Matters Requiring Certain Approval. (a) Notwithstanding anything herein to the contrary, prior to the Sunset Date, the prior written consent of NLI shall be required for the Company to take any of the following actions:
(i) amend the certificate of incorporation, bylaws or any other organizational documents of the Company, or the charter or other governing documents of any committee of the Board, in any manner that would materially and adversely affect NLI’s enumerated rights under this Agreement or the Stock Purchase Agreement, provided that any amendments required by Applicable Law or any Governmental Authority shall not require the prior written consent of NLI;
(ii) commence any voluntary dissolution, liquidation or winding up of the Company, provided that, notwithstanding that NLI has refused to provide its written consent, if the Board determines in good faith, after consultation with outside counsel, that not commencing voluntary dissolution, liquidation or winding up of the Company would be inconsistent with the Board’s fiduciary duty under Applicable Law, it may commence voluntary dissolution, liquidation or winding up of the Company;
(iii) other than in connection with an Exempt Transfer, commence any voluntary deregistration or delisting of the Common Stock;
(iv) issue any new Common Stock to any NLI Competitor; or
(v) agree to take any of the foregoing actions.
(b) If, within thirty (30) Business Days of receipt of a notice from the Company requesting written consent pursuant to Section 2.4(a) of this Agreement, NLI has not provided its written consent or has not refused to provide its consent, NLI shall be deemed to have consented to the action for which written consent has been requested by the Company.
Matters Requiring Certain Approval. The Company shall not, and shall not permit any of its Subsidiaries to, either directly or indirectly, by amendment, merger, plan of arrangement, consolidation or otherwise, in each case without the prior written consent or affirmative vote of Directors designated by one or more Major Stockholders that collectively own Common Stock representing at least sixty percent (60%) of the issued and outstanding Common Stock (on an as-converted basis):
(a) enter into a transaction (or enter into any agreement or commitment to do so) providing for the direct or indirect sale of a majority or greater of the Shares or all or substantially all of the Company’s assets, whether in a single or series of transactions, including by means of a merger, consolidation, other business combination, share exchange or other reorganization of the Company (other than a Sale Transaction in accordance with Section 3.1 and Section 3.2);
(b) issue any equity securities of the Company, or any securities convertible into or exchangeable or exercisable for equity securities of the Company, other than in accordance with the Plan, the Convertible Notes Indenture and the Management Incentive Plan;
(c) change, modify or amend the number of directors constituting the entire Board of Directors to be greater than or less than five (5), other than in accordance with Section 6.1(e);
(d) register any securities of the Company or any Subsidiary under the Securities Act or any public offering of securities (including any initial public offering);
(e) incur any indebtedness that would cause the aggregate consolidated indebtedness of the Company to, at any time, be in excess of forty-eight million dollars ($48,000,000) or in a leverage ratio above 11.0 to 1.0, including any liens, guarantees or security in respect of such indebtedness, except any indebtedness incurred pursuant to any credit facilities approved by the Board of Directors;
(f) any voluntary liquidation or dissolution of, or any filing of a petition in bankruptcy or entering into any receivership or other arrangement for the benefit of creditors with respect to, the Company or any of its Subsidiaries (other than a voluntary liquidation or dissolution of any Subsidiary of the Company pursuant to which substantially all of the assets thereof are distributed or otherwise transferred to the Company or one or more of its wholly-owned Subsidiaries);
(g) amend the Company’s Charter Documents;
(h) adopt or change a material tax election or the Compan...
