Protective Provisions. For so long as the Investor holds (taking into account, for the avoidance of doubt, a designee of ACCBT) at least 5% of the issued and outstanding share capital of the Company, no obligation of the Company (which, for purposes of this Section is deemed to include any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken by or with respect to the Company, either directly or indirectly (including by merger, consolidation or reclassification, or through the making of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investor: 5.7.1 any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation; 5.7.2 the allotment or issuance of any shares or other securities (including convertible debt) of the Company (or the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company), except for: (i) shares issuable pursuant to (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declination, or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007; 5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose); 5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital of the Company; 5.7.5 any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof; 5.7.6 the sale, lease, exchange or other disposition granting of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) of the Company or the incurrence of any Indebtedness or capital expenditures greater than $25,000 (except in the ordinary course of business or for a debt investment in the Company up to $500,000 prior to the First Closing Date); 5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence of the Company; 5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance; 5.7.9 any material change to the direction of the business of the Company or the related business plan as described in the SEC Documents; 5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party; 5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person; 5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or 5.7.13 any commitment or agreement to do any of the foregoing.
Appears in 2 contracts
Samples: Subscription Agreement (ACCBT Corp.), Subscription Agreement (Brainstorm Cell Therapeutics Inc)
Protective Provisions. For so long Until fewer than 1,000,000 shares of Convertible Preferred Stock are outstanding (as adjusted for stock splits, stock dividends and the Investor holds (taking into accountlike), for the avoidance of doubtCompany shall not, a designee of ACCBT) at least 5% without the approval of the issued Board of Directors and outstanding share capital of the Company, no obligation of the Company (which, for purposes of this Section is deemed to include any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken by affirmative vote or with respect to the Company, either directly or indirectly (including by merger, consolidation or reclassification, or through the making of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investor:
5.7.1 any change in the Certificate holders of Incorporation or the Bylaws, or alteration a majority of the capital structure then outstanding shares of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares or other securities (including convertible debt) of the Company (or the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company), except forConvertible Preferred Stock: (i) shares issuable pursuant authorize or issue -------------------------------------------------------------------------------- EXECUTION VERSION (including, without limitation, by way of recapitalization), or obligate itself to (A) the Warrantsauthorize or issue, this Agreement and outstanding share options, convertible debt or warrants existing as any equity security of the date hereofCorporation, (B) up or any other security exercisable for or convertible into an equity security of the Corporation, that has redemption rights or that is senior to 2,180,000 shares issuable or on parity with the Convertible Preferred Stock as to Company’s service providers under existing arrangementsdividend rights, and Common Shares under the Company’s equity incentive plans (where applicable)voting rights, and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investorliquidation preferences or any other rights, at its sole discretionpreferences or privileges; (ii) where increase or decrease (other than by conversion) the Investor has given notice total number of its declination, authorized shares of Convertible Preferred Stock or otherwise fails, to make further payments toward the Maximum Subscription PriceCommon Stock; and (iii) where prior to the First Closing the Company accepts effect any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the sale, lease, exchange assignment, transfer or other disposition granting conveyance or encumbrance of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) of the Company Corporation or the incurrence any of its subsidiaries in one or more related transactions, or any Indebtedness consolidation or capital expenditures greater than $25,000 (except merger resulting in the ordinary course of business or for a debt investment change in the Company up to $500,000 prior to the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence control of the Company;
5.7.8 the creation, acquisition or disposition any reclassification, recapitalization or other change of any subsidiarycapital stock of the Corporation; (iv) change the authorized number of directors of the Corporation; (v) amend or repeal the Certificate (including by way of any Certificate of Designation) or the Corporation's Bylaws; (vi) redeem, the purchase or acquisition otherwise acquire (or pay into or set aside for a sinking fund for such purpose) any of any partnership interest the Common Stock or securities issued bycommon stock equivalents; provided, however, that this restriction shall not apply to the repurchase of up to a maximum of $100,000 of Common Stock per year from employees, officers, directors, consultants, advisors or other equity persons performing services for the Corporation, pursuant to agreements under which the Corporation has the option to repurchase such shares at cost upon the occurrence of certain events, such as the termination of employment; (vii) effect the liquidation, dissolution or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction winding up of the business of the Company Corporation; or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale (viii) agree, promise, commit or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 any commitment or agreement undertake to do any of the foregoing.
Appears in 2 contracts
Samples: Recapitalization Agreement (Northwest Biotherapeutics Inc), Recapitalization Agreement (Toucan Capital Fund II, LP)
Protective Provisions. For so So long as no less than twenty-five percent (25%) of the Investor holds Preferred Shares originally issued at the respective closings are outstanding, no Group Company shall take, permit to occur, approve, authorize, or agree or commit to do any of the following, and each Party shall procure the Group Companies not to, take, permit to occur, approve, authorize, or agree or commit to do any of the following, whether in a single transaction or a series of related transactions, whether directly or 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:
(taking into accounti) any amendment or change of the rights, preferences, privileges or powers of, or restrictions provided for the avoidance of doubtbenefit of, a designee of ACCBT) at least 5% any of the issued 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 outstanding ordinary share capital 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, no obligation 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 (which, for purposes of this Section is deemed having any preference or priority as to include rights or privileges superior to or on parity with any subsidiary 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) will be entered intoany change of the size of the board of directors of any Group Company or change the manner in which the directors are appointed, no decision will be madeother 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 no action will be taken in compliance with Section 13.17 hereof;
(vii) any declaration, set aside or payment of a dividend or other distribution by or with respect to the Company, either directly or indirectly the adoption of or any change to the dividend policy;
(including by viii) any merger, consolidation or reclassificationamalgamation, scheme of arrangement, reorganization, restructuring, or through the making consolidation of any shareholder proposal by Group Company with any of its shareholder)Person, with respect to the following matters without the written consent of the Investor:
5.7.1 any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares or other securities (including convertible debt) of the Company (or the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company), except for: (i) shares issuable pursuant to (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declination, or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase purchase or other acquisition by the any Group Company of assets, equity or business of another Person, or any sale, transfer or other disposal of its shares (all or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment substantially part of any dividend Group Company’s assets or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 any dealings withbusiness, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the sale, lease, exchange or other disposition granting of a security interest in, sale or exclusive license of, any material part of or all or substantially all of the intellectual property or assets (including intellectual property) of the Company or the incurrence of any Indebtedness 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) the entry into any contract or capital expenditures greater than $25,000 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 (except provided that transactions with WuXi AppTec Co., Ltd. or its Affiliates would not be subject to this cap if such transaction or a series of transactions are on arm’s length terms and in the ordinary course of business of the Group Companies), or for 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 debt investment in majority of the Company up to $500,000 prior to the First Closing DatePreferred Directors if any director is recused from voting on such matter);
5.7.7 the taking of (x) any steps action by any Group Company to voluntarily liquidateauthorize, dissolve, wind-up approve or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition enter into any agreement or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business of the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation obligation with respect to any officer, director action listed above. The rights and covenants set forth in this Section 11 shall terminate and be of no force and effect upon the earlier to occur of (a) immediately before the consummation of a Qualified IPO; or employee involving (b) the closing of a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 any commitment or agreement to do any of the foregoingDeemed Liquidation Event.
Appears in 2 contracts
Samples: Shareholder Agreement (Adagene Inc.), Shareholder Agreement (Adagene Inc.)
Protective Provisions. For so long (a) The Company shall not sell or issue any New Securities without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Investor holds Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (taking by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) above, the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders:
(i) altering or changing the rights, or privileges of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
(ii) reclassifying any outstanding Ordinary Shares into accountshares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares of the Company;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, a designee of ACCBT) at least 5% of the issued and outstanding share capital of the Company, no obligation of the Company (which, for purposes of this Section is deemed to include any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken by or with respect to the Company, either directly or indirectly (including by merger, consolidation or reclassification, or through the making of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investor:
5.7.1 any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or other securities (including convertible debt) otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company), except for: (i) shares issuable pursuant to (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declinationCore Business, or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts ceasing any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase material existing business line or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital activities of the Company;
5.7.5 (viii) incurring any dealings withmaterial indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the making business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any payments party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Company.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any Person that is not at arm’s length to of the Company, its directors, officers, employees or shareholders (following actions involving itself or any of their respective Affiliates)its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, except for those outstanding obligations existing as consolidation, transfer of shares or other form of restructuring of the date hereofCompany involving a Restricted Person;
5.7.6 the sale, lease, exchange or other disposition granting (ii) any sale of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) of the Company or the incurrence Group Companies to a Restricted Person;
(iii) any issuance of any Indebtedness or capital expenditures greater than $25,000 (except in the ordinary course of business or for a debt investment in New Securities by the Company up to $500,000 prior to the First Closing Date)any Restricted Person;
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in (iv) entering into any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business of the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other partnership arrangement with a Restricted Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 (v) engaging in any commitment or agreement to do any of business other than the foregoingCore Business.
Appears in 2 contracts
Samples: Shareholder Agreements, Shareholder Agreements (Tencent Music Entertainment Group)
Protective Provisions. For Notwithstanding any other provision of this Agreement and to the fullest extent permitted by applicable law, in addition to the approval of the Directors, the following actions described in this Section 3(a) (collectively, the “Consent Matters”) shall require the prior written consent of Apax Partners and/or WCAS as set out below:
i. none of the following actions shall be taken by the Company, including any proposal by the Board to be put to the vote of the stockholders of the Company with respect thereto, without (A) the prior written consent of Apax Partners for so long as the Investor holds (taking into account, for the avoidance of doubt, a designee of ACCBT) Apax Partners owns at least 5% of the issued Original Amount and outstanding share capital (B) the prior written consent of WCAS for so long as WCAS owns at least 5% of the Original Amount (except as set forth in the proviso in Section 3(a)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Amended and Restated Certificate of Incorporation or the Bylaws of the Company, no obligation (which shall also be subject to Section 5) and/or the organizational documents of the Company (which, for purposes of this Section is deemed to include any subsidiary of the Company) will be entered into; provided that, no decision will be madenotwithstanding the foregoing, and no action will be taken by for so long as Apax Partners or with respect to the CompanyWCAS, either directly or indirectly (including by mergeras applicable, consolidation or reclassificationown any outstanding Common Stock, any amendment, alteration, or through change to, or waiver under, other organizational documents, including the making of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investor:
5.7.1 any change in the Amended and Restated Certificate of Incorporation or the Bylaws, or alteration Bylaws of the capital structure Company, and/or the organizational documents of any subsidiary of the Company through that would adversely affect in any reclassification respect any rights specific to Apax Partners or consolidationWCAS shall (subject to applicable law) require the written consent of Apax Partners or WCAS, as applicable;
5.7.2 the allotment II. authorizing or issuance of issuing any shares or other equity securities (including convertible debt) of the Company having rights, preferences or privileges that are superior or senior to the outstanding Common Stock (or any securities convertible or exchangeable therefor pursuant to their terms);
III. any transaction with any stockholder or Affiliate of a stockholder or any Director or officer of the Company or any of its subsidiaries (other than employment agreements with officers not otherwise affiliated with a stockholder);
IV. winding up the Company; and
V. entering into of any agreement with respect to the matters described in the foregoing clauses (I) through (IV) or the making of taking any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities such action indirectly.
ii. none of the following actions shall be taken by the Company), except for: (i) shares issuable pursuant including any proposal by the Board to be put to the vote of the stockholders of the Company with respect thereto, without (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing prior written consent of Apax Partners for so long as Apax Partners owns at least 20% of the date hereof, Original Amount and (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable prior written consent of WCAS for so long as an introduction fee for the transaction contemplated hereby acceptable to the Investor, WCAS owns at its sole discretion; (ii) where the Investor has given notice of its declination, or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms least 20% of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;Original Amount:
5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 I. the declaration or payment of any dividend or other distribution to the making stockholders by the Company or redemption, repurchase or exchange (as applicable) of any distributions to any holders of any shares in the capital equity securities of the Company;
5.7.5 II. issuing or granting any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the sale, lease, exchange or other disposition granting of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) equity securities of the Company or its subsidiaries, other than grants under the incurrence Company’s 2021 Omnibus Incentive Plan;
III. engaging in any mergers, acquisitions, business combinations or similar transactions or entering into any arrangements or agreements relating to joint ventures or strategic partnerships with a value of any Indebtedness such transaction or capital expenditures greater than arrangement exceeding $25,000 (except in the ordinary course of business or for a debt investment in 10.0 million; and
IV. entry by the Company up to $500,000 prior into any agreement with respect to the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business of the Company or the related business plan as matters described in the SEC Documents;
5.7.10 engage in foregoing clauses (I) through (III) or taking any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 any commitment or agreement to do any of the foregoingsuch action indirectly.
Appears in 2 contracts
Samples: Director Nomination Agreement (InnovAge Holding Corp.), Director Nomination Agreement (InnovAge Holding Corp.)
Protective Provisions. For so long as the Investor holds (taking into account, for the avoidance of doubt, a designee of ACCBTa) at least 5% of the issued and outstanding share capital of the Company, no obligation of The parties hereto agree that the Company and its Subsidiaries shall have the right to terminate their intellectual property and license, sub-license or contribute their intellectual property to third parties other than the Fortress Shareholders (whichany such transaction, for purposes of this Section is deemed to include any subsidiary of the Companyan “IP Transaction”) will be entered into, no decision will be made, and no action will be taken by or with respect to the Company, either directly or indirectly (including by merger, consolidation or reclassification, or through the making of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investor:
5.7.1 any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares or other securities (including convertible debt) of the Company (or the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company), except for: (i) shares issuable pursuant to (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declination, or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the sale, lease, exchange or other disposition granting of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) of the Company or the incurrence of any Indebtedness or capital expenditures greater than $25,000 (except in the ordinary course of business pursuant to any research and development, collaboration, consortium, joint development, distribution, service, joint marketing, co-branding or for a debt investment co-distribution agreement or other similar agreements or arrangements entered into in the Company up to $500,000 prior to ordinary course of business and in a manner consistent with market practice for the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence industry of the Company;; provided that, until such time as the Fortress Shareholders own in the aggregate less than 10% of the then outstanding Ordinary Shares (including Ordinary Shares underlying American Depositary Shares) for more than [***], any Dartmouth IP Transaction shall be subject to approval by the Board of Directors, including the vote of at least one Fortress Designee.
5.7.8 (b) Until such time as the creation, acquisition or disposition Fortress Shareholders own in the aggregate less than 10% of any subsidiarythe then outstanding Ordinary Shares (including Ordinary Shares underlying American Depositary Shares) for a period of more than [***], the purchase Company and its Subsidiaries shall not, directly or acquisition indirectly, without the consent of each Shareholder, (i) incur or issue any partnership interest or securities issued by, or other equity or ownership interest in, indebtedness that would encumber any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business intellectual property of the Company or any of its Subsidiaries, (ii) issue any Equity Securities of the related business plan as described Company that are senior to the Ordinary Shares with respect to the right to receive (x) dividends or other distributions to shareholders or (y) proceeds in the SEC Documents;
5.7.10 engage event of the liquidation, dissolution or winding-up of the Company (including for such purposes in connection with any share sale change of control transaction), (iii) alter, amend or exchangechange the rights, mergerpreference or privileges of the Ordinary Shares, consolidationincluding in connection with any reclassification, amalgamationrecapitalization, arrangementreorganization or restructuring, asset acquisition (iv) recommend, directly or indirectly, or take any other similar transaction action to (A) increase or decrease the effect of which is to place control size of the business Board of Directors or (B) co-opt or appoint to the Board of Directors in place of a Fortress Designee any Person other than a Fortress Designee, (v) make any proposal to amend, repeal or otherwise modify any provision of the Company’s articles of association that would be reasonably expected to adversely affect the interests of any Fortress Shareholder or (vi) make any proposal to modify the rights of any Equity Securities of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation a manner adverse to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 any commitment or agreement to do any of the foregoingShareholder.
Appears in 2 contracts
Samples: Shareholders’ Rights Agreement (Fortress Investment Group LLC), Shareholders’ Rights Agreement (Fortress Investment Group LLC)
Protective Provisions. For so long (a) The Company shall not sell or issue any New Securities without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Investor holds Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders. The Company shall not sell or issue any New Securities at a purchase price that has a pre-money valuation of the Company of less than US$6 billion without first obtaining the approval (taking by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 90% of the then total issued and outstanding Ordinary Shares held by all Shareholders.
(b) Without prejudice to Section 10.2(a) above, the Company shall not, and shall not permit any other applicable Group Company to, except as expressly permitted under this Agreement or in connection with any put right of a Shareholder as set forth in the applicable Subscription Agreements, carry out any of the following actions involving itself or any of its Subsidiaries as applicable without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the Shareholders holding at least 66.7% of the then total issued and outstanding Ordinary Shares held by all Shareholders:
(i) altering or changing the rights, or privileges of the Ordinary Shares or creating (by reclassification or otherwise) any new class or series of shares having rights, preferences or privileges senior to or on a parity with the Ordinary Shares;
(ii) reclassifying any outstanding Ordinary Shares into accountshares having rights, preferences or privileges with respect to dividends or assets senior to or on a parity with the Ordinary Shares;
(iii) declaring or paying any dividend or distribution or otherwise redeeming or repurchasing any issued and outstanding shares of the Company;
(iv) making any acquisition, sale of control or assets, merger, consolidation, joint venture or partnership arrangements exceeding the materiality threshold established by the Board from time to time, except pursuant to the exercise of the Drag-Along Right;
(v) effecting an increase or reduction of the authorized share capital, split-off, spin-off, dissolution, liquidation, winding-up or bankruptcy of the Company or any material Subsidiary thereof (for the avoidance of doubt, a designee of ACCBT) at least 5% of the issued and outstanding share capital of the Company, no obligation of the Company (which, for purposes of this Section is deemed to include any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken by or with respect to the Company, either directly or indirectly (including by merger, consolidation or reclassification, or through the making of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investor:
5.7.1 any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares under the exceptional proviso of the definition of “New Securities” shall not be subject to such approvals);
(vi) selling, mortgaging, pledging, leasing, transferring, incurring a lien on or other securities (including convertible debt) otherwise disposing of substantially all of its assets or any of the assets which are outside the ordinary course of business of the Company and exceeding the materiality threshold established by the Board from time to time;
(vii) making any material changes to or engaging in any business materially different from the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company), except for: (i) shares issuable pursuant to (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declinationCore Business, or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts ceasing any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase material existing business line or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital activities of the Company;
5.7.5 (viii) incurring any dealings withmaterial indebtedness or assuming any material financial obligation exceeding the materiality threshold established by the Board from time to time and outside the ordinary course of business of the Company;
(ix) making any capital expenditures or investment in any other company exceeding US$400,000,000 or such other materiality threshold established by the Board from time to time;
(x) creating any encumbrance over the whole or part of the share capital, undertaking, material property or material assets of the Company or any material Subsidiary thereof, other than as permitted by the annual budget or the making business and financial plan approved by the Board;
(xi) increasing or decreasing the authorized size of the Board; or
(xii) amending or waiving any provision of the Articles in a manner that would alter or change the rights, preferences or privileges of the Ordinary Shares.
(c) The Company shall not, and shall not permit any other Group Company to, make any changes to any of the Control Documents including any transfer or assignment of any payments party’s rights and obligations under any of the Control Documents and any appointment of representatives, specified persons or proxies under the Control Documents, except as contemplated in this Agreement or by the Tencent Transaction Documents, without first obtaining the approval (by vote or written consent, as provided by applicable Laws or the Articles) of the holders of at least 66.7% of the then total issued and outstanding Ordinary Shares of the Company.
(d) Without prejudice to Section 10.2(b) above, the Company shall not, and shall not permit any other Group Company to, carry out any Person that is not at arm’s length to of the Company, its directors, officers, employees or shareholders (following actions involving itself or any of their respective Affiliates)its Subsidiaries without first obtaining the prior written approval of Tencent:
(i) any merger, except for those outstanding obligations existing as consolidation, transfer of shares or other form of restructuring of the date hereofCompany involving a Restricted Person;
5.7.6 the sale, lease, exchange or other disposition granting (ii) any sale of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) of the Company or the incurrence Group Companies to a Restricted Person; (iii) any issuance of any Indebtedness or capital expenditures greater than $25,000 (except in the ordinary course of business or for a debt investment in New Securities by the Company up to $500,000 prior to the First Closing Date)any Restricted Person;
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in (iv) entering into any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business of the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other partnership arrangement with a Restricted Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 (v) engaging in any commitment or agreement to do any of business other than the foregoingCore Business.
Appears in 2 contracts
Samples: Shareholder Agreement (Tencent Music Entertainment Group), Shareholder Agreements
Protective Provisions. For so long as the Investor holds (taking into account, for the avoidance of doubt, a designee of ACCBT) Beneficial Ownership Percentage is at least 5% of the issued and outstanding share capital of the Companytwenty-five percent (25%), no obligation of the Company (whichwill not, for purposes of this Section is deemed to include any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken by or with respect to the Company, either directly or indirectly (including by merger, consolidation or reclassification, or through the making of any shareholder proposal by any of its shareholder), with respect to the following matters without the prior written consent of the Investor:
5.7.1 (a) amend any change of the Company’s Organizational Documents (except as provided in the Certificate of Incorporation Section 3.11);
(b) declare or the Bylawspay any dividends, purchase, redeem, retire, or alteration 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 capital structure Company from retiring, repurchasing or otherwise acquiring Ordinary Shares (including Ordinary Shares represented by American Depositary Shares) or Share Equivalents (x) pursuant to existing agreements or pursuant to future agreements approved by the Board (including at least one (1) Investor Director), or (y) any securities held by officers, employees, directors or consultants of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares or other securities (including convertible debt) of in which the Company (or has the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement option to allot or issue any shares or other securities of the Company), except for: (i) shares issuable pursuant to (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declination, or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemptionretire, repurchase or other acquisition by otherwise acquire such shares upon the Company occurrence of any certain events, including, without limitation, the termination of its shares (or the payment into or setting aside of a fund for such purpose)employment;
5.7.4 the declaration (c) liquidate, dissolve or payment of any dividend or the making of any distributions to any holders of any shares in the capital of wind up the Company;
5.7.5 any dealings with(d) merge or consolidate, or engage in a consolidation or scheme of, the making Company with another entity pursuant to which the holders of any payments to, any Person that is not at armthe Company’s length voting equity securities as of immediately prior to the Company, its directors, officers, employees or shareholders transaction own less than fifty percent (or any 50%) of their respective Affiliates)the voting securities of the surviving entity, except for those outstanding obligations existing as a merger or consolidation effected solely for the purpose of changing the date hereofCompany’s domicile or jurisdiction of incorporation or organization;
5.7.6 the sale(e) sell, lease, exchange license or other disposition granting dispose of a security interest in, or exclusive license of, any material part of or all or substantially all of the property Company’s assets;
(f) increase or assets (including intellectual property) decrease the authorized number of members of the Company or the incurrence of any Indebtedness or capital expenditures greater than $25,000 (except in the ordinary course of business or for a debt investment in the Company up to $500,000 prior to the First Closing Date)Board;
5.7.7 (g) enter into any business other than the taking of any steps to voluntarily liquidate, dissolve, windsolar-up or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business of the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements)business; or
5.7.13 any commitment (h) amend the Notes or agreement to do any of the foregoingIndenture.
Appears in 2 contracts
Samples: Shareholder Agreement (Solarfun Power Holdings Co., Ltd.), Shareholder Agreement (Hanwha Solar Holdings Co., Ltd.)
Protective Provisions. For so long as the Investor holds (taking into account, for the avoidance of doubt, a designee of ACCBT) at least 5% of the issued and outstanding share capital of the Company, no obligation of the The Company (which, for purposes of this Section is deemed to include any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken by or with respect to the Companyshall not, either directly or indirectly (including by amendment, merger, consolidation or reclassificationotherwise, or through the making of any shareholder proposal by do any of its shareholder), with respect to the following matters without (in addition to any other vote required by the LLC Law or this Agreement) the written consent or affirmative vote of the Investorholders of at least 75% of the then outstanding Voting Preferred Units (including in such supermajority each Member or stockholder of Holdco which at the time is a Significant Securityholder), given in writing or by vote at a meeting, and any such act or transaction entered into without such consent or vote shall he null and void ab initio, and of no force or effect:
5.7.1 any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares or other securities (including convertible debt) of the Company (or the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company), except for: (i) shares issuable pursuant to (A) the Warrants, amend or repeal any provision of this Agreement and outstanding share options, convertible debt or warrants existing as of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declination, or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital organizational documents of the Company;
5.7.5 (ii) authorize or issue any dealings withclass or series of Equity Security having any right, preference or priority superior to or on a parity with the Series B Preferred Units;
(iii) except (A) with respect to the adjustments set forth in Section 2.1 and (B) in connection with the issuance of one Common Unit to Holdco in respect of each share of Common Stock issued by Holdco pursuant to Holdco’s 2011 Equity Incentive Plan, up to a maximum number of such Common Units equal to 2,285,317 minus the number of shares of Common Stock of Holdco outstanding as of the Effective Date (provided that (i) the foregoing maximum shall be increased to the extent that any shares of Common Stock of Holdco outstanding as of the Effective Date are repurchased by Holdco and (ii) any such Units issued in respect of shares of Common Stock repurchased by Holdco shall not be counted toward such maximum number unless and until such shares are re-granted) in accordance with the terms of the Master Rights Agreement;
(iv) redeem, retire, purchase or acquire, directly or indirectly, Units (other than with respect to the recovery of Common Units from Holdco upon (A) the repurchase or forfeiture of Common Stock issued by Holdco under the Holdco Stock Plan or (B) as contemplated by Section 9.1(1) of the Master Rights Agreement);
(v) materially change the Business;
(vi) grant any exclusive license to any of the Company’s or any of its subsidiaries’ material intellectual property rights;
(vii) incur or guarantee, or the making of any payments topermit its subsidiaries to incur or guarantee, any Person that is not at arm’s length to indebtedness in excess of $15,000,000;
(viii) liquidate, dissolve or wind up the Company, its directors, officers, employees or shareholders (cause the bankruptcy or any of their respective Affiliates), except for those outstanding obligations existing as voluntary insolvency of the date hereofCompany;
5.7.6 (ix) hire, terminate or change the sale, lease, exchange or other disposition granting compensation of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) employee of the Company or the incurrence any of any Indebtedness its subsidiaries whose annual base salary is equal to or capital expenditures greater than $25,000 180,000;
(x) pay or declare any Distributions or dividends (other than as provided in Sections 5.1 and 5.3);
(xi) unless approved by a majority of the Board, including in such majority at least one designee of each Significant Securityholder, approve or amend the Company’s operating plan (the “Annual Budget”) for any fiscal year (it being understood that deviations from the Annual Budget as contemplated by subclause (xii) below shall not be deemed amendments to the Annual Budget);
(xii) unless approved by a majority of the Board, including in such majority at least one designee of each Significant Securityholder, make or permit its subsidiaries to make any expenditures or commitments (A) in excess of 5% of the total operating expenses reflected in the Annual Budget, or (B) in excess of 10% of the amount reflected in any line item in the Annual Budget;
(xiii) sell assets of the Company or any of its subsidiaries in a single transaction or series of related transactions having a fair market value in excess of $15,000,000, or make or permit its subsidiaries to make investments in or acquisitions of any Person, which investment or acquisition has a fair market value in excess of $15,000,000;
(xiv) otherwise enter into or be a party to or permit any of its subsidiaries to enter into or be a party to any transaction with any affiliate, director, officer, or employee of the Company or any “associate” (as defined in Rule 12b-2 promulgated under the Exchange Act) of any such Person, except for transactions with respect to which it is reasonably apparent from the face of the agreement, taking into account the entire agreement, contemplated by agreements in effect as of the Original Issue Date (and as such agreements are in effect as of the Original Issue Date), and transactions in the ordinary course of business and pursuant to reasonable requirements of the Business and upon fair and reasonable terms that are approved by a majority of the disinterested members of the Board after disclosure of the affiliate relationship;
(xv) effect or make any subdivision, recapitalization or reorganization of the outstanding Units, or any split of or dividend or distribution payable in, Units (collectively, a “Recapitalization”), except for a debt investment Recapitalization of any Corresponding Units (as defined in the Company up Master Rights Agreement) that is concurrently effected or made in an identical manner by Holdco with respect to $500,000 prior to its applicable outstanding Corresponding Shares (as defined in the First Closing DateMaster Rights Agreement), in compliance with the Master Rights Agreement;
5.7.7 the taking of (xvi) except as otherwise provided in this Agreement, make any steps to voluntarily liquidate, dissolve, wind-up significant tax elections; and
(xvii) enter into any agreement or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business of covenant that obligates the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 any commitment or agreement subsidiary to do any of the foregoing.
Appears in 1 contract
Protective Provisions. For so (a) So long as the Investor holds (taking into account, for the avoidance of doubt, a designee of ACCBT) at least 5% of the issued and outstanding share capital of the Company, no obligation of the Company (which, for purposes of this Section is deemed to include any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken by or with respect to the Company, either directly or indirectly (including by merger, consolidation or reclassification, or through the making of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investor:
5.7.1 any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares of Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or other securities (including convertible debtwritten consent, as provided by law) of the Company holders of at least seventy percent (or 70%) of the entering into shares of any agreement or the making of any offer or the granting of any right capable of becoming Preferred Stock outstanding (voting together as a single class and on an agreement to allot as-converted basis):
(i) Authorize or issue any shares equity security senior or other securities of the Company), except for: (i) shares issuable pursuant to (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable pari ---- passu to the Investor, at its sole discretion; Preferred Stock as to dividend rights or redemption rights or ----- liquidation preferences;
(ii) where the Investor has given notice of its declinationSell, convey, or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the sale, lease, exchange or other disposition granting of a security interest in, or exclusive license of, any material part dispose of or encumber all or substantially all of the its property or assets business or merge into or consolidate with any other corporation (including intellectual propertyother than a wholly-owned subsidiary corporation) or effect any transaction or series of related transactions in which more than fifty percent (50%) of the Company voting power of the corporation is disposed of;
(iii) Whether by amendment of the corporation's Bylaws, amendment of this Certificate of Incorporation or otherwise, alter or change the rights, preferences or privileges of the shares of Preferred Stock, so as to affect adversely such shares; or
(iv) Take any action that would result in taxation of the holders of shares of the Preferred Stock under Section 305 of the Internal Revenue Code of 1986, as amended (or by comparable provision of the Internal Revenue Code as herein from time to time amended);
(v) Effect a material change in the nature of the Company's business as conducted on the date hereof; or
(vi) Approve or authorize the incurrence of any Indebtedness indebtedness or capital expenditures greater the issuance of any guarantee of any obligation of any other person or entity (other than a subsidiary) if the aggregate amount of the principal amount of such indebtedness and the principal amount of the indebtedness so guaranteed shall exceed $25,000 7,500,000; Further, so long as at least 1,000,000 shares of Preferred Stock remain outstanding and unless unanimously approved by the Board of Directors of this corporation, this corporation shall not take any of the following actions without first obtaining the approval (except by vote or written consent, as provided by law) of the holders of at least seventy percent (70%) of the then outstanding shares of Preferred Stock:
(vii) make any loans or advances to its employees or any members of their immediate families, other than travel advances and other advances made in the ordinary course of business or loans to employees made pursuant to promissory notes issued for the purchase of shares under a debt investment stock option plan or restricted stock plan approved by the Board of Directors of this corporation; or
(viii) guarantee any indebtedness or obligation of any other party other than in the Company up to $ordinary course of business.
(b) In addition, so long as at least 500,000 prior to shares of Series D Preferred Stock are outstanding, this corporation shall not without first obtaining the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidateapproval (by vote or written consent, dissolve, wind-up or otherwise terminate the corporate existence as provided by law) of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business of the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition holders of at least the majority of shares or all, or substantially all, fifty percent (50%) of the assets shares of Series D Preferred stock outstanding
(i) Authorize or issue any other Personequity security senior or pari passu to the Series D Preferred Stock as to dividend rights or redemption ---------- rights or liquidation preferences;
5.7.12 pay any compensation (ii) Whether by amendment of the corporation's Bylaws, amendment of this Certificate of Incorporation or otherwise, alter or change the rights, preferences or privileges of the shares of Series D Preferred stock, so as to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements)affect adversely such shares; or
5.7.13 any commitment or agreement (iii) Amend Section 3(b) of this Article IV so as to do any of affect adversely the foregoingSeries D Preferred Stock.
Appears in 1 contract
Protective Provisions. For so long In addition to such other limitations as may be provided herein or in the Investor holds (taking into account, for the avoidance Articles of doubt, a designee of ACCBT) at least 5% of the issued and outstanding share capital Association of the Company, no obligation the following acts of the Company shall require a resolution of Shareholders which shall include the prior written approval of the holder(s) of at least 75% of the outstanding Preferred Shares (whichon an as-converted basis); provided that such requirement shall terminate upon a Qualified Public Offering:
(1) any amendment or change of the rights, preferences, privileges or powers of, or the restrictions provided for purposes of this Section is deemed to include any subsidiary the benefit of, the Preferred Shares of the Company;
(2) will be entered intoany action to authorize, no decision will be made, and no action will be taken by create or with respect to the Company, either directly or indirectly (including by merger, consolidation or reclassification, or through the making issue shares of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investor:
5.7.1 any change in the Certificate of Incorporation class or the Bylaws, or alteration of the capital structure series of the Company through having preferences superior to or on a parity with the Preferred Shares in any reclassification or consolidationaspects including without limitation dividend rights, redemption rights and/or liquidation rights;
5.7.2 the allotment or (3) any new issuance of any shares or other securities (including convertible debt) of the Company (or the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other equity securities of the Company), except for: excluding (i) any issuance of the Series A1 Shares under the Purchase Agreement, (ii) any issuance of Ordinary Shares upon conversion of the Preferred Shares, and (iii) the issuance of up to 66.58 Ordinary Shares (or options or warrants therefor) under employee equity incentive plans approved by the Board and the holders of the Preferred Shares;
(4) any action of the Company to reclassify any outstanding shares issuable into shares having preferences or priority as to dividends or assets senior to or on a parity with the preference of the Preferred Shares;
(5) any increase or decrease of the authorized number of Ordinary Shares or Preferred Shares of the Company;
(6) any repurchase or redemption of any equity securities of the Company other than pursuant to (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as redemption right of the date hereofholders of Preferred Shares as provided in the Memorandum and Articles, or (B) up contractual rights to 2,180,000 shares issuable to Company’s service providers under existing arrangementsrepurchase Ordinary Shares from the employees, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice directors or consultants of its declination, or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company upon termination of up their employment or services or pursuant to $500,000, in the same terms a contractual right of the investments made first refusal held by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 (7) any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as amendment of the date hereofMemorandum and Articles of Association or other charter documents of the Company (including any Major Subsidiary);
5.7.6 (8) 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;
(9) the sale, lease, exchange transfer or other disposition granting of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) of the Company (including any Subsidiary), except for intra-group transactions among the Company and any Subsidiaries;
(10) any licensing or otherwise transfer of the incurrence patents, copyrights, trademarks or other intellectual property of the Company (including any Indebtedness or capital expenditures greater Subsidiary) other than $25,000 (except in the ordinary course of business or its business, except for a debt investment in intra-group transactions among the Company up to $500,000 prior to the First Closing Date)and any Subsidiaries;
5.7.7 (11) any increase or decrease of the taking authorized number of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence board members of the Company;
5.7.8 (12) the creationliquidation, acquisition dissolution or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business winding up of the Company or the related business plan as described in the SEC Documents(including any Subsidiary);
5.7.10 engage in any share sale (13) the declaration or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition payment of a dividend or any other similar transaction the effect of which is to place control distribution on Ordinary Shares or Preferred Shares of the business Company;
(14) any increase of the number of Ordinary Shares of the Company reserved under any employee equity incentive plan;
(15) 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 twenty percent (20%) in a twelve (12) month period;
(16) 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;
(17) any incurrence of indebtedness in excess of US$300,000 in the hands aggregate to the Company (including any Subsidiary), or creation of an arm’s length third partyany encumbrance whatsoever upon the assets, patents, copyrights, trademarks or other intellectual property of the Company (including any Subsidiary);
5.7.11 (18) any acquisition purchase by the Company (including any Subsidiary) of at least the majority real property with a value of shares US$300,000 or allmore, or substantially allany purchase of production facilities with a value of US$500,000 or more, individually or in the aggregate;
(19) any transaction or series of transactions that are not in the ordinary course of the assets Company’s business where the value involved exceeds US$300,000, individually or in the aggregate, during any twelve (12) month period;
(20) approval of the annual consolidated budget of the Company;
(21) the appointment and removal of any other Personkey officer of the Company (including any Major Subsidiary), including the Chief Executive Officer and the Chief Financial Officer;
5.7.12 pay (22) the appointment and/or reappointment of auditors of the Company;
(23) any compensation to transaction involving both the Company (including any officerSubsidiary) and a shareholder or any of the Company’s employees, director officers, directors or employee involving shareholders or any affiliate of a cash shareholder or cash equivalent commitment any of more than US$60,000 per annum (not taking into account its officers, directors or shareholders, except for intra-group transactions among the Company and any share-based awards pursuant to a board approved plan or existing arrangements)Subsidiaries; or
5.7.13 (24) any commitment or agreement to do any items of capital expenditure outside the annual budget of the foregoingCompany (including any Subsidiary) in excess of US$150,000 per month, individually or in the aggregate.
Appears in 1 contract
Samples: Series A1 Preferred Share Purchase Agreement (Le Gaga Holdings LTD)
Protective Provisions. For so long Notwithstanding any other provision of this Agreement and to the fullest extent permitted by applicable law, in addition to the approval of the Directors, the following actions described in this Section 3(a) (collectively, the “Consent Matters”) shall require the prior written consent of Varsity as set out below:
i. none of the Investor holds (taking into accountfollowing actions shall be taken by the Company, for including any proposal by the avoidance Board to be put to the vote of doubtthe stockholders of the Company with respect thereto, a designee without the prior written consent of ACCBT) Varsity until such time as Varsity and its Affiliates cease to Beneficially Own shares of Common Stock representing at least 550% of the issued and outstanding share capital total voting power of the CompanyTotal Outstanding Securities (except as set forth in the proviso in Section 3(a)(i)(I)):
I. amending, no obligation altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company (whichwhich shall also be subject to Section 5 hereof), for purposes and/or the organizational documents of this Section is deemed to include any subsidiary of the Company) will be entered into; provided that, no decision will be madenotwithstanding the foregoing, for so long as Varsity owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Amended and no action will be taken by Restated Certificate of Incorporation or with respect to Amended and Restated Bylaws of the Company, either directly or indirectly that would adversely affect any rights specific to Varsity (including by merger, consolidation or reclassification, or through the making of any shareholder proposal by any of its shareholder), with respect subject to the following matters without applicable law) require the written consent of the Investor:Varsity;
5.7.1 II. authorizing or issuing any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure equity securities of the Company through having rights, preferences or privileges that are superior or senior to the outstanding Common Stock (or any reclassification securities convertible or consolidationexchangeable therefor pursuant to their terms);
5.7.2 the allotment III. any transaction with any stockholder or issuance Affiliate of a stockholder or any shares Director or other securities (including convertible debt) officer of the Company (or the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company), except for: (i) shares issuable pursuant to (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declination, or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares subsidiaries (or the payment into or setting aside of other than employment agreements with officers not otherwise affiliated with a fund for such purposestockholder);
5.7.4 IV. winding up the Company;
V. the declaration or payment of any dividend or other distribution to the making stockholders by the Company or redemption, repurchase or exchange (as applicable) of any distributions to any holders of any shares in the capital equity securities of the Company;
5.7.5 VI. issuing or granting any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the sale, lease, exchange or other disposition granting of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) equity securities of the Company or its subsidiaries, other than (A) grants under the incurrence Company’s 2021 Omnibus Incentive Plan, or (B) in connection with transactions consistent with certain specified strategies; and
VII. engaging in any mergers, acquisitions, business combinations or similar transactions or entering into any arrangements or agreements relating to joint ventures or strategic partnerships with a value of any Indebtedness such transaction or capital expenditures greater than arrangement exceeding $25,000 (except in the ordinary course of business or for a debt investment in 300.0 million; and
VIII. entry by the Company up to $500,000 prior into any agreement with respect to the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business of the Company or the related business plan as matters described in the SEC Documents;
5.7.10 engage in foregoing clauses (I) through (VIII) or taking any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 any commitment or agreement to do any of the foregoingsuch action indirectly.
Appears in 1 contract
Samples: Director Nomination Agreement (Specialty Building Products, Inc.)
Protective Provisions. For so long as the Investor holds (taking into accounta) The Company shall not, for the avoidance of doubt, a designee of ACCBT) at least 5% of the issued and outstanding share capital of the Company, no obligation of the Company (which, for purposes of this Section is deemed to include any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken by or with respect to the Company, either directly or indirectly (including by merger, consolidation or reclassification, or through the making of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investoreach Shareholder:
5.7.1 any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares or other securities (including convertible debt) of the Company (or the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company), except for: (i) shares issuable pursuant to (A) the Warrantsamend, this Agreement and outstanding share options, convertible debt alter or warrants existing as repeal any provision of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, Memorandum and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; Articles of Association in a manner that would adversely effect any Shareholder;
(ii) where the Investor has given notice sell, transfer or lease, whether in a single transaction or pursuant to a series of its declinationrelated transactions or plan, all or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms a substantial portion of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the sale, lease, exchange or other disposition granting of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) of the Company or any of its material Subsidiaries;
(iii) effect a voluntary liquidation, dissolution or winding up of the incurrence Company or any of its material Subsidiaries;
(iv) approve any Indebtedness merger, scheme of amalgamation or capital expenditures greater than $25,000 similar transaction in connection with which (i) the Shares held immediately prior to a transaction by a Shareholder will be diluted disproportionately to any other Shareholders (except where this arises in a transaction involving the issuance of Shares by the Company and a Shareholder has not exercised its pre-emptive rights set out in Article IV) or (ii) any Shareholder would not receive the same form of consideration as any other Shareholders; or
(v) convert (by merger or otherwise) the Company from an exempted company incorporated in the ordinary course of business or for a debt investment in the Company up Cayman Islands with limited liability to $500,000 prior to the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation other than an entity with the same tax attributes in any joint venture another jurisdiction.
(b) The Company shall not, without Supermajority Consent:
(i) appoint outside independent auditors for the Company or strategic alliancereplace such auditors;
5.7.9 any material (ii) materially change to the direction nature of the business of the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements)and its Subsidiaries; or
5.7.13 (iii) issue equity incentive awards (either in the form of options, restricted stock or other similar awards) to directors, officers or employees, which awards represent in the aggregate in excess of 10% of the outstanding Shares, calculated as of December 29, 2006 (giving effect to any commitment stock splits, combinations or agreement to do similar transactions effected after such date).
(c) The Company shall not enter into any Related Party Transaction unless approved by the Shareholders representing a majority of the outstanding Shares (other than those Shares Beneficially Owned by any Shareholder who may have an interest (other than as a Shareholder) in such Related Party Transaction, either directly or indirectly through such Shareholder’s Affiliates or a Significant Shareholder Debtor, as the case may be).
(d) The Company shall not redeem Capital Securities other than on a pro rata basis from every Shareholder holding such Capital Securities and the Company shall not redeem debt securities held by any Shareholder or any of its Affiliates, except as required by the foregoingNote Purchase Agreement or the terms of the Notes; provided that the foregoing shall not prohibit the redemption or repurchase of Capital Securities issued to directors, officers or employees of the Company, whether originally issued pursuant to an employee stock plan approved by the Board of Directors or otherwise, at a purchase price of not more than the fair market value of such Capital Securities at the time of the redemption or repurchase, as reasonably determined by the Board of Directors or any committee delegated by the Board of Directors.
(e) Each Shareholder agrees (i) not to, and cause the Company, its Subsidiaries and its representatives not to, take any action that, directly or indirectly, will frustrate or circumvent the provisions of this Agreement, and (ii) to cause its representatives on the Board, consistent with their fiduciary obligations under applicable law, to act in the best interest of all members/shareholders and not individual shareholders/members.
(f) The Company shall only appoint a director, officer, manager or employee, including the determination of the terms on which such director, officer, manager or employee shall serve and any remuneration to be paid, on arms length terms or terms more favorable to the Company than arms length terms.
(g) As soon as reasonably practicable following the request of Xxxxxxx, which request may be made at any time after Xxxxxxx ceases to own at least a majority of the outstanding Capital Securities, the Company shall (i) cease, and cause its Affiliates to cease, to use the name “Xxxxxxx” or any abbreviation of or derivation from that name or any name similar to it in any form whatsoever, including in respect of advertising and promotional materials and (ii) amend its memorandum and articles of association or similar governing document to change its name to a name that does not contain the word “Xxxxxxx,” or substantially similar words. Each Shareholder shall take all necessary action, in its capacity as a shareholder of the Company, to cause the Company to comply with its obligations under this Section 7.4(h).
Appears in 1 contract
Samples: Shareholders Agreement (Aei)
Protective Provisions. For so long Provided that by January 8, 2010, the Company has received the Aggregate Investment Amount in accordance with the Purchase Agreement and provided further that Rock Island or the members of Rock Island as of September 9, 2009) (including any member of Rock Island to whom rights or securities purchased under the Investor holds (taking into accountPurchase Agreement were assigned as of September 9, for the avoidance of doubt2009), a designee of ACCBT) still beneficially own at least 566% of the issued and outstanding share capital 550,055 shares of the Company’s Series B Preferred Stock purchased pursuant to the Purchase Agreement, no obligation the Company shall not, without first obtaining the approval of the Company holders of at least two-thirds of the then outstanding shares of Series B Preferred Stock voting together as a single class:
(which, for purposes i) increase or decrease the authorized size of this Section is deemed the Board or any committee thereof or create any new committee of the Board;
(ii) propose to include amend or waive any subsidiary provision of the Company’s constitutional documents;
(iii) will be entered into, no decision will be made, and no action will be taken by or except with respect to an Exempt Issuance, sell or issue any equity or debt security or warrant, option or other right to purchase any equity or debt security (with the Company, either directly or indirectly (including by merger, consolidation or reclassification, or through the making of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investor:
5.7.1 any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance exception of any shares or other securities (including convertible debt) issued upon conversion of shares of the Company (Series B Preferred Stock or the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company), except for: (i) shares warrants issuable pursuant to (Athe Purchase Agreement) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declination, declare or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of pay any dividend or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 any dealings withdistribution or redeem or make, or the making of any payments to, any Person engage in a transaction that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the sale, lease, exchange or other disposition granting of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) of the Company or the incurrence of any Indebtedness or capital expenditures greater than $25,000 (except in the ordinary course of business or for a debt investment in the Company up to $500,000 prior to the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest results in, any other entityacquisition, participation in any joint venture sale of a substantial portion of equity or strategic alliance;
5.7.9 any material change to the direction of the business of the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchangeassets, merger, consolidation, amalgamation, plan of arrangement, asset acquisition redomiciling, joint venture or partnership arrangements or form any other similar transaction the effect new subsidiary (including any “variable interest entity”) or pass any resolution relating to reduction of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares share capital, dissolution or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements)liquidation; or
5.7.13 (iv) engage or enter into any commitment transaction or agreement to do with any of the foregoingCompany’s affiliates, shareholders, directors or officers, relatives of such shareholders, directors or officers or affiliates of such relatives or other related parties. For the avoidance of doubts, this Section 7 does not intend to, nor does it, create and recognize any additional rights (other than those rights already provided in the General Corporation Law of the State of Delaware or other applicable laws) to stockholders that are not holders of the Series B Preferred Stock. The approval requirement of the holders of the Series B Preferred Stock as set forth above for any matters listed in this Section 7 does not, by itself, indicates that such matter must be determined or approved by stockholders in general.
Appears in 1 contract
Samples: Series B Convertible Preferred Stock Purchase Agreement (Echo Metrix, Inc.)
Protective Provisions. For so long as 6.1 At any time when MX Xxxxxx holds any shares of Transfer Stock, the Investor holds Company shall not, without the written consent or affirmative vote of each of NXXX and MX Xxxxxx (taking into accountin addition to any other vote required by law or pursuant to the Amended Articles), for the avoidance of doubteither directly or indirectly whether by amendment, a designee of ACCBT) at least 5% merger, consolidation, domestication, transfer, continuance, recapitalization, reclassification, waiver, statutory conversion, or otherwise effect any of the issued following acts or transactions (and outstanding share capital any such act or transaction that has not been approved by such consent or vote prior to such act or transaction being effected shall be null and void ab initio, and of no force or effect):
(a) create or issue, or obligate itself to issue, shares of any Capital Stock to any Stockholder or any of its Affiliates or reclassify any Transfer Stock held by any Stockholder or any of its Affiliates unless the Companysame ranks junior or pari passu to the Common Stock then held by the Stockholders with respect to rights, no obligation preferences and privileges (the “Reclassified Stock”);
(b) cause any direct or indirect subsidiary of the Company to issue, or obligate such subsidiary to issue, any securities to any Stockholder or any of its Affiliates;
(whichc) issue, or obligate itself to issue, any debt security to any Stockholder or any of its Affiliates or otherwise incur any indebtedness for purposes borrowed money from any Stockholder or any of its Affiliates, or permit any subsidiary to take any such action with respect to any debt security or other indebtedness for borrowed money;
(d) effect a Sale of the Company to any Stockholder or any of its Affiliates the effect of which results in such Stockholder or any of its Affiliates owning all outstanding Transfer Stock held by any other Stockholders (or otherwise squeezing out any other Stockholders) or which is otherwise not in compliance with the terms of this Section Agreement;
(e) change the number of votes entitled to be cast by any director or directors on any matter;
(f) purchase or redeem (or permit any subsidiary to purchase or redeem) any Transfer Shares held by any Stockholder or its Affiliates;
(g) pay or declare any dividend or make any distribution on any shares of Reclassified Stock unless a corresponding dividend or distribution is deemed to include made on the Common Stock at the same time;
(h) liquidate, dissolve or wind-up the business and affairs of the Company or any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken by or with respect to the Company, either directly or indirectly (including by merger, consolidation or reclassification, or through the making of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investor:; or
5.7.1 any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares or other securities (including convertible debt) of the Company (or the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company), except for: (i) shares issuable pursuant to (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declinationenter into any agreement, or otherwise failscommit, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the sale, lease, exchange or other disposition granting of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) of the Company or the incurrence of any Indebtedness or capital expenditures greater than $25,000 (except in the ordinary course of business or for a debt investment in the Company up to $500,000 prior to the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business of the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 any commitment or agreement to do any of the foregoing.
Appears in 1 contract
Protective Provisions. For In addition to any approvals required by law, so long as the Investor holds (taking into accountPurchasers retain through beneficial ownership shares of capital stock representing, for the avoidance of doubton an as-converted basis, a designee of ACCBT) at least 57.5% of the issued outstanding shares of Common Stock on an as-converted basis (after giving effect to and assuming exercise or conversion of all outstanding share capital options, warrants and other convertible securities, whether or not vested), the Company shall not without first obtaining the approval (by vote or written consent, as provided by law) of the Company, no obligation holders of at least 70% of the Company shares of Series B Preferred Stock purchased under this Agreement or the Common Stock into which such shares are converted:
(which, for purposes of this Section is deemed to include any subsidiary of the Companya) will be entered into, no decision will be made, and no action will be taken by or with respect to the Company, either directly or indirectly (including by consummate a merger, consolidation or reclassification, or through the making sale of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investor:
5.7.1 any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares or other securities (including convertible debt) of the Company (or the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company), except for: (i) shares issuable pursuant to (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declination, or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the sale, lease, exchange or other disposition granting of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) of the Company in which the per share consideration received by the holders of Series B Preferred Stock is less than three (3) times the Conversion Price in effect immediately prior to the vote of the stockholders of the Company to approve such transaction or, if there shall be no such vote, the date of such transaction;
(b) repurchase or redeem equity securities or debt (other than redemptions pursuant to Section 6 of the incurrence Certificate of Designation and except to the extent that such debt is due in accordance with its terms);
(c) authorize or issue any Indebtedness equity securities senior to or capital expenditures greater pari passu with the Series B Preferred Stock;
(d) authorize or issue any additional shares of Series B Preferred Stock;
(e) increase or decrease the authorized size of the Company's Board of Directors;
(f) incur, refinance, guarantee or assume any indebtedness other than $25,000 (except in the ordinary course of business or for a debt investment in the Company up to $500,000 prior to the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidatebusiness, dissolve, wind-up or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business provided that all indebtedness of the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is (including drawdowns under existing credit facilities) does not exceed an amount equal to place control 10% of the business market capitalization of the Company in the hands aggregate at the time of an arm’s length third partyincurrence;
5.7.11 (g) create, incur or assume any acquisition lien or encumbrance of at least the majority of shares or all, or substantially all, of any kind upon the assets of any the Company, whether now owned or hereafter acquired, other Personthan existing liens or encumbrances in excess of an amount equal to 10% of the market capitalization of the Company at the time of the creation, incurrence or assumption;
5.7.12 pay (h) engage in transactions with Affiliates other than those approved by the Compensation Committee of the Company; and
(i) establish any compensation non-wholly owned Subsidiary or sell or transfer any Subsidiary's stock or cause any Subsidiary to issue any stock to any officer, director or employee involving a cash or cash equivalent commitment of more Person other than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 any commitment or agreement to do any of the foregoingCompany.
Appears in 1 contract
Protective Provisions. For so long as Until the Investor holds earlier of (taking into account, for x) the avoidance of doubt, a designee of ACCBT) at least 5date on which less than 25% of the issued and shares of Series B1/B2/B3/B4 Preferred Stock are outstanding share capital after the applicable Initial Issue Date of the CompanySeries B1/B2/B3/B4 Preferred Stock, no obligation (y) the Series B1 Transition Date, Series B2 Transition Date, Series B3 Transition Date, or the Series B4 Transition Date, as the case may be and (z) the effective date of a Deemed Liquidation, the Corporation shall not, and shall not permit any of its Subsidiaries to, directly or indirectly, without the affirmative vote (or written consent as permitted by the DGCL, the Certificate of Incorporation and Bylaws) of the Company Requisite Holders, voting (whichor consenting) as a separate class:
(i) amend, for purposes of this Section is deemed to include any subsidiary of the Company) will be entered intoalter, no decision will be made, and no action will be taken by modify or with respect to the Company, either directly or indirectly repeal (including whether by merger, consolidation or reclassificationotherwise) this Certificate of Designations, or through the making of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investor:
5.7.1 any change in the Certificate of Incorporation or the BylawsBylaws in any manner that adversely affects the rights, preferences, privileges or alteration of the capital structure of restrictions provided for the Company through any reclassification or consolidationbenefit of, the Series B1/B2/B3/B4 Preferred Stock;
5.7.2 the allotment (ii) authorize, create, designate, issue or issuance sell any (A) class or series of any capital stock (including shares of treasury stock) that would be classified as Senior Securities or Parity Securities or (B) rights, options, warrants or other securities (including debt securities) convertible debt) of the Company (into or the entering into of exercisable or exchangeable for capital stock or any agreement equity security or the making of having any offer other equity feature, in each case, that would be classified as either Senior Securities or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company)Parity Securities, except for: (i) shares issuable as pursuant to (A) the Warrants, this Agreement conversion or exercise of securities issued and outstanding share options, convertible debt or warrants existing as of the date hereof, (B) up Initial Issue Date of the Series B1 Preferred Stock or pursuant to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable any agreement in effect on or prior to the Investor, at its sole discretion; (ii) where Initial Issue Date of the Investor has given notice of its declination, or otherwise fails, to make further payments toward the Maximum Subscription Price; and Series B1 Preferred Stock;
(iii) where prior purchase or redeem (or permit any subsidiary to the First Closing the Company accepts purchase or redeem) or pay or declare any offer for investment in the Company dividend, or make any distribution on, any shares of up to $500,000, in the same terms capital stock of the investments made by Xxxx Xxxxxxxxx as of March 14Corporation, 2007;
5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the sale, lease, exchange or other disposition granting of a security interest in, or exclusive license of, any material part than redemptions of or all dividends or substantially all of distributions on the property or assets (including intellectual property) of the Company or the incurrence of any Indebtedness or capital expenditures greater than $25,000 (except in the ordinary course of business or for a debt investment in the Company up to $500,000 prior to the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business of the Company or the related business plan Series B1/B2/B3/B4 Preferred Stock as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements)expressly authorized herein; or
5.7.13 (iv) enter into any commitment or agreement to do any of the foregoingforegoing that is not expressly made conditional on obtaining the affirmative vote or written consent of the Requisite Holders.
Appears in 1 contract
Samples: Securities Purchase Agreement (Idera Pharmaceuticals, Inc.)
Protective Provisions. For (a) In addition to any other class vote that may be required by law, this Corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a majority of the then outstanding shares of Preferred Stock:
(i) sell, convey or otherwise dispose of all or substantially all of its property or business, or merge into or effect a reorganization with any other corporation (other than a wholly owned subsidiary corporation) in which the shareholders of this Corporation immediately prior to the transaction possess less than 50% of the voting power of the surviving entity (or its parent) immediately after the transaction, or sell the capital stock of the Corporation where the shareholders of this Corporation immediately prior to the transaction possess less than 50% of the voting power of the Corporation immediately after the transaction;
(ii) change the rights, preferences, privileges or restrictions of the Preferred Stock;
(iii) increase or decrease the aggregate number of authorized shares of Preferred Stock, other than as provided in either subdivision (b) of Section 405 or subdivision (c) of Section 902 of the California Corporations Code;
(iv) create a new class or series of shares having rights, preferences or privileges or increase the number of authorized shares of any class or shares having rights, preferences or privileges equal to or senior to any outstanding class or series;
(v) pay any dividend on or purchase, redeem or otherwise acquire any security junior to the Preferred Stock other than repurchases at cost from employees, consultants, lessors or suppliers upon termination of employment, consulting, lessor-lessee, or supplier-purchaser relationship, respectively; or
(vi) voluntarily dissolve or liquidate the Corporation.
(b) Notwithstanding the foregoing Section 6(a), in addition to any other series vote that may be required by law, so long as the Investor holds (taking into account, for the avoidance of doubt, a designee of ACCBT) at least 540% of the originally issued and outstanding share capital shares of Series C Preferred are outstanding, this Corporation shall not without first obtaining the Companyapproval (by vote or written consent, no obligation of the Company (which, for purposes of this Section is deemed to include any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken as provided by or with respect to the Company, either directly or indirectly (including by merger, consolidation or reclassification, or through the making of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investor:
5.7.1 any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares or other securities (including convertible debtlaw) of the Company (or the entering into holders of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities at least a majority of the Company), except for: then outstanding shares of Series C Preferred:
(i) shares issuable pursuant to (A) materially adversely change the Warrantsrights, this Agreement and outstanding share optionspreferences, convertible debt privileges or warrants existing as restrictions of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; Series C Preferred;
(ii) where increase or decrease the Investor has given notice aggregate number of its declinationauthorized shares of Series C Preferred, other than as provided in either subdivision (b) of Section 405 or otherwise fails, to make further payments toward subdivision (c) of Section 902 of the Maximum Subscription PriceCalifornia Corporations Code; and or
(iii) where create a new class or series of shares having rights, preferences or privileges senior to the Series C Preferred.
(c) Notwithstanding the foregoing Sections 6(a) and 6(b), in addition to any other series vote that may be required by law, so long as 40% of the originally issued shares of Series C Preferred are outstanding, this Corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of 66 2/3% of the then outstanding shares of Series C Preferred, voluntarily dissolve or liquidate, sell, convey or otherwise dispose of all or substantially all of its property or business, or merge into or effect a reorganization with any other corporation (other than a wholly owned subsidiary corporation) in which the shareholders of this Corporation immediately prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms transaction possess less than 50% of the investments made by Xxxx Xxxxxxxxx as voting power of March 14, 2007;
5.7.3 the redemption, repurchase surviving entity (or other acquisition its parent) immediately after the transaction if the consideration received by the Company holders of the Series C Preferred as a result of any such liquidation, dissolution, merger or sale of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the sale, lease, exchange or other disposition granting of a security interest in, or exclusive license of, any material part of or all or substantially all of the property assets of the Corporation is less than $2.50 per share (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such shares).
(d) Notwithstanding the foregoing Section 6(a), in addition to any other series vote that may be required by law, so long as 40% of the originally issued shares of Series D Preferred are outstanding, this Corporation shall not without first obtaining the approval (by vote or assets (including intellectual propertywritten consent, as provided by law) of the Company or the incurrence holders of any Indebtedness or capital expenditures greater than $25,000 (except in the ordinary course of business or for a debt investment in the Company up to $500,000 prior to the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence 66 2/3% of the Company;then outstanding shares of Series D Preferred, materially adversely change the rights, preferences, privileges or restrictions of the Series D Preferred.
5.7.8 the creation, acquisition (e) Unless otherwise required by California law or disposition of any subsidiaryexcept as provided herein, the purchase or acquisition holders of Common Stock will not have the right to vote as a separate class on any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business of the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 any commitment or agreement to do any of the foregoingmatter.
Appears in 1 contract
Samples: Series D Convertible Preferred Stock Purchase Agreement (Inventa Technologies Inc)
Protective Provisions. For so long as Without the Investor holds (taking into account, for the avoidance of doubt, a designee of ACCBT) at least 5% consent of the issued and outstanding share capital Non-SAC Investors holding a majority of the Companyoutstanding Unit Equivalents held by the Non-SAC Investors, no obligation of the Company (which, for purposes of this Section is deemed to include Holdings and its subsidiaries shall not enter into any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken by transaction or agreement with respect to the Company, either directly SAC or indirectly (including by merger, consolidation or reclassification, or through the making of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investor:
5.7.1 any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares or other securities (including convertible debt) of the Company (or the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company), except for: (i) shares issuable pursuant to (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declination, or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (affiliated funds or any of their respective Affiliates)affiliates, except for those outstanding obligations existing (i) the management agreement in the form attached hereto as Annex A (the “Management Agreement”) providing for, among other things, indemnification and a transaction grant as described under “Certain Transaction Grants” below, and such agreement will not be permitted to be amended without the consent of the date hereof;
5.7.6 Non-SAC Investors holding a majority of the saleoutstanding Unit Equivalents held by the Non-SAC Investors unless such amendment is otherwise approved by a majority of disinterested directors who are not associates or affiliates of SAC, lease(ii) any other transaction or agreement between Holdings or one of its subsidiaries, exchange on the one hand, and a portfolio company of SAC or any of its affiliated funds or any of their respective affiliates, on the other disposition granting hand, that is on arm’s-length terms between Holdings or such subsidiary and such portfolio company so long as such agreement is approved by a majority of disinterested directors who are not associates or affiliates of SAC, and (iii) issuances of securities to SAC or its affiliates pursuant to and in compliance with the Non-SAC Investors’ participation rights (described below) following receipt by Holdings of a security interest in, or exclusive license of, fairness opinion from an investment banking firm of recognized national standing reasonably acceptable to SAC. The foregoing Non-SAC Investor consent rights in this paragraph may not be transferred in connection with any material part transfer of or all or substantially all securities to persons that are not otherwise Non-SAC Investors on the Closing Date (unless to Permitted Transferees) and will terminate upon the earlier of (i) the Non-SAC Investors party to the Agreement on the Closing Date (together with their Permitted Transferees) ceasing to own at least 33% of the property or assets outstanding Unit Equivalents held by them on the Closing Date and (including intellectual propertyii) of the Company or the incurrence of any Indebtedness or capital expenditures greater than $25,000 (except in the ordinary course of business or for a debt investment in the Company up to $500,000 immediately prior to the First Closing Date);
5.7.7 the taking closing of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence an initial public offering of the Company;
5.7.8 equity of Holdings or Airvana, Inc. (“Airvana”) (an “IPO”). Without the creationconsent of (i) the SAC Investors and (ii) Non-SAC Investors holding a majority of the Unit Equivalents held by the Non-SAC Investors, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest Holdings will not make in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change -kind distributions to the direction holders of the business of the Company or the related business plan as described equity in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which such property being distributed is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of valued at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more less than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 any commitment or agreement to do any of the foregoingfair market value.
Appears in 1 contract
Protective Provisions. For so long as The Company shall not perform the Investor holds (taking into accountfollowing, for the avoidance of doubt, a designee of ACCBT) at least 5% of the issued and outstanding share capital of the Company, no obligation of the Company (which, for purposes of this Section is deemed to include any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken by or with respect to the Company, either directly or indirectly (including by merger, consolidation or reclassification, or through the making of any shareholder proposal by any of its shareholder), with respect to the following matters --------------------- without the prior written consent or affirmative vote of the Investor:
5.7.1 any change in the Certificate each of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares or other securities (including convertible debt) of the Company (or the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company), except for: (i) shares issuable pursuant to (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as holders of record of at least a majority of the date hereofoutstanding shares of Series C Preferred, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declination, or otherwise fails, to make further payments toward the Maximum Subscription Price; HSN and (iii) where prior with respect to the First Closing (g) below only, GRP:
(a) a merger or consolidation of the Company accepts with QVC, Inc. or Comcast, Inc. or any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007their respective successors and assigns;
5.7.3 (b) the redemption, repurchase or other acquisition by the Company of another business entity, joint venture or partnership or the establishment of non-wholly owned subsidiaries, any of which involve the contribution of the greater of $5,000,000 or 10% of the post-money valuation of the Company based on its then most recently completed equity financing (the "Investment Basket"); provided, however, such restriction shall not apply to the merger, consolidation, share exchange, or other reorganization or business combination (a "Reorganization") involving a change of control of the Company (including without limitation, a Reorganization in which the stockholders of the Company immediately prior to such Reorganization own fifty percent (50%) or less of the voting capital stock of the resulting entity);
(c) the incurrence of indebtedness in excess of the Investment Basket;
(d) any expansions into new businesses other than the consumer information business or electronic commerce;
(e) any asset sales in excess of the Investment Basket;
(f) any liens on or encumbrances of assets in excess of the Investment Basket, except liens or encumbrances securing senior indebtedness of the Company to a commercial bank or a syndicate of commercial banks;
(g) any issuances or sales of New Securities in excess of the Investment Basket; provided, that at least one other director of the Company who was also a director as of the date of the original issuance of Series C Preferred (or replacement thereof) other than the Series C Director vetoes such proposed issuance or sale;
(h) any issuances or sales of New Securities to QVC, Inc. or any of its shares successors and assigns;
(i) any issuances or the payment into sales of New Securities to Comcast, Inc. or setting aside any of a fund for such purposeits successors or assigns other than issuances and sales of New Securities purchased by Comcast, Inc. pursuant to its right set forth in Section 7.1(a);
5.7.4 (j) any payments of dividends, repurchases or redemptions of securities (except pursuant to stock options or restricted stock purchase agreements with employees or consultants of the declaration Company as approved by the Board of Directors or payment of any dividend or the making of any distributions to any holders of any shares as set forth in the capital Company's Amended and Restated Certificate of Incorporation) or debt (except to the extent such debt has been approved by a majority of the Board of Directors is due in accordance with its terms);
(k) any transactions with any affiliates of the Company;
5.7.5 any dealings with, (l) a change in the bylaws of the Company (except that the Company shall be permitted to increase the number of directors authorized thereunder without either the consent of the Series C Preferred or the making consent of HSN);
(m) a change in the Company's independent public accountants; or
(n) any registrations of securities under the Securities Act, except for a Qualified IPO and except pursuant to Section 5.1 hereof; provided, however, in the event the Series C Holders, HSN or GRP, as the case may be, do not consent to the proposed transaction, their written rejection must be received by the Company within 15 days of the date the Series C Holders, HSN or GRP receive notification of the proposed transaction. If such rejection is not received by the Company within such 15-day period, the Company may effect the proposed transaction within a 90-day period thereafter without further complying with this Section 10. Notwithstanding any of the foregoing, in no event shall the Series C Preferred, HSN or GRP have any consent or voting right pursuant to this Section 10 with respect to any Reorganization other than as set forth in Section 10(a) or Section 10(b) (subject to the limits set forth therein) above or as provided by applicable law. The preceding sentence shall not limit in any way, the voting right of any payments toHSN Director, any Person that is not at arm’s length Series C Director or any director elected by GRP pursuant to the Company's charter. The Company acknowledges that (i) its annual budget, its directorsand (ii) any adoption or amendment of key employment contracts or benefit plans, officersincluding, employees but not limited to, stock option plans, shall be subject to approval of the Company's Board of Directors, consistent with the Company's then existing charter and by- laws. With respect to the Series C Preferred, the provisions of this Section 10 shall terminate and be of no further force or shareholders effect upon the earlier of (i) the date on which there are no shares of Series C Preferred outstanding (due to conversion, redemption or any of their respective Affiliatesotherwise), except and (ii) upon the closing of a Qualified IPO. With respect to HSN, the provisions of this Section 10 shall terminate and be of no further force or effect upon the earlier of (i) the date on which HSN holds less than 50% of the capital stock of the Company (on an as converted to Common Stock basis and as adjusted for those outstanding obligations existing stock dividends, stock splits, stock combinations, recapitalizations and the like) that it held as of the date hereof;
5.7.6 of this Agreement, and (ii) upon the sale, lease, exchange or other disposition granting closing of a security interest inQualified IPO. HSN's rights under this Section 10 may not be assigned. With respect to GRP, the provisions of this Section 10 shall terminate and be of no further force or exclusive license of, any material part effect upon the earlier of or all or substantially all (i) the date on which GRP holds less than 100% of the property or assets (including intellectual property) capital stock of the Company or (on an as converted to Common Stock basis and as adjusted for stock dividends, stock splits, stock combinations, recapitalizations and the incurrence of any Indebtedness or capital expenditures greater than $25,000 (except in the ordinary course of business or for a debt investment in the Company up to $500,000 prior to the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence like) that it held as of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction date of the business of the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority initial issuance of shares or allof Series E Preferred to GRP, or substantially all, and (ii) upon the closing of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (Qualified IPO. GRP's rights under this Section 10 may not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 any commitment or agreement to do any of the foregoingbe assigned.
Appears in 1 contract
Protective Provisions. For (a) In addition to any other class vote that may be required by law, this Corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least a majority of the then outstanding shares of Preferred Stock:
(i) sell, convey or otherwise dispose of all or substantially all of its property or business, or merge into or effect a reorganization with any other corporation (other than a wholly owned subsidiary corporation) in which the shareholders of this Corporation immediately prior to the transaction possess less than 50% of the voting power of the surviving entity (or its parent) immediately after the transaction, or sell the capital stock of the Corporation where the shareholders of this Corporation immediately prior to the transaction possess less than 50% of the voting power of the Corporation immediately after the transaction;
(ii) change the rights, preferences, privileges or restrictions of the Preferred Stock;
(iii) increase or decrease the aggregate number of authorized shares of Preferred Stock, other than as provided in either subdivision (b) of Section 405 or subdivision (c) of Section 902 of the California Corporations Code;
(iv) create a new class or series of shares having rights, preferences or privileges or increase the number of authorized shares of any class or shares having rights, preferences or privileges equal to or senior to any outstanding class or series;
(v) pay any dividend on or purchase, redeem or otherwise acquire any security junior to the Preferred Stock other than repurchases at cost from employees, consultants, lessors or suppliers upon termination of employment, consulting, lessor-lessee, or supplier-purchaser relationship, respectively; or
(vi) voluntarily dissolve or liquidate the Corporation.
(b) Notwithstanding the foregoing Section 6(a), in addition to any other series vote that may be required by law, so long as the Investor holds (taking into account, for the avoidance of doubt, a designee of ACCBT) at least 540% of the originally issued and outstanding share capital of Series C Preferred are outstanding, this Corporation shall not without first obtaining the Companyapproval (by vote or written consent, no obligation of the Company (which, for purposes of this Section is deemed to include any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken as provided by or with respect to the Company, either directly or indirectly (including by merger, consolidation or reclassification, or through the making of any shareholder proposal by any of its shareholder), with respect to the following matters without the written consent of the Investor:
5.7.1 any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares or other securities (including convertible debtlaw) of the Company (or the entering into holders of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities at least a majority of the Company), except for: then outstanding shares of Series C Preferred:
(i) shares issuable pursuant to (A) materially adversely change the Warrantsrights, this Agreement and outstanding share optionspreferences, convertible debt privileges or warrants existing as restrictions of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; Series C Preferred;
(ii) where increase or decrease the Investor has given notice aggregate number of its declinationauthorized shares of Series C Preferred, other than as provided in either subdivision (b) of Section 405 or otherwise fails, to make further payments toward subdivision (c) of Section 902 of the Maximum Subscription PriceCalifornia Corporations Code; and and
(iii) where create a new class or series of shares having rights, preferences or privileges senior to the Series C Preferred.
(c) Notwithstanding the foregoing Sections 6(a) and 6(b), in addition to any other series vote that may be required by law, so long as 40% of the originally issued Series C Preferred are outstanding, this Corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of 66 2/3% of the then outstanding shares of Series C Preferred, voluntarily dissolve or liquidate, sell, convey or otherwise dispose of all or substantially all of its property or business, or merge into or effect a reorganization with any other corporation (other than a wholly owned subsidiary corporation) in which the shareholders of this Corporation immediately prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms transaction possess less than 50% of the investments made by Xxxx Xxxxxxxxx as voting power of March 14, 2007;
5.7.3 the redemption, repurchase surviving entity (or other acquisition its parent) immediately after the transaction if the consideration received by the Company holders of the Series C Preferred as a result of any such liquidation, dissolution, merger or sale of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the sale, lease, exchange or other disposition granting of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) of the Company or the incurrence of any Indebtedness or capital expenditures greater Corporation is less than $25,000 2.50 per share (as adjusted for any stock dividends, combinations, splits, recapitalizations and the like with respect to such shares)
(d) Unless otherwise required by California law or except in the ordinary course of business or for a debt investment in the Company up to $500,000 prior to the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiaryas provided herein, the purchase or acquisition holders of Common Stock will not have the right to vote as a separate class on any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business of the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 any commitment or agreement to do any of the foregoingmatter.
Appears in 1 contract
Samples: Series C Convertible Preferred Stock Purchase Agreement (Inventa Technologies Inc)
Protective Provisions. For so long At any time from and after the date of this Agreement until the earlier to occur of (i) any Effective Registration or (ii) the Transfer by the Purchaser pursuant to Article XIII of greater than fifty-percent of the aggregate number of shares of Class B Common Stock acquired hereunder (measured as of the Investor holds applicable date of determination, a “Significant Sale”), except as reasonably required in connection with a Registration Event, the Company shall not, and none of the Key Holders shall permit the Company to, either directly or indirectly by amendment, merger, consolidation or otherwise, take or permit any of the following actions without (taking into accountin addition to any other vote required by law or the Certificate of Incorporation of the Company) the prior written consent of the Purchaser, which consent shall not be unreasonably withheld, delayed or conditioned:
Section 8.01 amend, alter or repeal any provision of the Certificate of Incorporation or Bylaws of the Company in a manner that disproportionately affects the powers, preferences or rights of the Class B Common Stock (other than, for the avoidance of doubt, a designee any amendments, restatements or other modifications that by their terms are only effective upon an Effective Registration);
Section 8.02 create, or authorize the creation of, or issue or obligate itself to issue shares of, any additional class or series of ACCBT) at least 5% capital stock equal or senior to the Class B Common Stock with respect to the distribution of assets on the issued and outstanding share capital liquidation, dissolution or winding up of the Company, no obligation the payment of dividends and rights of redemption, or increase the authorized number of shares of Class B Common Stock or increase the authorized number of shares of Class A Common Stock;
Section 8.03 reclassify, alter or amend any existing security of the Company that is pari passu with the Class B Common Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Company, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to the Class B Common Stock in respect of any such right, preference, or privilege;
Section 8.04 declare, pay or set aside any dividends or otherwise make any distributions on shares of any class or series of capital stock of the Company (whichother than dividends on shares of Class A Common Stock or Class B Common Stock payable in shares of Class A Common Stock or Class B Common Stock, for purposes of this Section respectively) unless such a dividend or distribution is deemed to include any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken by or paid with respect to all outstanding shares of Class A Common Stock or Class B Common Stock on a pro rata and pari passu basis; provided, that, the CompanyCompany shall not declare, either directly pay or indirectly (including by merger, consolidation set aside any dividends or reclassification, or through the making otherwise make any distributions on shares of any shareholder proposal by any class or series of its shareholder), with respect to the following matters without the written consent of the Investor:
5.7.1 any change in the Certificate of Incorporation or the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares or other securities (including convertible debt) stock of the Company (other than dividends on shares of Class A Common Stock or Class B Common Stock payable in shares of Class A Common Stock or Class B Common Stock, respectively, or ordinary quarterly cash dividends) during (i) the entering into period of any agreement time between the signing of this Agreement and the Initial Closing; or (ii) the making period of any offer time between the Board adopting a new FMV and an applicable Additional Closing (for the avoidance of doubt, whether or not such dividend or distribution is paid with respect to all outstanding shares of Class A Common Stock or Class B Common Stock on a pro rata and pari passu basis);
Section 8.05 prior to the granting of any right capable of becoming an agreement Maximum Amount having been purchased hereunder (as such amount may be increased from time to allot time), purchase or issue redeem any shares or other securities of Class B Common Stock of the Company), except for: other than as set forth herein or pursuant to the Equity Incentive Plans during (i) shares issuable pursuant to (A) the Warrants, this period of time between the signing of the Agreement and outstanding share options, convertible debt the Initial Closing; or warrants existing as of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice period of its declination, time between the Board adopting a new FMV and an applicable Subsequent Closing; or
Section 8.06 enter into or otherwise fails, be a party to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase or other acquisition transaction that would be disclosable by the Company under Section 404 of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders Regulation S-K (or any of their respective Affiliates)successor regulation) if the Company were a reporting company under the Exchange Act, except for those outstanding obligations existing as transactions contemplated by this Agreement or to the extent such transactions are approved by a majority of the date hereof;
5.7.6 disinterested directors on the sale, lease, exchange or other disposition granting of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) of the Company or the incurrence of any Indebtedness or capital expenditures greater than $25,000 (except in the ordinary course of business or for a debt investment in the Company up to $500,000 prior to the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business of the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 any commitment or agreement to do any of the foregoingBoard.
Appears in 1 contract
Samples: Common Stock Purchase Agreement (Bentley Systems Inc)
Protective Provisions. For so As long as 1,275,000 shares of Preferred Stock, subject to appropriate adjustment in the Investor holds (taking into accountevent of any stock dividend, for the avoidance of doubtstock split, a designee of ACCBT) at least 5% of the issued and outstanding share capital of the Company, no obligation of the Company (which, for purposes of this Section is deemed to include any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken by combination or other similar recapitalization with respect to the CompanyPreferred Stock, are outstanding, except for clause (10) below, which shall require that at least 2,550,000 shares of Preferred Stock, subject to appropriate adjustment in the event of any stock dividend, stock split, combination or other similar recapitalization with respect to the Preferred Stock, are outstanding, the Corporation shall not either directly or indirectly (including by amendment, merger, consolidation or reclassificationotherwise, or through the making of any shareholder proposal by do any of its shareholder), with respect to the following matters without (in addition to any other vote required by law or the Articles) the written consent or affirmative vote of the InvestorHolders of at least a majority of the outstanding shares of Preferred Stock:
5.7.1 (1) alter or change the rights, preferences or privileges of the Preferred Stock;
(2) increase or decrease (other than by redemption or conversion) the authorized number of shares of Preferred Stock;
(3) amend or waive any change in provision of the Certificate Articles or bylaws of Incorporation the Corporation, provided, that the Corporation may adopt an amendment to the Articles to effect a reverse stock split of the Common Stock on or before July 29, 2016 without the Bylawsconsent of the Holders;
(4) authorize, create, issue, or alteration reclassify any existing security into any class of equity security that is senior or pari passu to the capital structure of the Company through any reclassification or consolidationPreferred Stock;
5.7.2 the allotment (5) repurchase or issuance redeem Common Stock except from employees, officers, directors, or consultants upon termination of any shares their employment or other securities relationship or in accordance with any existing repurchase or redemption program that has been approved by the board of directors;
(including convertible debt6) of the Company (declare or the entering into of pay any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares dividend other than a dividend payable solely in stock or other securities of the Company), except for: Corporation;
(i7) shares issuable pursuant to acquire any entity (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as regardless of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declination, or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase or other acquisition by the Company structure of any of its shares (or the payment into or setting aside of such acquisition, including if such acquisition is structured as a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the salelicense, lease, exchange merger, reorganization, acquisition of assets or equity or other disposition granting of a security interest in, business combination or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual propertysimilar corporate transaction) of the Company or the incurrence of any Indebtedness or capital expenditures greater than $25,000 (except in the ordinary course of business or for a debt investment in the Company up to consideration of $500,000 prior to the First Closing Date)3 million or more;
5.7.7 (8) materially alter the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction general nature of the business of the Company or the related business plan as described in the SEC DocumentsCorporation;
5.7.10 engage in (9) enter into any share sale sale, license, lease or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction disposition of assets of the effect Corporation having a book value of which at least $10 million that is to place control effected outside of the ordinary course of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements)Corporation; or
5.7.13 (10) effect any commitment or agreement to do any of event for which the foregoingLiquidation Preference would become payable.
Appears in 1 contract
Protective Provisions. For so So long as any shares of Preferred Stock are outstanding, the Investor holds Company will not, without obtaining the approval (taking into account, for the avoidance of doubt, a designee of ACCBTby vote or written consent) at least 5% of the issued and outstanding share capital Holders of a majority of the shares of Preferred Stock:
(a) permit the amendment, modification or repeal of the Company’s Articles of Incorporation or Bylaws, no obligation in either case whether by merger or otherwise;
(b) permit the amendment, modification, or repeal of this Certificate of Designation, whether by merger or otherwise;
(c) issue, sell, or deliver (whether through the issuance or granting of Rights or otherwise) any shares of Senior Stock or Parity Stock or reclassify or modify any Junior Stock or Parity Stock so as to become Senior Stock or Parity Stock;
(d) declare or pay any dividend (other than dividends payable solely in Common Stock) or distribution on, or make any payment on account of, or set apart assets for a sinking or analogous fund to, or, purchase, redeem, defease, retire or otherwise acquire, any shares of any class of capital stock of the Company or any warrants or options to purchase any such capital stock, whether now or hereafter outstanding, or make any other distribution in respect thereof, either directly or indirectly, whether in cash or property or in obligations of the Company or any subsidiary of the Company (whichsuch declarations, for purposes of this Section is deemed payments, setting apart, purchases, redemptions, defeasances, retirements, acquisitions and distributions being referred to include herein as “Restricted Payments”); provided, however, that the Company or any subsidiary of the Company) will be entered into, no decision will be made, and no action will be taken by or Company may make Restricted Payments with respect to any shares of Senior Stock or Parity Stock the issuance of which has been approved in accordance herewith;
(e) permit the amendment or modification of the Certificate of Designation for any other series of preferred stock of the Company, either directly or indirectly ; or
(including by merger, consolidation or reclassification, or through f) subject the making Company to any transaction that would be a Change of any shareholder proposal by any of its shareholder), with Control. With respect to actions by the following Holders upon those matters on which the Holders may vote as a separate class, such actions may be taken without a stockholders meeting by the written consent of Holders who would be entitled to vote at a meeting having voting power to cast not less than the Investor:
5.7.1 any change in minimum number of votes that would be necessary to authorize or take such action at a meeting at which all the Certificate shares of Incorporation or Preferred Stock is entitled to vote were present and voted. In addition, the Bylaws, or alteration of the capital structure of the Company through any reclassification or consolidation;
5.7.2 the allotment or issuance of any shares or other securities (including convertible debt) of the Company (or the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities Holders may call a special meeting of the Company), except for: (i) shares issuable pursuant to (A) ’s stockholders upon the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as occurrence of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under events described above by providing notice of the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable exercise of such right to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declination, or otherwise fails, to make further payments toward the Maximum Subscription Price; Company and (iii) where prior to the First Closing the Company accepts any offer for investment in will take all steps necessary to hold such meeting as soon as practicable after the Company receipt of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of any dividend or the making of any distributions to any holders of any shares in the capital of the Company;
5.7.5 any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders (or any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the sale, lease, exchange or other disposition granting of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) of the Company or the incurrence of any Indebtedness or capital expenditures greater than $25,000 (except in the ordinary course of business or for a debt investment in the Company up to $500,000 prior to the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business of the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangements); or
5.7.13 any commitment or agreement to do any of the foregoingnotice.
Appears in 1 contract
Protective Provisions. For so So long as the Investor holds (taking into accountConvertible Notes remain outstanding, for without the avoidance prior written consent of doubt, a designee of ACCBT) at least 5% a majority in original principal amount outstanding of the issued and outstanding share capital of Convertible Notes, provided such majority includes Cerberus, the Company will not:
(a) permit, suffer to exist or otherwise engage in a Liquidation Event (as defined in the Company's Amended and Restated Articles of Incorporation, no obligation of as in effect on the date hereof) unless as a result thereof and after giving effect thereto (i) the Company shall be the surviving corporation, (whichii) the Series C Preferred Stock shall continue to be outstanding, for purposes of this Section is deemed to include any subsidiary of (iii) there shall be no change in the Company) will be entered intopreference, no decision will be made, privileges or other rights and no action will be taken by or restrictions with respect to the CompanySeries C Preferred Stock, either directly (iv) there shall not be created or indirectly thereafter exist as a result thereof any new class of shares having preference over the Series C Preferred Stock with respect to dividends, distribution of assets or rights upon liquidation, (including v) the then outstanding principal, together with all accrued and unpaid interest thereon, of the Convertible Notes shall be paid in full, and (vi) the Common Stock Warrants shall be assumed in a writing signed by mergerthe successor in accordance with their terms;
(b) incur any indebtedness for borrowed money;
(c) grant a security interest, consolidation pledge or reclassification, or through the making of any shareholder proposal by other encumbrance upon any of its shareholder), with respect assets other than purchase money security interests for the purchase of equipment not to exceed $100,000 per annum;
(d) create or authorize the following matters without the written consent of the Investor:
5.7.1 any change in the Certificate of Incorporation or the Bylawscreation of, or alteration of the capital structure of the Company through issue or sell, any reclassification equity security, or consolidationany security convertible into or exercisable for any equity security, other than in a Qualified Public Offering;
5.7.2 the allotment or issuance of any shares or other securities (including convertible debte) of the Company (or the entering into of any agreement or the making of any offer or the granting of any right capable of becoming an agreement to allot or issue any shares or other securities of the Company), except for: (i) shares issuable pursuant to (A) the Warrants, this Agreement and outstanding share options, convertible debt or warrants existing as of the date hereof, (B) up to 2,180,000 shares issuable to Company’s service providers under existing arrangements, and Common Shares under the Company’s equity incentive plans (where applicable), and (C) shares issuable as an introduction fee for the transaction contemplated hereby acceptable to the Investor, at its sole discretion; (ii) where the Investor has given notice of its declination, or otherwise fails, to make further payments toward the Maximum Subscription Price; and (iii) where prior to the First Closing the Company accepts any offer for investment in the Company of up to $500,000, in the same terms of the investments made by Xxxx Xxxxxxxxx as of March 14, 2007;
5.7.3 the redemption, repurchase or other acquisition by the Company of any of its shares (or the payment into or setting aside of a fund for such purpose);
5.7.4 the declaration or payment of dividends on the Series C Preferred Stock, declare or pay any dividend dividends on any common stock, preferred stock or the making of any distributions to any holders of any shares in the other capital stock of the Company;
5.7.5 (f) except for a redemption or repurchase of the Series C Preferred Stock, redeem or repurchase any dealings with, or the making of any payments to, any Person that is not at arm’s length to the Company, its directors, officers, employees or shareholders capital stock (or security exercisable, convertible or exchangeable for any of their respective Affiliates), except for those outstanding obligations existing as of the date hereof;
5.7.6 the sale, lease, exchange or other disposition granting of a security interest in, or exclusive license of, any material part of or all or substantially all of the property or assets (including intellectual property) of the Company or the incurrence of any Indebtedness or its capital expenditures greater than $25,000 (except in the ordinary course of business or for a debt investment in the Company up to $500,000 prior to the First Closing Date);
5.7.7 the taking of any steps to voluntarily liquidate, dissolve, wind-up or otherwise terminate the corporate existence of the Company;
5.7.8 the creation, acquisition or disposition of any subsidiary, the purchase or acquisition of any partnership interest or securities issued by, or other equity or ownership interest in, any other entity, participation in any joint venture or strategic alliance;
5.7.9 any material change to the direction of the business of the Company or the related business plan as described in the SEC Documents;
5.7.10 engage in any share sale or exchange, merger, consolidation, amalgamation, arrangement, asset acquisition or any other similar transaction the effect of which is to place control of the business of the Company in the hands of an arm’s length third party;
5.7.11 any acquisition of at least the majority of shares or all, or substantially all, of the assets of any other Person;
5.7.12 pay any compensation to any officer, director or employee involving a cash or cash equivalent commitment of more than US$60,000 per annum (not taking into account any share-based awards pursuant to a board approved plan or existing arrangementsstock); or
5.7.13 (g) make any commitment or agreement to do capital expenditure in excess of $1,000,000 in any of the foregoingyear.
Appears in 1 contract
Samples: Securities Purchase Agreement (Molecular Insight Pharmaceuticals, Inc.)
