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 ▇▇▇▇ ▇▇▇ 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 equity-based compensation plan or any bonus or incentive plan; (vii) select or change the external auditor, or make any material changes to the accounting policies or change the financial year of the Group Companies; (viii) invest in or acquire any other Person, or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Company; (ix) create, incur or authorize the creation of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts of the Group Companies arising in the ordinary course of business; (x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above; (xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company; (xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property; (xiii) purchase any real property; (xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer; (xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that with respect to the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a) shall require the approval of the Investors in accordance with this Section 7.3(a)); (xvi) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in a single transaction, or US$3,000,000 in a series of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction; (xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies; (xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment; (xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents; (xx) approve any transfer of shares in the Company or any of the Group Company; or (xxi) authorize, agree or undertake to do any of the foregoing. Actions under subsection (xxi) shall require 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) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require 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). (b) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval, take any of the following actions: (i) Issue, sell, transfer or otherwise dispose of, directly or indirectly, any equity securities, security convertible into or exercisable for any equity securities, assets or good will of any Group Company to, or merge, amalgamate or consolidate any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited (the “Tencent Group”) (notwithstanding any provision to the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions set forth in this subsection (i) for any reason whatsoever; it being understood that, solely for purposes of this Section 7.3(b)(i), “control” refers to management rights, ownership of more than 50% of equity or voting rights.
Appears in 5 contracts
Sources: Shareholder Agreements, Shareholders Agreement (Momo Inc.), Series D Preferred Share Purchase Agreement (Momo Inc.)
Protective Provisions. (a) In addition Until the QIPO, the Company shall not take any of the following actions without approval of the Majority Preferred Shareholders (which may be obtained by way of a written consent and shall not require the convening of a shareholders meeting for such purpose, unless required by applicable law):
(1) any amendment to or modification of these Articles and/or the Memorandum of Association of the Company or any other vote action which would amend, change or consent required elsewhere modify the rights, preferences or privileges of the Preferred Shares.
(2) declaration of any dividend;
(3) the authorization of any share capital, or other rights or securities convertible into or exchangeable for share capital, or the conversion of any existing shares into shares, in each case with rights equal to or superior to the rights of the Preferred Shares;
(4) any action or transaction which is outside the business of the Company as contemplated in the Articles Updated Work Plan of the Company (as defined in the Amadeus Agreement);
(5) any action which effects a merger, reorganization, liquidation, disposition, acquisition or sale of the Company or of any subsidiary thereof, or any transfer of a material asset of the Company or of any subsidiary thereof, or the creation of or purchase of or into any entity;
(6) any action which may alter or change the capital structure of the Company or of any subsidiary thereof, any action which effects a reclassification or recapitalization of the outstanding capital shares of the Company, and any increase in the registered share capital of the Company or of any subsidiary thereof;
(7) the creation of any guarantee, mortgage, pledge or security interest in a material asset, or in all or substantially all of the assets of the Company or a subsidiary;
(8) the replacement of the independent auditors to the Company, which in any event shall be one of the “big four”; and
(9) the incurrence by the Company or by any applicable statutesubsidiary thereof of any indebtedness that shall exceed the sum of $250,000 (Two Hundred Fifty Thousand US Dollars), each Group calculated on a cumulative basis in respect of any one transaction or in respect of a series of connected transactions;
(b) Until the QIPO, the Company shall not, and each holder not issue any securities of Ordinary Shares shall procure that each Group Company does not, directly any kind or indirectly, (1) options to purchase securities of any kind without the approval of the holders holding at least eighty-five percent (85%) majority of the then outstanding Preferred Shares (excluding Preferred Shares held directors appointed 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 ▇▇▇▇ ▇▇▇ 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 equity-based compensation plan or any bonus or incentive plan;
(vii) select or change the external auditor, or make any material changes to the accounting policies or change the financial year of the Group Companies;
(viii) invest in or acquire any other Person, or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Company;
(ix) create, incur or authorize the creation of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts of the Group Companies arising in the ordinary course of business;
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that with respect to shares issued upon the memorandum and articles exercise of association warrants, options, or other rights outstanding as of the Domestic closing of the Poalim Agreement, the closing of the Wellington Agreement or the closing of the Amadeus Agreement or the grant of options (and shares issued upon exercise of such options) under the Company’s incentive plans are not subject to such approval.
(c) Any amendment or modification of the rights and obligations of Intel set forth in Article 29(e) (Right of First Refusal), only the alteration or amendment related to the items listed in this Section 7.3(aArticle 29A (Co-Sale) and Article 29(B)(b) (Bring Along) and 65(c) (Directors) shall require the approval consent of Intel.
(d) Until the QIPO, the Company shall not take, without the consent of the Investors holders of at least a majority of the issued and outstanding Preferred Shares of the affected class, an action that amends or modifies the rights attached to such class of Preferred Shares, provided however that (a) the authorization or issuance of a new class of shares with preferential rights, or (b) a change, waiver of other modification that applies to the rights of the Preferred Shares in accordance with this Section 7.3(a));the same proportional manner and without treating a certain series proportionally different from the other series, in each case – that was approved by holders of a majority of the issued and outstanding Preferred Shares, shall not be deemed a change hereunder.
(xvie) approveUntil the QIPO, extend the Company shall not take, without the consent of the holders of at least a majority of the issued and outstanding Series BB Preferred Shares (which must include also the affirmative consent of the holders of the majority of the Series BB-1 Preferred Shares, Series BB-3 Preferred Shares and Series BB-4 Preferred Shares (voting together as one group) that were issued at the closing of the Poalim Agreement, at the closing of the Wellington Agreement and at the closing of the Amadeus Agreement to investors who were not shareholders of the Company immediately prior to the closing of the Poalim Agreement or amend affiliates or Permitted Transferees of such shareholders (the “Special BB Consent”)) an action that effects (i) any transaction change or agreement which is waiver of rights of the Series BB Preferred Shares that does not apply to the rights of all Preferred Shares in the same proportional manner and that treats a certain series proportionally differently from the other series; (ii) any waiver of liquidation preferences, anti-dilution, board representation or information rights of the Series BB Preferred Shares, (iii) an amount in excess IPO, merger or the sale of US$1,000,000 in a single transaction, all or US$3,000,000 in a series substantially all of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative thereof, except pursuant to the Company’s employee shares or assets, unless, in each such case, the applicable IPO or transaction reflects a price per share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to more than two times the Investors and shall be arm’s length transaction;
Original Issue Price of the Series BB-1 Preferred Shares (xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction“Qualified Transaction”), or US$3,000,000 in a series (iv) conversion of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactionsSeries BB Preferred Shares, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Company; or
(xxi) authorize, agree or undertake to do any of the foregoing. Actions under subsection (xxi) shall require the approval of the holders holding at least eighty-five percent (85%) of the then outstanding Preferred Shares (including Preferred Shares held by AILas part of, and voting together as conditioned upon the closing of, a single class on an as-converted basis) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require 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)Qualified Transaction.
(bf) In addition to any other vote or consent The required elsewhere in the Articles or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval, take any of the following actions:
(i) Issue, sell, transfer or otherwise dispose of, directly or indirectly, any equity securities, security convertible into or exercisable for any equity securities, assets or good will of any Group Company to, or merge, amalgamate or consolidate any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited (the “Tencent Group”) (notwithstanding any provision to the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions consents as set forth in this subsection Articles 12(a) – (ie) for above shall also apply to any reason whatsoever; it being understood that, solely for purposes action taken by any wholly owned subsidiary of this Section 7.3(b)(i), “control” refers to management rights, ownership of more than 50% of equity or voting rightsthe Company.
Appears in 4 contracts
Sources: Series A1 Preferred Share Purchase Agreement (Negevtech Ltd.), Preferred Share Purchase Agreement (Negevtech Ltd.), Preferred Share Purchase Agreement (Negevtech Ltd.)
Protective Provisions. (a) 7.1. In addition to any such other vote or consent required elsewhere limitations as may be provided in the Articles Restated Articles, for so long as any Series A Preferred Shares are outstanding, the following acts of the Group Companies, whether in a single transaction or by any applicable statuteseries of related transactions, each Group Company shall not, and each holder of Ordinary Shares shall procure that each Group Company does not, whether directly or indirectlyindirectly and whether or not by amendment, (1) without merger, consolidation, scheme of arrangement, amalgamation, or otherwise, shall require the prior written approval of the holders holding of at least eightytwo-five percent thirds (85%2/3) of the then outstanding Series A Preferred Shares (excluding Preferred Shares held by AILShares, 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) belowseparate class:
(ia) cease any material change to conduct the business scope, or substantially change nature of the business of the Company and/or any Group Company, as such engagement in or investment in any new line or business is normally conductedor sale, disposal or deviate from the cessation of any existing business plan previously approved by the Board line 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;
(iiib) any liquidation, dissolution or winding up of any Group Company, any consummation of a Liquidation Event or effecting any other merger or consolidation;
(c) any sale, transfer, license, pledge or encumbering all or all substantial technology or intellectual property, other than non-exclusive licenses granted in the ordinary course of business;
(d) any increase, reduce decrease or cancel the cancellation of any authorized or issued share capital outstanding shares of the Company and/or any Group Company Company, or issueany issuance, allotdistribution, purchase or redeem redemption of any shares shares, or securities convertible into or carrying a right of subscription in respect of any shares or any share warrants warrant or any grant or issue any issuance of options rights or warrants(other than pursuant to an equity incentive plan approved by the Board, which may require the issue of shares including each Series A Director then 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 Sharesoffice, if any);
(ive) make any distribution amendment of profits amongst Restated Articles or other charter documents of any Group Company which alters or adversely affects the shareholders by way of dividendrights, (interim preferences, privileges or powers of, or the restrictions provided for the benefit of, the Series B Preferred Shares and final) capitalization of reserves or otherwisethe Series A Preferred Shares;
(vf) appoint or settle any change in share reserve under the terms of appointment of ESOP (as defined in the chief executive officer (except for appointing ▇▇▇▇ ▇▇▇ 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;
(viSeries B Share Purchase Agreement) approve or amend the employee share option plans or approve any new equity-based compensation plan or any bonus other equity incentive, purchase or incentive plan;
(vii) select participation plan for the benefit of any employees, officers, directors, contractors, advisors or change the external auditor, or make consultants of any material changes to the accounting policies or change the financial year of the Group Companies;
(viiig) invest any approval of or adjustments or modification to the terms of any transaction involving the interest of any director, employee, officer, management member or shareholder of any of the Group Companies, including but not limited to the making of any loans or advances, whether directly or indirectly, or the provision of any guarantee, indemnity or security for or in connection with any indebtedness or acquire liabilities of any director, employee, officer, management member or shareholder of the Group Companies;
(h) any action that results in the payment or declaration of a dividend or other distribution on any Ordinary Shares or Preferred Shares;
(i) any merger, consolidation or amalgamation of any Group Company with any other Personentity or entities or any spin-off, sub-division, or any assets, business, business organization other transaction of a similar nature or division having a similar economic effect as any of any other Person in an amount in excess of US$1,500,000 in a single transactionthe foregoing, or US$3,000,000 in a series other forms of related transactions, or form any new subsidiary restructuring of any Group Company;
(ixj) createany creation, incur authorization or authorize the creation of any debt (including without limitation the issuance of any debt securitiesdebenture constituting a pledge, lien or charge (whether by way of fixed or floating charge, mortgage encumbrance or other security) if the Group’s aggregate indebtedness would exceed US$1,000,000, on all or guarantee any indebtedness, except for trade accounts of the assets or rights of any Group Companies arising Company exceeding US$1,000,000 (or its equivalent in another currency or currencies) in the ordinary course of businessaggregate in any financial year for any Group Company;
(xk) create any liens over assets to serve initial public offering of any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) aboveequity securities of any Group Company; determination of the listing venue, timing, valuation and other terms of the initial public offering;
(xil) make any loan acquisition of or advance any investment in an amount or making any capital commitment or expenditure in excess of US$500,000 2,000,000 (or its equivalent in other than trade credit given currency or currencies) in the ordinary course aggregate in any financial year of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that with respect Companies, other than pursuant to the memorandum annual budget and articles business plan approved by the Board, including the affirmative vote of association each Series A Director then in office, if any;
(m) any settlement or alteration of any employment agreement, salaries, bonuses or other incentive plans of any key management (including but not limited to the Key Employees (as defined in the Series B Share Purchase Agreement)), or any change in compensation of any employee of any Group Company by more than US$200,000 in a twelve (12) month period; or
(n) any appointment, removal, replacement of the Domestic directors of any Group Company; For the avoidance of doubt, only if any of the alteration or amendment related to foregoing matters requires the items listed approval by way of a Special Resolution (as defined in this Section 7.3(a) shall require the Restated Articles), and if the Shareholders vote in favor of such act but the approval of the Investors holders of at least two-thirds (2/3) of the then outstanding Series A Preferred Shares has not been obtained, then the holders of then outstanding Series A Preferred Shares, who voted against such Special Resolution at a meeting of the shareholders shall together carry 34% of the votes on such Special Resolution with such votes being divided equally among such holders of the then outstanding Series A Preferred Shares.
7.2. In addition to such other limitations as may be provided in accordance with this Section 7.3(a));
(xvi) approvethe Restated Articles, extend or amend for so long as any transaction or agreement which is in an amount in excess Series A Preferred Shares are outstanding, the following acts of US$1,000,000 the Group Companies, whether in a single transaction, transaction or US$3,000,000 in a series of related transactions, with a Shareholderwhether directly or indirectly and whether or not by amendment, directormerger, officerconsolidation, employee scheme of arrangement, amalgamation, or Affiliate otherwise, shall require the prior written approval of the Board (which approval includes the approval of each Series A Director then in office, if any, whose approval shall not be unreasonably withheld, delayed or conditioned):
(a) any appointment or change of the auditors, accounting policies, internal controls over financial reporting or the financial year of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xviib) make any appointment, removal, replacement of the chief executive officer, the president, the chief financial officer (or financial vice president or financial controller), the chief technology officer and the chief operating officer of any Group Company, including approving any option plans;
(c) any approval or material amendment to the annual accounts or budget or business or operating plan of any of the Group Companies, including the capital expenditure plan;
(d) any equity investments in investment or entering into any joint venture with any person;
(e) the adoption, amendment or termination of the ESOP or any other companies in excess of US$1,500,000 in a single transactionequity incentive, purchase or US$3,000,000 in a series of related transactions, or participation plan for the establishment benefit of any brands for companies other than employees, officers, directors, contractors, advisors or consultants of any of the Group Companies;
(xviiif) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any determination of the Group Company including but not limited to by way of amending exercise price for any share options or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Companyother equity incentives; or
(xxig) any action by a Group Company (if applicable) to authorize, agree approve or undertake enter into any agreement or obligation with respect to do any of the foregoing. Actions under subsection (xxi) shall require 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) if the subject matter is related to the matters actions listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require 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)above.
(b) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval, take any of the following actions:
(i) Issue, sell, transfer or otherwise dispose of, directly or indirectly, any equity securities, security convertible into or exercisable for any equity securities, assets or good will of any Group Company to, or merge, amalgamate or consolidate any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited (the “Tencent Group”) (notwithstanding any provision to the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions set forth in this subsection (i) for any reason whatsoever; it being understood that, solely for purposes of this Section 7.3(b)(i), “control” refers to management rights, ownership of more than 50% of equity or voting rights.
Appears in 3 contracts
Sources: Shareholder Agreements, Shareholder Agreement (Niu Technologies), Shareholder Agreement (Niu Technologies)
Protective Provisions. (a) In addition to So long as 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 are outstanding, any action (excluding Preferred Shares held whether by AILmerger, and voting together as a single class on an as-converted basis)consolidation, which approval shall not be unreasonably withheldamalgamation, 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 amendment 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 ’s Revised M&A or otherwise;
(v) appoint or settle the terms of appointment of the chief executive officer (except for appointing ▇▇▇▇ ▇▇▇ 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 equity-based compensation plan or any bonus or incentive plan;
(vii) select or change the external auditor, or make any material changes to the accounting policies or change the financial year of the Group Companies;
(viii) invest in or acquire any other Person, or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 whether in a single transaction, transaction or US$3,000,000 in a series of related transactions, ) that effects or form approves any new subsidiary of any Group Company;
(ix) create, incur or authorize the creation of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts of the Group Companies arising transactions as listed in the ordinary course of business;
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of Exhibit A involving the Company or any of the Group Companies shall first require, (provided however that with respect to A) as for the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items transactions as listed in this Section 7.3(a) shall require 1 in Exhibit A, the approval of each of (1) Majority Series A-1 Preferred Shareholders, (2) Majority Series A-2 Preferred Shareholders, (3) the Investors in accordance with this Section 7.3(a));
holders of seventy-five percent (xvi75%) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in the Series B Preferred Shares (voting as a single transactionclass and on an as converted basis), or US$3,000,000 and (4) Majority Series C Preferred Shareholders (the “Special Approval”); (B) as for the transactions as listed in a series Section 2 in Exhibit A, the approval of related transactionseach of (1) Majority Series A-1 Preferred Shareholders, with a Shareholder(2) Majority Series A-2 Preferred Shareholders, director(3) Majority Series B Preferred Shareholders (which shall include Apoletto), officerand (4) Majority Series C Preferred Shareholders (the “Majority Approval”), employee or Affiliate of provided that in case that any Group Company purchaser in the transaction specified in Section 2(e) in Exhibit A is ALIBABA GROUP HOLDING LIMITED or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
its Affiliates (xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating Ant Financial Service Group (蚂蚁金服集团) and its Affiliates), such transaction shall not be conducted without first obtaining the Restated Control Documents;
Special Approval; (xxC) approve any transfer of shares as for the transactions as listed in the Company or any of the Group Company; or
(xxi) authorizeSection 3 in Exhibit A, agree or undertake to do any of the foregoing. Actions under subsection (xxi) shall require the approval of the Board of Directors (which shall include all Investor Directors) (the “Board Approval”); and (D) as for the transactions specified in Section 4 in Exhibit A, the approval of the chief executive officer of the Company (“CEO”) (the “CEO Approval”). For purpose of the Exhibit A, all references to the “Company” shall refer to each Group Company and their respective Subsidiaries. Notwithstanding anything to the contrary contained herein, where any act listed in Section 1 in Exhibit A requires a Special Resolution of the shareholders in accordance with the Companies Law (Revised) of the Cayman Islands, and if the shareholders vote in favor of such act but the Special Approval has not yet been obtained, the Majority Series A-1 Preferred Shareholders, the Majority Series A-2 Preferred Shareholders, the holders holding at least eightyof seventy-five percent (8575%) of the then outstanding Series B Preferred Shares (including Preferred Shares held by AIL, and voting together as a single class and on an as-as converted basis) if ), and the subject matter is related Majority Series C Preferred Shareholders who vote against such act at a meeting of the Members in aggregate shall have the voting rights equal to the matters aggregate voting power of all the shareholders who voted in favour of such act plus one (1). Notwithstanding anything to the contrary contained herein, where any act listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require the approval Section 2 in Exhibit A requires a Special Resolution of the holders holding at least eighty-five percent shareholders in accordance with the Companies Law (85%Revised) of the then outstanding Preferred Shares (excluding Preferred Shares held by AILCayman Islands, and voting together as a single class on an as-converted basisif the shareholders vote in favor of such act but the Majority Approval has not yet been obtained, the Majority Series A-1 Preferred Shareholders, the Majority Series A-2 Preferred Shareholders, the Majority Series B Preferred Shareholders (which shall include Apoletto).
(b) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval, take any Majority Series C Preferred Shareholders who vote against such act at a meeting of the following actions:
(i) Issue, sell, transfer or otherwise dispose of, directly or indirectly, any equity securities, security convertible into or exercisable for any equity securities, assets or good will of any Group Company to, or merge, amalgamate or consolidate any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited (Members in aggregate shall have the “Tencent Group”) (notwithstanding any provision voting rights equal to the contrary aggregate voting power of all the shareholders who voted in the opening paragraph favour of this Section, AIL has the absolute right to withhold its approval of the actions set forth in this subsection such act plus one (i) for any reason whatsoever; it being understood that, solely for purposes of this Section 7.3(b)(i1), “control” refers to management rights, ownership of more than 50% of equity or voting rights.
Appears in 3 contracts
Sources: Shareholder Agreement, Shareholder Agreements (LexinFintech Holdings Ltd.), Shareholder Agreement (LexinFintech Holdings Ltd.)
Protective Provisions. The Company shall not take any of the --------------------- following actions without the prior affirmative written consent of Purchaser or, following the Closing, of the holders of at least two-thirds (2/3) of the Series C Shares:
(a) In addition alter, change or amend (by merger or otherwise) any of the rights, preferences or privileges of the Series C Preferred Stock;
(b) other than as required by the terms of the Series B Preferred Stock, amend, restate, alter, modify or repeal (by merger or otherwise) its Articles of Incorporation or Bylaws, including, without limitation, amending, restating, modifying or repealing (by merger or otherwise) (i) any certificate of designation or preferences (as in effect from time to time) relating to any series of Preferred Stock or (ii) any of the rights, preferences and privileges of any other vote class of Capital Stock or consent required elsewhere the terms or provisions of any option or Convertible Security;
(c) (i) create, authorize or issue Senior Securities, Parity Securities, Supervoting Securities or shares of any such class or series; (ii) create, authorize or issue any securities (including Convertible Securities) convertible into, or exercisable, redeemable or exchangeable for, shares of Senior Securities, Parity Securities or Supervoting Securities; (iii) increase or decrease the authorized number of shares of Series C Preferred Stock; or (iv) increase or decrease the authorized number of shares of any class or series of Senior Securities, Parity Securities, Supervoting Securities or shares of any such class or series;
(i) initiate or suffer to exist any Liquidation Event with respect to the Company, (ii) enter into any merger or consolidation with any other Person that results 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 holders of the holders holding at least eighty-five Company's Capital Stock immediately prior to such transaction owning less than fifty percent (8550%) of the then outstanding Preferred Shares voting power of the successor entity's Capital Stock after such transaction or (excluding Preferred Shares held by AILiii) otherwise discontinue or dispose of more than ten percent (10%) of the assets of the business of the Company, and voting together taken as a single whole;
(e) initiate or suffer to exist any recapitalization of the Company, or reclassify any authorized Capital Stock of the Company into any other class or series of Capital Stock of the Company;
(f) redeem any shares of Capital Stock;
(g) acquire, in one or a series of transactions, any equity ownership interest, by way of merger or otherwise, in any Person, or any asset or assets of any Person, where the aggregate consideration payable in connection with such acquisition (including, without limitation, cash consideration, the fair market value of any securities and the net present value of any deferred consideration) is at least $1,000,000, or (ii) make any capital expenditures in excess of $500,000 individually or $1,000,000 for any fiscal year;
(h) make any material change in the nature of its business as conducted on an as-converted basisthe Closing Date, or fail to conduct its business in the ordinary course consistent with past practice;
(i) sell, transfer, convey, lease or dispose of, outside the ordinary course of business, any material assets or properties of the Company, whether now or hereafter acquired, in any transaction or transactions that call for payments in excess of $500,000;
(j) establish or purchase any Subsidiary;
(k) enter into any agreements, transactions or leases not in the ordinary course of the Company's business as conducted on the Closing Date that call for payments in excess of $250,000;
(l) incur any new or additional Indebtedness which exceeds $500,000 provided that this clause (n) shall not prohibit the extension, renewal, amendment or refinancing (including refinancings with other lenders) of the Company's existing credit facility with Spectrum Commercial Services, a Division of Lyon Financial Services, Inc. on terms no more restrictive than those contained in the General Credit and Security Agreement dated November 19, 1998, as amended on August 20, 1999 (except interest rate "spreads" may increase by no more than 50 basis points over prime and principal amounts advanced against accounts receivable or inventory (but no other amounts of principal) may increase or decrease provided that advance rates are no greater than those currently in effect).
(m) except for transactions on customary and reasonable terms, enter into any transaction with (i) any Affiliate of the Company, (ii) any employee of the Company, (iii) any holder of more than five percent (5%) of the outstanding capital stock of any class or series of Capital Stock of the Company, (iv) any member of the immediate family of any Person set forth in clauses (i), (ii) and (iii) above, or (v) any corporation, partnership, trust or other entity in which approval shall not be unreasonably withheld, take any of the actions under the subsections Person set forth in clauses (i), (ii), (iii), ) or (iv)) above, (v), (xi), (xiv), (xv), (xvii), (xix) and (xx) below; and (2) without the approval or member of the holders holding at least eighty-family of any such Person, is a director, officer, trustee, partner or holder of more than five percent (855%) 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 ▇▇▇▇ ▇▇▇ 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 equity-based compensation plan or any bonus or incentive plan;
(vii) select or change the external auditor, or make any material changes to the accounting policies or change the financial year of the Group Companies;
(viii) invest in or acquire any other Person, or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Company;
(ix) create, incur or authorize the creation of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts of the Group Companies arising in the ordinary course of business;
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that with respect to the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a) shall require the approval of the Investors in accordance with this Section 7.3(a));
(xvi) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in a single transaction, or US$3,000,000 in a series of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative stock thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Company; or
(xxi) authorize, agree or undertake to do any of the foregoing. Actions under subsection (xxi) shall require 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) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require 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).
(b) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval, take any of the following actions:
(i) Issue, sell, transfer or otherwise dispose of, directly or indirectly, any equity securities, security convertible into or exercisable for any equity securities, assets or good will of any Group Company to, or merge, amalgamate or consolidate any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited (the “Tencent Group”) (notwithstanding any provision to the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions set forth in this subsection (i) for any reason whatsoever; it being understood that, solely for For purposes of this Section 7.3(b)(i)Agreement, “control” refers to management rightsthe members of the "immediate family" of any Person shall consist of the spouse, ownership parents, children, siblings, mothers- and fathers- in-law, sons-and daughters-in-law, and brothers- and sisters-in-law of more than 50% of equity or voting rightssuch Person.
Appears in 2 contracts
Sources: Preferred Stock Purchase Agreement (Fieldworks Inc), Preferred Stock Purchase Agreement (Fieldworks Inc)
Protective Provisions. (a) In addition 6.1 Subject to any other vote or consent required elsewhere the stipulations in Section 4.2 of the Schedule of Rights and Preferences attached to the Articles or by any applicable statuteof Association of the Company, each Group Company shall not, and each holder of Ordinary Shares Founder shall procure that each Group Company does notnot to, directly or indirectly, (1) take any of the actions specified in Section 4.2 of the Schedule of Rights and Preferences attached to the Articles of Association of the Company without first obtaining the prior approval of the holders Preferred Shareholders holding at least eightyseventy-five percent (8575%) of the then total issued and outstanding Preferred Shares (excluding Preferred Shares held by AIL, and voting together as a single class calculated on an as-converted basis), which approval shall not be unreasonably withheld, take any of and 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 Ordinary Shareholders holding at least eightyfifty-five one percent (8551%) of the then total issued and outstanding Preferred Shares (including Preferred Shares held by AILOrdinary Shares, respectively and voting as separate classes. In addition, subject to the stipulations in Section 4.2 of the Schedule of Rights and Preferences attached to the Articles of Association of the Company, each Group Company shall not, and voting together as a single class on an as-converted basis), which approval each Founder shall procure each Group Company not be unreasonably withheldto, take any of the actions under the subsections (vi)action that would result in, (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii) below:
(i) cease any alteration or amendment to conduct the Articles of Association or substantially change the business similar constitutive document of the Group 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 winding up, dissolution or dispose liquidation 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 ▇▇▇▇ ▇▇▇ 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 equity-based compensation plan or any bonus or incentive plan;
(vii) select or change the external auditor, or make any material changes to the accounting policies or change the financial year of the Group Companies;
(viii) invest in or acquire any other Person, or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Company;
(ix) create, incur or authorize the creation of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts of the Group Companies arising in the ordinary course of business;
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of the Company or any officer of the Group Companies (provided however that with respect to the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a) shall require each case without first obtaining the approval of the Investors in accordance with this Section 7.3(a));
(xvi) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in a single transaction, or US$3,000,000 in a series of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Company; or
(xxi) authorize, agree or undertake to do any of the foregoing. Actions under subsection (xxi) shall require the approval of the holders Preferred Shareholders holding at least eightyseventy-five percent (8575%) of the then total issued and outstanding Preferred Shares (including Preferred Shares held by AILcalculated on an as- converted basis), and voting together as a single class on an as-converted basis) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require the approval of the holders Ordinary Shareholders holding at least eightyfifty-five one percent (8551%) of the then total issued and outstanding Preferred Shares (excluding Preferred Shares held by AILOrdinary Shares, respectively and voting together as a single class on an as-converted basis)separate classes.
(b) In addition to 6.2 For avoidance of any other vote doubt, Section 6.1 above shall not alter or consent required elsewhere affect in any manner the Red Star Veto Rights and the JD Veto Rights as defined in the Articles or by any applicable statuteof Association, and each Group Company shall not, and the Company each Founder shall procure that each Group Company does not, directly or indirectly, without AIL’s approvalnot to, take any of the following actions:
(iactions specified in Section 4.2(A)(b) Issue, sell, transfer or otherwise dispose of, directly or indirectly, any equity securities, security convertible into or exercisable for any equity securities, assets or good will of any Group Company tothe Schedule of Rights and Preferences attached to the Articles of Association without obtaining the prior approval of Red Star, or merge, amalgamate or consolidate take any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited (the “Tencent Group”) (notwithstanding any provision to the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions set forth specified in this subsection (iSection 4.2(A)(c) for any reason whatsoever; it being understood that, solely for purposes of this Section 7.3(b)(i), “control” refers the Schedule of Rights and Preferences attached to management rights, ownership the Articles of more than 50% Association without obtaining the prior approval of equity or voting rightsJD.
Appears in 2 contracts
Sources: Shareholder Agreements (GigaCloud Technology Inc), Shareholder Agreement (GigaCloud Technology Inc)
Protective Provisions. (aA) 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 eightytwo-five percent thirds (8566.67%) 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 eightytwo-five percent thirds (8566.67%) 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 ▇▇▇▇ ▇▇▇ 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 equity-based compensation plan or any bonus or incentive plan;
(vii) select or change the external auditor, or make any material changes to the accounting policies or change the financial year of the Group Companies;
(viii) invest in or acquire any other Person, or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Company;
(ix) create, incur or authorize the creation of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts of the Group Companies arising in the ordinary course of business;
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that with respect to the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a7.3(A) shall require the approval of the Investors in accordance with this Section 7.3(a)7.3(A) );
(xvi) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in a single transaction, or US$3,000,000 in a series of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control DocumentsCompany;
(xx) approve any transfer of shares in the Company or any of the Group Company; or
(xxi) authorize, agree or undertake to do any of the foregoing. Actions under subsection (xxi) shall require the approval of the holders holding at least eightytwo-five percent thirds (8566.67%) of the then outstanding Preferred Shares (including Preferred Shares held by AIL, and voting together as a single class on an as-converted basis) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require the approval of the holders holding at least eightytwo-five percent thirds (8566.67%) of the then outstanding Preferred Shares (excluding Preferred Shares held by AIL, and voting together as a single class on an as-converted basis).
(bB) In addition to any other vote or consent required elsewhere in the Memorandum and the Articles or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval, to take any of the following actions:
(i) Issue, sell, transfer or otherwise dispose of, directly or indirectly, any equity securities, security convertible into or exercisable for any equity securities, assets or good will of any Group Company to, or merge, amalgamate or consolidate any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited (the “Tencent Group”) (notwithstanding any provision to the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions set forth in this subsection (i) for any reason whatsoever; it being understood that, solely for purposes of this Section 7.3(b)(i7.3(B)(i), “control” refers to management rights, ownership of more than 50% of equity or voting rights.. Notwithstanding the foregoing,
Appears in 2 contracts
Sources: Series C Preferred Share Purchase Agreement (Momo Inc.), Series C Preferred Share Purchase Agreement (Momo Inc.)
Protective Provisions. Subject to the rights of series of Preferred Stock which may from time to time come into existence, this corporation shall not:
(a) In addition to sell, convey or otherwise dispose of or encumber all or substantially all of its property or business or merge into or consolidate with any other vote corporation (other than a wholly-owned subsidiary corporation) or consent required elsewhere effect any transaction or series of related transactions 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 which more than fifty percent (8550%) of the voting power of the corporation is disposed of without first obtaining the approval (by vote or written consent, as provided by law) (i) for a period of two years following May 7, 1996 (the "Protective Period"), by (A) the holders of at least a majority of the then outstanding shares of Series A Preferred Shares Stock and Series B Preferred Stock and (excluding B) if the effective price per share to be received by a shareholder (whether or not payable in installments) is less than $8.00 per share, by the holders of at least a majority of the then outstanding shares of Series C Preferred Shares held by AILStock, and (ii) following the Protective Period, by the holders of at least a majority of the then outstanding shares of Preferred Stock, 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 Companyclass;
(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 ▇▇▇▇ ▇▇▇ 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 equity-based compensation plan or any bonus or incentive plan;
(vii) select or change the external auditor, or make any material changes to the accounting policies or change the financial year of the Group Companies;
(viii) invest in or acquire any other Person, or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Company;
(ix) create, incur or authorize the creation of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts of the Group Companies arising in the ordinary course of business;
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that with respect to the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a) shall require the approval of the Investors in accordance with this Section 7.3(a));
(xvi) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in a single transaction, or US$3,000,000 in a series of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Company; or
(xxi) authorize, agree or undertake to do any of the foregoing. Actions under subsection (xxi) shall require 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) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require 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).
(b) In addition authorize, create or issue, or obligate itself to issue (including by reclassification of any outstanding shares), any other vote or consent required elsewhere in the Articles or by equity security, including any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval, take any of the following actions:
(i) Issue, sell, transfer or otherwise dispose of, directly or indirectly, any equity securities, other security convertible into or exercisable for any equity securitiessecurity having a preference on parity with or superior to any series of currently-outstanding Preferred Stock with respect to dividends or upon liquidation without first obtaining the approval (by vote or written consent, assets as provided by law) of the holders of at least a majority of the then outstanding shares of Preferred Stock, voting together as a single class; or
(c) alter or good will of any Group Company tochange the rights, preferences, privileges or powers of, or mergethe restrictions provided for the benefit of, amalgamate the shares of Series A Preferred Stock, Series B Preferred Stock or consolidate any Group Company with Series C Preferred Stock so as to affect adversely such shares without first obtaining the approval (by vote or into Tencent Holdings Limitedwritten consent, or any Person controlled as provided by Tencent Holdings Limited (the “Tencent Group”law) (notwithstanding any provision to the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions set forth in this subsection (i) for any reason whatsoever; it being understood that, solely for purposes holders of this Section 7.3(b)(i), “control” refers to management rights, ownership at least a majority of more than 50% the then outstanding shares of equity or voting rightsthe Series of Preferred Stock so adversely affected.
Appears in 2 contracts
Sources: Series C Preferred Stock Purchase Agreement (Collateral Therapeutics Inc), Series C Preferred Stock Purchase Agreement (Collateral Therapeutics Inc)
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 eightySo long as no less than twenty-five percent (8525%) of the then outstanding Preferred Shares (excluding Preferred Shares held by AILoriginally issued at the respective closings are outstanding, and voting together as a single class on an as-converted basis)no Group Company shall take, which approval shall not be unreasonably withheldpermit to occur, take approve, authorize, or agree or commit to do 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 AILfollowing, and voting together as a single class on an as-converted basis)each Party shall procure the Group Companies not to, which approval shall not be unreasonably withheldtake, take permit to occur, approve, authorize, or agree or commit to do any of the actions under the subsections (vi)following, (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 ▇▇▇▇ ▇▇▇ 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 equity-based compensation plan or any bonus or incentive plan;
(vii) select or change the external auditor, or make any material changes to the accounting policies or change the financial year of the Group Companies;
(viii) invest in or acquire any other Person, or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 whether in a single transaction, transaction or US$3,000,000 in a series of related transactions, whether directly or form indirectly, and whether or not by amendment, merger, consolidation, scheme of arrangement, amalgamation, or otherwise, unless approved in writing by the Majority Investors in advance:
(i) any new amendment or change of the rights, preferences, privileges or powers of, or restrictions provided for the benefit of, any of the Preferred Shares;
(ii) any creation, increase or decrease in the authorized number, or repurchase or redemption, of Preferred Shares, Ordinary Shares or any Equity Securities of any Group Company other than (w) the purchase, repurchase or redemption of Ordinary Shares by the Company at no more than the original issuance price from terminated employees, officers or consultants upon such termination in accordance with the ESOP, or pursuant to the exercise of a contractual right of first refusal held by the Company, if any, or pursuant to any share incentive plan option agreement or share incentive plan option exercise and ordinary share purchase agreement with the Company as approved by the Board, (x) the redemption of the Preferred Shares in connection with the conversion of such Preferred Shares into Ordinary Shares pursuant to the Restated Memorandum and Articles, (y) the redemption or repurchase of any Preferred Shares by the Company at the request of any Investor in accordance with the Restated Memorandum and Articles or this Agreement, and (z) increase or issuance of Equity Securities of a Group Company after which the Group Company remains a wholly owned subsidiary of the Company, directly or indirectly;
(iii) authorize, create, issue, or reclassify (or grant any right or entitlement for acquiring or subscribing for or reclassifying) (x) any Equity Securities of the Company having any preference or priority as to rights or privileges superior to or on parity with any such preference or priority of the Preferred Shares, other than such exclusions specified in Articles 7.3E(5)(a)(iii)a) to 7.3E(5)(a)(iii)h) of the Restated Memorandum and Articles, or (y) any Equity Securities of any other Group Company;
(iv) any change of the size of the board of directors of any Group Company or change the manner in which the directors are appointed, other than changes pursuant to and in compliance with this Agreement;
(v) a Deemed Liquidation Event or Liquidation Event;
(vi) any amendment or modification to, or waiver under, the Charter Documents, other than amendments pursuant to and in compliance with Section 13.17 hereof;
(vii) any declaration, set aside or payment of a dividend or other distribution by the Company, or the adoption of or any change to the dividend policy;
(viii) any merger, amalgamation, scheme of arrangement, reorganization, restructuring, or consolidation of any Group Company with any Person, or the purchase or other acquisition by any Group Company of assets, equity or business of another Person, or any sale, transfer or other disposal of all or substantially part of any Group Company’s assets or business, or sale or exclusive license of all or substantially all of the intellectual property of any Group Company, unless such matter is approved by the Board which shall include the consent of at least four (4) Preferred Directors and such matter does not constitute a Deemed Liquidation Event;
(ix) createthe entry into any contract or commitment by any Group Company with any Related Party that is not on arm’s length terms or with a value in excess of US$5,000,000 in a single transaction or a series of transactions (provided that transactions with WuXi AppTec Co., incur Ltd. or authorize the creation its Affiliates would not be subject to this cap if such transaction or a series of any debt (including without limitation the issuance of any debt securities) if the Grouptransactions are on arm’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts of the Group Companies arising length terms and in the ordinary course of businessbusiness of the Group Companies), or the termination or material amendment of or waiver under any such contract or commitment, unless such matter is approved by the Board which shall include the consent of at least four (4) Preferred Directors (or a majority of the Preferred Directors if any director is recused from voting on such matter);
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or action by any Group Company to authorize, approve or undertake enter into any merger, reconstruction agreement or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that obligation with respect to the memorandum any action listed above. The rights and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a) shall require the approval of the Investors in accordance with this Section 7.3(a));
(xvi) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in a single transaction, or US$3,000,000 in a series of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Company; or
(xxi) authorize, agree or undertake to do any of the foregoing. Actions under subsection (xxi) shall require 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) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require 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).
(b) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval, take any of the following actions:
(i) Issue, sell, transfer or otherwise dispose of, directly or indirectly, any equity securities, security convertible into or exercisable for any equity securities, assets or good will of any Group Company to, or merge, amalgamate or consolidate any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited (the “Tencent Group”) (notwithstanding any provision to the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions covenants set forth in this subsection Section 11 shall terminate and be of no force and effect upon the earlier to occur of (ia) for any reason whatsoeverimmediately before the consummation of a Qualified IPO; it being understood that, solely for purposes or (b) the closing of this Section 7.3(b)(i), “control” refers to management rights, ownership of more than 50% of equity or voting rightsa Deemed Liquidation Event.
Appears in 2 contracts
Sources: Shareholder Agreement (Adagene Inc.), Shareholder Agreement (Adagene Inc.)
Protective Provisions. (a) In addition to any other vote or consent required elsewhere in this Agreement or the Memorandum and Articles or by any applicable statutethe Applicable Laws, each Group and unless otherwise provided in the Transaction Documents, the Founder Parties and the Company shall not, and each holder of Ordinary Shares shall procure ensure that each the Company and/or the Group Company does not, directly or indirectly, Companies (1as the case may be) 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 following actions under the subsections (i), (ii), (iii), (iv), (v), (xi), (xiv), (xv), (xvii), (xix) and (xx) below; and (2) without the prior approval of the holders holding at least eighty-five percent (85%) Simple Majority of Directors of the then outstanding Preferred Shares (including Preferred Shares held by AIL, and voting together Company with respect to such matters 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) belowfollows:
(i) cease to conduct the liquidation, dissolution or substantially change the business winding up or merger of the Company and/or with or into any Group other Person or the occurrence of a Liquidation Event;
(ii) any increase or decrease of the share capital or registered capital of the Company or the issue of options or other securities convertible or exchangeable for the share capital or registered capital of the Company, as such business is normally conductedother than the redemption or repurchase of the Preferred Shares in accordance with their terms and Section 10;
(iii) approve, permit or cause the Company to effect any merger with any Person, or deviate from be acquired by any Person;
(iv) any provision of any guarantee or Lien over the business plan previously approved by assets of the Board Company, other than the guarantee provided for the purpose of Director the daily operation of the Company;
(iiv) sell or dispose appointment, removal and replacement of the whole or substantial part CEO and CFO 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 ▇▇▇▇ ▇▇▇ 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 any appointment or amend change in the employee share option plans or approve any new equity-based compensation plan or any bonus or incentive plan;auditors of the Company, and
(vii) select sale, transfer or change the external auditor, otherwise dispose of all or make any material changes to the accounting policies or change the financial year substantially all of the assets of the Company (for the avoidance of doubt, including the equity interest and assets of the Significant Group Companies;
(viii) invest in , taken as a whole, when deciding whether the assets sold or acquire any other Person, disposed of constitute all or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Company;
(ix) create, incur or authorize the creation of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts substantially all of the Group Companies arising in the ordinary course of business;
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that with respect to the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a) shall require the approval of the Investors in accordance with this Section 7.3(a));
(xvi) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in a single transaction, or US$3,000,000 in a series of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Company; or
(xxi) authorize, agree or undertake to do any of the foregoing. Actions under subsection (xxi) shall require 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) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require 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).
(b) In addition to any other vote or consent required elsewhere in this Agreement or the Memorandum and Articles or by any applicable statutethe Applicable Laws, each Group Company shall notand unless otherwise provided in the Transaction Documents, the Founder Parties, Haode Investment and the Company shall procure ensure that each the Company and/or the Group Company does not, directly or indirectly, without AIL’s approval, Companies (as the case may be) shall not take any of the following actionsactions without the prior approval of the Holders holding more than 60% of the Preferred Shares (for the avoidance of doubt, various classes of Preferred Shares are voting together as a single class and on an as converted basis) with respect to such matters as follows:
(i) Issueany amendment or change of the rights, sellpreferences, transfer privileges or otherwise dispose powers of, directly or indirectly, any equity securities, security convertible into or exercisable the restrictions provided for any equity securities, assets or good will the benefit of any Group Company to, or merge, amalgamate or consolidate any Group Company with or into Tencent Holdings Limited, Preferred Shares or any Person controlled by Tencent Holdings Limited (holders of the “Tencent Group”) (notwithstanding any provision to the contrary in the opening paragraph of this SectionPreferred Shares, AIL has the absolute right to withhold its provided that, prior approval of the actions set forth in this subsection (i) for Holders holding more than 60% of each class of Preferred Shares shall be obtained with respect to any reason whatsoever; it being understood that, solely for purposes amendment or change of this Section 7.3(b)(i), “control” refers to management the rights, ownership preferences, privileges or powers of, or the restrictions provided for the benefit of more such class of Preferred Shares;
(ii) to declare, issue, make, or pay any dividend or other distribution on any Equity Securities of the Company; approve, amend or alter any policy concerning any dividend or other distribution on any Equity Securities of the Company;
(iii) change of the principal business of the Group;
(iv) any redemption or repurchase of the Shares, Option Shares or other Equity Securities by the Company, other than 50% the redemption or repurchase of equity the Preferred Shares in accordance with their terms and Section 10;
(v) licensing or voting rightsotherwise transfer of the core trademarks of the Group to a third party; and
(vi) any entry into, amendment to or termination of any Control Documents.
Appears in 2 contracts
Sources: Investors’ Rights Agreement (Luckin Coffee Inc.), Investors’ Rights Agreement (Luckin Coffee Inc.)
Protective Provisions. (a) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group The Company shall not, and each holder shall not permit any of Ordinary Shares shall procure that each Group Company does notits Subsidiaries to, directly or indirectly, (1) without including through 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 delegation 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 ▇▇▇▇ ▇▇▇ 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 equity-based compensation plan or any bonus or incentive plan;
(vii) select or change the external auditor, or make any material changes to the accounting policies or change the financial year of the Group Companies;
(viii) invest in or acquire any other Person, or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Company;
(ix) create, incur or authorize the creation of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts of the Group Companies arising in the ordinary course of business;
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved authority pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that with respect to the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a) shall require the approval of the Investors in accordance with this Section 7.3(a));
(xvi) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in a single transaction, or US$3,000,000 in a series of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Company; or
(xxi) authorize, agree or undertake to do any of the foregoing. Actions under subsection (xxi) shall require 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) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require 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).
(b) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval5.6, take any of the following actionsactions (the “Member Approval Matters”), in each case, without the prior written approval of the holders of a majority of the Class A Common Units and the Class B Holder:
(a) enter into, amend, modify, supplement or terminate any Related Party Transaction;
(b) create, issue, redeem or repurchase any Equity Securities (including in connection with an IPO), other than in connection with (i) Issuethe Class A Unitholders’ rights to Redemption set forth in Section 6.9, (ii) the Vertex Company Group’s Call right set forth in Section 6.10, or (iii) as otherwise expressly contemplated hereby;
(c) declare or pay dividends or Distributions of any kind pursuant to Section 4.1(b) other than any Distribution made in connection with a liquidation described in Section 12.2, a Sale of the Company, a Redemption or a Cash Sweep Trigger Event;
(d) (i) incur or assume (including by way of acquisition) any indebtedness (including capital leases) in a transaction or series of related transactions, (ii) guarantee, endorse or otherwise as an accommodation become responsible for the material obligations of another Person, or (iii) enter into or consummate any transactions or series of related transactions involving the issuance by the Company or any of its Subsidiaries of any debt securities, including rights to acquire debt securities;
(e) enter into any transaction or series of related transactions that would result in a transfer of Equity Securities representing over 50% of the Company’s Equity Securities or voting power of the Company (including any Sale of the Company), other than pursuant to Section 6.9, Section 6.11, Section 9.1 or Section 9.2(b);
(f) sell, transfer or otherwise dispose of, directly or indirectlygrant any encumbrance over, all or substantially all of the assets of the Company, taken as a whole, or consummate a merger, amalgamation, stock purchase, asset purchase, reorganization, consolidation, share exchange or entry into a business combination by the Company or any of its Subsidiaries with another person or entity (other than any such transaction solely by and among the Company and/or any of its wholly-owned Subsidiaries);
(g) acquire any equity securities, security securities or any other instrument convertible into equity securities of any other Person (other than wholly-owned Subsidiaries) or exercisable for enter into any joint venture or similar agreement with any Person;
(h) (i) create, reclassify or issue (including by merger or otherwise) any Equity Securities or any equity securities, assets or good will securities of any Group Subsidiary or (ii) authorize any such creation, reclassification or issuance of any Equity Securities or equity securities of the Company, other than any creation, reclassification and/or issuances of equity securities of any wholly owned Subsidiary of the Company to, that are issued solely to the Company or merge, amalgamate or consolidate any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited its wholly-owned Subsidiaries;
(the “Tencent Group”i) (notwithstanding i) consummate an IPO or (ii) list any provision to Equity Securities on any securities exchange or substantially equivalent market, including any private Rule 144A market;
(j) amend, modify, supplement or terminate the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions Administrative Services Agreement except as set forth in this subsection the Administrative Services Agreement or as otherwise permitted pursuant to the Class A Unitholders’ rights upon a Vertex Triggering Event set forth in Section 6.11;
(ik) for amend, modify, supplement or terminate any reason whatsoever; it being understood thatof the Company’s governing documents or the governing documents of any of its Subsidiaries;
(l) hire, solely for purposes appoint, terminate, demote, make any change in terms of this Section 7.3(b)(iemployment of (including a material change of compensation or responsibilities) or grant any incentive equity or any incentive-equity-like compensation to any senior employee (including those relevant to the Company through the Administrative Services Agreement), “control” refers except as set forth in the Administrative Services Agreement or otherwise permitted pursuant to management rightsthe Class A Unitholders’ rights upon a Vertex Triggering Event set forth in Section 6.11;
(m) change the size or composition of the Board or its committees (or similar governing bodies of any Subsidiary) other than as expressly provided in Section 5.1;
(n) approve the annual budget (including any capital expenditures), ownership any strategic operating or business plan and any related business policies of more than 50% the Company or its Subsidiaries or make any material amendment or change thereto, including by way of equity example and not limitation, the Company’s accounting policies and procedures;
(o) enter into or voting rightsdevelop any material new line of business or amend, cease or terminate any existing (at the applicable time) material line of business; or
(p) take any actions that would impact the tax treatment or jurisdiction of the Company.
Appears in 2 contracts
Sources: Limited Liability Company Agreement (Vertex Energy Inc.), Limited Liability Company Agreement (Vertex Energy Inc.)
Protective Provisions. (a) In addition to any other vote or consent required elsewhere in For so long as 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 Beneficial Ownership Percentage is at least eightytwenty-five percent (8525%) ), the Company will not, without the prior written consent of the then outstanding Preferred Shares Investor:
(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 a) amend any of the actions under 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 subsections (i)Company from retiring, (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 repurchasing or otherwise acquiring Ordinary Shares (including Preferred Ordinary Shares held represented 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), American Depositary Shares) or Share Equivalents (x), (xii), (xiii), (xvi) and (xviii) below:
(i) cease pursuant to conduct existing agreements 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 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 Director 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;
(iid) sell 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 the whole all or substantial part substantially all of the undertaking goodwill or the assets of the Company and/or any Group Company’s assets;
(iiif) increase, reduce increase or cancel decrease the authorized or issued share capital number of members 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)Board;
(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 ▇▇▇▇ ▇▇▇ 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 equity-based compensation plan or any bonus or incentive plan;
(vii) select or change the external auditor, or make any material changes to the accounting policies or change the financial year of the Group Companies;
(viii) invest in or acquire any other Person, or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Company;
(ix) create, incur or authorize the creation of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts of the Group Companies arising in the ordinary course of business;
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that with respect to the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a) shall require the approval of the Investors in accordance with this Section 7.3(a));
(xvi) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in a single transaction, or US$3,000,000 in a series of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviiig) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, business other than any strategic alliance not involving any equity or equitythe solar-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Companybusiness; or
(xxih) authorize, agree amend the Notes or undertake to do any of the foregoing. Actions under subsection (xxi) shall require 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) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require 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)Indenture.
(b) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval, take any of the following actions:
(i) Issue, sell, transfer or otherwise dispose of, directly or indirectly, any equity securities, security convertible into or exercisable for any equity securities, assets or good will of any Group Company to, or merge, amalgamate or consolidate any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited (the “Tencent Group”) (notwithstanding any provision to the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions set forth in this subsection (i) for any reason whatsoever; it being understood that, solely for purposes of this Section 7.3(b)(i), “control” refers to management rights, ownership of more than 50% of equity or voting rights.
Appears in 2 contracts
Sources: Shareholder Agreement (Solarfun Power Holdings Co., Ltd.), Shareholder Agreement (Hanwha Solar Holdings Co., Ltd.)
Protective Provisions. The Company shall not take any of the following actions without the prior written approval of the Lead Investor:
(a) In addition to Incurrence of third party indebtedness above $100,000;
(b) Incurrence of 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, capital expenditure above $100,000;
(c) Sale (directly or indirectly, (1) without the approval in a single transaction or series of the holders holding at least eighty-five percent (85%related transactions) of the then Company whether through (i) the disposition of all or substantially all of the assets or businesses of the Company, (ii) the sale or issuance to a purchaser of all or substantially all of the outstanding Common Stock and/or Preferred Shares Stock of the Company, or (excluding Preferred Shares held by AILiii) the merger or consolidation of the Company with or into another entity;
(d) Sale of any material assets (including but not limited to intellectual property);
(e) Appointment or removal of the Chief Executive Officer, and voting together as a single class on an as-converted basis)Chief Operating Officer, which approval shall not be unreasonably withheldand/or Chief Financial Officer;
(f) Issuance, take sale, redemption or repurchase of any of the actions under Company's securities, except for the subsections issuance and sale of securities pursuant to the Securities Purchase Agreement;
(i), (ii), (iii), (iv), (v), (xi), (xiv), (xv), (xvii), (xixg) and (xx) below; and (2) without Change or alter the approval nature of the holders holding at least eighty-five percent Company's business;
(85%h) Distributions 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:cash to equity holders;
(i) cease to conduct or substantially change the business of the Company and/or Transactions with any Group Company, as such business is normally conducted, or deviate from the business plan previously approved by the Board of Director Affiliates of the Company;
(iij) sell or dispose Change in the number of the whole or substantial part of the undertaking goodwill or the assets of the Company and/or any Group Company;authorized directors; and
(iiik) increase, reduce Liquidation 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 ▇▇▇▇ ▇▇▇ 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 equity-based compensation plan or any bonus or incentive plan;
(vii) select or change the external auditor, or make any material changes to the accounting policies or change the financial year of the Group Companies;
(viii) invest in or acquire any other Person, or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Company;
(ix) create, incur or authorize the creation of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts of the Group Companies arising in the ordinary course of business;
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association dissolution of the Company or any a reclassification of the Group Companies (provided however that with respect its outstanding capital stock. In order to the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a) shall require obtain the approval of the Investors Lead Investor, the Company must provide at least ten (10) days' prior written notice to the Lead Investor of its intention to undertake such action(s) along with additional written information concerning the proposed action(s) to enable the Lead Investor to form a reasonable judgment. After receipt of such notice, the Lead Investor will have ten (10) days to approve or deny such proposed action(s) by written notice, if no notice of approval or denial is received by the Company within such timeframe then the action(s) contained in accordance with the original notice by the Company will be deemed to have been approved by the Lead Investor pursuant to this Section 7.3(a));
(xvi) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in a single transaction, or US$3,000,000 in a series of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Company; or
(xxi) authorize, agree or undertake to do any of the foregoing. Actions under subsection (xxi) shall require 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) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require 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)3.2.
(b) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval, take any of the following actions:
(i) Issue, sell, transfer or otherwise dispose of, directly or indirectly, any equity securities, security convertible into or exercisable for any equity securities, assets or good will of any Group Company to, or merge, amalgamate or consolidate any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited (the “Tencent Group”) (notwithstanding any provision to the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions set forth in this subsection (i) for any reason whatsoever; it being understood that, solely for purposes of this Section 7.3(b)(i), “control” refers to management rights, ownership of more than 50% of equity or voting rights.
Appears in 1 contract
Sources: Investors' Rights Agreement (Mindarrow Systems Inc)
Protective Provisions. (a) In addition to any such other vote or consent required elsewhere limitations as may be provided in the Memorandum and Articles or by any applicable statuteand the BVI Business Companies ▇▇▇ ▇▇▇▇, each Group the Company shall not, and each holder shall cause the other Group Companies to not, and the holders of Ordinary Shares shall procure that each exercise all of their rights with respect to such Ordinary Shares so as to cause the Group Company does Companies to not, directly effect or indirectly, (1) otherwise consummate any of the following acts without first obtaining.
7.1 the prior written approval of (i) the holders holding holder(s) of at least eighty-five percent (85%) 75% of the then outstanding Preferred Series A Shares and Series A1 Shares (excluding Preferred Shares held by AIL, in aggregate and voting together as a single class on an as-converted basis), and (ii) the holder(s) of at least 50% of the outstanding Series B Shares (on an as converted basis); provided that such requirement shall terminate upon a Qualified Public Offering:
(a) any amendment or change of the rights, preferences, privileges or powers of, or the restrictions provided for the benefit of, the Preferred Shares of the Company;
(b) any action to authorize, create or issue shares of any class or series of the Company having preferences superior to or on a parity with the Preferred Shares in any aspects including without limitation, dividend rights, redemption rights and/or liquidation rights;
(c) any new issuance of any equity securities of the Company, including any change in the total number of authorized Series B Shares, but excluding (i) any issuance of the Series B Shares authorized under the Purchase Agreement, (ii) any issuance of Ordinary Shares upon conversion of the Preferred Shares, (iii) the issuance of 66,580 Ordinary Shares upon the exercise of the option currently held by Winsome Group Limited on behalf of Ma ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ Ho, Ma Wen Lie, ▇▇▇▇ Lo Yin, Li Jin and other officers, employees and advisors of the Company, and (iv) the issuance of up to 151,430 Ordinary Shares (or options or warrants therefor) pursuant to employee equity incentive plans approved by the Compensation Committee;
(d) any action of the Company to reclassify any outstanding shares into shares having preferences or priority as to dividends or assets senior to or on a parity with the preference of the Preferred Shares;
(e) any increase or decrease of the authorized number of Ordinary Shares or Preferred Shares of the Company;
(f) any amendment of the Memorandum and Articles of Association or other charter documents of the Company (including any Major Subsidiary);
(g) any merger or consolidation of the Company (including any Subsidiary) with or into any other business entity in which the shareholders of the Company (including any Subsidiary) immediately after such merger or consolidation held shares representing less than a majority of the voting power of the outstanding share capital of the surviving business entity;
(h) any transaction or series of transactions that would result in a change of control of the Company (including any Subsidiary);
(i) the sale, lease, transfer or other disposition of all or substantially all of the assets of the Company (including any Subsidiary), except for Intra-group transactions among the Company and any Subsidiaries;
(j) any licensing or other transfer of the patents, copyrights, trademarks or other intellectual property of the Company (including any Subsidiary) other than in the ordinary course of its business, except for intra-group transactions among the Company and any Subsidiaries;
(k) any increase or decrease of the authorized number of the Board (including any committees of the Board) of the Company;
(l) effect a liquidation, dissolution or winding up of the Company (Including any Subsidiary);
(m) the declaration or payment of a dividend or other distribution on Ordinary Shares or Preferred Shares of the Company;
(n) any increase of the number of Ordinary Shares of the Company reserved under any employee equity incentive plan;
(o) any increase in compensation of any employee of the Company (including any Subsidiary) with an annual salary of US$50,000 or more by more than 20% in a twelve (12) month period;
(p) the extension by the Company of any loan or guarantee for indebtedness to any director, officer, employee or affiliate of the Company (including any Subsidiary), except for intra-group transactions among the Company and any Subsidiaries;
(q) any incurrence of indebtedness in excess of US$1,000,000 in the aggregate to the Company (including any Subsidiary), or creation of any encumbrance whatsoever upon the assets, patents, copyrights, trademarks or other intellectual property of the Company (including any Subsidiary);
(r) any purchase by the Company (including any Subsidiary) of real property with a value of US$1,000,000 or more, or any purchase of production facilities with a value of US$500,000 or more, individually or in the aggregate;
(s) any transaction or series of transactions that are not in the ordinary course of the Company’s business where the value involved exceeds US$1,000,000, individually or in the aggregate, during any twelve (12) month period;
(t) approval shall not be unreasonably withheldof the annual consolidated budget of the Company;
(u) the appointment and removal of any key officer of the Company (including any Major Subsidiary), take including the Chief Executive Officer and the Chief Financial Officer;
(v) the appointment and/or reappointment of auditors of the Company; or
(w) any transaction involving both the Company (including any Subsidiary) and a shareholder of any Group Company or any of the actions under Company’s employees, officers, directors or shareholders or any affiliate of a shareholder of any Group Company or any of such affiliate’s officers, directors or shareholders, except for intra-group transactions among the subsections (i)Company and any Subsidiaries and employment contracts between a Group Company and its employees that are not otherwise subject to this Section 7, (ii), (iii), (iv), (v), (xi), (xiv), (xv), (xvii), (xix) and (xx) below; and (2) without and
7.2 the prior written approval of the holders holding holder(s) as at the date hereof (taking no account of any share issuances after the date hereof) of at least eighty-five percent (85%) 96% of the then outstanding aggregate of Ordinary Shares and Preferred Shares (including Preferred Shares held by AIL, and voting together as a single class on an as-converted basis), which approval provided that such requirement shall not be unreasonably withheldterminate upon a Qualified IPO, take any repurchase or redemption of any equity securities of the Company other than (A) pursuant to contractual rights to repurchase Ordinary Shares from the employees, directors or consultants of the Company upon termination of their employment or services or(B) pursuant to a contractual right of first refusal held by the Company. Provided, however that, to the extent that the applicable laws prevent the Company from being bound by any of the actions under the subsections (vi)above provisions, (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, such provisions shall be binding 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 ▇▇▇▇ ▇▇▇ 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 equity-based compensation plan or any bonus or incentive plan;
(vii) select or change the external auditor, or make any material changes to the accounting policies or change the financial year of the Group Companies;
(viii) invest in or acquire any other Person, or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Company;
(ix) create, incur or authorize the creation of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts of the Group Companies arising in the ordinary course of business;
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out parties hereto (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that with respect to the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a) shall require the approval of the Investors in accordance with this Section 7.3(a));
(xvi) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in a single transaction, or US$3,000,000 in a series of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Company; or
(xxi) authorize, agree or undertake to do any of the foregoing. Actions under subsection (xxi) shall require 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) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, such parties shall take all actions under the subsection (xxi) shall require 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)necessary to give effect to such provisions.
(b) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval, take any of the following actions:
(i) Issue, sell, transfer or otherwise dispose of, directly or indirectly, any equity securities, security convertible into or exercisable for any equity securities, assets or good will of any Group Company to, or merge, amalgamate or consolidate any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited (the “Tencent Group”) (notwithstanding any provision to the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions set forth in this subsection (i) for any reason whatsoever; it being understood that, solely for purposes of this Section 7.3(b)(i), “control” refers to management rights, ownership of more than 50% of equity or voting rights.
Appears in 1 contract
Sources: Share Subscription Agreement (Le Gaga Holdings LTD)
Protective Provisions. 9.1 Notwithstanding anything herein to the contrary, prior to a Qualified IPO, for so long as at least 50% of the Series D Preferred Shares, or 50% of the Series C-1 Preferred Shares, or 50% of the Series B-1 Preferred Shares or 50% of the Series A Preferred Shares remain issued and outstanding, all of the following decisions of the Company, except for the conversion or reclassification detailed in Section 10.2, will be brought to the shareholders of the Company, for approval by (asubject in each event to the minimum class approval requirements of the Companies Law (5759-1999) In addition to any other vote (the "COMPANIES LAW")): (x) for sub-section 9.1
(i) the holders of at-least 51% of each series of Preferred Shares, affected by the amendment, voting as a separate class; or consent required elsewhere in (y) for sub-section 9.1 (ii) through (ix), the Articles or by any applicable statuteholders of at-least 51% of each of the Series A Preferred Shares, the Series B-1 Preferred Shares and the Series C-1 Preferred Shares with each Group Company shall notseries voting as a separate class, and each holder of Ordinary Shares shall procure that each Group Company does not, directly or indirectly, (1z) 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), for sub -section 9.1 (ii), (iii), (iv), (v), (xi), (xiv), (xv), (xvii), (xix) and (xx) below; and (2) without viii), in addition to the approvals required pursuant to sub Section 9.1.(y)- the approval of the holders holding of at least eighty-five percent (85%) 51% of the then outstanding Series D 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:Shares.
(i) cease adopt any amendment to conduct the Memorandum or substantially change Revised Articles or any other action which would have the business effect of amending the specific rights, preferences or privileges of the Company and/or any Group Company, as such business is normally conducted, or deviate from Preferred Shares; (other than an action taken pursuant to the business plan previously approved by the Board provisions of Director of the CompanySection 10.2);
(ii) sell increase the authorized number of Preferred Shares or dispose of the whole any class or substantial part of the undertaking goodwill or the assets of the Company and/or any Group Companyseries thereof;
(iii) increasecreate any new class or series of shares (including rights, reduce options or cancel warrants) having rights, preferences or privileges on a parity with the authorized Series A Preferred Shares or the Series B-1 Preferred Shares or the Series C-1 Preferred Shares, or enter into any contract or grant any option for the issue of any such securities, except for issuance of securities (i) issued share capital in consideration for at least ten million U.S. Dollars ($10,000,000) at a pre-money valuation 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 at least one hundred sixty million U.S. Dollars (with the exception of any shares issued upon conversion $160,000,000) on terms not more favorable than those of the Preferred Shares; (ii) to employees, consultants and service providers of the Company pursuant to share options plans approved by the Board from time to time (provided that any such grants in excess of 91,300 shares shall require Board approval which includes the approval of at least one (1) of the Preferred Shares Director);
(iv) make create any distribution new class or series of profits amongst shares (including rights, options or warrants) having rights, preferences or privileges senior to the shareholders by way Series A Preferred Shares or the Series B-1 Preferred Shares or the Series C-1 Preferred Shares, or enter into any contract or grant any option for the issuance of dividend, (interim and final) capitalization of reserves or otherwiseany such securities;
(v) appoint liquidate the Company, or settle the terms of appointment sell a majority of the chief executive officer outstanding share capital, or merge with or consolidate into any corporation, firm or entity, reorganize, or sell, assign, lease or otherwise dispose of (except for appointing ▇▇▇▇ ▇▇▇ as the chief executive officer whether in one transaction or a series of transactions) all or substantially all 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's assets;
(vi) approve declare or amend the employee pay any dividend (other than a dividend payable only in Ordinary Shares) to any holder of any class or series of share option plans capital declare or approve pay any new equity-based compensation plan dividend or any bonus other distribution of cash, shares or incentive planother assets;
(vii) select issue or change the external auditor, or make any material changes to the accounting policies or change the financial year sell shares of the Group CompaniesCompany in a public offering other than in a Qualified IPO;
(viii) invest in purchase, redeem or otherwise acquire any other Person, or Company share capital including without limitation any assets, business, business organization or division redemptions under Article 49 of any other Person in an amount in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Companythe Revised Articles;
(ix) create, incur or authorize approve the creation constitution of the board of directors of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts subsidiary of the Group Companies arising in Company the ordinary course composition of businesswhich does not reflect the representation of each class of the Preferred Shareholders on the Board;
(x) create accept any liens over capital or tax benefits from the State of Israel which includes restrictions on transferring the assets of the Company or is otherwise detrimental to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above;the Preferred Shareholders; or
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that with respect to the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a) shall require the approval of the Investors in accordance with this Section 7.3(a));
(xvi) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in a single transaction, or US$3,000,000 in a series of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Company; or
(xxi) authorize, agree or undertake to do any of the foregoing. Actions under subsection (xxi) shall require 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) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require 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).
(b) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval, take any of the following actions:
(i) Issueissue, sell, transfer or otherwise dispose of, directly or indirectly, any equity securities, security convertible into or exercisable for other disposition relating to any equity securities, assets or good will of any Group Company to, or merge, amalgamate or consolidate any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited (the “Tencent Group”) (notwithstanding any provision to the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval capital stock of the actions set forth in this subsection (i) for any reason whatsoever; it being understood that, solely for purposes of this Section 7.3(b)(i), “control” refers to management rights, ownership of more than 50% of equity or voting rightsSubsidiary.
Appears in 1 contract
Protective Provisions. (a) In addition Until the Maturity Date (assuming full payment and performance by the Company of all of its obligations as of such date, if the Company has not fully paid and performed all of its obligations as of such date, it being understood that the Company's obligations under this section shall survive until such obligations have been satisfied), and so long as (X) if the Convertible Preferred Stock has been converted into shares of Common Stock after the receipt by the holders of notice of the Company's intention to any other vote or consent required elsewhere redeem the Convertible Preferred Stock pursuant to the Statement of Designations, then for two years from the date of such conversion, provided that, the Investor and its Affiliates hold in the Articles aggregate Common Stock Equivalents representing at least 25% of the Conversion Shares issuable upon conversion of the Convertible Preferred Stock issued on the Closing Date, or by any applicable statute(Y) the Investor and its Affiliates hold in the aggregate at least 25% of the shares of Convertible Preferred Stock issued on the Closing Date, each Group the Company shall not, and each holder of Ordinary Shares shall procure that each Group Company does notnot permit any Subsidiary, directly or indirectly, (1) without the approval prior written consent of the holders holding at least eighty-five percent (85%) of the then outstanding Preferred Shares (excluding Preferred Shares held by AILInvestor, and voting together as a single class on an as-converted basis), which approval shall not be unreasonably withheld, to take any of the actions under following actions; provided, however, that nothing in this Section 15 shall prohibit any transaction between or among the subsections (i), (ii), (iii), (iv), (v), (xi), (xiv), (xv), (xvii), (xix) Company and (xx) below; and (2) without the approval of the holders holding at least eightyone or more wholly-five percent (85%) of the then outstanding Preferred Shares (including Preferred Shares held by AIL, and voting together as a single class on an asowned Subsidiaries or between or among wholly-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) belowowned Subsidiaries:
(i) cease to conduct merge, consolidate or amalgamate with any person or entity, or sell all or substantially change all of the assets of the Company or such Subsidiary (other than in connection with an acquisition or disposition of any business or assets for which the consent of the Investor is not required under clauses (vi) or (vii) below), unless prior to the consummation of such merger, consolidation, amalgamation or sale, the Company has paid the amount provided for in Section 15(c) below;
(ii) enter into any transaction, including, without limitation, any purchase, sale, lease or exchange of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate unless such transaction is (i) in the ordinary course of business of the Company and/or and its Subsidiaries, and (ii) upon fair and reasonable terms no less favorable to the Company and its Subsidiaries than they would obtain in a comparable arm's length transaction with a Person which is not an Affiliate;
(iii) engage in any Group Companybusiness other than the Business;
(iv) effect, as such business is normally conductedapprove or authorize any Liquidation, or deviate from any Recapitalization (other than any Liquidation or Recapitalization of any wholly-owned Subsidiary);
(v) amend, supplement or waive any of the business plan previously approved terms or conditions of any agreement between the Company and a shareholder of the Company with respect to the retention by the Board shareholder of Director shares of the Company's capital stock unless such amendment waiver or restatement pertains to an agreement with a non-employee of the Company and involves less than 10,000 shares of Common Stock (adjusted for stock splits, stock dividends and similar events after the date hereof);
(vi) dispose of any business or asset, (whether by merger, consolidation, sale of stock, share exchange or otherwise) in a single transaction or a series of related transactions with an aggregate value in such transaction or series of related transactions (including all assumed debt, all cash payments, and the fair market value of all securities or other property issued as consideration) in excess of 2.5% of the total assets of the Company;
(vii) acquire any business or assets (whether by merger, consolidation, share exchange or otherwise) in a single transaction or a series of related transactions with an aggregate value in such transaction or series of related transactions (including all assumed debt, all cash payments, and the fair market value of all securities or other property issued as consideration) in excess of 2.0% of total assets of the Company;
(viii) hire or fire, or amend the employment terms of the Chairman of the Board or the Chief Executive Officer of the Company (or the top two executive officers of the Company, if different), other than amendments to the benefits to which such executives are entitled resulting solely from an amendment to any benefit plan or program in which employees of the Company participate generally;
(ix) through any transaction or series of related transactions incur or refinance any Indebtedness; except that the Company and any of its Subsidiaries may incur or refinance any (x) Indebtedness under the Credit Agreement so long as at the time such Indebtedness is incurred and after giving effect to the incurrence thereof, the Consolidated Leverage Ratio of the Company is less than 4.0 to 1.0; (y) any other Indebtedness so long as at the time such Indebtedness is incurred and after giving effect to the incurrence thereof, the aggregate outstanding amount of all such Indebtedness shall not exceed 2 1/2% of the total assets of the Company; or (z) Indebtedness incurred to repurchase or redeem the Convertible Preferred Stock;
(x) make any single Capital Expenditure exceeding $10,000,000, or make aggregate Capital Expenditures for the Company and its Subsidiaries in any year exceeding 1.75% of the aggregate consolidated net revenues, as reflected in a budget approved by the Board for such fiscal year;
(xi) create or acquire any interest in any Subsidiary other than a wholly- owned Subsidiary unless, after giving effect to such acquisition, the Company's aggregate investment in non-wholly owned Subsidiaries does not exceed 1% of the Company's consolidated total assets as of the end of the last fiscal quarter;
(xii) adopt or amend any Equity-Linked Plan or make any bonus payment to any (i) employee of the Company or (ii) sell or dispose any President of any Subsidiary in excess of $250,000 (except pursuant to the terms of the whole arrangements in effect on the Closing Date); or
(xiii) agree or substantial part otherwise commit to take any of the undertaking goodwill actions set forth above.
(b) Until the Maturity Date (assuming full payment and performance by the Company of all of its obligations as of such date, if the Company has not fully paid and performed all of its obligations as of such date, it being understood that the Company's obligations under this Section shall survive until such obligations have been satisfied) in the event the Convertible Preferred Stock has been converted into shares of Common Stock after the receipt by the holders of notice of the Company's intention to redeem the Convertible Preferred Stock pursuant to the Statement of Designations and two years has elapsed since the date of such conversion, for so long as the Investor and its Affiliates hold in the aggregate at least 10% of the outstanding Common Stock of the Company, the Company shall not, and shall not permit any Subsidiary, without the prior written consent of the Investor to take any of the following actions provided, however, that nothing in this Section 15 shall prohibit any transaction between the Company and one or more wholly owned Subsidiaries between or among wholly owned Subsidiaries:
(i) merge, consolidate or amalgamate with any person or entity, or sell all or substantially all of the assets of the Company and/or or such Subsidiary (other than in connection with an acquisition or disposition of any Group Companybusiness or assets for which the consent of the Investor is not required under clauses 15(a)(vi) or (vii) above, unless prior to the consummation of such merger, consolidation, amalgamation or sale, the Company has paid the amount provided for in Section 15(c) below;
(ii) enter into any transaction, including, without limitation, any purchase, sale, lease or exchange of property, the rendering of any service or the payment of any management, advisory or similar fees, with any Affiliate unless such transaction is (i) in the ordinary course of business of the Company and its Subsidiaries, and (ii) upon fair and reasonable terms no less favorable to the Company and its Subsidiaries than they would obtain in a comparable arm's length transaction with a Person which is not an Affiliate;
(iii) increaseeffect, reduce approve or cancel the authorized authorize any Liquidation (other than a Liquidation or issued share capital Recapitalization 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 Shareswholly-owned Subsidiary);
(iv) make hire or fire, or amend the employment terms of the Chairman of the Board or the Chief Executive Officer of the Company (or the top two executive officers of the Company, if different), other than amendments to the benefits to which such executives are entitled resulting solely from an amendment to any distribution benefit plan or program in which employees of profits amongst the shareholders by way of dividend, (interim and final) capitalization of reserves or otherwise;Company participate generally; or
(v) appoint or settle the terms of appointment of the chief executive officer (except for appointing ▇▇▇▇ ▇▇▇ 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 equity-based compensation plan or any bonus or incentive plan;
(vii) select or change the external auditor, or make any material changes to the accounting policies or change the financial year of the Group Companies;
(viii) invest in or acquire any other Person, or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Company;
(ix) create, incur or authorize the creation of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts of the Group Companies arising in the ordinary course of business;
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that with respect to the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a) shall require the approval of the Investors in accordance with this Section 7.3(a));
(xvi) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in a single transaction, or US$3,000,000 in a series of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Company; or
(xxi) authorize, agree or undertake otherwise commit to do any of the foregoing. Actions under subsection (xxi) shall require 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) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require 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).
(b) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval, take any of the following actions:
(i) Issue, sell, transfer or otherwise dispose of, directly or indirectly, any equity securities, security convertible into or exercisable for any equity securities, assets or good will of any Group Company to, or merge, amalgamate or consolidate any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited (the “Tencent Group”) (notwithstanding any provision to the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions set forth above.
(c) If the Company requests that the Investor consent to a merger, consolidation or amalgamation described in this subsection Section 15(a)(i) or 15(b)(i) (a "Proposed Transaction") and the Investor fails to consent to such Proposed Transaction within 15 days after delivery of such request, then the Company may consummate the Proposed Transaction without the consent of the Investor, provided the Company purchases from the Investor all of (i) for the shares of Convertible Preferred Stock and (ii) the shares of Common Stock of the Company received upon conversion thereof, in each case that are held by the Investor as of the date of the Election Notice (as defined below)((i) and (ii) together the "Retained Shares"), on the terms specified herein. In the event the Company elects to exercise the right of repurchase set forth herein, it shall deliver written notice to the Investor (an "Election Notice") no less than 20 days prior to the date of consummation of the Proposed Transaction. The purchase price of the Retained Shares shall be a sum (the "Purchase Price") that would provide to the Investor a 25% annual rate of return compounded quarterly, on the Original Cost of the shares of Convertible Preferred Stock represented by the Retained Shares, such return to be calculated from the Closing Date through the date of consummation of the Proposed Transaction. The Investor shall and shall cause all of its Affiliates to vote all their shares of capital stock of the Company (or to execute one or more written consents) in favor of any reason whatsoever; Proposed Transaction as to which it being understood that, solely for purposes has received an Election Notice. The closing of the purchase of the Retained Shares pursuant to this Section 7.3(b)(i)15(c) shall take place on the date of consummation of the Proposed Transaction at which time the Company shall pay to the Investor the Purchase Price, “control” refers and the Investor shall deliver or cause to management rights, ownership of more than 50% of equity or voting rightsbe delivered to the Company certificates representing the Retained Shares.
Appears in 1 contract
Sources: Investors' Rights Agreement (Encompass Services Corp)
Protective Provisions. (a) In addition to any such other vote or consent required elsewhere limitations as may be provided in the Memorandum, the Articles or by any applicable statuteand the Act, each Group the Company shall not, and each holder shall cause the other Group Companies to not, and the holders of Ordinary Shares shall procure that each exercise all of their rights with respect to such Ordinary Shares so as to cause the Group Company does Companies to not, directly effect or indirectly, otherwise consummate any of the following acts without first obtaining,
(1) without the prior written approval of (i) the holders holding holder(s) of at least eighty-five percent (85%) 75% of the then outstanding Preferred Series A Shares and Series A1 Shares (excluding Preferred Shares held by AIL, in aggregate and voting together as a single class on an as-converted basis), which approval shall not be unreasonably withheld, take any and (ii) the holder(s) of at least 50% of the actions under the subsections (i), (ii), (iii), (iv), (v), (xi), (xiv), (xv), (xvii), (xix) outstanding Series B Shares and (xx) below; and (2) without the approval of the holders holding at least eighty-five percent (85%) of the then outstanding Preferred Series B1 Shares (including Preferred Shares held by AIL, in aggregate and voting together as a single class on an as-as converted basis), which approval ; provided that such requirement shall not be unreasonably withheld, take terminate upon a Qualified Public Offering:
i. any amendment or change of the actions under the subsections (vi)rights, (vii)preferences, (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii) below:
(i) cease to conduct privileges or substantially change the business of the Company and/or any Group Company, as such business is normally conductedpowers of, or deviate from the business plan previously approved by restrictions provided for the Board of Director benefit of, the Preferred Shares of the Company;
ii. any action to authorize, create or issue shares of any class or series of the Company having preferences superior to or on a parity with the Preferred Shares in any aspects including without limitation, dividend rights, redemption rights and/or liquidation rights;
iii. any new issuance of any equity securities of the Company, including any change in the total number of authorized Series B Shares and Series B1 Shares, but excluding (i) any issuance of the Series B1 Shares authorized under the Series B1 Preferred Share Subscription Agreement dated as of 22 December 2009 (the “Purchase Agreement”) by, among others, the Company and the Investors (as defined in the Purchase Agreement), (ii) sell or dispose any issuance 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 Ordinary Shares upon conversion of the Preferred Shares);
(iv) make any distribution of profits amongst the shareholders by way of dividend, (interim and finaliii) capitalization the issuance of reserves or otherwise;
(v) appoint or settle 66,580 Ordinary Shares upon the terms of appointment exercise of the chief executive officer (except for appointing option currently held by Winsome Group Limited on behalf of Ma ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ Ho, Ma Wen Lie, ▇▇▇▇ Lo Yin, Li Jin and other officers, employees and advisors of the Company, (iv) the issuance of up to 151,430 Ordinary Shares (or options or warrants therefor) pursuant to employee equity incentive plans Approved by the Compensation Committee (as defined in the chief executive officer Articles), and (v) the issuance of up to 50,246 Ordinary shares upon the exercises of the options granted to certain individuals pursuant to the resolutions of the Company’s directors passed on 16 April 2009;
iv. any action of the Company and/or to reclassify any Group outstanding shares into shares having preferences on priority as to dividends or assets senior to or on a parity with the preferences of the Preferred Shares;
v. any increase or decrease of the authorized number of Ordinary Shares or Preferred Shares of the Company), ;
vi. any amendment of the chief operative officer Memorandum and the chief technology officer Articles or other charter documents of the Company and/or (including any Group CompanyMajor Subsidiary);
vii. any merger or consolidation of the Company (viincluding any Subsidiary other than Linong Agriculture Technology Co., Ltd. (Tianjin)) approve with or amend into any other business entity in which the employee shareholders of the Company (including any Subsidiary) immediately after such merger or consolidation held shares representing less than a majority of the voting power of the outstanding share option plans or approve any new equity-based compensation plan or any bonus or incentive plancapital of the surviving business entity;
(vii) select viii. any transaction or series of transactions that would result in a change the external auditor, or make any material changes to the accounting policies or change the financial year of control of the Group CompaniesCompany (including any Subsidiary other than Linong Agriculture Technology Co., Ltd. (Tianjin));
(viii) invest in ix. the sale, lease, transfer or acquire any other Person, disposition of all or any assets, business, business organization or division substantially all of any other Person in an amount in excess the assets of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Company;
(ix) create, incur or authorize the creation of any debt Company (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000Subsidiary other than Linong Agriculture Technology Co., or guarantee any indebtednessLtd. (Tianjin)), except for trade accounts intra-group transactions among the Company and any Subsidiaries;
x. any licensing or other transfer of the Group Companies arising patents, copyrights, trademarks or other intellectual property of the Company (including any Subsidiary) other than in the ordinary course of business;
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of its business, except to whollyfor intra-owned subsidiaries group transactions among the Company and any Subsidiaries;
xi. any increase or decrease of the authorized number of the members of the Board (including any committees of the Board) of the Company;
(xii) sell. effect a liquidation, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge dissolution or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or (including any Group Company or undertake any mergerSubsidiary other than Linong Agriculture Technology Co., reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
Ltd. (xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that with respect to the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a) shall require the approval of the Investors in accordance with this Section 7.3(aTianjin));
xiii. the declaration or payment of a dividend or other distribution on Ordinary Shares or Preferred Shares of the Company;
xiv. any increase of the number of Ordinary Shares of the Company reserved under any employee equity incentive plan;
xv. any increase in compensation of any employee of the Company (including any Subsidiary) with an annual salary of US$50,000 or more by more than 20% in a twelve (12) month period;
xvi) approve. the extension by the Company of any loan or guarantee for indebtedness to any director, extend officer, employee or amend affiliate of the Company (including any transaction or agreement which is in an amount Subsidiary), except for intra-group transactions among the Company and any Subsidiaries;
xvii. any incurrence of indebtedness in excess of US$1,000,000 in a single transactionthe aggregate to the Company (including any Subsidiary), or creation of any encumbrance whatsoever upon the assets, patents, copyrights, trademarks or other intellectual property of the Company (including any Subsidiary);
xviii. any purchase by the Company (including any Subsidiary) of real property with a value of US$3,000,000 1,000,000 or more, or any purchase of production facilities with a value of US$500,000 or more, individually or in a the aggregate; xix. any transaction or series of related transactions, with a Shareholder, director, officer, employee or Affiliate transactions that are not in the ordinary course of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plansbusiness where the value involved exceeds US$1,000,000, provided however thatindividually or in the aggregate, during any connected transaction or agreement which is not in an amount in excess twelve (12) month period, except for the disposition of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xvii) make any equity investments in interest in, and/or any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Company; or
(xxi) authorize, agree or undertake to do any of the foregoing. Actions under subsection (xxi) shall require 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) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require 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).
(b) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval, take any of the following actions:
(i) Issue, sell, transfer or otherwise dispose asset of, directly or indirectlyLinong Agriculture Technology Co., any equity securities, security convertible into or exercisable for any equity securities, assets or good will of any Group Company to, or merge, amalgamate or consolidate any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited Ltd. (the “Tencent Group”) (notwithstanding any provision to the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions set forth in this subsection (i) for any reason whatsoever; it being understood that, solely for purposes of this Section 7.3(b)(iTianjin), “control” refers to management rights, ownership of more than 50% of equity or voting rights.);
Appears in 1 contract
Sources: Share Subscription Agreement (Le Gaga Holdings LTD)
Protective Provisions. (a) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group The Company shall not, and each holder shall not permit any of Ordinary Shares shall procure that each Group Company does notits Subsidiaries to, directly or indirectly, (1) without including through 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 delegation 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 ▇▇▇▇ ▇▇▇ 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 equity-based compensation plan or any bonus or incentive plan;
(vii) select or change the external auditor, or make any material changes to the accounting policies or change the financial year of the Group Companies;
(viii) invest in or acquire any other Person, or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Company;
(ix) create, incur or authorize the creation of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts of the Group Companies arising in the ordinary course of business;
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved authority pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of business), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that with respect to the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a) shall require the approval of the Investors in accordance with this Section 7.3(a));
(xvi) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in a single transaction, or US$3,000,000 in a series of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Company; or
(xxi) authorize, agree or undertake to do any of the foregoing. Actions under subsection (xxi) shall require 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) if the subject matter is related to the matters listed in subsections (vi), (vii), (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require 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).
(b) In addition to any other vote or consent required elsewhere in the Articles or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly or indirectly, without AIL’s approval5.6, take any of the following actionsactions (the “Member Approval Matters”), in each case, without the prior written approval of the holders of a majority of the Class A Units and the Class B Units:
(a) enter into, amend, modify, supplement or terminate any Related Party Transaction;
(b) create, issue, redeem or repurchase any Equity Securities, including Management Incentive Units (including in connection with an IPO), other than in connection with (i) Issueany conversions pursuant to Section 6.7, (ii) the Class B Unitholders’ rights to Redemption set forth in Section 6.9, (iii) the Vertex Company Group’s Call right set forth in Section 6.10, or (iv) as otherwise expressly contemplated hereby;
(c) declare or pay dividends or Distributions of any kind pursuant to Section 4.1(b) other than any Distribution made in connection with a liquidation described in Section 12.2, a Sale of the Company, or a Redemption;
(d) (i) incur or assume (including by way of acquisition) any indebtedness (including capital leases) in a transaction or series of related transactions, (ii) guarantee, endorse or otherwise as an accommodation become responsible for the material obligations of another Person, or (iii) enter into or consummate any transactions or series of related transactions involving the issuance by the Company or any of its Subsidiaries of any debt securities, including rights to acquire debt securities;
(e) enter into any transaction or series of related transactions that would result in a transfer of Equity Securities representing over 50% of the Company’s Equity Securities or voting power of the Company (including any Sale of the Company), other than pursuant to Section 6.9, Section 6.10, Section 9.1 or Section 9.2(b);
(f) sell, transfer or otherwise dispose of, directly or indirectlygrant any encumbrance over, all or substantially all of the assets of the Company, taken as a whole, or consummate a merger, amalgamation, stock purchase, asset purchase, reorganization, consolidation, share exchange or entry into a business combination by the Company or any of its Subsidiaries with another person or entity (other than any such transaction solely by and among the Company and/or any of its wholly-owned Subsidiaries);
(g) acquire any equity securities, security securities or any other instrument convertible into or exercisable for any equity securities, assets or good will securities of any Group Company to, other Person (other than wholly-owned Subsidiaries) or merge, amalgamate enter into any joint venture or consolidate similar agreement with any Group Company with or into Tencent Holdings Limited, or any Person controlled by Tencent Holdings Limited Person;
(the “Tencent Group”h) (notwithstanding any provision to the contrary in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions set forth in this subsection (i) for create, reclassify or issue (including by merger or otherwise) any reason whatsoever; it being understood thatEquity Securities or any equity securities of any Subsidiary or (ii) authorize any such creation, solely for purposes reclassification or issuance of this Section 7.3(b)(iany Equity Securities or equity securities of the Company (including any Management Incentive Units), “control” refers to management rightsother than any creation, ownership of more than 50% reclassification and/or issuances of equity securities of any wholly owned Subsidiary of the Company that are issued solely to the Company or voting rightsits wholly-owned Subsidiaries;
(i) (i) consummate an IPO or (ii) list any Equity Securities on any securities exchange or substantially equivalent market, including any private Rule 144A market;
(j) amend, modify, supplement or terminate any of the Company’s governing documents or the governing documents of any of its Subsidiaries;
(k) grant any incentive equity (including any Management Incentive Units) or any incentive-equity-like compensation to any person;
(l) change the size or composition of the Board or its committees (or similar governing bodies of any Subsidiary) other than as expressly provided in Section 5.1;
(m) approve the annual budget (including any capital expenditures), any strategic operating or business plan and any related business policies of the Company or its Subsidiaries or make any material amendment or change thereto, including by way of example and not limitation, the Company’s accounting policies and procedures;
(n) enter into or develop any material new line of business or amend, cease or terminate any existing (at the applicable time) material line of business; or
(o) take any actions that would impact the tax treatment or jurisdiction of the Company.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Vertex Energy Inc.)
Protective Provisions. So long as 2,966,666 shares of ---------------------- Series 1 Preferred Stock are outstanding (a) In addition subject to any adjustment for stock dividends, splits or combinations or other recapitalizations), the Corporation shall not without first obtaining the approval, by vote or written consent required elsewhere in the Articles or by any applicable statute(which consent need not be unanimous and may be obtained without a shareholders' meeting), 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 of at least eighty-five percent (85%) a majority of the then outstanding shares of Series 1 Preferred Shares Stock:
(excluding a) authorize any voluntary liquidation under applicable bankruptcy legislation, any dissolution, liquidation or winding up of the Corporation or any deemed dissolution, liquidation or winding up within the meaning of Section 3(b);
(b) effect or taking any action to facilitate any transaction or series of transactions resulting in the disposition of more than 50% of the voting power of the Corporation;
(c) authorize any merger, acquisition or consolidation with any other corporation or joint venture involving consideration (determined in accordance with Section 3(c)) in excess of $5,000,000;
(d) declare or pay any dividends or other distributions on the Corporation's capital stock (other than a dividend payable solely in shares in Common Stock or a dividend accruing pursuant to Section 2(b) hereof) or redeem, purchase or otherwise acquire any share or shares of Preferred Shares held by AILStock (except as provided in Section 4) or Common Stock; provided, however, that this restriction -------- ------- shall apply neither to the repurchase of shares of Common Stock from employees, officers, directors, consultants or other persons performing services for the Corporation or any subsidiary pursuant to agreements under which the Corporation has the option to repurchase such shares at cost or at cost upon the occurrence of certain events, such as the termination of employment;
(e) permit any subsidiary to issue and voting together sell securities having a fair market value (as determined in accordance with Section 3(c)) in excess of $5,000,000;
(f) sell more than $5,000,000 in its assets in a single class or series of related transactions or create or suffer to be imposed any lien, mortgage, security interest or other charge on an as-converted basis)or against more than $5,000,000 of assets;
(g) incur any indebtedness for borrowed money in excess of $5,000,000 in aggregate principal amount;
(h) redeem, which approval shall not be unreasonably withheld, take purchase or otherwise acquire any indebtedness of the actions under the subsections Corporation (iunless such indebtedness is otherwise due in accordance with its terms), (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 authorize 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;
transactions with any affiliates (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 ▇▇▇▇ ▇▇▇ 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 equity-based compensation plan or any bonus or incentive plan;
(vii) select or change the external auditor, or make any material changes to the accounting policies or change the financial year of the Group Companies;
(viii) invest in or acquire any other Person, or any assets, business, business organization or division of any other Person in an amount in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or form any new subsidiary of any Group Company;
(ix) create, incur or authorize the creation of any debt (including without limitation the issuance of any debt securities) if the Group’s aggregate indebtedness would exceed US$1,000,000, or guarantee any indebtedness, except for trade accounts of the Group Companies arising in the ordinary course of business;
(x) create any liens over assets to serve any indebtedness otherwise permitted or previously approved pursuant to paragraph (ix) above;
(xi) make any loan or advance in an amount in excess of US$500,000 other than trade credit given in the ordinary course of business, except to wholly-owned subsidiaries of the Company;
(xii) sell, transfer, license out (other than non-exclusive license granted in the ordinary course of businessCorporation), pledge or encumber technology or intellectual property;
(xiii) purchase any real property;
(xiv) pass any resolution for the winding up of the Company and /or any Group Company or undertake any merger, reconstruction or liquidation exercise concerning the Company and/or any Group Company or apply for the appointment of a receiver, manager or judicial manager or like officer;
(xv) make any alteration or amendment to the memorandum and articles of association of the Company or any of the Group Companies (provided however that with respect to the memorandum and articles of association of the Domestic Company, only the alteration or amendment related to the items listed in this Section 7.3(a) shall require the approval of the Investors in accordance with this Section 7.3(a));
(xvi) approve, extend or amend any transaction or agreement which is in an amount in excess of US$1,000,000 in a single transaction, or US$3,000,000 in a series of related transactions, with a Shareholder, director, officer, employee or Affiliate of any Group Company or any relative thereof, except pursuant to the Company’s employee share option plans, provided however that, any connected transaction or agreement which is not in an amount in excess of US$1,000,000 shall be fully disclosed to the Investors and shall be arm’s length transaction;
(xvii) make any equity investments in any other companies in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, or the establishment of any brands for companies other than the Group Companies;
(xviii) enter into any joint venture or partnership of which the total investment amount is in excess of US$1,500,000 in a single transaction, or US$3,000,000 in a series of related transactions, other than any strategic alliance not involving any equity or equity-related investment;
(xix) dispose or dilute the Company’s interest, directly or indirectly, in any of the Group Company including but not limited to by way of amending or terminating the Restated Control Documents;
(xx) approve any transfer of shares in the Company or any of the Group Company; or
(xxij) authorize, agree amend or undertake to do repeal any provision of the foregoing. Actions under subsection (xxi) shall require Corporation's Articles of Incorporation or Restated Bylaws if such action would adversely affect the approval relative rights, preferences and privileges of the holders holding at least eighty-five percent Series 1 Preferred Stock (85%) of the then outstanding Preferred Shares (including Preferred Shares held by AILincluding, and voting together as a single class on an as-converted basis) if the subject matter is related to the matters listed in subsections (vi)without limitation, (vii)A) the authorization, (viii), (ix), (x), (xii), (xiii), (xvi) and (xviii), otherwise, actions under the subsection (xxi) shall require the approval creation or issuance 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).
(b) In addition to any other vote Senior Capital Stock or consent required elsewhere in the Articles Parity Capital Stock or by any applicable statute, each Group Company shall not, and the Company shall procure that each Group Company does not, directly obligation or indirectly, without AIL’s approval, take any of the following actions:
(i) Issue, sell, transfer or otherwise dispose of, directly or indirectly, any equity securities, security convertible into or exercisable for any equity securitiesexchangeable into, assets or good will evidencing a right to purchase, shares of any Group Company toclass or series of Senior Capital Stock or Parity Capital Stock, (B) the increase of the directors on the Corporation's Board of Directors to a number greater than 12, or merge(C) the designation and issuance after the Series 1 Purchase Date of any additional shares of Series 1 Preferred Stock)."
5. The first paragraph of Exhibit C to the Agreement is amended and restated to read in its entirety as follows: "We have acted as counsel to MedicaLogic/Medscape, amalgamate or consolidate any Group Company with or into Tencent Holdings LimitedInc., or any Person controlled by Tencent Holdings Limited an Oregon corporation (the “Tencent Group”"Company"), in connection with the sale by the Company to you of an aggregate of 5,933,332 shares of the Company's Series 1 Convertible Redeemable Preferred Stock, without par value, and Common Stock Purchase Warrants (the "Warrants") to purchase an aggregate of 4,537,254 shares of its Common Stock, without par value, pursuant to the Preferred Stock and Warrant Purchase Agreement dated as of December 22, 2000, as amended (the "Agreement"). This opinion is delivered to you pursuant to Section 4.8 of the Agreement. Capitalized terms not otherwise defined in this opinion shall have the meanings ascribed to them in the Agreement or in the Legal Opinion Accord of the ABA Section of Business Law (1991) (notwithstanding any provision the "Accord")."
6. Recital G of Exhibit D to the contrary Agreement is amended and restated to read in the opening paragraph of this Section, AIL has the absolute right to withhold its approval of the actions set forth in this subsection (i) for any reason whatsoever; it being understood that, solely for purposes of this Section 7.3(b)(i), “control” refers to management rights, ownership of more than 50% of equity or voting rights.entirety as follows:
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Sources: Preferred Stock and Warrant Purchase Agreement (Soros Fund Management LLC)