plan for New Employees; (6) incur any indebtedness for borrowed money, guarantee any such indebtedness or issue or sell any debt securities, in excess of $5,000,000 in the aggregate, or prepay or refinance any indebtedness for borrowed money; (7) engage in any Interested Party Transaction; (8) acquire any assets or properties for cash or otherwise for an amount in excess of $5,000,000 in the aggregate; (9) acquire, whether by means of merger, stock or asset purchase, joint venture or other similar transaction, any equity interest in, or all or substantially all of the assets of any Person, or any business or division of any Person; (10) replace the independent auditors of the Company or make any material change in any method of financial accounting or accounting practice, except for any such change required by reason of a concurrent change in U.S. generally accepted accounting principles; (11) sell or otherwise dispose of assets material to the Company and its Subsidiaries taken as a whole, except as specifically contemplated by the Subscription Agreement; (12) increase by 5% or more the annual base compensation of any officer or key employee of the Company, or enter into or make any material change in any severance contract or arrangement with any such officer or key employee; (13) consummate a complete liquidation or dissolution of the Company, a merger or consolidation (A) in which the Company or any Subsidiary is a constituent corporation or (B) with respect to which the Common Shares would have the right to vote under applicable law, a sale of all or substantially all of the Company's assets, or any similar business combination; provided, however, that the foregoing shall not apply to any merger or consolidation solely between or among wholly owned Subsidiaries of the Company, other than any such transaction between Subsidiaries which are considered "Core Insurance Operations" under Section E, and Subsidiaries which are not considered "Core Insurance Operations"; (14) enter into any transaction involving in excess of $1,000,000, or, if such transaction is in the ordinary course of business consistent with past practice, $5,000,000; (15) approve the annual plan, annual capital expenditure budget or the five-year plan of the Company and its Subsidiaries, taken as a whole; (16) remove the Chief Executive Officer or Chairman of the Company, or appoint a new Chief Executive Officer or Chairman of the Company; or (17) enter into any agreement with respect to the foregoing; provided, however, transactions solely between or among the Company and/or one or more of its wholly owned Subsidiaries shall be excluded from clauses (6), (8), (9), (11) and (14) (and from clause (17) to the extent relating to an agreement with respect to a transaction excluded by this proviso), other than any such transaction between Subsidiaries which are considered "Core Insurance Operations" under Section E, and Subsidiaries which are not considered "Core Insurance Operations". In addition, prior to the Approval Date, and after the Approval Date for so long as the Warburg Directors and the H&F Directors together constitute a majority of the Board, (i) the notice for each meeting of the Board called by the Chairman of the Board, the President of the Company, the Warburg Directors or the H&F Directors shall include a list of topics to be discussed at the meeting (the "Agenda") and (ii) the Board shall not act on any matter that is not within the Agenda without the consent of at least one Warburg Director and at least one H&F Director. Nothing in this Section 3.3 shall grant either H&F or Warburg any right or consent to the extent that such right would result in such party being deemed to "control" an insurance subsidiary of the Company that is domiciled in any state in the United States, where the exercise of such control would otherwise require the prior approval of such state. In addition, the rights of Warburg and H&F set forth in this Section 3.3 shall, in any event, terminate upon the mandatory conversion of the Preference Shares under paragraph (g)(2) of the Certificate of Designations for the Preference Shares (the "Mandatory Conversion Date") or the earlier conversion of all Preference Shares in accordance with their terms.
Appears in 2 contracts
Samples: Shareholder Agreement (Arch Capital Group LTD), Shareholders Agreement (Arch Capital Group LTD)
Investor Protection Matters. Except as specifically set forth herein, in accordance with the Company's Bye-laws, the Board shall act by the vote of a majority of the Directors present at a meeting, and the required quorum for a meeting of the Board shall be a majority of the whole Board. Notwithstanding the foregoing, and except as specifically set forth in the Subscription Agreement, (a) prior to the Approval Date, unless also approved by the Initial Warburg Director and the Initial H&F Director, and (b) following the Approval Date, unless also approved by (i) at least one Warburg Director, if at such time Warburg's Retained Percentage equals or exceeds 25%, and (ii) at least one H&F Director, if at such time H&F's Retained Percentage equals or exceeds 50%, the Company shall not (and shall not permit any of its Subsidiaries to):
(1) amend, or propose to amend, its certificate of incorporation, memorandum of association, bye-laws, or other organizational documents, or amend, terminate or waive any provision under, the Subscription Agreement or any other Agreement entered into in connection therewith;
(2) split, consolidate, combine, subdivide, redeem or reclassify its share capital or other equity interests, or amend any term of the outstanding securities of the Company or its Subsidiaries;
(3) declare, set aside, make or pay any dividend or other distribution in respect of its share capital or other equity interests, or purchase or redeem, directly or indirectly, any share capital or other equity interests (other than (A) dividends by a Subsidiary of the Company to the Company or a Subsidiary of the Company, and (B) dividends or other distributions by any entity in which the Company or any Subsidiary owns a minority interest, made in the normal course of business, consistent with past practice);
(4) other than (A) in respect of grants or exercises under the 1999 Long Term Incentive and Share Award Plan, the 1995 Long Term Incentive and Share Award Plan and the Long Term Incentive Plan for New Employees, (B) issuances of securities pursuant to the Subscription Agreement and the Management Subscription Agreement, and (C) issuances of securities upon conversion or exercise of securities issued pursuant to clause (B) or of securities outstanding on the date hereof, issue, deliver or sell, or authorize the issuance, delivery or sale of, any share capital of any class, any equity interest, or any options, warrants, conversion or other rights to purchase pur- chase any such shares or equity interests, or any securities convertible into or exchangeable for such shares or equity interests, or issue or authorize the issuance of any other security in respect of or in lieu of or in substitution for shares of capital or equity interests, or enter into any agreements restricting the transfer of, or affecting the rights of holders of, Common Shares, grant any preemptive or anti-dilutive rights to any holder of any class of securities of the Company, or grant registration rights with respect to any of the Company's securities;
(5) amend or waive any rights under any grants made under the Long Term Incentive Plan for New Employees;
(6) incur any indebtedness for borrowed money, guarantee any such indebtedness or issue or sell any debt securities, in excess of $5,000,000 in the aggregate, or prepay or refinance any indebtedness for borrowed money;
(7) engage in any Interested Party Transaction;
(8) acquire any assets or properties for cash or otherwise for an amount in excess of $5,000,000 in the aggregate;
(9) acquire, whether by means of merger, stock or asset purchase, joint venture or other similar transaction, any equity interest in, or all or substantially all of the assets of any Person, or any business or division of any Person;
(10) replace the independent auditors of the Company or make any material change in any method of financial accounting or accounting practice, except for any such change required by reason of a concurrent change in U.S. generally accepted accounting principles;
(11) sell or otherwise dispose of assets material to the Company and its Subsidiaries taken as a whole, except as specifically contemplated by the Subscription Agreement;
(12) increase by 5% or more the annual base compensation of any officer or key employee of the Company, or enter into or make any material change in any severance contract or arrangement with any such officer or key employee;
(13) consummate a complete liquidation or dissolution of the Company, a merger or consolidation (A) in which the Company or any Subsidiary is a constituent corporation or (B) with respect to which the Common Shares would have the right to vote under applicable law, a sale of all or substantially all of the Company's assets, or any similar business combination; providedPROVIDED, howeverHOWEVER, that the foregoing shall not apply ap- ply to any merger or consolidation solely between or among wholly owned Subsidiaries of the Company, other than any such transaction between Subsidiaries which are considered "Core Insurance Operations" under Section E, and Subsidiaries which are not considered "Core Insurance Operations";
(14) enter into any transaction involving in excess of $1,000,000, or, if such transaction is in the ordinary course of business consistent with past practice, $5,000,000;
(15) approve the annual plan, annual capital expenditure budget or the five-year plan of the Company and its Subsidiaries, taken as a whole;
(16) remove the Chief Executive Officer or Chairman of the Company, or appoint a new Chief Executive Officer or Chairman of the Company; or
(17) enter into any agreement with respect to the foregoing; providedPROVIDED, howeverHOWEVER, transactions solely between or among the Company and/or one or more of its wholly owned Subsidiaries shall be excluded from clauses (6), (8), (9), (11) and (14) (and from clause (17) to the extent relating to an agreement with respect to a transaction excluded by this proviso), other than any such transaction between Subsidiaries which are considered "Core Insurance Operations" under Section E, and Subsidiaries which are not considered "Core Insurance Operations". ." In addition, prior to the Approval Date, and after the Approval Date for so long as the Warburg Directors and the H&F Directors together constitute a majority of the Board, (i) the notice for each meeting of the Board called by the Chairman of the Board, the President of the Company, the Warburg Directors or the H&F Directors shall include a list of topics to be discussed at the meeting (the "AgendaAGENDA") and (ii) the Board shall not act on any matter that is not within the Agenda without the consent of at least one Warburg Director and at least one H&F Director. Nothing in this Section 3.3 shall grant either H&F or Warburg any right or consent to the extent that such right would result in such party being deemed to "control" an insurance subsidiary of the Company that is domiciled in any state in the United States, where the exercise of such control would otherwise require the prior approval of such state. In addition, the rights of Warburg and H&F set forth in this Section 3.3 shall, in any event, terminate upon the mandatory conversion of the Preference Shares under paragraph (g)(2) of the Certificate of Designations for the Preference Shares (the "Mandatory Conversion DateMANDATORY CONVERSION DATE") or the earlier conversion of all Preference Shares in accordance with their terms.
Appears in 1 contract
Investor Protection Matters. Except as specifically set forth herein, in accordance with the Company's Bye-laws, the Board shall act by the vote of a majority of the Directors present at a meeting, and the required quorum for a meeting of the Board shall be a majority of the whole Board. Notwithstanding the foregoing, and except as specifically set forth in the Subscription Agreement, (a) prior to the Approval Date, unless also approved by the Initial Warburg Director and the Initial H&F Director, and (b) following the Approval Date, unless also approved by (i) at least one Warburg Director, if at such time Warburg's Retained Percentage equals or exceeds 25%, and (ii) at least one H&F Director, if at such time H&F's Retained Percentage equals or exceeds 50%, the Company shall not (and shall not permit any of its Subsidiaries to):
(1) amend, or propose to amend, its certificate of incorporation, memorandum of association, bye-laws, or other organizational documents, or amend, terminate or waive any provision under, the Subscription Agreement or any other Agreement entered into in connection therewith;
(2) split, consolidate, combine, subdivide, redeem or reclassify its share capital or other equity interests, or amend any term of the outstanding securities of the Company or its Subsidiaries;
(3) declare, set aside, make or pay any dividend or other distribution in respect of its share capital or other equity interests, or purchase or redeem, directly or indirectly, any share capital or other equity interests (other than (A) dividends by a Subsidiary of the Company to the Company or a Subsidiary of the Company, and (B) dividends or other distributions by any entity in which the Company or any Subsidiary owns a minority interest, made in the normal course of business, consistent with past practice);
(4) other than (A) in respect of grants or exercises under the 1999 Long Term Incentive and Share Award Plan, the 1995 Long Term Incentive and Share Award Plan and the Long Term Incentive Plan for New Employees, (B) issuances of securities pursuant to the Subscription Agreement and the Management Subscription Agreement, and (C) issuances of securities upon conversion or exercise of securities issued pursuant to clause (B) or of securities outstanding on the date hereof, issue, deliver or sell, or authorize the issuance, delivery or sale of, any share capital of any class, any equity interest, or any options, warrants, conversion or other rights to purchase any such shares or equity interests, or any securities convertible into or exchangeable for such shares or equity interests, or issue or authorize the issuance of any other security in respect of or in lieu of or in substitution for shares of capital or equity interests, or enter into any agreements restricting the transfer of, or affecting the rights of holders of, Common Shares, grant any preemptive or anti-dilutive rights to any holder of any class of securities of the Company, or grant registration rights with respect to any of the Company's securities;
(5) amend or waive any rights under any grants made under the Long Term Incentive Plan for New Employees;
(6) incur any indebtedness for borrowed money, guarantee any such indebtedness or issue or sell any debt securities, in excess of $5,000,000 in the aggregate, or prepay or refinance any indebtedness for borrowed money;
(7) engage in any Interested Party Transaction;
(8) acquire any assets or properties for cash or otherwise for an amount in excess of $5,000,000 in the aggregate;
(9) acquire, whether by means of merger, stock or asset purchase, joint venture or other similar transaction, any equity interest in, or all or substantially all of the assets of any Person, or any business or division of any Person;
(10) replace the independent auditors of the Company or make any material change in any method of financial accounting or accounting practice, except for any such change required by reason of a concurrent change in U.S. generally accepted accounting principles;
(11) sell or otherwise dispose of assets material to the Company and its Subsidiaries taken as a whole, except as specifically contemplated by the Subscription Agreement;
(12) increase by 5% or more the annual base compensation of any officer or key employee of the Company, or enter into or make any material change in any severance contract or arrangement with any such officer or key employee;
(13) consummate a complete liquidation or dissolution of the Company, a merger or consolidation (A) in which the Company or any Subsidiary is a constituent corporation or (B) with respect to which the Common Shares would have the right to vote under applicable law, a sale of all or substantially all of the Company's assets, or any similar business combination; provided, however, that the foregoing shall not apply to any merger or consolidation solely between or among wholly owned Subsidiaries of the Company, other than any such transaction between Subsidiaries which are considered "Core Insurance Operations" under Section E, and Subsidiaries which are not considered "Core Insurance Operations";
(14) enter into any transaction involving in excess of $1,000,000, or, if such transaction is in the ordinary course of business consistent with past practice, $5,000,000;
(15) approve the annual plan, annual capital expenditure budget or the five-year plan of the Company and its Subsidiaries, taken as a whole;
(16) remove the Chief Executive Officer or Chairman of the Company, or appoint a new Chief Executive Officer or Chairman of the Company; or
(17) enter into any agreement with respect to the foregoing; provided, however, transactions solely between or among the Company and/or one or more of its wholly owned Subsidiaries shall be excluded from clauses (6), (8), (9), (11) and (14) (and from clause (17) to the extent relating to an agreement with respect to a transaction excluded by this proviso), other than any such transaction between Subsidiaries which are considered "Core Insurance Operations" under Section E, and Subsidiaries which are not considered "Core Insurance Operations". In addition, prior to the Approval Date, and after the Approval Date for so long as the Warburg Directors and the H&F Directors together constitute a majority of the Board, (i) the notice for each meeting of the Board called by the Chairman of the Board, the President of the Company, the Warburg Directors or the H&F Directors shall include a list of topics to be discussed at the meeting (the "Agenda") and (ii) the Board shall not act on any matter that is not within the Agenda without the consent of at least one Warburg Director and at least one H&F Director. Nothing in this Section 3.3 shall grant either H&F or Warburg any right or consent to the extent that such right would result in such party being deemed to "control" an insurance subsidiary of the Company that is domiciled in any state in the United States, where the exercise of such control would otherwise require the prior approval of such state. In addition, the rights of Warburg and H&F set forth in this Section 3.3 shall, in any event, terminate upon the mandatory conversion of the Preference Shares under paragraph (g)(2) of the Certificate of Designations for the Preference Shares (the "Mandatory Conversion Date") or the earlier conversion of all Preference Shares in accordance with their terms.
Appears in 1 contract
Investor Protection Matters. Except as specifically set forth herein, in accordance with the Company's Bye-laws, the Board shall act by the vote of a majority of the Directors present at a meeting, and the required quorum for a meeting of the Board shall be a majority of the whole Board. Notwithstanding the foregoing, and except as specifically set forth in the Subscription Agreement, (a) prior to the Approval Date, unless also approved by the Initial Warburg Director and the Initial H&F Director, and (b) following the Approval Date, unless also approved by (i) at least one Warburg Director, if at such time Warburg's the Warburg Retained Percentage equals or exceeds 25%, and (ii) at least one H&F Director, if at such time H&F's the H&F Retained Percentage equals or exceeds 50%, the Company shall not (and shall not permit any of its Subsidiaries to):
(1) amend, or propose to amend, its certificate of incorporation, memorandum of association, bye-laws, or other organizational documents, or amend, terminate or waive any provision under, the Subscription Agreement or any other Agreement entered into in connection therewith;
(2) split, consolidate, combine, subdivide, redeem or reclassify its share capital or other equity interests, or amend any term of the outstanding securities of the Company or its Subsidiaries;
(3) declare, set aside, make or pay any dividend or other distribution in respect of its share capital or other equity interests, or purchase or redeem, directly or indirectly, any share capital or other equity interests (other than (A) dividends by a Subsidiary Sub- sidiary of the Company to the Company or a Subsidiary of the Company, and (B) dividends or other distributions by any entity in which the Company or any Subsidiary owns a minority interest, made in the normal course of business, consistent with past practice);
(4) other than (A) in with respect of grants to grant or exercises exercise under the 1999 Long Term Incentive and Share Award Plan, the 1995 Long Term Incentive and Share Award Plan and [existing Management Options] or the Long Term Incentive Plan for New Employees, (B) issuances of securities pursuant to the Subscription Agreement and the Management Subscription Agreement, and (C) issuances of securities upon conversion or exercise of securities issued pursuant to clause (B) or of securities outstanding on the date hereof, issue, deliver or sell, or authorize the issuance, delivery or sale of, any share capital of any class, any equity interest, or any options, warrants, conversion or other rights to purchase any such shares or equity interests, or any securities convertible into or exchangeable for such shares or equity interests, or issue or authorize the issuance of any other security in respect of or in lieu of or in substitution for shares of capital or equity interests, or enter into any agreements restricting the transfer of, or affecting the rights of holders of, Common Shares, grant any preemptive or anti-dilutive rights to any holder of any class of securities of the Company, or grant registration rights with respect to any of the Company's securities;
(5) amend or waive any rights under any grants made under the Long Term Incentive Plan for New Employees;
(6) incur any indebtedness for borrowed money, guarantee any such indebtedness or issue or sell any debt securities, in excess of $5,000,000 in the aggregate, or prepay or refinance any indebtedness for borrowed money;
(7) engage in any Interested Party Transaction;
(8) acquire any assets or properties for cash or otherwise for an amount in excess of $5,000,000 in the aggregate;
(9) acquire, whether by means of merger, stock or asset purchase, joint venture or other similar transaction, any equity interest in, or all or substantially all of the assets of any Person, or any business or division of any Person;
(10) replace the independent auditors of the Company or make any material change in any method of financial accounting or accounting practice, except for any such change required by reason of a concurrent change in U.S. generally accepted accounting principles;
(11) sell or otherwise dispose of assets material to the Company and its Subsidiaries taken as a whole, except as specifically contemplated by the Subscription Agreement;
(12) increase by 5% or more the annual base compensation of any officer or key employee of the Company, or enter into or make any material change in any severance contract or arrangement with any such officer or key employee;
(13) consummate a complete liquidation or dissolution of the Company, a merger or consolidation (A) in which the Company or any Subsidiary is a constituent corporation or (B) with respect to which the Common Shares would have the right to vote under applicable law, a sale of all or substantially all of the Company's assets, or any similar business combination; provided, however, that the foregoing shall not apply to any merger or consolidation solely between or among wholly owned Subsidiaries of the Company, other than any such transaction between Subsidiaries which are considered "Core Insurance Operations" under Section E, and Subsidiaries which are not considered "Core Insurance Operations";
(14) enter into any transaction involving in excess of $1,000,000, or, if such transaction is in the ordinary course of business consistent with past practice, $5,000,000;
(15) approve the annual plan, annual capital expenditure budget or the five-year plan of the Company and its Subsidiaries, taken as a whole;
(16) remove the Chief Executive Officer or Chairman of the Company, or appoint a new Chief Executive Officer or Chairman of the Company; or
(17) enter into any agreement with respect to the foregoing; provided, however, transactions solely between or among the Company and/or one or more of its wholly owned Subsidiaries shall be excluded from clauses (6), (8), (9), (11) and (14) (and from clause (17) to the extent relating to an agreement with respect to a transaction excluded by this proviso), other than any such transaction between Subsidiaries which are considered "Core Insurance Operations" under Section E, and Subsidiaries which are not considered "Core Insurance Operations". In addition, prior to the Approval Date, and after the Approval Date for so long as the Warburg Directors and the H&F Directors together constitute a majority of the Board, (i) the notice for each meeting of the Board called by the Chairman of the Board, the President of the Company, the Warburg Directors or the H&F Directors shall include a list of topics to be discussed at the meeting (the "Agenda") and (ii) the Board shall not act on any matter that is not within the Agenda without the consent of at least one Warburg Director and at least one H&F Director. Nothing in this Section 3.3 shall grant either H&F or Warburg any right or consent (to the extent that such right would result in such party being deemed to "control" an insurance subsidiary of the Company that is domiciled in any state in the United States, where the exercise of such control would otherwise require the prior approval of such state). In addition, the rights of Warburg and H&F set forth in this Section 3.3 shall, in any event, terminate upon the mandatory conversion of the Preference Shares under paragraph (g)(2) of the Certificate of Designations for the Preference Shares (the "Mandatory Conversion DateMANDATORY CONVERSION DATE") or the earlier conversion of all Preference Shares in accordance with their terms.
Appears in 1 contract
Investor Protection Matters. Except as specifically set forth herein, in accordance with the Company's ’s Bye-laws, the Board shall act by the vote of a majority of the Directors present at a meeting, and the required quorum for a meeting of the Board shall be a majority of the whole Board. Notwithstanding the foregoing, and except as specifically set forth in the Subscription Agreement, (a) prior to the Approval Date, unless also approved by the Initial Warburg Director Representative and the Initial H&F DirectorRepresentative, and (b) following the Approval Date, unless also approved by (i) at least one the Warburg DirectorRepresentative, if at such time Warburg's ’s Retained Percentage equals or exceeds 25%, and (ii) at least one the H&F DirectorRepresentative, if at such time H&F's ’s Retained Percentage equals or exceeds 50%, the Company shall not (and shall not permit any of its Subsidiaries to):
(1) amend, or propose to amend, its certificate of incorporation, memorandum of association, bye-laws, or other organizational documents, or amend, terminate or waive any provision under, the Subscription Agreement or any other Agreement entered into in connection therewith;
(2) split, consolidate, combine, subdivide, redeem or reclassify its share capital or other equity interests, or amend any term of the outstanding securities of the Company or its Subsidiaries;
(3) declare, set aside, make or pay any dividend or other distribution in respect of its share capital or other equity interests, or purchase or redeem, directly or indirectly, any share capital or other equity interests (other than (A) dividends by a Subsidiary of the Company to the Company or a Subsidiary of the Company, and (B) dividends or other distributions by any entity in which the Company or any Subsidiary owns a minority interest, made in the normal course of business, consistent with past practice);
(4) other than (A) in respect of grants or exercises under the 1999 Long Term Incentive and Share Award Plan, the 1995 Long Term Incentive and Share Award Plan and the Long Term Incentive Plan for New Employees, (B) issuances of securities pursuant to the Subscription Agreement and the Management Subscription Agreement, and (C) issuances of securities upon conversion or exercise of securities issued pursuant to clause (B) or of securities outstanding on the date hereof, issue, deliver or sell, or authorize the issuance, delivery or sale of, any share capital of any class, any equity interest, or any options, warrants, conversion or other rights to purchase any such shares or equity interests, or any securities convertible into or exchangeable for such shares or equity interests, or issue or authorize the issuance of any other security in respect of or in lieu of or in substitution for shares of capital or equity interests, or enter into any agreements restricting the transfer of, or affecting the rights of holders of, Common Shares, grant any preemptive or anti-dilutive rights to any holder of any class of securities of the Company, or grant registration rights with respect to any of the Company's ’s securities;
(5) amend or waive any rights under any grants made under the Long Term Incentive Plan for New Employees;
(6) incur any indebtedness for borrowed money, guarantee any such indebtedness or issue or sell any debt securities, in excess of $5,000,000 in the aggregate, or prepay or refinance any indebtedness for borrowed money;
(7) engage in any Interested Party Transaction;
(8) acquire any assets or properties for cash or otherwise for an amount in excess of $5,000,000 in the aggregate;
(9) acquire, whether by means of merger, stock or asset purchase, joint venture or other similar transaction, any equity interest in, or all or substantially all of the assets of any Person, or any business or division of any Person;
(10) replace the independent auditors of the Company or make any material change in any method of financial accounting or accounting practice, except for any such change required by reason of a concurrent change in U.S. generally accepted accounting principles;
(11) sell or otherwise dispose of assets material to the Company and its Subsidiaries taken as a whole, except as specifically contemplated by the Subscription Agreement;
(12) increase by 5% or more the annual base compensation of any officer or key employee of the Company, or enter into or make any material change in any severance contract or arrangement with any such officer or key employee;
(13) consummate a complete liquidation or dissolution of the Company, a merger or consolidation (A) in which the Company or any Subsidiary is a constituent corporation or (B) with respect to which the Common Shares would have the right to vote under applicable law, a sale of all or substantially all of the Company's ’s assets, or any similar business combination; provided, however, that the foregoing shall not apply to any merger or consolidation solely between or among wholly owned Subsidiaries of the Company, other than any such transaction between Subsidiaries which are considered "“Core Insurance Operations" ” under Section E, and Subsidiaries which are not considered "“Core Insurance Operations"”;
(14) enter into any transaction involving in excess of $1,000,000, or, if such transaction is in the ordinary course of business consistent with past practice, $5,000,000;
(15) approve the annual plan, annual capital expenditure budget or the five-year plan of the Company and its Subsidiaries, taken as a whole;
(16) remove the Chief Executive Officer or Chairman of the Company, or appoint a new Chief Executive Officer or Chairman of the Company; or
(17) enter into any agreement with respect to the foregoing; provided, however, transactions solely between or among the Company and/or one or more of its wholly owned Subsidiaries shall be excluded from clauses (6), (8), (9), (11) and (14) (and from clause (17) to the extent relating to an agreement with respect to a transaction excluded by this proviso), other than any such transaction between Subsidiaries which are considered "“Core Insurance Operations" ” under Section E, and Subsidiaries which are not considered "“Core Insurance Operations". .” In addition, prior to the Approval Date, and after the Approval Date for so long as the Warburg Directors and the H&F Directors together constitute a majority of the Board, (i) the notice for each meeting of the Board called by the Chairman of the Board, the President of the Company, the Warburg Directors or the H&F Directors shall include a list of topics to be discussed at the meeting (the "“Agenda"”) and (ii) the Board shall not act on any matter that is not within the Agenda without the consent of at least one Warburg Director and at least one H&F Director. Nothing in this Section 3.3 shall grant either H&F or Warburg any right or consent to the extent that such right would result in such party being deemed to "“control" ” an insurance subsidiary of the Company that is domiciled in any state in the United States, where the exercise of such control would otherwise require the prior approval of such state. In addition, the rights of Warburg and H&F set forth in this Section 3.3 shall, in any event, terminate upon the mandatory conversion of the Preference Shares under paragraph (g)(2) of the Certificate of Designations for the Preference Shares (the "“Mandatory Conversion Date"”) or the earlier conversion of all Preference Shares in accordance with their terms.
Appears in 1 contract
Investor Protection Matters. Except as specifically set forth herein, in accordance with the Company's Bye-laws, the Board shall act by the vote of a majority of the Directors present at a meeting, and the required quorum for a meeting of the Board shall be a majority of the whole Board. Notwithstanding the foregoing, and except as specifically set forth in the Subscription Agreement, (a) prior to the Approval Date, unless also approved by the Initial Warburg Director and the Initial H&F Director, and (b) following the Approval Date, unless also approved by (i) at least one Warburg Director, if at such time Warburg's Retained Percentage equals or exceeds 25%, and (ii) at least one H&F Director, if at such time H&F's Retained Percentage equals or exceeds 50%, the Company shall not (and shall not permit any of its Subsidiaries to):
(1) amend, or propose to amend, its certificate of incorporation, memorandum of association, bye-laws, or other organizational documents, or amend, terminate or waive any provision under, the Subscription Agreement or any other Agreement entered into in connection therewith;
(2) split, consolidate, combine, subdivide, redeem or reclassify its share capital or other equity interests, or amend any term of the outstanding securities of the Company or its Subsidiaries;
(3) declare, set aside, make or pay any dividend or other distribution in respect of its share capital or other equity interests, or purchase or redeem, directly or indirectly, any share capital or other equity interests (other than (A) dividends by a Subsidiary of the Company to the Company or a Subsidiary of the Company, and (B) dividends or other distributions by any entity in which the Company or any Subsidiary Subsidiary
owns a minority interest, made in the normal course of business, consistent with past practice);
(4) other than (A) in respect of grants or exercises under the 1999 Long Term Incentive and Share Award Plan, the 1995 Long Term Incentive and Share Award Plan and the Long Term Incentive Plan for New Employees, (B) issuances of securities pursuant to the Subscription Agreement and the Management Subscription Agreement, and (C) issuances of securities upon conversion or exercise of securities issued pursuant to clause (B) or of securities outstanding on the date hereof, issue, deliver or sell, or authorize the issuance, delivery or sale of, any share capital of any class, any equity interest, or any options, warrants, conversion or other rights to purchase any such shares or equity interests, or any securities convertible into or exchangeable for such shares or equity interests, or issue or authorize the issuance of any other security in respect of or in lieu of or in substitution for shares of capital or equity interests, or enter into any agreements restricting the transfer of, or affecting the rights of holders of, Common Shares, grant any preemptive or anti-dilutive rights to any holder of any class of securities of the Company, or grant registration rights with respect to any of the Company's securities;
(5) amend or waive any rights under any grants made under the Long Term Incentive Plan for New Employees;
(6) incur any indebtedness for borrowed money, guarantee any such indebtedness or issue or sell any debt securities, in excess of $5,000,000 in the aggregate, or prepay or refinance any indebtedness for borrowed money;
(7) engage in any Interested Party Transaction;
(8) acquire any assets or properties for cash or otherwise for an amount in excess of $5,000,000 in the aggregate;
(9) acquire, whether by means of merger, stock or asset purchase, joint venture or other similar transaction, any equity interest in, or all or substantially all of the assets of any Person, or any business or division of any Person;
(10) replace the independent auditors of the Company or make any material change in any method of financial accounting or accounting practice, except for any such change required by reason of a concurrent change in U.S. generally accepted accounting principles;
(11) sell or otherwise dispose of assets material to the Company and its Subsidiaries taken as a whole, except as specifically contemplated by the Subscription Agreement;
(12) increase by 5% or more the annual base compensation of any officer or key employee of the Company, or enter into or make any material change in any severance contract or arrangement with any such officer or key employee;
(13) consummate a complete liquidation or dissolution of the Company, a merger or consolidation (A) in which the Company or any Subsidiary is a constituent corporation or (B) with respect to which the Common Shares would have the right to vote under applicable law, a sale of all or substantially all of the Company's assets, or any similar business combination; provided, however, that the foregoing shall not apply to any merger or consolidation solely between or among wholly owned Subsidiaries of the Company, other than any such transaction between Subsidiaries which are considered "Core Insurance Operations" under Section E, and Subsidiaries which are not considered "Core Insurance Operations";
(14) enter into any transaction involving in excess of $1,000,000, or, if such transaction is in the ordinary course of business consistent with past practice, $5,000,000;
(15) approve the annual plan, annual capital expenditure budget or the five-year plan of the Company and its Subsidiaries, taken as a whole;
(16) remove the Chief Executive Officer or Chairman of the Company, or appoint a new Chief Executive Officer or Chairman of the Company; or
(17) enter into any agreement with respect to the foregoing; provided, however, transactions solely between or among the Company and/or one or more of its wholly owned Subsidiaries shall be excluded from clauses (6), (8), (9), (11) and (14) (and from clause (17) to the extent relating to an agreement with respect to a transaction excluded by this proviso), other than any such transaction between Subsidiaries which are considered "Core Insurance Operations" under Section E, and Subsidiaries which are not considered "Core Insurance Operations". In addition, prior to the Approval Date, and after the Approval Date for so long as the Warburg Directors and the H&F Directors together constitute a majority of the Board, (i) the notice for each meeting of the Board called by the Chairman of the Board, the President of the Company, the Warburg Directors or the H&F Directors shall include a list of topics to be discussed at the meeting (the "Agenda") and (ii) the Board shall not act on any matter that is not within the Agenda without the consent of at least one Warburg Director and at least one H&F Director. Nothing in this Section 3.3 shall grant either H&F or Warburg any right or consent to the extent that such right would result in such party being deemed to "control" an insurance subsidiary of the Company that is domiciled in any state in the United States, where the exercise of such control would otherwise require the prior approval of such state. In addition, the rights of Warburg and H&F set forth in this Section 3.3 shall, in any event, terminate upon the mandatory conversion of the Preference Shares under paragraph (g)(2) of the Certificate of Designations for the Preference Shares (the "Mandatory Conversion Date") or the earlier conversion of all Preference Shares in accordance with their terms.
Appears in 1 contract
Samples: Shareholders Agreement (H&f Corp Investors Iv Bermuda LTD)
