Matters Requiring Consent. 6.1 For so long as the MediaOne Group or the TINTA Group hold 15 per cent. or more of the Ordinary Shares in issue for the time being and from time to time (ignoring any Ordinary Shares issued after the date hereof pursuant to or for the purposes of share options), the Company shall not and shall procure that none of its subsidiary undertakings will do, or agree to do, any of the following things without the Required Consent and no Shareholder shall knowingly acquiesce in the doing thereof without the Required Consent: 6.1.1 any material acquisition or disposal outside the ordinary course of the business of the Telewest Group, and for these purposes an acquisition or disposal shall be deemed material and outside the ordinary course of the business of the Telewest Group if it represents a class 2 transaction under the Listing Rules of the London Stock Exchange or the Company intends in any event to announce the acquisition or disposal; 6.1.2 incur any borrowings or indebtedness in the nature of borrowings after (otherwise than under a facility or agreement entered into before) this Agreement becomes unconditional which when aggregated with any borrowings or indebtedness in the nature of borrowings of the Telewest Group so incurred and outstanding at the time being (ignoring intra-group borrowings and indebtedness and borrowings or indebtedness under any facility or agreement for which the Required Consent has already been obtained) exceeds (pound)50 million or, after this Agreement becomes unconditional, grant any security interests in any assets which, when aggregated with other assets of the Telewest Group over which security interests are granted after this Agreement becomes unconditional (ignoring any security interests for which the Required Consent has already been obtained), together have a Fair Market Value of (pound)50 million or more, or agree to any material amendment, supplement or variation of the terms of any borrowings, indebtedness in the nature of borrowings or security interests;
Appears in 2 contracts
Samples: Relationship Agreement (Telewest Communications PLC /New/), Relationship Agreement (SBC Communications Inc)
Matters Requiring Consent. 6.1 For so long as the MediaOne Group or the TINTA Group hold 15 per cent. or more The Company undertakes to each of the Ordinary Shares Shareholders, and the Founders and the Shareholders undertake to each other to exercise the voting rights attaching to their shares to procure that the Company shall not take the following actions without the prior consent of the Board of Directors, unless if permitted in issue this Agreement: Change the bank of the Company; Approve the statutory accounts of the Company; Change the accounting reference date of the Company; Change the auditors (if any) or reporting accountants of the Company; Make any agreement with any revenue or tax authorities to make any claim disclaimer, election or consent for tax purposes in relation to the time being Company; Declare or pay any dividend; Purchase its own shares; Create a new class of shares; Allot, offer, or grant rights to subscribe for any shares; Repay, subdivide, consolidate, capitalise, or otherwise vary the rights of the issued share capital of the Company; Create or amend any share option or participation; Amend the articles of association of the Company; Create any subsidiary company, branch or enter into any joint venture; Make any material change in the nature of the Business of the Company; Commence, or settle any material litigation by or against the Company; Enter into any proposed transaction or payment of fees or remuneration in which, to the knowledge of the Founders, an employee of the Company is personally interested; Enter into a contract or series of connected contracts under which the consideration payable by the Company might reasonably be expected to amount to more than SG$100,000, and which cannot be terminated on 1 year notice or less, and under which the liability for such termination may reasonably be expected to exceed SG$100,000; Increase the current level of borrowing (other than in the ordinary course of business where any such increase is no greater than SG$100,000); Create or grant any mortgage, charge, lien, or other security over any asset or contract of the Company (except for liens created in the ordinary course); Create any encumbrance or borrow any money secured or unsecured other than overdrafts or loans other than in the normal course of trading business; and Agree or vary the level of remuneration and service terms of directors of the Company; Approve the Company’s business plan as required from time to time (ignoring the “Business Plan”) Assign or licence to any Ordinary Shares issued after third party any of the date hereof pursuant Intellectual Property Rights belonging to or for the purposes Company; Enter into any lease in relation to property and/or any contract to purchase any property; Appoint an administrator; The Company undertakes to each of share options)the Shareholders, and the Founders and the Shareholders undertake to each other to exercise the voting rights attaching to their shares to procure that the Company shall not take the following actions without the prior written consent of the Founders, and shall procure that none of its subsidiary undertakings will dothe Investor Majority or their representation by the Investor Director (so long as the Investors hold at least 10% of the voting rights of the Company), unless if permitted in this Agreement: Alter or remove the rights attached to an existing class of shares issued to the Shareholders; Approve any merger, liquidation, or agree to do, any dissolution of the following things without the Required Consent and no Shareholder shall knowingly acquiesce Company, unless so required by a court of law in the doing thereof without the Required Consent:
6.1.1 The Republic of Singapore; Sell or otherwise dispose of any interest in any material acquisition or disposal outside asset of the Company other than in the ordinary course of business; Enter into any negotiations, or reach agreement for the business Company to sell any significant asset or part of the Telewest Groupits business, and for these purposes an acquisition assets or disposal shall be deemed material and outside undertaking other than current assets, or in the ordinary course of business; The Company shall provide the Shareholders with quarterly business reports, all financial statements produced for publication, statutory and management accounts, within one calendar month of any such report or statement being signed off by the Telewest Group if it represents a class 2 transaction under Board of Directors. The Company and the Listing Rules of the London Stock Exchange or the Company intends in any event to announce the acquisition or disposal;
6.1.2 incur any borrowings or indebtedness in the nature of borrowings after (otherwise than under a facility or agreement entered into before) this Agreement becomes unconditional which when aggregated with any borrowings or indebtedness in the nature of borrowings of the Telewest Group so incurred Founders undertake and outstanding at the time being (ignoring intra-group borrowings and indebtedness and borrowings or indebtedness under any facility or agreement for which the Required Consent has already been obtained) exceeds (pound)50 million or, after this Agreement becomes unconditional, grant any security interests in any assets which, when aggregated with other assets of the Telewest Group over which security interests are granted after this Agreement becomes unconditional (ignoring any security interests for which the Required Consent has already been obtained), together have a Fair Market Value of (pound)50 million or more, or agree to any material amendment, supplement or variation use all reasonable endeavours in good faith to procure that the Board of the terms of any borrowings, indebtedness in the nature of borrowings or security interests;Directors agrees a cash flow forecast and business development plan at least once a year.
Appears in 2 contracts
Samples: Shareholder Agreement, Shareholder Agreement
Matters Requiring Consent. 6.1 For so long as Notwithstanding anything to the MediaOne Group or contrary contained in the TINTA Group hold 15 per cent. or more OpCo PSA, except (i) for the matters set forth in Section 5(b) of the Ordinary Shares Seller Disclosure Letter; (ii) as required by applicable Law, (iii) as provided in issue for or contemplated by this Agreement; or (iv) with the time being prior written consent of the PropCo Purchaser (which consent may be withheld in its sole and absolute discretion (except with respect to Section 7(a)(v) below (solely as it relates to Tenant Leases), which consent shall not be unreasonably withheld, delayed or conditioned)), from time to time (ignoring any Ordinary Shares issued and after the date hereof and prior to the PropCo Closing or such earlier date as this Agreement may be terminated in accordance with its terms, Seller and its Affiliates shall not, and shall cause the Real Estate Sellers (and their respective Subsidiaries) not to:
(i) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any membership interests or other equity or ownership interest, or make any other change with respect to the equity structure of any PropCo Acquired Company;
(ii) create, incur or suffer to exist any Lien in any way affecting the Transferred Real Estate Assets (other than a Permitted Lien) or the PropCo Acquired Interests;
(iii) sell, pledge, transfer, convey, assign, abandon or otherwise dispose of the Transferred Real Estate Assets or any portion thereof or interest therein (including any Real Estate Seller’s interest under any Seller Lease) or any PropCo Acquired Interests or any portion thereof or interest therein;
(iv) acquire any material real property or interest therein;
(v) cause or permit any Real Estate Seller (or their respective Subsidiaries) to enter into any Lease, or any amendment or modification to, or termination or cancellation of, any Lease, except: (x) entering into any amendment or modification to, or termination or cancellation of a Tenant Lease (other than the MSG Sphere Lease) in the ordinary course of business or in connection with any COVID-19 Measures, (y) with respect to new Tenant Leases having an initial term of three (3) years or less or extensions of existing Tenant Leases (other than the MSG Sphere Lease) which extend the current term by five (5) years or less, in the case of both (x) and (y) above, to the extent such transaction is an arm’s-length transaction on market terms, and (z) extensions of any existing Tenant Lease where the extension or renewal option or right is exercisable by the tenant pursuant to the terms of such Tenant Lease without the consent or for approval of Seller or its Affiliates;
(vi) amend, change or otherwise modify any Governing Documents of any of the purposes of share options)PropCo Acquired Companies;
(vii) issue, the Company shall not and shall procure that none of its subsidiary undertakings will dosell, assign, pledge, purchase, redeem, retire, grant registration rights to, subject to any Lien, transfer or dispose of, or agree to doissue, sell, assign, pledge, purchase, redeem, retire, grant registration rights to, subject to any Lien, transfer or dispose of, all or any of the following things PropCo Acquired Interests or any other shares of capital units or other equity interests of any of the PropCo Acquired Companies, or issue any shares of capital units or equity interests or issue or become a party to any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to the issued or unissued capital units or other equity interests of any of the PropCo Acquired Companies (other than pursuant to this Agreement and the Ancillary Agreements) or grant any unit appreciation, “phantom” awards or similar rights;
(viii) agree to voluntarily change or attempt to change, or cause or permit any of the Selling Entities, Real Estate Sellers or PropCo Acquired Companies to agree to voluntarily change or attempt to change, the current zoning of the Real Property or any material entitlements with respect to the Real Property; provided, however, that any of the Selling Entities, Real Estate Sellers or PropCo Acquired Companies shall be permitted (without the Required Consent consent of the Purchasers but with notice to the Purchasers, which notice may be provided to Purchasers following the signing or joining, as applicable, by any of the Selling Entities, Real Estate Sellers or Acquired Companies) to sign or join in (A) any applications for special use permits that are necessary for a tenant to operate in accordance with a permitted use clause under such tenant’s Lease in existence on the date hereof or hereafter entered into in accordance with the terms hereof and no Shareholder shall knowingly acquiesce (B) any land use or related applications or documents necessary under the MSG Sphere Lease for the continuation or completion of construction of the “Project” (as defined in the doing thereof without the Required Consent:
6.1.1 any material acquisition or disposal outside the ordinary course of the business of the Telewest Group, and for these purposes an acquisition or disposal shall be deemed material and outside the ordinary course of the business of the Telewest Group if it represents a class 2 transaction under the Listing Rules of the London Stock Exchange or the Company intends MSG Sphere Lease) in any event to announce the acquisition or disposal;
6.1.2 incur any borrowings or indebtedness in the nature of borrowings after (otherwise than under a facility or agreement entered into before) this Agreement becomes unconditional which when aggregated accordance with any borrowings or indebtedness in the nature of borrowings of the Telewest Group so incurred and outstanding at the time being (ignoring intra-group borrowings and indebtedness and borrowings or indebtedness under any facility or agreement for which the Required Consent has already been obtained) exceeds (pound)50 million or, after this Agreement becomes unconditional, grant any security interests in any assets which, when aggregated with other assets of the Telewest Group over which security interests are granted after this Agreement becomes unconditional (ignoring any security interests for which the Required Consent has already been obtained), together have a Fair Market Value of (pound)50 million or more, or agree to any material amendment, supplement or variation of the terms of the MSG Sphere Lease;
(ix) enter into any borrowingsContract (or amendment, indebtedness in modification or supplement of any existing Contract) to sell the nature Transferred Real Estate Assets or the PropCo Acquired Interests or any portion of borrowings any of the foregoing other than this Agreement and the OpCo PSA; or
(x) agree, commit or security interests;resolve to, or authorize or announce an intention to, do any of the foregoing.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Las Vegas Sands Corp), Purchase and Sale Agreement (Vici Properties Inc.)
Matters Requiring Consent. 6.1 For so long as any Series A Preferred Shares remain in issue, in addition to any other vote or consent required herein, by another Transaction Document or by law, the MediaOne Group Company undertakes to the New Investors (to the extent valid and enforceable at law) that it shall not without the prior written consent of the Preferred Majority undertake any of the following:
(a) any amendment, alteration or repeal of any provision of the TINTA Group hold 15 per cent. Articles that would adversely affect the preferences, rights, privileges, or more powers of the Series A Preferred Shares;
(b) any material change in the nature of the Business of the Group;
(c) any increase in the number of issued Series A Preferred Shares or Ordinary Shares or number of such Shares the Company has agreed to allot pursuant to any option, warrant or other subscription, save where the increase is in connection with a Qualified Public Offering or in connection with the creation, allotment or issue of shares or other securities pursuant to any of this Agreement, the Option Schemes, any securities in issue at the date of this Agreement, or in accordance with Articles 3.2.5, 3.2.6 or 6.10.2;
(d) any authorisation, designation or issuance, whether by reclassification or otherwise, of any new class or series of shares or any other securities convertible into equity securities of the Company ranking on a parity with or senior to the existing Series A Preferred Shares in right of redemption, liquidation preference, voting or dividends;
(e) any repurchase with respect to the Ordinary Shares (excluding Shares repurchased upon termination of an employee or consultant pursuant to a restricted share purchase agreement);
(f) any agreement between the Company and any of its Shareholders (or any Affiliates of any of its Shareholders) regarding a sale, lease, transfer or other acquisition or disposition of material assets by the Company;
(g) any payment or declaration of a dividend on any of the Ordinary Shares or Series A Preferred Shares;
(h) any voluntary dissolution or liquidation of the Company or any reclassification or recapitalisation of the issued share capital of the Company;
(i) any increase or decrease in issue the maximum number of members of the Board;
(j) any incurrence of borrowings, loans or guarantees for indebtedness in excess of £1,000,000 in aggregate;
(k) any material related party transaction, unless approved by the time being Board (including a disinterested majority of directors); and
(1) any material variation of, or any waiver of rights under, the Assignment and from time Exclusive Licence or the GSK Agreement, in each case, which may have an adverse effect to time (ignoring any Ordinary Shares issued after Group Member’s interest in or rights connected to the date hereof pursuant to or for Company Intellectual Property.
6.2 For the purposes of share optionsClause 6.1(k), a “related party transaction” means a transaction that would, if the Company shall not and shall procure that none of its subsidiary undertakings will do, or agree to do, any was listed on the official list of the following things without the Required Consent and no Shareholder shall knowingly acquiesce in the doing thereof without the Required Consent:
6.1.1 any material acquisition or disposal outside the ordinary course of the business of the Telewest GroupUK Listing Authority, and for these purposes an acquisition or disposal shall be deemed material and outside the ordinary course of the business of the Telewest Group if it represents constitute a class 2 related party transaction under as defined by the Listing Rules of the London Stock Exchange UK Listing Authority.
6.3 In the event that (a) a Special Majority determines that the Company should undertake any matter, transaction or other course of action which constitutes a Special Board Matter, or (b) a Special Majority and a Shareholder Majority determine that the Company should undertake any matter, transaction or other course of action which constitutes a Special Shareholder Matter, then in each case the procedures set out in Clause 6.4 shall apply.
6.4 In relation to any Special Board Matter or Special Shareholder Matter, following determination in accordance with Clause 6.3 that the relevant matter should be undertaken and notification to the Company that the matter should proceed:
(a) the Company shall within 5 Business Days give notice to all its Shareholders of the relevant Special Board Matter and/or Special Shareholder Matter, as may be applicable, which notice shall include details of:
(i) the matter, transaction or course of action which is the subject of the Special Board Matter and/or the Special Shareholder Matter;
(ii) the proposed implementation of the Special Board Matter and/or the Special Shareholder Matter by the Company; and
(iii) any consent or approval of the Existing Investors, the New Investors and/or any of its Shareholders required pursuant to this Agreement, or the Company intends Articles or otherwise determined by the Board for the Special Board Matter and/or the Special Shareholder Matter to proceed (a “Special Notice”);
(b) each Shareholder undertakes to each of the other Shareholders to take, in relation to the Company, all such steps, do all such acts and things and exercise all voting rights and powers of control available to him to procure that any action that is required of him in any Special Notice is undertaken in the manner and within any period of time requested by the Company in a Special Notice in order to enable the Company fully and effectively to implement the Special Board Matter and/or Special Shareholder Matter as the case may be; and
(c) if any Shareholder fails in any respect to comply with the requirements of any Special Notice, the Company and each of its directors shall be constituted the agent of each such defaulting Shareholder irrevocably authorised by any such Shareholder to do all such acts and things as that defaulting Shareholder was required to do pursuant to the Special Notice in order to enable the Company to fully and effectively implement the matters described in the Special Notice.
6.5 Notwithstanding any of the foregoing to the contrary, in the event that a Board Majority determines to announce effect a Listing as a Special Board Matter, the acquisition New Investors agree not to unreasonably withhold their vote in favour of such Listing such that a Preferred Majority cannot be achieved pursuant to Clause 6.3.
6.6 Each Shareholder undertakes to the other Shareholders to use its reasonable endeavours (and to exercise its powers in relation to the Company) to ensure that:
(a) save as provided in Clause 6.6(e), unless otherwise determined by special resolution or disposalin relation to any Exempted Securities, if the Company proposes to allot any New Securities, those New Securities shall not be allotted to any person unless the Company has first offered them to all Major Investors (other than any Major Investor who at that time is required to give a transfer notice in accordance with these Articles or who is deemed to have given a transfer notice under these Articles) on the same terms and conditions and at the same price, as those New Securities are being offered to other persons and otherwise on a pari passu and pro rata basis to the number of Series A Preferred Shares held by the relevant Major Investors (as nearly as possible without involving fractions). Such offer:
(i) shall be in writing, and give details of the number and subscription price of the New Securities and shall stipulate a period during which the offer is open for acceptance which shall be not less than 15 Business Days from the date of such offer; and
(ii) may stipulate that any relevant Major Investor who wishes to subscribe for a number of New Securities in excess of the proportion to which each is entitled shall, in his acceptance, state the number of excess New Securities (“Excess Securities”) for which they wish to subscribe;
6.1.2 incur (b) any borrowings New Securities not accepted by a Major Investor pursuant to the offer made to them in accordance with Clause 6.6(a) shall be used for satisfying any requests for Excess Securities made pursuant to Clause 6.6(a). If there are insufficient Excess Securities to satisfy such requests, the Excess Securities shall be allotted to the applicants pro rata to the number of Shares held by the applicants immediately before the offer was made to each Major Investor in accordance with Clause 6.6
(a) (as nearly as possible without involving fractions or indebtedness in increasing the nature number of borrowings Excess Securities allotted to any Major Investor beyond that applied for by him);
(c) if after the allotments have been made pursuant to Clause 6.6 (otherwise than under a facility or agreement entered into beforea) this Agreement becomes unconditional which when aggregated with any borrowings or indebtedness in the nature of borrowings and (b) all of the Telewest Group so incurred New Securities have not been allotted, unallocated New Securities shall then be offered to all Shareholders (other than the Major Investors and outstanding other than any Shareholder who at that time is required to give a transfer notice in accordance with the Articles or who is deemed to have given a transfer notice under the Articles) on a pari passu and pro rata basis to the number of Shares held by the relevant Shareholder (as nearly as possible without involving fractions). Such offer:
(i) shall be in writing, and give details of the number and subscription price of the New Securities and shall stipulate a period during which the offer is open for acceptance which shall be not less than 15 Business Days from the date of such offer; and
(ii) may stipulate that any relevant Shareholder who wishes to subscribe for a number of New Securities in excess of the proportion to which each is entitled shall, in his acceptance, state the number of excess New Securities (“Further Excess Securities”) for which they wish to subscribe;
(d) any New Securities not accepted by a Shareholder pursuant to the offer made to them in accordance with Clause 6.6(c) shall be used for satisfying any requests for Further Excess Securities made pursuant to Clause 6.6(c). If there are insufficient Further Excess Securities to satisfy such requests, the Further Excess Securities shall be allotted to the applicants pro rata to the number of Shares held by the applicants immediately before the offer was made to each Shareholder in accordance with Clause 6.6(c) (as nearly as possible without involving fractions or increasing the number of Further Excess Securities allotted to any Shareholder beyond that applied for by him). After that allotment, any unallocated New Securities remaining shall be offered to any other person as the directors may determine, at the time same price and on the same terms as the offer to the Shareholders; and
(e) the pre-emption provisions contained in Clauses 6.6(a) to (d) shall not apply:
(i) to the allotment of bonus shares on a pari passu and pro rata basis;
(ii) to the grant of options to subscribe for Ordinary Shares pursuant to an Option Scheme or an Option Exchange (and the issue of Ordinary Shares on exercise of options granted pursuant to an Option Scheme or an Option Exchange) provided that the maximum number of Ordinary Shares which would be issued if all options granted pursuant to an Option Scheme or an Option Exchange and remaining capable of being exercised following the relevant grant were exercised in full does not exceed 32,446,000 Ordinary Shares unless otherwise approved by a Special Majority (ignoring intra-group borrowings and indebtedness and borrowings or indebtedness under such equivalent number of resulting Shares following any facility or agreement for which consolidation and/or sub division of Ordinary Shares after the Required Consent has already been obtaineddate of this Agreement);
(iii) exceeds to the allotment of Ordinary Shares pursuant to Articles 3.2.5 to 3.2.9;
(pound)50 million or, after this Agreement becomes unconditional, grant iv) to the allotment of any security interests Exempted Securities; and
(f) to the allotment of shares issued in any assets which, when aggregated connection with other assets a Qualified Public Offering.
6.7 If required pursuant to clause 4.3 of the Telewest Group over which security interests are granted after this Agreement becomes unconditional Share Exchange Agreement, each Shareholder undertakes to the Company and the other Shareholders to use its reasonable endeavours (ignoring any security interests for which and to exercise its powers in relation to the Required Consent has already been obtained), together have a Fair Market Value of (pound)50 million or more, or agree Company) to any material amendment, supplement or variation ensure that the Company shall adhere to its obligation under clause 4.3 of the terms Share Exchange Agreement with respect to re-registering in accordance with section 755(3) of any borrowings, indebtedness in the nature of borrowings or security interests;Act.
Appears in 1 contract
Samples: Shareholders’ Agreement (Adaptimmune Therapeutics PLC)
Matters Requiring Consent. 6.1 For so long Notwithstanding anything to the contrary contained in the foregoing Section 5(a), except (i) for the matters set forth in Section 5(b) of the Seller Disclosure Letter; (ii) as the MediaOne Group required by applicable Law or under any COVID-19 Measures; (iii) as contemplated by this Agreement or the TINTA Group hold 15 per cent. Real Estate Purchase Agreement; (iv) with respect to any matter that does not relate to the Business, the Acquired Assets, the Acquired Interests or more the OpCo Assumed Liabilities or (v) with the prior written consent (not to be unreasonably withheld, delayed or conditioned (except as otherwise set forth in the Real Estate Purchase Agreement)) of (A) OpCo Purchaser to the extent related to any of the Ordinary Shares in issue for OpCo Acquired Companies, the time being OpCo Acquired Interests, the OpCo Acquired Assets or the OpCo Assumed Liabilities or (B) PropCo Purchaser to the extent related to any of the PropCo Acquired Companies, the PropCo Acquired Interests or the Transferred Real Estate Assets (without limiting Section 7 of the Real Estate Purchase Agreement), from and from time to time (ignoring any Ordinary Shares issued after the date hereof pursuant and prior to the Closing or for such earlier date as this Agreement may be terminated in accordance with its terms, Seller and its Affiliates (with respect to the purposes Business, including the Equity Sellers and the Real Estate Sellers) shall not, and shall cause the Acquired Companies (and their respective Subsidiaries) not to:
i. reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any membership interests or other equity or ownership interest, or make any other change with respect to the equity structure of share options)any Acquired Company;
ii. cause or permit the sale, transfer, conveyance or disposal of any Real Property or any material portion of the Company other Acquired Assets or of any assets or properties of any Acquired Company, in each case, other than FF&E, Small Operating Equipment and Consumables (each as defined on Schedule 1.1) disposed of in the ordinary course of business;
iii. create, incur or suffer to exist any Lien in any way affecting the Acquired Assets or the Acquired Interests other than a Permitted Lien (it being understood that this clause (iii) shall not apply to any Lien encumbering the Acquired Assets that exists as of the date hereof so long as Seller or its Affiliates do not take any voluntary action to change such encumbrance);
iv. materially amend or modify, accelerate any material obligation or waive any material right under or terminate any Material Contract, or cause or permit the entering into of any Contract that would constitute a “Material Contract” if entered into on or prior to the date hereof, except (i) Material Contracts which are cancelable at any time without cause and shall procure without any penalty or fee on not more than thirty (30) days’ notice or (ii) with respect to new Material Contracts, or purchase orders, statements of work or similar arrangements under existing Material Contracts, that none do not impose on Seller or any of its subsidiary undertakings will doAffiliates (with respect to the Business) or the Acquired Companies an obligation to expend any funds;
v. amend, change or otherwise modify any Governing Documents of any of the Acquired Companies;
vi. issue, sell, assign, pledge, purchase, redeem, retire, grant registration rights to, subject to any Lien, transfer or dispose of, or agree to doissue, sell, assign, pledge, purchase, redeem, retire, grant registration rights to, subject to any Lien, transfer or dispose of, all or any of the following things without Acquired Interests or any other shares of capital units or other equity interests of any of the Required Consent Acquired Companies, or issue any shares of capital units or equity interests or issue or become a party to any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to the issued or unissued capital units or other equity interests of any of the Acquired Companies (other than pursuant to this Agreement, the Real Estate Purchase Agreement and no Shareholder shall knowingly acquiesce in the doing thereof without the Required Consent:Ancillary Agreements) or grant any unit appreciation, “phantom” awards or similar rights;
6.1.1 vii. make any material acquisition change to the Business’ financial accounting methods, principles or disposal outside practices, except as may be required (A) by applicable Law or by GAAP or (B) in the ordinary course of business so long as such changes are not material to the business financial statements of Seller or any of its Affiliates;
viii. subject to Section 13 hereof, waive, release, assign, initiate, settle or compromise any Action relating to the Business, other than if such waiver, release, assignment, initiation, settlement or compromise (A) is not a settlement with a Governmental Authority, (B) involves solely the payment of cash of an amount not in excess of $5,000,000 in any individual matter, or $10,000,000 in the aggregate, and any such amount is paid prior to the Closing, and (C) does not involve any material continuing injunctive relief or non-monetary relief or judgment, in each case, other than confidentiality obligations;
ix. except as required by the terms of any collective bargaining agreement or Benefit Plan in existence as of the Telewest Groupdate of this Agreement, and for these purposes (I) grant (or announce to grant), pay or provide any severance, retention or termination payments or benefits to any Business Employee or former service provider of an acquisition or disposal shall be deemed material and outside OpCo Acquired Company, except in the ordinary course of business or pursuant to existing benefit programs, in each case, for Business Employees with annual base compensation that does not exceed $300,000, (II) increase (or announce to increase) the compensation, bonus, welfare, severance or other payments or benefits of, or pay any bonus to, any Business Employee, except (A) in the ordinary course of business for Business Employees with annual base salary that does not exceed $300,000 or (B) in respect of across-the-board salary and wage increases in the ordinary course of business consistent with past practice, (III) hire or terminate (other than for cause) any Business Employee with annual base salary that equals or exceeds $200,000, other than (A) a hiring to fill a vacancy of a position for a Business Employee in the ordinary course of business or (B) a termination of a Business Employee whose employment is considered “at-will,” (IV) voluntarily recognize a labor union, works council or similar labor organization or enter into, terminate, extend or materially modify any collective bargaining agreement, in each case, with respect to Business Employees, (V) take any action (including any “plant closing” or “mass layoff”) with respect to any of the Telewest Group if it represents a class 2 transaction Business Employees which would trigger any notification under the Listing Rules WARN Act, (VI) accelerate the vesting, funding or payment of any compensation or benefit for any Business Employee or (VII) establish, adopt, materially amend or terminate any Benefit Plan (other than any Seller Benefit Plan that is not an Assumed Seller Benefit Plan), other than any amendments or welfare plan renewals in the ordinary course of business that do not (A) increase the expense with respect to such Benefit Plan or (B) limit the ability of any of the London Stock Exchange Acquired Companies to amend or terminate any Benefit Plan or cause or permit any of the Company intends in Acquired Companies to do any event to announce of the acquisition or disposalforegoing;
6.1.2 incur x. agree to voluntarily change or attempt to change, or cause or permit any borrowings of the Selling Entities, Real Estate Sellers or indebtedness Acquired Companies to agree to voluntarily change or attempt to change, the current zoning of the Real Property or any material entitlements with respect to the Real Property; provided, however, that any of the Selling Entities, Real Estate Sellers or Acquired Companies shall be permitted (without the consent of the Purchasers but with notice to the Purchasers, which notice may be provided to the Purchasers following the signing or joining, as applicable, by any of the Selling Entities, Real Estate Sellers or Acquired Companies) to sign or join in (A) any applications for special use permits that are necessary for a tenant to operate in accordance with a permitted use clause under such tenant’s Lease in existence on the date hereof or hereafter entered into in accordance with the terms hereof and (B) any land use or related applications or documents necessary under the MSG Sphere Lease for the continuation or completion of construction of the “Project” (as defined in the nature of borrowings after (otherwise than under a facility or agreement entered into beforeMSG Sphere Lease) this Agreement becomes unconditional which when aggregated in accordance with any borrowings or indebtedness in the nature of borrowings of the Telewest Group so incurred and outstanding at the time being (ignoring intra-group borrowings and indebtedness and borrowings or indebtedness under any facility or agreement for which the Required Consent has already been obtained) exceeds (pound)50 million or, after this Agreement becomes unconditional, grant any security interests in any assets which, when aggregated with other assets of the Telewest Group over which security interests are granted after this Agreement becomes unconditional (ignoring any security interests for which the Required Consent has already been obtained), together have a Fair Market Value of (pound)50 million or more, or agree to any material amendment, supplement or variation of the terms of the MSG Sphere Lease;
xi. modify, rescind, surrender or allow to lapse any borrowingsMaterial Permits, indebtedness in the nature including all Gaming Licenses and Liquor Licenses, or fail to use reasonable best efforts to obtain any renewal or extension, as may be required by applicable Law, of borrowings or security interestsany such Material Permits, including all Gaming Licenses;
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Matters Requiring Consent. 6.1 For so long Notwithstanding anything to the contrary contained in the foregoing Section 5(a), except (i) for the matters set forth in Section 5(b) of the Seller Disclosure Letter; (ii) as the MediaOne Group required by applicable Law or under any COVID-19 Measures; (iii) as contemplated by this Agreement or the TINTA Group hold 15 per cent. Real Estate Purchase Agreement; (iv) with respect to any matter that does not relate to the Business, the Acquired Assets, the Acquired Interests or more the OpCo Assumed Liabilities or (v) with the prior written consent (not to be unreasonably withheld, delayed or conditioned (except as otherwise set forth in the Real Estate Purchase Agreement)) of (A) OpCo Purchaser to the extent related to any of the Ordinary Shares in issue for OpCo Acquired Companies, the time being OpCo Acquired Interests, the OpCo Acquired Assets or the OpCo Assumed Liabilities or (B) PropCo Purchaser to the extent related to any of the PropCo Acquired Companies, the PropCo Acquired Interests or the Transferred Real Estate Assets (without limiting Section 7 of the Real Estate Purchase Agreement), from and from time to time (ignoring any Ordinary Shares issued after the date hereof pursuant and prior to the Closing or for such earlier date as this Agreement may be terminated in accordance with its terms, Seller and its Affiliates (with respect to the purposes Business, including the Equity Sellers and the Real Estate Sellers) shall not, and shall cause the Acquired Companies (and their respective Subsidiaries) not to:
(i) reclassify, combine, split, subdivide or redeem, or purchase or otherwise acquire, directly or indirectly, any membership interests or other equity or ownership interest, or make any other change with respect to the equity structure of share options)any Acquired Company;
(ii) cause or permit the sale, transfer, conveyance or disposal of any Real Property or any material portion of the Company other Acquired Assets or of any assets or properties of any Acquired Company, in each case, other than FF&E, Small Operating Equipment and Consumables (each as defined on Schedule 1.1) disposed of in the ordinary course of business;
(iii) create, incur or suffer to exist any Lien in any way affecting the Acquired Assets or the Acquired Interests other than a Permitted Lien (it being understood that this clause (iii) shall not apply to any Lien encumbering the Acquired Assets that exists as of the date hereof so long as Seller or its Affiliates do not take any voluntary action to change such encumbrance);
(iv) materially amend or modify, accelerate any material obligation or waive any material right under or terminate any Material Contract, or cause or permit the entering into of any Contract that would constitute a “Material Contract” if entered into on or prior to the date hereof, except (i) Material Contracts which are cancelable at any time without cause and shall procure without any penalty or fee on not more than thirty (30) days’ notice or (ii) with respect to new Material Contracts, or purchase orders, statements of work or similar arrangements under existing Material Contracts, that none do not impose on Seller or any of its subsidiary undertakings will doAffiliates (with respect to the Business) or the Acquired Companies an obligation to expend any funds;
(v) amend, change or otherwise modify any Governing Documents of any of the Acquired Companies;
(vi) issue, sell, assign, pledge, purchase, redeem, retire, grant registration rights to, subject to any Lien, transfer or dispose of, or agree to doissue, sell, assign, pledge, purchase, redeem, retire, grant registration rights to, subject to any Lien, transfer or dispose of, all or any of the following things without Acquired Interests or any other shares of capital units or other equity interests of any of the Required Consent Acquired Companies, or issue any shares of capital units or equity interests or issue or become a party to any subscriptions, warrants, rights, options, convertible securities or other agreements or commitments of any character relating to the issued or unissued capital units or other equity interests of any of the Acquired Companies (other than pursuant to this Agreement, the Real Estate Purchase Agreement and no Shareholder shall knowingly acquiesce in the doing thereof without the Required Consent:Ancillary Agreements) or grant any unit appreciation, “phantom” awards or similar rights;
6.1.1 (vii) make any material acquisition change to the Business’ financial accounting methods, principles or disposal outside practices, except as may be required (A) by applicable Law or by GAAP or (B) in the ordinary course of business so long as such changes are not material to the business financial statements of Seller or any of its Affiliates;
(viii) subject to Section 13 hereof, waive, release, assign, initiate, settle or compromise any Action relating to the Business, other than if such waiver, release, assignment, initiation, settlement or compromise (A) is not a settlement with a Governmental Authority, (B) involves solely the payment of cash of an amount not in excess of $5,000,000 in any individual matter, or $10,000,000 in the aggregate, and any such amount is paid prior to the Closing, and (C) does not involve any material continuing injunctive relief or non-monetary relief or judgment, in each case, other than confidentiality obligations;
(ix) except as required by the terms of any collective bargaining agreement or Benefit Plan in existence as of the Telewest Groupdate of this Agreement, and for these purposes (I) grant (or announce to grant), pay or provide any severance, retention or termination payments or benefits to any Business Employee or former service provider of an acquisition or disposal shall be deemed material and outside OpCo Acquired Company, except in the ordinary course of business or pursuant to existing benefit programs, in each case, for Business Employees with annual base compensation that does not exceed $300,000, (II) increase (or announce to increase) the compensation, bonus, welfare, severance or other payments or benefits of, or pay any bonus to, any Business Employee, except (A) in the ordinary course of business for Business Employees with annual base salary that does not exceed $300,000 or (B) in respect of across-the-board salary and wage increases in the ordinary course of business consistent with past practice, (III) hire or terminate (other than for cause) any Business Employee with annual base salary that equals or exceeds $200,000, other than (A) a hiring to fill a vacancy of a position for a Business Employee in the ordinary course of business or (B) a termination of a Business Employee whose employment is considered “at-will,” (IV) voluntarily recognize a labor union, works council or similar labor organization or enter into, terminate, extend or materially modify any collective bargaining agreement, in each case, with respect to Business Employees, (V) take any action (including any “plant closing” or “mass layoff”) with respect to any of the Telewest Group if it represents a class 2 transaction Business Employees which would trigger any notification under the Listing Rules WARN Act, (VI) accelerate the vesting, funding or payment of any compensation or benefit for any Business Employee or (VII) establish, adopt, materially amend or terminate any Benefit Plan (other than any Seller Benefit Plan that is not an Assumed Seller Benefit Plan), other than any amendments or welfare plan renewals in the ordinary course of business that do not (A) increase the expense with respect to such Benefit Plan or (B) limit the ability of any of the London Stock Exchange Acquired Companies to amend or terminate any Benefit Plan or cause or permit any of the Acquired Companies to do any of the foregoing;
(x) agree to voluntarily change or attempt to change, or cause or permit any of the Selling Entities, Real Estate Sellers or Acquired Companies to agree to voluntarily change or attempt to change, the current zoning of the Real Property or any material entitlements with respect to the Real Property; provided, however, that any of the Selling Entities, Real Estate Sellers or Acquired Companies shall be permitted (without the consent of the Purchasers but with notice to the Purchasers, which notice may be provided to the Purchasers following the signing or joining, as applicable, by any of the Selling Entities, Real Estate Sellers or Acquired Companies) to sign or join in (A) any applications for special use permits that are necessary for a tenant to operate in accordance with a permitted use clause under such tenant’s Lease in existence on the date hereof or hereafter entered into in accordance with the terms hereof and (B) any land use or related applications or documents necessary under the MSG Sphere Lease for the continuation or completion of construction of the “Project” (as defined in the MSG Sphere Lease) in accordance with the terms of the MSG Sphere Lease;
(xi) modify, rescind, surrender or allow to lapse any Material Permits, including all Gaming Licenses and Liquor Licenses, or fail to use reasonable best efforts to obtain any renewal or extension, as may be required by applicable Law, of any such Material Permits, including all Gaming Licenses;
(xii) (A) revoke, make or change any Tax election (including an entity classification election with respect to the Acquired Companies), (B) settle or compromise any material Tax claim or Liability, (C) incur any material Tax Liability outside of the ordinary course of business, (D) adopt or change (or request any taxing authority to change) its annual Tax accounting period or any material aspect of its accounting method with respect to Taxes, (E) enter into any closing agreement or other binding written agreement relating to Taxes with any taxing authority, or any Tax sharing agreement, (F) file any material amended Tax Return, (G) surrender any claim for a refund of a material amount of Taxes, or (H) consent to any extension or waiver of the limitation period applicable to any Tax claim or assessment (other than pursuant to an extension of time to file any Tax Return obtained in the ordinary course of business), provided, however, that the Purchasers’ consent shall not be required with respect to any such action to the extent such action relates only to, and only affects, time periods prior to the Closing and does not adversely affect the Purchasers or the Company intends Acquired Companies after the Closing;
(xiii) enter into any new material line of business or make any material change to the lines of business in which the Business participates or is engaged;
(xiv) make any change in its policies, practices or conduct related to cash management customs and practices or systems of internal accounting controls (including with respect to the payment of accounts payable, collection of accounts receivable, maintenance of working capital balances, pricing and credit policies, standard terms and conditions, retention of title policies, and the sale, securitization, factoring or transfer of any accounts receivable), except in the ordinary course of business or as may be appropriate to conform to GAAP;
(xv) write-off as uncollectible accounts receivable, except write-offs in the ordinary course of business charged to applicable reserves;
(xvi) make any change to its customer pricing, rebates or discounts, or paying a premium to acquire any services or goods (including the Consumables), in each case, other than in the ordinary course of business;
(xvii) acquire (including by merger, consolidation or acquisition of stock or assets) any interest, or make any investment, in any event to announce corporation, partnership, limited liability company or any other Person or any business organization or division thereof or any assets or properties, other than (A) any such acquisitions and investments with an aggregate value not in excess of $20,000,000 or (B) any Consumables in the acquisition or disposalordinary course of business;
6.1.2 incur any borrowings (xviii) adopt a plan of complete or indebtedness in the nature of borrowings after partial liquidation, dissolution or merger, consolidation, restructuring, recapitalization or other reorganization;
(otherwise than under a facility or agreement entered into beforexix) this Agreement becomes unconditional which when aggregated with any borrowings or indebtedness in the nature of borrowings of the Telewest Group so incurred and outstanding at the time being (ignoring intra-group borrowings and indebtedness and borrowings or indebtedness under any facility or agreement for which the Required Consent has already been obtained) exceeds (pound)50 million oramend, after this Agreement becomes unconditional, grant any security interests in any assets which, when aggregated with other assets of the Telewest Group over which security interests are granted after this Agreement becomes unconditional (ignoring any security interests for which the Required Consent has already been obtained), together have a Fair Market Value of (pound)50 million or more, or agree to any material amendmentrestate, supplement or variation otherwise modify the Capital Budget in any manner;
(xx) declare, set aside, make or pay any dividend or other distribution (whether in cash, securities or other property) on or with respect to any Acquired Interests or other membership interests or other equity or ownership interest of any Acquired Company, except to the extent of any cash dividend or distribution that would not result in the Business or the Acquired Companies having less than the greater of (A) the minimum cash balance required under applicable Gaming Laws and (B) the Minimum Casino Cash Amount;
(xxi) voluntarily take (or fail to take) any action that would result in a failure to maintain any material Insurance Policies;
(xxii) enter into any joint venture, strategic alliance, exclusive dealing or noncompetition contract or arrangement;
(xxiii) sell, assign, transfer, lease, license or allow to lapse any material Company Owned Intellectual Property or any material Licensed House Marks, other than non-exclusive licenses granted in the ordinary course of business;
(xxiv) enter into or amend any Contract with any Related Party, except for any such Contract that will be terminated at or before the Closing without any further liability or obligation (contingent or otherwise) of any Acquired Company or any other party thereunder;
(xxv) effect any complete closure or shutdown of the Premises, other than (x) to the extent required or advisable in accordance with COVID-19 Measures or by any Governmental Authority or (y) any such closure or shutdown that has also been imposed on other similarly situated businesses in Las Vegas, Nevada;
(xxvi) reduce amounts spent on business marketing efforts or activities, other than in the ordinary course of business;
(xxvii) cause or permit the entering into of any Lease, or of any material amendment or modification to, or termination or cancellation of, any Lease, except: (x) entering into any amendment or modification to, or termination or cancellation of a Tenant Lease (other than the MSG Sphere Lease) in the ordinary course of business or in connection with any COVID-19 Measures, including any extension or renewal of an existing COVID-19 related abatement agreement, (y) with respect to new Tenant Leases having an initial term of three (3) years or less or extensions of existing Tenant Leases (other than the MSG Sphere Lease) which extend the current term by five (5) years or less (in each case, without further extension rights), in the case of both (x) and (y) above, to the extent such transaction is an arm’s-length transaction on market terms, and (z) extensions of any existing Tenant Lease where the extension or renewal option or right is exercisable by the tenant pursuant to the terms of such Tenant Lease without the consent or approval of Seller or its Affiliates; or
(xxviii) agree, commit or resolve to, or authorize or announce an intention to, do any borrowings, indebtedness in of the nature of borrowings or security interests;foregoing.
Appears in 1 contract
