Protective Provisions. The LLC shall not, and shall not permit any of its subsidiaries to, whether by means of amendment to this Agreement or Certificate of Formation, or by merger, consolidation or otherwise, without first obtaining the approval (by affirmative vote or written consent) of the Requisite Preferred Holders separately as a class, and any of the following acts or transactions entered into without such vote or written consent shall be null and void ab initio and of no force or effect:
(a) authorize or issue, or obligate itself to issue, or reclassify any securities into, any shares or any other equity security (including any security convertible into or exercisable for any such equity security) having any right, preference or privilege senior or superior to, or being on parity with, the rights, preferences and privileges of the Series A Preferred Shares, the Series B Preferred Shares or the Series C Preferred Shares;
(b) set aside or make any distribution in respect of, or redeem, purchase or otherwise acquire any of, (or pay into or set aside for a sinking fund for such purpose) the Shares or other equity securities; provided, however, that this restriction shall not apply to (i) the redemption of the Preferred Shares pursuant to Section 4.06, (ii) distributions payable on the Common Shares solely in the form of additional Common Shares, (iii) the repurchase of Common Shares or Incentive Shares from managers, directors, officers, employees, advisors, consultants or other persons performing services for the LLC or any subsidiary of the LLC upon termination of such person’s employment or other relationship with the LLC at no greater than the original purchase price, (iv) the redemption of Preferred Shares pursuant to the terms of the Second Amended and Restated Put Agreement, dated as of or around the Commencement Date, by and among the LLC and certain Members (as amended from time to time, the “Put Agreement”) or (v) distributions of cash in accordance with Section 11.03;
(c) (i) sell, assign, exclusively license, convey, or otherwise dispose of all or substantially all of its assets, property or business, (ii) merge or consolidate with or into any other entity, (iii) effect any transaction or series of related transactions in which more than fifty percent (50%) of the outstanding Voting Shares are transferred, (iv) effect a reorganization, recapitalization or division or (v) liquidate, dissolve or wind-up;
(d) permit any subsidiary of the LLC to (i) sell, assign, ex...
Protective Provisions. (a) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group Company shall not, and each holder of Ordinary Shares shall procure that each Group Company does not, directly or indirectly, (1) without the approval of the holders holding at least eighty-five percent (85%) of the then outstanding Preferred Shares (excluding Preferred Shares held by AIL, and voting together as a single class on an as-converted basis), which approval shall not be unreasonably withheld, take any of the actions under the subsections (i), (ii), (iii), (iv), (v), (xi), (xiv), (xv), (xvii), (xix) and (xx) below; and (2) without the approval of the holders holding at least eighty-five percent (85%) of the then outstanding Preferred Shares (including Preferred Shares held by AIL, and voting together as a single class on an as-converted basis), which approval shall not be unreasonably withheld, take any of the actions under the subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii) below:
(i) cease to conduct or substantially change the business of the Company and/or any Group Company, as such business is normally conducted, or deviate from the business plan previously approved by the Board of Director of the Company;
(ii) sell or dispose of the whole or substantial part of the undertaking goodwill or the assets of the Company and/or any Group Company;
(iii) increase, reduce or cancel the authorized or issued share capital of the Company and/or any Group Company or issue, allot, purchase or redeem any shares or securities convertible into or carrying a right of subscription in respect of shares or any share warrants or grant or issue any options rights or warrants, which may require the issue of shares in the future or do any act which has the effect of diluting or reducing the effective shareholding of any Investor in the Company (with the exception of any shares issued upon conversion of the Preferred Shares);
(iv) make any distribution of profits amongst the shareholders by way of dividend, (interim and final) capitalization of reserves or otherwise;
(v) appoint or settle the terms of appointment of the chief executive officer (except for appointing Xxxx Xxx as the chief executive officer of the Company and/or any Group Company), the chief operative officer and the chief technology officer of the Company and/or any Group Company;
(vi) approve or amend the employee share option plans or approve any new e...
Protective Provisions. Until the closing by the Company of an additional $5,000,000 equity financing from institutional investors, approval of the holders of at least 2/3 of the outstanding shares of the Series A-1 Preferred voting together separately as a class will be required for: a) a merger, sale of all, or substantially all of the assets or intellectual property, recapitalization, or reorganization the Company; b) the authorization or issuance of any equity security having any right, preference or priority superior to or on parity with the Series A-1 Preferred (excluding debt not convertible into any such senior or pari passu equity security); c) the redemption, repurchase or acquisition, directly or indirectly, through subsidiaries or otherwise, of any equity securities (other than the repurchase of equity securities of the Company at cost upon termination of employment or service pursuant to vesting agreements or stockholder agreements or a repurchase of the Series A-1 Preferred) or the payment of dividends or other distributions on equity securities by the Company (other than on the Series A-1 Preferred); d) any amendment or repeal of any provision of the Company’s certificate of incorporation or by-laws that would adversely affect the rights, preferences, or privileges of the Series A-1 Preferred; e) a significant change in the principal business of the Company as conducted at the time of the consummation of the closing of the Merger; f) the making of any loan or advance to any entity other than in the ordinary course of business unless it is wholly owned by the Company; g) the making of any loan or advance to any person, including, without limitation, any employee or director of the Company or any subsidiary, except advances and similar expenditures in the ordinary course of business or under the terms of an employee stock or option plan approved by the Board of Directors and Investor; or h) the guarantee, directly or indirectly, of any indebtedness or obligations, except for trade accounts of any subsidiary arising in the ordinary course of business. Any liquidation, dissolution, recapitalization or reorganization of the Company would require a unanimous vote of the Board Closing Condition- Series D: The Company further agrees to release approximately $780,000 held in Escrow to SDS Merchant Fund upon closing. SDS shall in lieu ‘put’ back the equivalent Series D stock as per the agreement laid out in the Series-D Securities Purchase Agreement dated March, 2003.
Protective Provisions. So long as any shares of Series B Preferred Stock are outstanding, the Company shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a sixty percent (60%) of the then outstanding shares of Series B Preferred Stock, voting as a separate class:
(a) create (by reclassification or otherwise) any new class or series of shares having rights, preferences or privileges equal or senior to the Series B Preferred Stock;
(b) alter or change the rights, preferences or privileges of the Series B Preferred Stock;
(c) amend the Company’s Certificate of Incorporation in a manner that materially adversely affects the rights, preferences or privileges of the holders of the Series B Preferred Stock;
(d) increase or decrease the authorized number of shares of Preferred Stock of the Company;
(e) liquidate or wind-up the Company;
(f) redeem, purchase or otherwise acquire (or pay into or set funds aside for a sinking fund for such purpose) any share or shares of Preferred Stock or Common Stock; provided, however, that this restriction shall not apply to the repurchase of shares of Common Stock from employees, officers, directors, consultants or other persons performing services for the Company or any subsidiary pursuant to agreements under which the Company has the option to repurchase such shares at cost upon the occurrence of certain events, such as the termination of employment, or through the exercise of any right of first refusal; or
(g) take any other action which is required to be taken only with the consent or approval of the holders of the Company’s capital stock, whether pursuant to the Certificate of Incorporation or the provisions of the Delaware General Corporation Law.
Protective Provisions. For so long as the Beneficial Ownership Percentage is at least twenty-five percent (25%), the Company will not, without the prior written consent of the Investor:
(a) amend any of the Company’s Organizational Documents (except as provided in Section 3.11);
(b) declare or pay any dividends, purchase, redeem, retire, or otherwise acquire for value any of its equity (or rights, options or warrants to purchase such equity) now or hereafter outstanding, return any capital to its shareholders as such, or make any distribution of assets to its shareholders as such; provided, however, that nothing herein contained will prevent the Company from retiring, repurchasing or otherwise acquiring Ordinary Shares (including Ordinary Shares represented by American Depositary Shares) or Share Equivalents (x) pursuant to existing agreements or pursuant to future agreements approved by the Board (including at least one (1) Investor Director), or (y) any securities held by officers, employees, directors or consultants of the Company in which the Company has the option to retire, repurchase or otherwise acquire such shares upon the occurrence of certain events, including, without limitation, the termination of employment;
(c) liquidate, dissolve or wind up the Company;
(d) merge or consolidate, or engage in a consolidation or scheme of, the Company with another entity pursuant to which the holders of the Company’s voting equity securities as of immediately prior to the transaction own less than fifty percent (50%) of the voting securities of the surviving entity, except for a merger or consolidation effected solely for the purpose of changing the Company’s domicile or jurisdiction of incorporation or organization;
(e) sell, lease, license or dispose of all or substantially all of the Company’s assets;
(f) increase or decrease the authorized number of members of the Board;
(g) enter into any business other than the solar-related business; or
(h) amend the Notes or the Indenture.
Protective Provisions a. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series B Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series B Preferred Stock:
(i) alter or change the rights, preferences or privileges of the shares of Series B Preferred Stock, in a manner that adversely affects the holders of shares of the Series B Preferred Stock; or
(ii) increase the authorized number of shares of Series B Preferred Stock or Series C Preferred Stock.
b. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series M Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the outstanding shares of Series M Preferred Stock:
(i) alter or change the rights, preferences or privileges of the shares of Series M Preferred Stock, in a manner that adversely affect the holders of shares of the Series M Preferred Stock; or
(ii) increase the authorized number of shares of Series M Preferred Stock.
c. Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as shares of Series C Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of holders of a majority of the then outstanding shares of Series C Preferred Stock:
(i) alter or change the rights, preferences or privileges of the shares of Series C Preferred Stock, in a manner that adversely affects the holders of shares of the Series C Preferred Stock; or
(ii) increase the authorized number of shares of Series C Preferred Stock or Series B Preferred Stock.
Protective Provisions. From and after the Original Issue Date and prior to the Mandatory Conversion Date, for so long as any shares of Series 1 Preferred Stock shall be outstanding, the Corporation shall not, at any time or from time to time, without the prior vote or written consent of the Required Holders, voting separately as a single class:
(i) amend, alter or repeal any provision of the Certificate of Incorporation, if such amendment, alteration or repeal would alter or change the powers, preferences or special rights of the Series 1 Preferred Stock so as to affect them adversely;
(ii) directly or indirectly, Incur (or permit any of its subsidiaries to Incur) any Debt other than (A) any Existing Debt and (B) up to an aggregate of $600,000,000 of Debt related to (1) the Southern Pipeline Project or Northern Pipeline Project, including water storage (collectively, the “Water Projects”), (2) the establishment of related infrastructure and farming costs for developing agriculture on land owned by the Corporation and its subsidiaries (the “Farming Project”), (3) working capital for the Water Projects, the Farming Project or general corporate purposes, and (4) a Refinancing of any of the Debt described in the foregoing clauses (1) – (3);
(iii) enter into any transaction or series of related transactions (including, without limitation, the purchase, sale, lease, transfer or exchange of property or assets of any kind or the rendering of services of any kind) with any Affiliate, except (A) transactions between the Corporation and its subsidiaries or between or among the Corporation’s subsidiaries and (B) transactions approved by a majority of the Corporation’s independent directors and a majority of the members of the Board of Directors as no less favorable to the Corporation or its subsidiaries than would be obtainable in a comparable arm’s length transaction between fully informed, willing unaffiliated parties who are under no compulsion to act;
(iv) issue any additional shares of Series 1 Preferred Stock (other than as contemplated by the Exchange Agreements);
(v) authorize, create or issue any additional class or series of Liquidation Senior Stock or Liquidation Parity Stock other than the authorization, creation or issuance of any additional class or series of Liquidation Senior Stock or Liquidation Parity Stock in one or more financing transactions for the purpose of financing the Northern Pipeline Project and the Southern Pipeline Project, the gross cash proceeds of which sha...
Protective Provisions. (a) Every provision of this Trust Agreement relating to the conduct or affecting the liability of or affording protection to Trust Indemnified Parties shall be subject to the provisions of this Section 5.7.
(b) In the event the Directors retain counsel (including at the expense of TAFT VI), the Directors shall be afforded the benefit of the attorney-client privilege with respect to all communications with such counsel, and in no event shall the Directors be deemed to have waived any right or privilege, including, without limitation, the attorney-client privilege even if the communications with counsel had the effect of guiding the Directors in the performance of duties hereunder. A successor to any of the Directors shall succeed to and hold the same respective rights and benefits of the predecessor for purposes of privilege, including the attorney-client privilege. No Tribe Beneficiary or other party may raise any exception to the attorney-client privilege discussed herein as any such exceptions are hereby waived by all Parties.
(c) To the extent that, at law or in equity, the Directors have duties (including fiduciary duties) and liabilities relating hereto, to the Trust or to the Tribe Beneficiaries, it is hereby understood and agreed by the Parties and the Tribe Beneficiaries that such duties and liabilities are eliminated to the fullest extent permitted by applicable law, including Section 3806 of the Act, and replaced by the duties and liabilities expressly set forth in this Trust Agreement with respect to the Directors; provided, however, that the duties of care and loyalty are not eliminated but are limited and subject to the terms of this Trust Agreement, including but not limited to Section 5.6 herein.
(d) No Trust Indemnified Party shall be personally liable under any circumstances, except for their own willful misconduct, bad faith, gross negligence or fraud as determined by a Final Order.
(e) No provision of this Trust Agreement shall require the Trust Indemnified Parties to expend or risk their own personal funds or otherwise incur financial liability in the performance of their rights, duties and powers hereunder.
(f) In the exercise or administration of the Trust hereunder, the Trust Indemnified Parties (i) may act directly or through their respective agents or attorneys pursuant to agreements entered into with any of them, and the Trust Indemnified Parties shall not be liable for the default or misconduct of such agents or attorneys if such...
Protective Provisions. Notwithstanding any other provision contained in this Master Trust Agreement to the contrary, the Trustee shall have no obligation to (i) determine the existence of any conversion, redemption, exchange, subscription or other right relating to any securities purchased of which notice was given prior to the purchase of such securities and shall have no obligation to exercise any such right unless the Trustee is advised in writing by the Committee both of the existence of the right and the desired exercise thereof within a reasonable time prior to the expiration of the right to exercise, or (ii) advance any funds to the Trust. Furthermore, the Trustee is not a party to the Plans.
Protective Provisions. From and after the issuance of the Purchased Securities and for so long as the Investors or their Affiliates meet the Beneficial Ownership Requirement, Real shall not, and shall cause its Subsidiaries (including the Issuer) to not, without the prior written consent of the Investors, which consent may be withheld in their sole discretion:
(a) amend, modify, restate or waive any provision in its constating documents in a manner that alters, or that adversely affects, the rights, preferences, privileges or powers of the Preferred Units (including as to impair the rights of the holders of Preferred Units pursuant to the Exchange Agreement or the Guarantee Agreement or to create a class of equity securities that are pari passu or senior to the Preferred Units);
(b) in respect of Real or any of its Subsidiaries (other than the Issuer), issue, authorize or create, or increase the issued or authorized amount of, (by reclassification or otherwise) any (i) class or series of equity securities ranking pari passu or senior to any other equity securities of such entity as to distribution rights or rights upon the Liquidation of such entity, or (ii) any equity or debt security that is convertible into, exercisable for, exchangeable for or representing the right to purchase any class or series of equity securities ranking pari passu or senior to any other equity securities of such entity as to distribution rights or rights upon the Liquidation of such entity, in either case where any payment obligation of Real or any of its Subsidiaries (including in respect of dividends, redemptions or other distributions) are not (directly or indirectly) subordinated (either structurally, by contract or otherwise) to the obligations of Real in respect of the Preferred Units under the Guarantee Agreement;
(c) in respect of the Issuer, issue, authorize or create, or increase the issued or authorized amount of, (by reclassification or otherwise) any (i) class or series of equity securities ranking pari passu or senior to the Preferred Units as to distribution rights or rights upon the Liquidation of the Issuer, or (ii) any debt or equity security that is convertible into, exercisable for, exchangeable for or representing the right to purchase any specific class or series of equity securities ranking pari passu or senior to the Preferred Units as to distribution rights or rights upon the Liquidation of the Issuer;
(d) (i) increase the number of issued or authorized Preferred Units or any r...
