Protective Provisions. 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 Turing EquityCo 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 the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own shares of Common Stock representing at least 50% of the total voting power of the Total Outstanding Securities (except as set forth in the proviso in Section 3(a)(i)(I)): I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company (which shall also be subject to Section 5 hereof), and/or the organizational documents of any subsidiary of the Company; provided that, notwithstanding the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, that would adversely affect any rights specific to Turing EquityCo (subject to applicable law) require the written consent of Turing EquityCo; II. authorizing or issuing any equity securities 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; V. the declaration or payment of any dividend or other distribution to the stockholders by the Company or redemption, repurchase or exchange (as applicable) of any equity securities of the Company; VI. issuing or granting any equity securities of the Company or its subsidiaries, other than (A) grants under the Thoughtworks Holding, Inc 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 such transaction or arrangement exceeding $500.0 million; and VIII. entry by the Company into any agreement with respect to the matters described in the foregoing clauses (I) through (VIII) or taking any such action indirectly.
Appears in 1 contract
Sources: Director Nomination Agreement (Turing Holding Corp.)
Protective Provisions. Notwithstanding any other provision So long as the Buyers collectively beneficially own at least twenty percent (20%) of this Agreement and the Securities issued pursuant to the fullest extent permitted Securities Purchase Agreement (as such terms are defined therein) (assuming the full conversion or exercise of such Securities, as applicable, irrespective of any ownership limitations contained therein), the Company shall not, either directly or indirectly by applicable lawamendment, merger, consolidation, recapitalization, reclassification, or otherwise, do any of the following without (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 Turing EquityCo as set out below:
i. none of the following actions shall be taken any other vote required by law or the Company, including any proposal by the Board to be put to the vote of the stockholders of the Company with respect thereto, without the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own shares of Common Stock representing at least 50% of the total voting power of the Total Outstanding Securities (except as set forth in the proviso in Section 3(a)(i)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth ’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws Incorporation) the written consent of the Company Lead Investor, and any such act or transaction entered into without such consent or vote shall be null and void ab initio, and of no force or effect:
(which shall also be subject to Section 5 hereof)a) Liquidate, and/or dissolve or wind up the organizational documents of any subsidiary of the Company; provided that, notwithstanding the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Amended business and Restated Certificate of Incorporation or Amended and Restated Bylaws affairs of the Company, that would adversely affect effect any rights specific merger, consolidation, sale of all or substantially all of the assets (as defined under and interpreted in accordance with General Corporation Law of the State of Delaware) of the Company, or any other Fundamental Transaction, or consent to Turing EquityCo (subject to applicable law) require any of the written consent of Turing EquityCoforegoing;
II. authorizing (b) Create, or issuing authorize the creation of, or issue or obligate itself to issue shares of, or reclassify, any equity securities capital stock unless the same ranks junior to the Preferred Shares with respect to its rights, preferences and privileges, or increase the authorized number of shares of Preferred Shares or any additional class or series of capital stock of the Company having unless the same ranks junior to the Preferred Shares with respect to its rights, preferences and privileges;
(c) Directly or privileges that are superior indirectly acquire any beneficial ownership (including stock, partnership or senior limited liability company interests) of or in any Person, or any loan, advance or capital contribution to any Person or the acquisition of all, or substantially all, of the assets of another Person, or permit any of its Subsidiaries so to do, if the aggregate purchase price to the outstanding Common Stock Company and its Subsidiaries for such investments, including the maximum potential amount of any contingent consideration, would exceed $1,000,000;
(d) Create, or authorize the creation of, or issue, or authorize the issuance of any debt security or create any lien or security interest (except for purchase money liens or statutory liens of landlords, mechanics, materialmen, workmen, warehousemen and other similar persons arising or incurred in the ordinary course of business) or incur other indebtedness for borrowed money, including but not limited to obligations and contingent obligations under guarantees, or permit any Subsidiary to take any such action with respect to any debt security lien, security interest or other indebtedness for borrowed money, if the aggregate indebtedness of the Company and its Subsidiaries for borrowed money following such action would exceed $1,000,000, other than equipment leases, equipment purchase money loans, or trade payables incurred in the ordinary course;
(e) Directly or indirectly engage in any material line of business substantially different from those lines of business conducted by or publicly contemplated to be conducted by the Company and each of its Subsidiaries on the Effective Date; provided, that the foregoing shall not prevent the Company and its Subsidiaries from engaging in any business that is reasonably related or incidental or ancillary to its or their business.
(f) Enter into, renew, extend or be a party to, any transaction or series of related transactions (including, without limitation, the purchase, sale, lease, transfer or exchange of property or assets of any kind or the rendering of services of any kind) with any officer, director, or employee of the Company, 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 such individuals (other than the Company or any of its subsidiaries (other than wholly-owned Subsidiaries), excluding employment agreements or employment compensation with or to officers not otherwise affiliated with a stockholder);
IV. winding up the Company;
V. the declaration or payment and compensation of any dividend or other distribution to the stockholders by the Company or redemption, repurchase or exchange (directors in their capacity as applicable) of any equity securities of the Company;
VI. issuing or granting any equity securities of the Company or its subsidiaries, other than (A) grants under the Thoughtworks Holding, Inc 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 such transaction or arrangement exceeding $500.0 million; and
VIII. entry by the Company into any agreement with respect to the matters described in the foregoing clauses (I) through (VIII) or taking any such action indirectlydirectors.
Appears in 1 contract
Protective Provisions. Notwithstanding (a) So long as any shares of Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least seventy percent (70%) of the shares of Preferred Stock outstanding (voting together as a single class and on an as-converted basis):
(i) Authorize or issue any equity security senior or pari ---- passu to the Preferred Stock as to dividend rights or redemption rights or ----- liquidation preferences;
(ii) Sell, convey, or otherwise dispose of or encumber all or substantially all of its property or business or merge into or consolidate with any other provision corporation (other than a wholly-owned subsidiary corporation) or effect any transaction or series of this Agreement and to the fullest extent permitted by applicable law, related transactions in addition to the approval which more than fifty percent (50%) of the Directors, the following actions described in this Section 3(a) (collectively, the “Consent Matters”) shall require the prior written consent of Turing EquityCo 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 the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own shares of Common Stock representing at least 50% of the total voting power of the Total Outstanding Securities corporation is disposed of;
(except as set forth in the proviso in Section 3(a)(i)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws iii) Whether by amendment of the Company (which shall also be subject to Section 5 hereof)corporation's Bylaws, and/or the organizational documents amendment of any subsidiary of the Company; provided that, notwithstanding the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Amended and Restated this Certificate of Incorporation or Amended and Restated Bylaws of otherwise, alter or change the Company, that would adversely affect any rights specific to Turing EquityCo (subject to applicable law) require the written consent of Turing EquityCo;
II. authorizing or issuing any equity securities of the Company having rights, preferences or privileges of the shares of Preferred Stock, so as to affect adversely such shares; or
(iv) Take any action that are superior or senior to would result in taxation of the outstanding Common holders of shares of the Preferred Stock under Section 305 of the Internal Revenue Code of 1986, as amended (or any securities convertible or exchangeable therefor pursuant by comparable provision of the Internal Revenue Code as herein from time to their termstime amended);
III. any transaction with any stockholder or Affiliate of (v) Effect a stockholder or any Director or officer material change in the nature of the Company Company's business as conducted on the date hereof; or
(vi) Approve or authorize the incurrence of any indebtedness or the issuance of its subsidiaries any guarantee of any obligation of any other person or entity (other than employment agreements with officers not otherwise affiliated with a stockholder);
IV. winding up subsidiary) if the Company;
V. aggregate amount of the declaration or payment principal amount of any dividend or other distribution to such indebtedness and the stockholders principal amount of the indebtedness so guaranteed shall exceed $7,500,000; Further, so long as at least 1,000,000 shares of Preferred Stock remain outstanding and unless unanimously approved by the Company Board of Directors of this corporation, this corporation shall not take any of the following actions without first obtaining the approval (by vote or redemptionwritten consent, repurchase or exchange (as applicableprovided by law) of any equity securities the holders of at least seventy percent (70%) of the Company;then outstanding shares of Preferred Stock:
VI. issuing (vii) make any loans or granting advances to its employees or any equity securities members of the Company or its subsidiariestheir immediate families, other than (A) grants 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 the Thoughtworks Holding, Inc 2021 Omnibus Incentive Plan, a stock option 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 such transaction or arrangement exceeding $500.0 million; and
VIII. entry restricted stock plan approved by the Company into Board of Directors of this corporation; or
(viii) guarantee any agreement with respect indebtedness or obligation of any other party other than in the ordinary course of business.
(b) In addition, so long as at least 500,000 shares of Series D Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least fifty percent (50%) of the shares of Series D Preferred stock outstanding
(i) Authorize or issue any equity security senior or pari passu to the matters described in Series D Preferred Stock as to dividend rights or redemption ---------- rights or liquidation preferences;
(ii) Whether by amendment of the foregoing clauses 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 affect adversely such shares; or
(Iiii) through (VIIIAmend Section 3(b) or taking any such action indirectlyof this Article IV so as to affect adversely the Series D Preferred Stock.
Appears in 1 contract
Protective Provisions. Notwithstanding any other provision of this Agreement and Subject to the fullest extent permitted by applicable lawrights of series of Preferred Stock which may from time to time come into existence, in addition to the Corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the Directors, the following actions described in this Section 3(a) (collectively, the “Consent Matters”) shall require the prior written consent holders of Turing EquityCo 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 the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own shares of Common Stock representing at least 5066-2/3% of the total then outstanding shares of Preferred Stock, voting together as a class:
(a) sell, convey, or otherwise dispose of or encumber all or substantially all of its property or business or merge into or consolidate with any other corporation (other than a wholly-owned subsidiary corporation) or effect any other transaction or series of related transactions in which more than fifty percent (50%) of the voting power of the Total Outstanding Securities (except as set forth in Corporation is disposed of, PROVIDED that this Section 6(a) shall not apply to a merger effected exclusively for the proviso in Section 3(a)(i)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, purpose of changing the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws domicile of the Company Corporation;
(which shall also be subject to Section 5 hereof), and/or the organizational documents of any subsidiary of the Company; provided that, notwithstanding the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, b) alter or change to, or waiver under, other organizational documents, including the Fourth Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, that would adversely affect any rights specific to Turing EquityCo (subject to applicable law) require the written consent of Turing EquityCo;
II. authorizing or issuing any equity securities of the Company having rights, preferences or privileges of the shares of the Series A Preferred Stock so as to affect adversely such shares;
(c) increase or decrease (other than by redemption or conversion) the total number of authorized shares of Series A Preferred Stock;
(d) authorize or issue, or obligate itself to issue, any other equity security, including any other security convertible into or exercisable for any equity security having a preference over, or being on a parity with, the Series A Preferred Stock with respect to voting, redemption, conversion, dividends or upon liquidation;
(e) redeem, purchase or otherwise acquire (or pay into or set funds aside for a sinking fund for such purpose) any share or shares of Preferred Stock or Common Stock; PROVIDED, HOWEVER, that are superior or senior this restriction shall not apply to the outstanding repurchase of shares of Common Stock (from employees, officers, directors, consultants 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 other persons performing services for the Company or any subsidiary pursuant to agreements under which the Company has the option to repurchase such shares at cost or at cost upon the occurrence of its subsidiaries certain events, such as the termination of employment;
(f) increase the authorized number of directors of the Corporation; or
(g) pay any dividend on the Common Stock other than employment agreements with officers not otherwise affiliated with a stockholder);
IV. winding up dividends on the Company;
V. the declaration or payment of any dividend or other distribution to the stockholders by the Company or redemption, repurchase or exchange (as applicable) of any equity securities of the Company;
VI. issuing or granting any equity securities of the Company or its subsidiaries, other than (A) grants under the Thoughtworks Holding, Inc 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 such transaction or arrangement exceeding $500.0 million; and
VIII. entry by the Company into any agreement with respect to the matters described Common Stock solely in the foregoing clauses (I) through (VIII) or taking any such action indirectlyform of additional shares of Common Stock.
Appears in 1 contract
Sources: Series a Preferred Stock Purchase Agreement (Etoys Inc)
Protective Provisions. Notwithstanding any other provision of this Agreement and to For so long as the fullest extent permitted by applicable law, in addition to the approval of the DirectorsPreferred Shares remain outstanding, the following actions described in this Section 3(a) (collectivelyManaging Member and the Company shall not, the “Consent Matters”) shall require the prior written consent of Turing EquityCo as set out below:
i. none without Preferred Approval, take any of the following actions, it being agreed for the avoidance of doubt that such protective provisions shall not prohibit the Company from consummating any of the redemptions contemplated by the foregoing paragraph 6 without Preferred Approval:
(i) actions shall be taken that result in the incurrence by the Company of any indebtedness or the creation of any lien over the Company’s assets except as expressly contemplated by the Transaction Documents;
(ii) actions that involve the making of any investment or the consummation of any acquisition or divestiture of assets other than as expressly contemplated by the Transaction Documents;
(iii) actions that involve any transaction, agreement, arrangement or understanding between the Company, including on the one hand, and MLC, PESRM or any proposal of their Affiliates, on the other hand, except as expressly contemplated by the Board to be put to the vote Transaction Documents;
(iv) actions that involve any amendment, waiver or termination of any Transaction Documents or entering into any other contract by or on behalf of the stockholders Company;
(v) actions that alter or change in any respect the rights, preferences or privileges of the Preferred Shares, or increase or decrease the authorized number of Preferred Shares;
(vi) actions that alter, amend or waive any provision of the Company’s certificate of formation or limited liability company agreement, or any other organizational document of the Company with respect thereto, without the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease or admit any additional Member to Beneficially Own shares of Common Stock representing at least 50% of the total voting power of the Total Outstanding Securities (except as set forth in the proviso in Section 3(a)(i)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company (which shall also be subject to Section 5 hereof), and/or the organizational documents of any subsidiary of the Company; provided that, notwithstanding the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, that would adversely affect any rights specific to Turing EquityCo (subject to applicable law) require the written consent of Turing EquityCo;
II. authorizing (vii) actions that create (by reclassification or issuing otherwise) or issue any equity securities of the Company Equity Interests having rights, preferences or privileges that are superior or senior to or on a parity with the outstanding Common Stock (or any securities convertible or exchangeable therefor pursuant Preferred Shares other than the Class B Preferred Shares; provided, that no issuance of Class B Preferred Shares shall be permitted to their terms)the extent the aggregate liquidation preference of the Class B Preferred Shares would exceed $100 million;
III. (viii) actions that result in the repurchase, redemption or other acquisition of any transaction with any stockholder or Affiliate of a stockholder or any Director or officer Equity Interests of the Company or any of its subsidiaries (Company, other than employment agreements with officers not otherwise affiliated with a stockholder)membership interests held by the Preferred Member except as expressly permitted by the foregoing paragraph 6;
IV. winding up the Company;
V. (ix) actions that result in the declaration or payment making of any dividend or other distribution to other than dividends or other distributions on the stockholders Preferred Shares and distributions contemplated by the Company or redemption, repurchase or exchange (as applicable) of any equity securities of the CompanySection 5.4;
VI. issuing or granting any equity securities (x) actions that result in the merger, consolidation, recapitalization reclassification, restructuring, reorganization of the Company or its subsidiaries, other than (A) grants under the Thoughtworks Holding, Inc 2021 Omnibus Incentive Plan, filing 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 such transaction or arrangement exceeding $500.0 million; and
VIII. entry by the Company into any agreement with respect to the matters described acquiescence in the foregoing clauses filing of a Bankruptcy Action; or
(Ixi) through (VIII) or taking any such action indirectlyactions that change the nature of the Company’s business.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Philadelphia Energy Solutions Inc.)
Protective Provisions. Notwithstanding any other provision of this Agreement and to Agreement, the fullest extent permitted by applicable law, in addition to the approval Articles or any of the Directorsconstitutional documents of any other Group Company or otherwise, the following actions described in this and subject to Section 3(a) (collectively3.2, the “Consent Matters”) no Group Company shall require the prior written consent of Turing EquityCo as set out below:
i. none take, permit to occur, approve, authorize, agree or commit to do any of the following actions shall be taken actions, whether in a single transaction or a series of related transactions, whether directly or indirectly and whether or not by the Companyamendment, including any proposal by the Board to be put to the vote merger, consolidation, scheme of the stockholders of the Company with respect theretoarrangement, amalgamation or otherwise, without the prior written consent or approval of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own shares of Common Stock representing at least 50% of the total voting power of the Total Outstanding Securities (except as set forth in the proviso in Section 3(a)(i)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company (which shall also be subject to Section 5 hereof), and/or the organizational documents of any subsidiary of the Company; provided that, notwithstanding the foregoing, x) Tencent for so long as Turing EquityCo owns Tencent and its Affiliates hold in the aggregate at least 8% of the Shares on an as-converted, fully diluted basis; and (y) the Key Holder for so long as the Key Holder, 58 Limited and their Affiliates hold in the aggregate at least 8% of the Shares on an as-converted, fully diluted basis, provided, that (xx) the affirmative consent or approval of the Tencent Director to or of any outstanding Common Stocksuch action at a Board meeting or as evidenced on a written resolution of the Board which expressly tabled for approval such action shall be deemed to constitute the prior written approval of Tencent of such action, and (yy) the affirmative consent or approval of the Key Holder Director to or of any such action at a Board meeting or as evidenced on a written resolution of the Board which expressly tabled for approval such action shall be deemed to constitute the prior written approval of the Key Holder of such action:
(a) any amendment or change of any rights, preferences, privileges or powers of or affecting, or the restrictions provided for the benefit of, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, that would adversely affect any rights specific to Turing EquityCo (subject to applicable law) require the written consent of Turing EquityCoPreferred Shares;
II. authorizing (b) the creation, allotment or issuing issue of any equity securities of the Company having rights, preferences or privileges that are superior or senior to the outstanding Common Stock (or Equity Securities in 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 Group Company or any of its subsidiaries (other than employment agreements with officers not otherwise affiliated with a stockholder);
IV. winding up the Company;
V. the declaration or payment grant of any dividend option or other distribution rights to the stockholders by the Company subscribe for or redemption, repurchase or exchange to convert an instrument into such Equity Securities to any Person (as applicable) of any equity securities of the Company;
VI. issuing or granting any equity securities of the Company or its subsidiariesincluding Restricted Persons), other than (x) any issuance of Ordinary Shares pursuant to the conversion of any Preferred Shares; (y) any issuance of securities or grant of options pursuant to the ESOP; and (z) any issuance of Series B Preferred Shares upon the applicable exercise of the Series B Warrants;
(c) any purchase, repurchase, redemption or retirement of any Equity Securities in any Group Company, other than any redemption of any Preferred Shares in accordance with the Articles and any repurchase of any Ordinary Shares held by a director, employee or consultant of any Group Company upon the termination of his employment with the Group pursuant to a share restriction agreement approved by the Board;
(d) any amendment or modification to or waiver under the Articles or any material amendment or modification to or waiver under any of the constitutional documents of any other Group Company;
(e) other than the ESOP Increase (as defined in the Series B Purchase Agreement), the adoption, material amendment (including any other increase of size) or termination of any equity incentive, purchase or participation plan for the benefit of employees, officers, directors, contractors, advisors or consultants of any Group Company (including the ESOP);
(f) (A) grants under the Thoughtworks Holdingentry into any contract or commitment by any Group Company with any Related Party (other than Tencent and/or its Affiliates and/or the Related Party of Tencent), Inc 2021 Omnibus Incentive Planprovided that in case such Related Party is (x) 58 Limited, the Key Holder or any of their Affiliates, or (y) any Person in which any of 58 Limited, the Key Holder and any of their Affiliates holds 30% of the voting securities or ownership interests, the entry into any contract or commitment by any Group Company with such Related Party with a value in excess of RMB1,000,000 in a single transaction or a series of transactions, or (B) the termination or material amendment of or waiver under any such contract or commitment, other than such entry, termination, amendment or waiver expressly set out in connection any Budget or Business Plan approved in accordance with transactions consistent Section 5.5 and this Section 5.8;
(g) the approval or amendment of, or any deviation from, any Budget or Business Plan;
(h) any purchase or other acquisition by any Group Company of another Person or the business and/or assets of another Person exceeding the total amount intended for such purchase or acquisition as set out in any Budget or Business Plan approved in accordance with certain specified strategiesSection 5.5 and this Section 5.8;
(i) any engagement by any Group Company in any business materially different from that described in the then current Business Plan, or the ceasing of any business undertaking of any Group Company, other than any such engagement or ceasing set out in any Budget or Business Plan approved in accordance with Section 5.5 and this Section 5.8;
(j) any liquidation, dissolution or winding up of any Group Company;
(k) any change in the equity ownership of the VIE Entity or any termination or modification to or waiver of rights under any of the Control Documents;
(l) any material change in the accounting methods or policies, or any appointment of or change in the independent auditors, of any Group Company;
(m) the appointment, replacement or termination of, or the approval or material amendment of any employment terms of, any member of senior management of any Group Company at the chief executive officer or similar level;
(n) any divestiture or sale of an interest in any Group Company, partnership or joint venture other than a Trade Sale;
(o) the listing of any securities in any Group Company on any securities exchange, other than a Qualified IPO;
(p) the incurrence of any indebtedness or assumption of any financial obligation, or any issue, assumption, guarantee or creation of any indebtedness in the nature of borrowings, by any Group Company in excess of US$2,000,000 within the previous 12 months, exceeding the total amount intended for such incurrence or assumption as set out in any Budget or Business Plan approved in accordance with Section 5.5 and this Section 5.8;
(q) any sale, transfer or other disposal of, or the incurrence of any Encumbrance on, any assets of any Group Company valued in excess of US$2,000,000 within the previous 12 months, exceeding the total amount intended for such sale, transfer, or other disposal or the incurrence as set out in any Budget or Business Plan approved in accordance with Section 5.5 and this Section 5.8; and
VII. engaging in (r) any mergers, acquisitions, business combinations or similar transactions or entering into additional expenses payable by any arrangements or agreements relating to joint ventures or strategic partnerships with a value of such transaction or arrangement exceeding $500.0 million; and
VIII. entry by the Group Company into any agreement with respect pursuant to the matters described Restructuring Documents that are not specifically provided for and the amount or the pricing mechanism of which is not expressly provided for in the foregoing clauses (I) through (VIII) or taking any such action indirectlyFramework Restructuring Agreement.
Appears in 1 contract
Sources: Shareholders Agreement (58.com Inc.)
Protective Provisions. Notwithstanding For so long as the Purchaser beneficially owns not less than 500 shares of Series A Preferred Stock (subject to appropriate adjustment in the event of any other provision of this Agreement and to the fullest extent permitted by applicable lawstock dividend, in addition to the approval subdivision, stock split or combination of the DirectorsSeries A Preferred Shares), the following actions described in this Section 3(a) (collectivelyCompany shall not, the “Consent Matters”) and shall require the prior written consent of Turing EquityCo as set out below:
i. none of the following actions shall be taken by the Company, including not permit any proposal by the Board to be put to the vote of the stockholders of the Company with respect theretoSubsidiary to, without the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own shares of Common Stock representing at least 50% of the total voting power of Purchaser, which consent shall not be unreasonably withheld:
(a) amend the Total Outstanding Securities (except as set forth in the proviso in Section 3(a)(i)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company (which shall also be subject to Section 5 hereof), and/or the organizational documents of any subsidiary of the Company; provided that, notwithstanding the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, that would adversely affect any rights specific to Turing EquityCo (subject to applicable law) require the written consent of Turing EquityCo;
II. authorizing or issuing any equity securities By-laws of the Company having if such amendment would adversely alter or change the rights, preferences or privileges that are superior of the Series A Preferred Shares or senior otherwise so as to adversely effect the outstanding Common Stock Series A Preferred Shares.
(b) merge, consolidate, or amalgamate with any securities convertible person or exchangeable therefor pursuant to their terms)entity, except in connection with any Permitted Acquisition;
III. (c) effect, approve or authorize any transaction with any stockholder or Affiliate of a stockholder or any Director or officer Liquidation of the Company or any recapitalization or reorganization of its subsidiaries the Company or any Subsidiary;
(d) directly or indirectly declare or pay any dividend or make any other distribution in respect thereof, or directly or indirectly redeem or repurchase any shares of capital stock of the Company, whether in cash or property or in obligations of the Company or any Subsidiary; provided, however, that the Company may declare or pay any dividend on, distribution upon or redemption of the Series A Preferred Shares and Warrant Preferred Shares, in accordance with their terms;
(e) agree to, or permit any Subsidiary to agree to, any provision in any agreement that would impose any restriction on the ability of the Company to honor the exercise of any rights of the holders of the Series A Preferred Stock or the Warrant;
(f) other than employment agreements with officers not otherwise affiliated with a stockholder);
IV. winding up arrangements approved by the Company;
V. Board of Directors enter into any transaction, including, without limitation, any purchase, sale, lease or exchange of property, the declaration rendering of any service or the payment of any dividend management, advisory or other distribution similar fees, with any Affiliate unless such transaction is (a) in the ordinary course of business of the Company and its Subsidiaries, and (b) upon fair and reasonable terms no less favorable to the stockholders by Company and its Subsidiaries than they would obtain in a comparable arm's length transaction with a Person which is not an Affiliate;
(g) materially alter or change the business of the Company or redemptionany Subsidiary as it is currently conducted or planned to be conducted;
(h) hire or fire, repurchase or exchange (as applicable) of any equity securities amend the employment terms of, the Chief Executive Officer or the Chief Operating Officer of the Company;
VI. issuing (i) acquire or granting dispose of any business or assets in a single transaction or a series of related transactions with an aggregate value in such transaction or series of related transactions in excess of $500,000 (including all assumed debt, all cash payments, and the fair market value of all securities or other property issued as consideration);
(j) adopt any employee stock option plan or stock incentive plan, or alter in any material respect any of the Company's equity incentive plans for executive officers;
(k) issue any equity securities other than to employees or directors upon exercise of the stock options referred to in Section 8.3 of the Merger Agreement;
(l) the creation or incurrence of any indebtedness, or the guaranty of any indebtedness of any other Person, by the Company or its subsidiaries, other than any Subsidiary in excess of $500,000; or
(Am) grants under agree or otherwise commit to take any of the Thoughtworks Holding, Inc 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 such transaction or arrangement exceeding $500.0 million; and
VIII. entry by the Company into any agreement with respect to the matters described in the foregoing clauses (I) through (VIII) or taking any such action indirectlyactions set forth above.
Appears in 1 contract
Sources: Securities Purchase Agreement (Rare Medium Group Inc)
Protective Provisions. Notwithstanding (a) So long as any other provision shares of this Agreement and to the fullest extent permitted by applicable law, in addition to the approval of the DirectorsSeries A Preferred Stock shall be outstanding, the following actions described in this Section 3(a) (collectivelyCorporation shall not, without first having obtained the “Consent Matters”) shall require the prior affirmative vote or written consent of Turing EquityCo the holders of not less than a majority of the outstanding shares of Series A Preferred Stock, voting as set out belowa single class:
i. none (i) take any action or enter into any agreement to increase or decrease the number 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 the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own authorized shares of Common Stock representing at least 50% of the total voting power of the Total Outstanding Securities Series A Preferred Stock; or
(except as set forth in the proviso in Section 3(a)(i)(I)):
I. amendingii) take an action or amend, altering alter, repeal or changingwaive any provision of, or waiving add any rights underprovision to, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company (which shall also be subject to Section 5 hereof), and/or the organizational documents of any subsidiary of the Company; provided that, notwithstanding the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Ninth Amended and Restated Certificate of Incorporation or Amended and Restated the Corporation’s Bylaws of (whether by merger, consolidation or otherwise) in a manner that changes the Company, that would adversely affect any rights specific to Turing EquityCo (subject to applicable law) require the written consent of Turing EquityCo;
II. authorizing or issuing any equity securities of the Company having rights, preferences or privileges of the Series A Preferred Stock or that are superior otherwise changes or senior to adversely affects the rights of the holders of the Series A Preferred Stock without changing or adversely affecting the rights of every other series of Preferred Stock in the same manner.
(b) So long as any shares of Series B Preferred Stock shall be outstanding, the Corporation shall not, without first having obtained the affirmative vote or written consent of the holders of not less than a majority of the outstanding Common shares of Series B Preferred Stock, voting as a single class:
(i) take any action or enter into any agreement to increase or decrease the number of authorized shares of Series B Preferred Stock; or
(ii) take an action or amend, alter, repeal or waive any provision of, or add any provision to, this Ninth Amended and Restated Certificate of Incorporation or the Corporation’s Bylaws (whether by merger, consolidation or otherwise) in a manner that changes the rights, preferences or privileges of the Series B Preferred Stock or that otherwise changes or adversely affects the rights of the holders of the Series B Preferred Stock without changing or adversely affecting the rights of every other series of Preferred Stock in the same manner.
(c) So long as any shares of Series C Preferred Stock shall be outstanding, the Corporation shall not, without first having obtained the affirmative vote or written consent of the holders of not less than a majority of the outstanding shares of Series C Preferred Stock, voting as a single class:
(i) take any securities convertible action or exchangeable therefor pursuant enter into any agreement to their terms)increase or decrease the number of authorized shares of Series C Preferred Stock; or
(ii) take an action or amend, alter, repeal or waive any provision of, or add any provision to, this Ninth Amended and Restated Certificate of Incorporation or the Corporation’s Bylaws (whether by merger, consolidation or otherwise) in a manner that changes the rights, preferences or privileges of the Series C Preferred Stock or that otherwise changes or adversely affects the rights of the holders of the Series C Preferred Stock without changing or adversely affecting the rights of every other series of Preferred Stock in the same manner.
(d) So long as any shares of Series D Preferred Stock shall be outstanding, the Corporation shall not, without first having obtained the affirmative vote or written consent of the holders of not less than a majority of the outstanding shares of Series D Preferred Stock, voting as a single class:
(i) take any action or enter into any agreement to increase or decrease the number of authorized shares of Series D Preferred Stock;
III. (ii) take an action or amend, alter, repeal or waive any transaction with provision of, or add any stockholder provision to, this Ninth Amended and Restated Certificate of Incorporation or Affiliate of the Corporation’s Bylaws (whether by merger, consolidation or otherwise) in a stockholder manner that changes the rights, preferences or any Director or officer privileges of the Company Series D Preferred Stock or any of its subsidiaries (other than employment agreements with officers not that otherwise affiliated with a stockholder);
IV. winding up changes or adversely affects the Company;
V. the declaration or payment of any dividend or other distribution to the stockholders by the Company or redemption, repurchase or exchange (as applicable) of any equity securities rights of the Company;
VI. issuing or granting any equity securities holders of the Company Series D Preferred Stock without changing or its subsidiaries, adversely affecting the rights of every other than series of Preferred Stock in the same manner; or
(iii) effect any Liquidation Event or Extraordinary Transaction in which the aggregate consideration payable (A) grants under to the Thoughtworks HoldingCorporation, Inc 2021 Omnibus Incentive Plan, or (B) in connection with transactions consistent with certain specified strategies; andto the Corporation to be distributed to its stockholders or (C) to the Corporation’s stockholders is less than $40,000,000.
VII. engaging in (e) So long as any mergersshares of Series E Preferred Stock shall be outstanding, acquisitionsthe Corporation shall not, business combinations without first having obtained the affirmative vote or similar transactions written consent of the holders of not less than a majority of the outstanding shares of Series E Preferred Stock, voting as a single class:
(i) take any action or entering into any arrangements or agreements relating to joint ventures or strategic partnerships with a value of such transaction or arrangement exceeding $500.0 million; and
VIII. entry by the Company enter into any agreement with respect to increase or decrease the matters described number of authorized shares of Series E Preferred Stock; or
(ii) take an action or amend, alter, repeal or waive any provision of, or add any provision to, this Ninth Amended and Restated Certificate of Incorporation or the Corporation’s Bylaws (whether by merger, consolidation or otherwise) in a manner that changes the rights, preferences or privileges of the Series E Preferred Stock or that otherwise changes or adversely affects the rights of the holders of the Series E Preferred Stock without changing or adversely affecting the rights of every other series of Preferred Stock in the foregoing clauses (I) through (VIII) or taking any such action indirectlysame manner.
Appears in 1 contract
Sources: Series F Preferred Stock Purchase Agreement (GlassHouse Technologies Inc)
Protective Provisions. Notwithstanding any other provision The Company agrees that until the conversion of this Agreement and to the fullest extent permitted by applicable law, in addition to the approval all of the DirectorsPreferred Stock, the following actions described in this Section 3(a) (collectivelyCompany shall not, the “Consent Matters”) and shall require the prior written consent of Turing EquityCo as set out below:
i. none of the following actions shall be taken by the Company, including not permit any proposal by the Board to be put to the vote of the stockholders of the Company with respect theretoSubsidiary to, without the prior written consent of Turing EquityCo until such time the Requisite Holders:
(a) enter into a transaction resulting in a Change of Control or Combination Transaction (each as Turing EquityCo and its Affiliates cease defined in the Restated Certificate of Incorporation), other than an Affiliate Merger (as defined in the Restated Certificate of Incorporation) in which the portion of the consideration to Beneficially Own shares of Common Stock representing at least be paid or received by either party which is not represented by common equity is less than 50% of the total voting power consideration paid or received by either party and the transaction is on the following valuation terms: (i) if the Merger Affiliate is not a Listed Company, then the Company License Value Per POP can be no less than 95% of the Total Outstanding Securities Merger Affiliate License Value Per POP; and (except as set forth ii) if the Merger Affiliate is a Listed Company, then (x) the Company License Value Per POP can be no less than 85% of the Merger Affiliate License Value Per POP, provided that if the Company License Value per POP is less than 95% of the Merger Affiliate License Value Per POP, then the Company License Value Per POP can be no less than $82.00 and (y) the consideration to be received by the Company per share of Common Stock in the proviso Combination Transaction shall be no less than the Conversion Price of the Series A Preferred Stock as then in Section 3(a)(i)(I)):effect multiplied by 1.75.
I. amending, altering (b) directly or changingindirectly declare or pay any dividend or make any other distribution in respect thereof, or waiving directly or indirectly redeem, repurchase or otherwise acquire or retire for value any rights under, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate shares of Incorporation and Amended and Restated Bylaws of the Company (which shall also be subject to Section 5 hereof), and/or the organizational documents of any subsidiary of the Company; provided that, notwithstanding the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, that would adversely affect any rights specific to Turing EquityCo (subject to applicable law) require the written consent of Turing EquityCo;
II. authorizing or issuing any equity securities 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 capital stock of the Company or any of its subsidiaries Subsidiaries or any direct or indirect parent of the Company or any of its Subsidiaries , whether in cash or property or in obligations of the Company or any Subsidiary; provided, however, that: (i) the Company may declare or pay any dividend on, distribution upon or redemption of the Preferred Stock, in accordance with their terms and the provisions of this Agreement; (ii) the Company may repurchase option stock pursuant to rights of first refusal, up to $3,000,000 per year; (iii) the Subsidiaries may declare and pay dividends and other distributions to the Company; and (iv) the Subsidiaries may declare and pay a dividend of the Horizon Telcom stock held by them to the Company, and the Company may declare and pay a dividend of the Horizon Telcom stock received by it to its shareholders;
(c) engage in any business other than employment agreements with officers not otherwise affiliated with a stockholderPermitted Business (as such term is defined in the Indenture relating to the Senior Notes Offering);
IV. winding (d) except as otherwise permitted in Section 7.2(a) hereof, acquire or dispose of any business or assets in a single transaction or a series of related transactions (including investments in third parties) with an aggregate value in such transaction or series of related transactions in excess of $5,000,000 (including all assumed debt, all cash payments, and the fair market value of all securities or other property issued as consideration); provided however, that such restrictions shall not apply to (i) amendments to the Sprint Agreements that are made to increase the POPs of the Company and to acquisitions of assets from Sprint PCS in connection with such amendments;
(e) adopt any new employee stock option plan or stock incentive plan, or materially alter any of the Company's equity incentive plan for executive officers or key employees;
(f) issue any equity or equity-linked securities other than (i) in a Public Offering; (ii) the warrants issued pursuant to the Senior Notes Offering; and the common stock issuable upon exercise of such warrants; (iii) the issuance of Additional Securities; (iv) options, or securities issued pursuant to the exercise of options or warrants currently outstanding or hereafter granted pursuant to the Company's existing stock option plans or future stock option plans or stock incentive plans approved by the Board of Directors, provided that the Company's entitlement to issue options under its option plans under this exception shall be limited to grants of options at a strike price of at least 90% of the market price if the Company is then a Listed Company, and if the Company is not a Listed Company at the time of grant, then at least the Series A Conversion Price as in effect at the date of grant for (A) no more than 200,000 shares of common stock between the Closing Date and April 30, 2001; (B) no more than 800,000 shares of common stock between May 1, 2001 and December 31, 2001; and (C) during subsequent years, grants of options for up to 750,000 shares of common stock; (v) shares issuable to First Union pursuant to the First Union Conversion; (vi) securities issued in connection with the acquisition of another entity by the Company by merger provided that such merger has either been approved by the Requisite Holders or such approval is not required pursuant to Section 7.2 hereof; (vii) securities issued in connection with any stock split, stock dividend, recapitalization or reorganization by the Company; and (viii) the issuance of warrants, and common stock issuable upon the exercise thereof, to Sprint Spectrum, L.P. pursuant to contractual obligations entered into prior to the date hereof.
(g) increase the size of the Board of Directors (provided, however, that this covenant shall only be applicable for so long as the provisions of Section 4.1(a) of the Investors' Rights and Voting Agreement require the parties thereto to vote to elect two (2) directors nominated by the Purchasers to serve on the Board of Directors of the Company);
(h) incur any indebtedness for borrowed money other than debt permitted pursuant to the Senior Facility on the date hereof (including the Additional Term Loan);
(i) terminate the Chief Executive Officer or Chief Financial Officer of the Company (subject to the Board of Directors' fiduciary obligations), or hire an individual to serve as the Company's Chief Executive Officer, President, Chief Operating Officer, or Chief Financial Officer;
(j) commence a proceeding for bankruptcy, insolvency, receivership or similar action;
(k) make Capital Expenditures in excess of the amounts permitted pursuant to the Senior Facility on the date hereof or amounts necessary to fund construction of network infrastructure in territory currently covered by the Alliances Agreement;
(l) make any payment to Horizon Services, Inc. pursuant to the Horizon Services Agreement in any amount in excess of $6,700,000 per annum;
(m) agree to, or permit any Subsidiary to agree to, any provision in any agreement that would impose any restriction on the ability of the Company to honor the exercise of any rights of the holders of the Preferred Stock, except that the terms of the Senior Notes Offering and the Senior Facility restrict the redemption of Equity Interests in the Company;
V. (n) enter into any transaction other than those transactions described in the declaration Offering Memorandum, including, without limitation, any purchase, sale, lease or exchange of property, the rendering of any service or the payment of any dividend management, advisory or other distribution to similar fees, with any Affiliate unless such transaction is (i) in the stockholders by the Company or redemption, repurchase or exchange (as applicable) ordinary course of any equity securities of the Company;
VI. issuing or granting any equity securities business of the Company or and its subsidiariesSubsidiaries, other and (ii) upon fair and reasonable terms no less favorable to the Company and its Subsidiaries than (A) grants under the Thoughtworks Holding, Inc 2021 Omnibus Incentive Plan, or (B) they would obtain 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 a comparable arm's length transaction with a Person which is not an Affiliate; provided, however, that if the value of any such transaction or arrangement exceeding is greater than: (x) $500.0 million; and
VIII. entry by 5,000,000, such transaction shall require the approval of a majority of the disinterested members of the Board of Directors and (y) $25,000,000, such transaction shall require the Company into any agreement with respect to obtain a fairness opinion from an independent investment banker reasonably acceptable to the matters described in Requisite Holders; or
(o) agree or otherwise commit to take any of the foregoing clauses (I) through (VIII) or taking any such action indirectlyactions set forth above.
Appears in 1 contract
Sources: Securities Purchase Agreement (Horizon Personal Communications Inc)
Protective Provisions. 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 Turing EquityCo 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 the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own shares of Common Stock representing at least 50% of the total voting power of the Total Outstanding Securities (except as set forth in the proviso in Section 3(a)(i)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company (which shall also be subject to Section 5 hereof), and/or the organizational documents of any subsidiary of the Company; provided that, notwithstanding the foregoing, for For so long as Turing EquityCo owns any outstanding Common Stockthe Sponsor Entities continue to own the Required Percentage, any amendmentthe Corporation shall not, alteration, or change and shall cause its Subsidiaries not to, without first obtaining the approval (by vote or waiver underwritten consent as provided by law) of the holders of at least the majority of the then-outstanding Shares, other organizational documentsvoting as a separate class:
(a) amend, including modify, waive, repeal or restate any provision in this Certificate of Designations, the Fourth Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws Bylaws, similar organizational documents of the CompanyCorporation’s Subsidiaries, the Reg Rights Agreement or any other rights involving the rights of holders with respect to any Shares, including, by merger, consolidation, recapitalization or otherwise, in each case, in any manner that would adversely affect any rights specific to Turing EquityCo (subject to applicable law) require affects the written consent of Turing EquityCo;
II. authorizing or issuing any equity securities of the Company having rightspowers, preferences or privileges rights of the Shares;
(b) enter into any contract that are superior would prohibit or senior restrict the ability of the Corporation to perform its obligations with respect to the Series A Preferred Stock;
(c) incur Indebtedness (including guarantees on Indebtedness) in excess of the amount of Indebtedness outstanding Common Stock on the Issue Date;
(d) extend, supplement, amend, waive or otherwise modify any material provisions of the Loan Documents or any securities convertible other agreement, indenture or exchangeable therefor pursuant to their terms)similar instrument governing any terms of Indebtedness of the Corporation or its Subsidiaries, other than refinancing Indebtedness outstanding on the Issue Date;
III. (e) acquire or divest in one or more series of transactions the stock or assets of any transaction with Person for consideration in excess of $25 million individually or $125 million in the aggregate in any stockholder given year;
(f) establish or Affiliate of a stockholder or acquire any Director or officer Subsidiaries outside of the Company United States;
(g) effect a Fundamental Change;
(h) effect any bankruptcy or Liquidation Event of the Corporation or its Subsidiaries;
(i) declare or pay any dividends other than dividends on the Series A Preferred Stock;
(j) authorize, create or issue any Capital Stock of the Corporation or any of its subsidiaries (Subsidiaries other than employment agreements with officers not otherwise affiliated with a stockholder)Junior Stock or pursuant to any management plan approved by the Board of Directors;
IV. (i) reclassify, alter or amend any existing security of the Corporation that is pari passu with the Shares in respect of the distribution of assets on the liquidation, dissolution or winding up of the CompanyCorporation, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to the Shares in respect of any such right, preference, or privilege or (ii) reclassify, alter or amend any existing security of the Corporation that is Junior Stock in respect of the distribution of assets on the liquidation, dissolution or winding up of the Corporation, the payment of dividends or rights of redemption, if such reclassification, alteration or amendment would render such other security senior to or pari passu with the Shares in respect of any such right, preference or privilege;
V. (l) enter into or effect any transaction involving the declaration or payment of any dividend recapitalization, reorganization, reclassification, repurchase, redemption, exchange or other distribution to the stockholders by the Company or redemption, repurchase or exchange (as applicable) acquisition of any equity securities of the Company;
VI. issuing or granting any equity securities of the Company Corporation or its subsidiariesSubsidiaries, other than (A) grants under the Thoughtworks Holding, Inc 2021 Omnibus Incentive Planrepurchases or redemptions by a wholly owned Subsidiary of its outstanding securities, or (B) in connection with transactions consistent with certain specified strategies; and
VII. engaging in any mergers, acquisitions, business combinations redemptions or similar transactions other repurchases of Common Stock from employees of the Corporation and its Subsidiaries pursuant to plans or entering into any arrangements or agreements relating to joint ventures or strategic partnerships with a value of such transaction or arrangement exceeding $500.0 million; and
VIII. entry approved by the Company into Board of Directors; or
(m) agree in writing or commit or publicly announce an intention to do any agreement with respect to of the matters described in the foregoing clauses (I) through (VIII) or taking any such action indirectlyforegoing.
Appears in 1 contract
Sources: Securities Purchase Agreement (Surgery Partners, Inc.)
Protective Provisions. Notwithstanding any other provision of this Agreement and Subject to the fullest extent permitted rights of series of Preferred Stock that may from time to time come into existence and any contractual agreements or restrictions which may be then in effect in any agreement of stockholders or other organizational document to which the holders of Series A Preferred Stock and the Company may be a party, the approval by applicable law, written consent of the Preferred Supermajority (in addition to any other applicable stockholder approval requirements required by law) shall be required for the approval of the Directors, Company to take the following actions described in this Section 3(a) (collectively, the “Consent Matters”) shall require the prior written consent of Turing EquityCo as set out belowactions:
i. none (a) authorize or issue, or obligate itself to issue, any shares of Preferred Stock or any other equity security on parity with or having a preference over any series of Preferred Stock with respect to dividends, liquidation, redemption or voting, including any security convertible into or exercisable for any such equity security, or authorize any subsidiary to issue any equity security or any such securities convertible or exercisable therefor;
(b) increase or decrease the following actions shall be taken by number of authorized shares of any series of Preferred Stock;
(c) amend the Certificate of Incorporation or Bylaws of the Company, including any proposal by the Board to be put to the vote amendment of the stockholders of the Company with respect thereto, without the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own shares of Common Stock representing at least 50% of the total voting power of the Total Outstanding Securities (except as set forth in the proviso in Section 3(a)(i)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws by the adoption or amendment of the Company (which shall also be subject to Section 5 hereof)any Certificate of Designation or similar document, and/or or amend the organizational documents of any subsidiary subsidiary, in any such case other than amendments solely to the extent required to authorize the issuance of the Company; provided that, notwithstanding the foregoing, any Junior Stock or any security convertible into or exercisable for so long as Turing EquityCo owns any outstanding Common Junior Stock, any amendment, alteration, ;
(d) alter or change to, or waiver under, other organizational documents, including the Fourth Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, that would adversely affect any rights specific to Turing EquityCo (subject to applicable law) require the written consent of Turing EquityCo;
II. authorizing or issuing any equity securities of the Company having rights, preferences or privileges of the shares of any series of the Preferred Stock;
(e) issue, or cause any subsidiary to issue, any indebtedness, other than trade accounts payable and/or letters of credit, performance bonds or other similar credit support incurred in the ordinary course of business, or amend, renew, increase or otherwise alter in any material respect the terms of any indebtedness previously approved or required to be approved by the holders of the Preferred Stock other than the incurrence of debt solely to fund the payment of Accrued Dividends on the Preferred Stock or solely to fund the redemption of the Preferred Stock pursuant to Section 6;
(f) increase the authorized number of directors constituting the Board of Directors of the Company from fourteen (14) directors;
(g) redeem, purchase or otherwise acquire (or pay into or set aside for a sinking fund for such purpose) any share or shares of capital stock of the Company; provided, however, that are superior or senior this restriction shall not apply to the outstanding Common repurchase of shares of Preferred Stock (pursuant to Section 6 or the repurchase of shares of Junior Stock from employees, officers, directors, consultants or other persons performing services for the Company or any securities convertible or exchangeable therefor subsidiary pursuant to their terms)agreements under which the Company has the option to repurchase such shares at cost upon the occurrence of certain events, such as the termination of employment;
III. (h) declare or pay dividends or otherwise make distributions with respect to any transaction with any stockholder shares of capital stock of the Company, other than dividends on the Preferred Stock;
(i) declare bankruptcy, dissolve, liquidate or Affiliate of a stockholder or any Director or officer wind up the affairs of the Company or any subsidiary;
(j) modify or change the nature of its subsidiaries (the Company’s business such that a material portion of the Company’s business is devoted to any business other than employment agreements with officers the business of (A) designing, constructing or operating facilities for biofuels, chemicals or by-products thereof and (B) procurement, manufacturing, selling, distribution, logistics, marketing or risk management related to biofuels, chemicals or by-products thereof;
(k) make or permit any subsidiary to make any capital expenditure in excess of $500,000 which is not otherwise affiliated with a stockholder);
IV. winding up included in the Company;
V. the declaration or payment of any dividend or other distribution to the stockholders annual budget previously approved by the Company or redemption, repurchase or exchange (as applicable) Board of any equity securities Directors of the Company;
VI. issuing (l) effect any Acquisition;
(m) acquire directly or granting through a subsidiary the stock or any equity securities material assets of another corporation, partnership or other person or entity for consideration valued at more than ten percent (10%) of the total assets of the Company or its subsidiaries, other than (A) grants under as of the Thoughtworks Holding, Inc 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 most recent month-end prior to joint ventures or strategic partnerships with a value such acquisition as reflected on the balance sheet of such transaction or arrangement exceeding $500.0 million; and
VIII. entry by the Company into prepared in accordance with generally accepted accounting principles consistently applied; or
(n) agree or commit to do any agreement of the foregoing; provided, however, that nothing in this Section 4(b) shall be deemed to alter any statutory provision entitling a particular class or series of shares to vote as a class or series with respect to the matters described in the foregoing clauses (I) through (VIII) or taking any such action indirectlymatter.
Appears in 1 contract
Sources: Asset Purchase Agreement (Central Iowa Energy, LLC)
Protective Provisions. 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 Turing EquityCo Pride Aggregator 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 the prior written consent of Turing EquityCo until such time Pride Aggregator for so long as Turing EquityCo and its Affiliates cease to Beneficially Own shares of Common Stock representing Pride Aggregator owns at least 505% of the total voting power of the Total Outstanding Securities Original Amount (except as set forth in the proviso in Section 3(a)(i)(I3(a)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth Second Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company (which shall also be subject to Section 5 hereof), and/or the organizational documents of any subsidiary of the Company; provided that, notwithstanding the foregoing, for so long as Turing EquityCo Pride Aggregator owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Second Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, and/or the organizational documents of any subsidiary of the Company that would adversely affect in any respect any rights specific to Turing EquityCo Pride Aggregator (subject to applicable law) require the written consent of Turing EquityCoPride Aggregator;
II. authorizing or issuing any equity securities 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 any agreement with respect to the matters described in the foregoing clauses (I) through (IV) or taking any such action indirectly.
ii. 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 the prior written consent of Pride Aggregator for so long as Pride Aggregator owns at least 20% of the Original Amount:
I. the declaration or payment of any dividend or other distribution to the stockholders by the Company or redemption, repurchase or exchange (as applicable) of any equity securities of the Company;
VIII. issuing or granting any equity securities of the Company or its subsidiaries, other than (A) grants under the Thoughtworks Holding, Inc [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 such transaction or arrangement exceeding $500.0 million; and
VIIIIII. entry by the Company into any agreement with respect to the matters described in the foregoing clauses (I) through (VIIIII) or taking any such action indirectly.
Appears in 1 contract
Protective Provisions. 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 Turing EquityCo Varsity 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 the prior written consent of Turing EquityCo Varsity until such time as Turing EquityCo Varsity and its Affiliates cease to Beneficially Own shares of Common Stock representing at least 50% of the total voting power of the Total Outstanding Securities (except as set forth in the proviso in Section 3(a)(i)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company (which shall also be subject to Section 5 hereof), and/or the organizational documents of any subsidiary of the Company; provided that, notwithstanding the foregoing, for so long as Turing EquityCo Varsity owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, that would adversely affect any rights specific to Turing EquityCo Varsity (subject to applicable law) require the written consent of Turing EquityCoVarsity;
II. authorizing or issuing any equity securities 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;
V. the declaration or payment of any dividend or other distribution to the stockholders by the Company or redemption, repurchase or exchange (as applicable) of any equity securities of the Company;
VI. issuing or granting any equity securities of the Company or its subsidiaries, other than (A) grants under the Thoughtworks Holding, Inc 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 such transaction or arrangement exceeding $500.0 300.0 million; and
VIII. entry by the Company into any agreement with respect to the matters described in the foregoing clauses (I) through (VIII) or taking any such action indirectly.
Appears in 1 contract
Sources: Director Nomination Agreement (Specialty Building Products, Inc.)
Protective Provisions. Notwithstanding None, except as required by law. Information Rights: None Registration Rights: None Lock Up Agreement: Each holder of Series A-3 Preferred Stock, if requested by the Company and the managing underwriter of an underwritten public offering by the Company of Common Stock, shall not sell or otherwise transfer or dispose of any other provision shares (excluding shares acquired in or following the Company’s initial public offering) for such period of this Agreement and time as required by the underwriters (not to exceed 180 days) following the fullest extent permitted by applicable law, in addition to the approval effective date of the Directorsregistration statement for such offering Rights to Purchase Additional Shares: The holders of Series A-3 Preferred Stock shall have a pro rata right, the following actions described based on their percentage equity ownership in this Section 3(a) (collectively, the “Consent Matters”) shall require the prior written consent of Turing EquityCo 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 participate in subsequent issuances of the stockholders equity securities of the Company (subject to customary exclusions) on the same terms and conditions as current investors in the Company. Stratec’s percentage equity ownership at any time for this purpose shall be based on shares of Series A-3 issued and outstanding at the time of such subsequent equity issuance. Right of First Refusal and Co-Sale: Except for transfer to affiliates, the Company first and existing investors second have a right of first refusal with respect thereto, without the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own any shares proposed to be sold by Stratec. Before Stratec may sell any shares of Series A-3 Preferred Stock, they will give the investors an opportunity to participate in such sale. Take along rights: Stratec will enter into an agreement that if the Board of Directors and a majority of the holders of the Series A-1 and A-2 Preferred Stock (or the Common Stock representing at least 50% received on conversion of such Series A-1 or A-2 Preferred Stock) agree to sell their shares to an entity or person not affiliated with the sellers, Stratec will sell their shares to such entity of person on the same terms and conditions. Portions of this Exhibit, indicated by the ▇▇▇▇ “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 406 of the total voting power Securities Act of 1933, as amended. EXHIBIT 6 FORM OF WARRANT THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR APPLICABLE STATE SECURITIES LAWS. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS, OR THE AVAILABILITY OF AN EXEMPTION FROM THE REGISTRATION PROVISIONS OF THE SECURITIES ACT OF 1933 AND APPLICABLE STATE SECURITIES LAWS. QUANTERIX CORPORATION SERIES A-3 PREFERRED STOCK PURCHASE WARRANT No. W-[ ] Date of Issuance: , 2011 Expiration Date: , 2016 This Warrant is issued by Quanterix Corporation, a Delaware corporation (the “Company”), pursuant to the terms of that certain STRATEC Development Services and Equity Participation Agreement (the “Development Agreement”) dated August 15, 2011 by and between the Company and Stratec Biomedical Systems AG, a stock corporation formed under the laws of the Total Outstanding Securities Federal Republic of Germany (except as the “Holder”). The Holder is entitled, subject to the terms set forth below, to purchase from the Company any time or from time to time during the Exercise Period (as hereinafter defined) that number of fully paid and nonassessable shares of Series A-3 Preferred Stock (as hereinafter defined) as is equal to the Warrant Number (as hereinafter defined), at a purchase price per share as shall be equal to the Purchase Price (as hereinafter defined) in effect at the time of the exercise of this Series A-3 Preferred Stock Purchase Warrant (the “Warrant”). The Purchase Price is subject to adjustment as provided in this Warrant. As used herein the following terms, unless the context otherwise requires, have the following respective meanings:
(a) The term “Affiliate” of any Person means a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with the first mentioned Person. A Person shall be deemed to control another Person if such first Person possesses directly or indirectly the power to direct, or cause the direction of, the Portions of this Exhibit, indicated by the ▇▇▇▇ “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 406 of the Securities Act of 1933, as amended. 42 such first Person possesses directly or indirectly the power to direct, or cause the direction of, the management and policies of the second Person, whether through the ownership of voting securities, by contract or otherwise.
(b) The term “Change of Control” shall mean any Liquidation Event (as defined in the proviso in Section 3(a)(i)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company (which shall also Incorporation, as may be subject amended and/or restated from time to Section 5 hereoftime), and/or the organizational documents of any subsidiary of the Company; provided that, notwithstanding the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, that would adversely affect any rights specific to Turing EquityCo (subject to applicable law) require the written consent of Turing EquityCo;
II. authorizing or issuing any equity securities 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;
V. the declaration or payment of any dividend or other distribution to the stockholders by the Company or redemption, repurchase or exchange (as applicable) of any equity securities of the Company;
VI. issuing or granting any equity securities of the Company or its subsidiaries, other than (A) grants under the Thoughtworks Holding, Inc 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 such transaction or arrangement exceeding $500.0 million; and
VIII. entry by the Company into any agreement with respect to the matters described in the foregoing clauses (I) through (VIII) or taking any such action indirectly.
Appears in 1 contract
Sources: Development Services and Equity Participation Agreement
Protective Provisions. Notwithstanding Subject to the rights of series of Preferred Stock which may from time to time come into existence, so long as any shares of Series A Preferred Stock are outstanding, this corporation shall not without first obtaining the approval (by vote or written consent, as provided by law) of the holders of at least two thirds (66.67%) of the then outstanding shares of Series A Preferred Stock:
(a) sell, convey, or otherwise dispose of or encumber all or substantially all of its property or business or merge with and into any other provision corporation where the corporation is not the surviving corporation (other than a wholly-owned subsidiary corporation), or effect any transaction or series of this Agreement and to the fullest extent permitted by applicable law, related transactions in addition to the approval which more than fifty percent (50%) of the Directors, the following actions described in this Section 3(a) (collectively, the “Consent Matters”) shall require the prior written consent of Turing EquityCo 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 the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own shares of Common Stock representing at least 50% of the total voting power of the Total Outstanding Securities (except as set forth in the proviso in Section 3(a)(i)(I)):
I. amending, altering or changingcorporation is disposed of, or waiving effect any rights undervoluntary liquidation, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws dissolution or winding up of the Company (which shall also be subject to Section 5 hereof), and/or the organizational documents of any subsidiary corporation or recapitalization of the Companycorporation; provided that, notwithstanding the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, or
(b) alter or change to, or waiver under, other organizational documents, including the Fourth Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, that would adversely affect any rights specific to Turing EquityCo (subject to applicable law) require the written consent of Turing EquityCo;
II. authorizing or issuing any equity securities 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 shares of Series A Preferred Stock so as to adversely affect such shares; or
(c) increase or any of its subsidiaries decrease (other than employment agreements with officers not otherwise affiliated with a stockholder);by redemption or conversion) the total number of authorized shares of capital stock or any series of capital stock, provided, however, that no such approval shall be required to increase the total number of authorized shares of Common Stock to less than or equal to fifteen million (15,000,000) shares; or
IV. winding up the Company;
V. the declaration (d) authorize or payment of any dividend issue, or other distribution obligate itself to the stockholders by the Company or redemptionissue, repurchase or exchange (as applicable) of any equity securities security, including any other security convertible into or exercisable for any equity security, (i) having a preference over, or being on a parity with, the rights, preferences and privileges of the Company;
VI. issuing Series A Preferred Stock with respect to dividends, liquidation or granting any equity securities voting (provided that additional shares of Common Stock having the Company or its subsidiaries, other than (A) grants under same number of votes per share as the Thoughtworks Holding, Inc 2021 Omnibus Incentive PlanSeries A Preferred Stock may be issued), or (Bii) in connection with transactions consistent with certain specified strategieshaving rights similar to any of the rights of the Series A Preferred Stock under this Section 8; andor
VII. engaging in (e) redeem, purchase or otherwise acquire (or pay into or set aside for a sinking fund for such purpose) any mergersshare or shares of Common Stock; provided, acquisitionshowever, business combinations or similar transactions or entering into any arrangements or agreements relating to joint ventures or strategic partnerships with a value of such transaction or arrangement exceeding $500.0 million; and
VIII. entry by the Company into any agreement with respect that this restriction shall not apply to the matters described in repurchase of shares of Common Stock from certain shareholders pursuant to that certain Shareholder Agreement dated June 8, 1994 or that certain Shareholders' Agreement dated on or about February 12, 1998 or the foregoing clauses repurchase of shares of Common Stock from employees, officers, directors, consultants or other persons performing services for the corporation or any subsidiary pursuant to agreements under which the corporation has the option to repurchase such shares at cost upon the occurrence of certain events, such as the termination of employment; or
(If) through issue, or obligate itself to issue, greater than 533,333 shares of Series A Preferred Stock; or
(VIIIg) pay any dividends on the corporation's Common Stock; or
(h) amend the corporation's Articles of Incorporation, provided, however, that no such approval shall be required for an amendment to the corporation's Articles of Incorporation to increase the total number of authorized shares of Common Stock to less than or taking any such action indirectlyequal to fifteen million (15,000,000) shares; or (i)ab increase the authorized number of directors of the corporation to more than thirteen (13).
Appears in 1 contract
Sources: Series a Preferred Stock Purchase Agreement (Pemstar Inc)
Protective Provisions. Notwithstanding any other provision (a) So long as shares of this Agreement Preferred Stock are outstanding (as adjusted for stock splits, stock dividends, reclassification and to the fullest extent permitted like), the Corporation shall not (by applicable lawamendment, in addition to merger, reclassification, consolidation or otherwise, either directly or indirectly by subsidiary) without first obtaining the approval (by vote or written consent, as provided by law) of the Directorsholders of a majority of the then outstanding shares of Preferred Stock, the following actions described in this Section 3(a) (collectively, the “Consent Matters”) shall require the prior written consent of Turing EquityCo voting together as set out belowa single class and on an as-converted basis:
i. none (i) liquidate, dissolve or wind-up the business and affairs of the following actions shall be taken by Corporation;
(ii) effect any merger or consolidation of the Company, including any proposal by the Board to be put to the vote of Corporation with or into one or more other entities in which the stockholders of the Company with respect theretoCorporation immediately prior to such event hold, without the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own shares of Common Stock immediately after, stock representing at least 50% Jess than a majority of the total voting power of the Total Outstanding Securities (except as set forth in the proviso in Section 3(a)(i)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws outstanding stock of the Company surviving entity (which shall also be subject other than for purposes of changing the Corporation’s domicile and other than pursuant to Section 5 hereof), and/or a sale of all or substantially all of the organizational documents Corporation’s assets) that would result in proceeds to the holders of any subsidiary series of Preferred Stock of less than the Original Purchase Price of such series of Preferred Stock;
(iii) the sale of all or substantially all of the Company; provided thatCorporation’s assets that would result in proceeds to the holders of any series of Preferred Stock of less than the Original Purchase Price of such series of Preferred Stock;
(iv) amend, notwithstanding alter or repeal any provision of the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, that would Corporation so as to materially and adversely affect any rights specific to Turing EquityCo (subject to applicable law) require the written consent of Turing EquityCoPreferred Stock;
II. authorizing (v) create or issuing authorize the creation of any equity securities additional class or series of shares of stock senior to the Preferred Stock with respect to the distribution of assets on the liquidation, dissolution or winding up of the Company Corporation and with respect to the payment of dividends, redemption rights and voting rights, other than in connection with a bona fide equity financing transaction or series of related transactions;
(vi) reclassify any outstanding shares or securities into shares having rights, preferences or privileges that are superior or senior to or on parity with the outstanding preferences of the Preferred Stock;
(vii) purchase or redeem or pay or declare any dividend or make any distribution on, any shares of stock other than the Preferred Stock as expressly authorized herein, or permit any subsidiary of the Corporation to take any such action, other than (i) dividends or other distributions payable on the Class A Common Stock or Class B Common Stock solely in the form of additional shares of Class A Common Stock or Class B Common Stock, (ii) securities repurchased from former employees, officers, directors, consultants or other persons who performed services for the Corporation or any subsidiary in connection with the cessation of such employment or service at the lower of the original purchase price or the then-current fair market value thereof, pursuant to plans or agreements approved by Board of Directors or (iii) securities repurchased by the Corporation as approved by the Board of Directors, including at least one Preferred Director (so long as neither the Preferred Director whose approval is relied upon for the foregoing proviso of this clause (iii) nor any of his or her affiliates participates in such repurchase, and if both Preferred Directors (or any securities convertible or exchangeable therefor pursuant to their termsaffiliates) participate in such repurchase, then this clause (iii) shall be inapplicable);
III. (viii) amend the Bylaws to increase or decrease the authorized size of the Board of Directors (provided, that, the authorized size of the Board of Directors may be increased up to eight directors without the need to obtain approval hereunder);
(ix) cause the Corporation to enter into any transaction with any stockholder current or Affiliate of a stockholder former officer, director or any Director or officer stockholder of the Company Corporation who owns more than 5% of the Corporation’s capital stock as of the date of such transaction, calculated on an as-converted to Common Stock basis, or any of its subsidiaries such person’s affiliates or family members or any trust for the benefit of any of the foregoing, unless such transaction has been approved by all of the disinterested members of the Board of Directors then in office; or
(x) permit any subsidiary to do any of the foregoing.
(b) The Corporation shall not (by amendment, merger, reclassification, consolidation or otherwise, either directly or indirectly by subsidiary) without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the then outstanding shares of Series A Preferred Stock, voting as a single class, (i) alter or change the powers, preferences or special rights of the shares of Series A Preferred under the Restated Certificate of Incorporation or Bylaws of the Corporation so as to affect the holders of Series A Preferred Stock adversely as set forth in Section 242 of the Delaware General Corporation Law, but not so affect the other series of Preferred Stock, or (ii) increase or decrease the number of authorized shares of Series A Preferred Stock.
(c) The Corporation shall not (by amendment, merger, reclassification, consolidation or otherwise, either directly or indirectly by subsidiary)
(i) without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the then outstanding shares of Series B Preferred Stock, voting as a single class, alter or change the powers, preferences or special rights of the shares of Series B Preferred under the Restated Certificate of Incorporation or Bylaws of the Corporation so as to affect the holders of Series B Preferred Stock adversely as set forth in Section 242 of the Delaware General Corporation Law, but not so affect the other series of Preferred Stock, or (ii) without first obtaining the written consent of a holder of shares of Series B Preferred Stock, amend, alter or repeal any provision of the Restated Certificate of Incorporation or Bylaws of the Corporation in a manner that adversely and disproportionately affects such holder vis-a-vis any other holder of shares of Series B Preferred Stock. In addition, any action that has the effect of reducing the Series B Preferred Stock Liquidation Preference amount under Section 2(a) above, including without limitation a forced conversion of the Series B Preferred Stock into Class B Common Stock in connection with or in contemplation of a Liquidation Transaction, shall require the vote of the holders of a majority of the then outstanding shares of Series B Preferred Stock.
(d) The Corporation shall not (by amendment, merger, reclassification, consolidation or otherwise, either directly or indirectly by subsidiary), without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the then outstanding shares of Series C-1 Preferred Stock, voting together as a single class:
(i) amend, alter or repeal Article IV, Section (B)4(d) of the Restated Certificate of Incorporation so as to affect the holders of Series C-1 Preferred Stock adversely;
(ii) amend, alter or repeal any provision of the Restated Certificate of Incorporation or Bylaws of the Corporation so as to affect the holders of Series C-l Preferred Stock adversely as set forth in Section 242 of the Delaware General Corporation Law, but not so affect the other series of Preferred Stock;
(iii) effect any Liquidation Transaction that would result in proceeds per share to the holders of Series C-1 Preferred Stock of less than the Series C-1 Liquidation Preference; provided, however, that approval of such a transaction by holders of Series C-1 Preferred Stock shall in no way prejudice the rights of the holders of Series C-1 Preferred Stock under Article IV Section B.2(c)(vii) or the rights of the holders of Series C-2 Preferred Stock under Article IV Section B.2(c)(viii);
(iv) increase or decrease the number of authorized shares of Series C-1 Preferred Stock; or
(v) amend, alter or repeal Article IV, Sections B.4(b)(i), B.4(b)(vii), B.2(c)(vii), or B.2(c)(xii) of the Restated Certificate of Incorporation so as to affect the holders of Series C-1 Preferred Stock adversely.
(e) The Corporation shall not (by amendment, merger, reclassification, consolidation or otherwise, either directly or indirectly by subsidiary), without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the then outstanding shares of Series C-2 Preferred Stock, voting together as a single class, or if no share of Series C-2 Preferred Stock are outstanding, by written consent of holders of the right to acquire a majority of the shares of Series C-2 Preferred Stock pursuant to the Investment Agreement:
(i) amend, alter or repeal Article IV, Section (B)4(d) of the Restated Certificate of Incorporation so as to affect the holders of Series C-2 Preferred Stock adversely;
(ii) amend, alter or repeal any provision of the Restated Certificate of Incorporation or Bylaws of the Corporation so as to affect the holders of Series C-2 Preferred Stock adversely as set forth in Section 242 of the Delaware General Corporation Law, but not so affect the other series of Preferred Stock;
(iii) increase or decrease the number of authorized shares of Series C-2 Preferred Stock; or
(iv) amend, alter or repeal Article IV, Sections (B)4(b)(ii), (B)4(b)(vii), (B)2(c)(viii), or (B)2(c)(xii) of the Restated Certificate of Incorporation so as to affect the holders of Series C-2 Preferred Stock adversely.
(f) The Corporation shall not (by amendment, merger, reclassification, consolidation or otherwise, either directly or indirectly by subsidiary), without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the then outstanding shares of Series C-3 Preferred Stock, voting together as a single class;
(i) amend, alter or repeal any provision of the Restated Certificate of Incorporation or Bylaws of the Corporation so as to affect the holders of Series C-3 Preferred Stock adversely as set forth in Section 242 of the Delaware General Corporation Law, but not so affect the other series of Preferred Stock; or
(ii) amend, alter or repeal Article IV, Sections (B)4(b)(iii), (B)4(b)(vii), (B)2(c)(ix), or (B)2(c)(xii) of the Restated Certificate of Incorporation so as to affect the holders of Series C-3 Preferred Stock adversely.
(g) The Corporation shall not (by amendment, merger, reclassification, consolidation or otherwise, either directly or indirectly by subsidiary), without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the then outstanding shares of Series D Preferred Stock, voting together as a single class:
(i) amend, alter or repeal Article IV, Section (B)4(d) of the Restated Certificate of Incorporation so as to affect the holders of Series D Preferred Stock adversely;
(ii) amend, alter or repeal any provision of the Restated Certificate of Incorporation or Bylaws of the Corporation so as to affect the holders of Series D Preferred Stock adversely as set forth in Section 242 of the Delaware General Corporation Law, but not so affect the other series of Preferred Stock;
(iii) increase or decrease the number of authorized shares of Series D Preferred Stock;
(iv) amend, alter or repeal Article IV, Sections (B)4(b)(iv), (B)4(b)(vii), (B)2(c)(x), or (B)2(c)(xii) of the Restated Certificate of Incorporation so as to affect the holders of Series D Preferred Stock adversely; or
(v) amend, alter or repeal (A) Article IV, Section (B)2(a) of the Restated Certificate of Incorporation (other than employment agreements with officers not otherwise affiliated with as a stockholder);
IV. winding up result of the Company;
V. the declaration creation or payment authorization of shares of any dividend or other distribution new class of Preferred Stock and the inclusion in Article IV, Section (B)2(a) of the Restated Certificate of Incorporation of such Preferred Stock and the original issue price of such Preferred Stock and the amendment to the stockholders by definition of Original Issue Price to include reference to the Company or redemption, repurchase or exchange (as applicableoriginal issue price of such Preferred Stock) of any equity securities of the Company;
VI. issuing or granting any equity securities of the Company or its subsidiaries, other than (A) grants under the Thoughtworks Holding, Inc 2021 Omnibus Incentive Plan, or (B) in connection with transactions consistent with certain specified strategies; and
VII. engaging in the penultimate sentence of Article IV, Section (B)4(a) of the Restated Certificate of Incorporation (other than as a result of the creation or authorization of shares of any mergers, acquisitions, business combinations or similar transactions or entering into any arrangements or agreements relating class of Preferred Stock and amendment to joint ventures or strategic partnerships with a value the definition of Preferred Stock Conversion Price to include reference to the conversion price of such transaction Preferred Stock).
(h) The Corporation shall not (by amendment, merger, reclassification, consolidation or arrangement exceeding $500.0 millionotherwise, either directly or indirectly by subsidiary), without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the then outstanding shares of Series E Preferred Stock, voting together as a single class:
(i) amend, alter or repeal Article IV, Section (B)4(d) of the Restated Certificate of Incorporation so as to affect the holders of Series E Preferred Stock adversely;
(ii) amend, alter or repeal any provision of the Restated Certificate of Incorporation or Bylaws of the Corporation so as to affect the holders of Series E Preferred Stock adversely as set forth in Section 242 of the Delaware General Corporation Law, but not so affect the other series of Preferred Stock;
(iii) increase or decrease the number of authorized shares of Series E Preferred Stock;
(iv) amend, alter or repeal Article IV, Sections (B)4(b)(v), (B)4(b)(vii), (B)2(c)(xi), or (B)2(c)(xii) of the Restated Certificate of Incorporation so as to affect the holders of Series E Preferred Stock adversely; andor
VIII. entry by (v) amend, alter or repeal (A) Article IV, Section (B)2(a) of the Company into Restated Certificate of Incorporation (other than as a result of the creation or authorization of shares of any agreement with respect new class of Preferred Stock and the inclusion in Article IV, Section (B)2(a) of the Restated Certificate of Incorporation of such Preferred Stock and the original issue price of such Preferred Stock and the amendment to the matters described in definition of Original Issue Price to include reference to the foregoing clauses (I) through (VIIIoriginal issue price of such Preferred Stock) or taking (B) the penultimate sentence of Article IV, Section (B)4(a) of the Restated Certificate of Incorporation (other than as a result of the creation or authorization of shares of any class of Preferred Stock and amendment to the definition of Preferred Stock Conversion Price to include reference to the conversion price of such action indirectlyPreferred Stock).
(i) The Corporation shall not (by amendment, merger, reclassification, consolidation or otherwise, either directly or indirectly by subsidiary), without first obtaining the approval (by vote or written consent, as provided by law) of the holders of a majority of the then outstanding shares of Series F Preferred Stock, voting together as a single class:
(i) amend, alter or repeal Article IV, Section (B)4(d) of the Restated Certificate of Incorporation so as to affect the holders of Series F Preferred Stock adversely;
(ii) amend, alter or repeal any provision of the Restated Certificate of Incorporation or Bylaws of the Corporation so as to affect the holders of Series F Preferred Stock adversely as set forth in Section 242 of the Delaware General Corporation Law, but not so affect the other series of Preferred Stock;
(iii) increase or decrease the number of authorized shares of Series F Preferred Stock;
(iv) amend, alter or repeal Article IV, Sections (B)4(b)(vi) of the Restated Certificate of Incorporation so as to affect the holders of Series F Preferred Stock adversely; or
(v) amend, alter or repeal (A) Article IV, Section (B)2(a) of the Restated Certificate of Incorporation (other than as a result of the creation or authorization of shares of any new class of Preferred Stock and the inclusion in Article IV, Section (B)2(a) of the Restated Certificate of Incorporation of such Preferred Stock and the original issue price of such Preferred Stock and the amendment to the definition of Original Issue Price to include reference to the original issue price of such Preferred Stock) or (B) the penultimate sentence of Article IV, Section (B)4(a) of the Restated Certificate of Incorporation (other than as a result of the creation or authorization of shares of any class of Preferred Stock and amendment to the definition of Preferred Stock Conversion Price to include reference to the conversion price of such Preferred Stock).
Appears in 1 contract
Sources: Unsecured Pik Convertible Notes Purchase Agreement (Uber Technologies, Inc)
Protective Provisions. Notwithstanding In addition to any other provision of this Agreement and to the fullest extent permitted rights provided by applicable law, in addition to the approval so long as any shares of the DirectorsSeries B Preferred shall be outstanding, the following actions described in this Section 3(a) (collectively, the “Consent Matters”) Corporation shall require the prior written consent of Turing EquityCo as set out below:
i. none not take any of the following actions shall (whether directly or indirectly, or by amendment, filing of a certificate of designations, preferences or rights, merger, consolidation or otherwise) without first obtaining the written consent, authorization or waiver of the holders of not less than a majority of the then-outstanding shares of Series B Preferred, voting together as a single voting group (the “Series B Majority”), which consent, authorization or waiver may be taken obtained without the necessity of formal stockholder action or of notice to the holders of any shares of capital stock not expressly empowered with such right to consent, authorize or waive:
(i) Alter or change the rights, preferences or privileges of the shares of Series B Preferred so as to adversely affect the shares of such series of Preferred Stock, whether by formal amendment of the CompanyCertificate of Incorporation, merger or otherwise;
(ii) Increase or decrease the total number of authorized shares of Series B Preferred;
(iii) Authorize, designate, or issue, or obligate itself to issue, any equity security of the Corporation, including any proposal by security convertible into or exercisable or exchangeable for any equity security, having superior voting rights over the Board Series B Preferred;
(iv) Liquidate, dissolve or wind up the Corporation; or
(v) Effect any of the following transactions or series of transactions: (a) selling, conveying or otherwise disposing of all or substantially all of the Corporation’s property or business (including the exclusive licensing of all or substantially all of the Corporation’s intellectual property to be put a third party), or (b) entering into any corporate reorganization, share exchange or recapitalization, or merging with or into, or consolidating with, any other corporation, limited liability company or other entity if the holders of shares of Common Stock and/or Preferred Stock sell or otherwise transfer in such transaction, to any person or group of persons acting jointly or in concert, shares of Common Stock and/or Preferred Stock representing 50% or more of the vote voting power of the stockholders of the Company with respect theretoCorporation (any such transaction, without the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own shares of Common Stock representing at least 50% a “Liquidation Transaction”); provided, however, that none of the total voting power following shall be considered a Liquidation Transaction: (x) a merger effected exclusively for the purpose of changing the domicile of the Total Outstanding Securities Corporation, (except as set forth in the proviso in Section 3(a)(i)(I)):
I. amending, altering y) a merger or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company (which shall also be subject to Section 5 hereof), and/or the organizational documents of any consolidation with a wholly owned subsidiary of the Company; provided that, notwithstanding the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, that would adversely affect any rights specific to Turing EquityCo (subject to applicable law) require the written consent of Turing EquityCo;
II. authorizing or issuing any equity securities 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;
V. the declaration or payment of any dividend or other distribution to the stockholders by the Company or redemption, repurchase or exchange (as applicable) of any equity securities of the Company;
VI. issuing or granting any equity securities of the Company or its subsidiaries, other than (A) grants under the Thoughtworks Holding, Inc 2021 Omnibus Incentive Plan, Corporation or (Bz) an equity financing 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 such transaction or arrangement exceeding $500.0 million; and
VIII. entry by which the Company into any agreement with respect to Corporation is the matters described in the foregoing clauses (I) through (VIII) or taking any such action indirectlysurviving corporation.
Appears in 1 contract
Protective Provisions. Notwithstanding any other provision of this Agreement and anything herein to the fullest extent permitted by applicable lawcontrary, in addition to the approval so long as any shares of the DirectorsSeries D Preferred Stock remain outstanding, the following actions described in this Section 3(a) (collectivelyCompany shall not, the “Consent Matters”) and shall require the prior written consent of Turing EquityCo as set out below:
i. none of the following actions shall be taken by the Company, including cause any proposal by the Board to be put to the vote of the stockholders of the Company with respect theretoComponent Entity not to, without the prior written consent of Turing EquityCo until such time as Turing EquityCo both the iStar Representative and the BREDS Representative:
(i) (A) other than the issuance of up to $60,000,000, in the aggregate, in Series D Preferred Stock or Parity Stock to BREDS and/or its Affiliates cease to Beneficially Own authorize, create or issue, or increase the number of authorized or issued shares of, any class or series of Senior Stock or Parity Stock, or reclassify any authorized shares of Common Capital Stock representing at least 50% into Senior Stock or Parity Stock, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any Senior Stock or Parity Stock; (B) issue shares of Series D Preferred Stock and Parity Stock to any Person, including iStar, BREDS or their respective Affiliates and except as is otherwise contemplated by the Securities Purchase Agreement or (C) authorize, create or issue any class of Junior Stock that gives the holders thereof the right to participate in, interfere with or restrict the management or operations of the total voting power Company or the Component Entities (including, the right to designate a director) or prohibits the holders of the Total Outstanding Securities Series D Preferred Stock from exercising their rights and remedies hereunder
(except ii) amend, alter or repeal any provisions of the terms of the Series D Preferred Stock as set forth herein and in the Articles Supplementary (the “Series D Preferred Terms”), or the terms of any other Transaction Document, whether by merger, consolidation, transfer or conveyance of all or substantially all of its assets or otherwise;
(iii) amend, alter or repeal the provisions of the Charter or the bylaws of the Company or the certificate of limited partnership or the agreement of limited partnership of the Operating Partnership, whether by merger, consolidation, transfer or conveyance of all or substantially all of its assets or otherwise, other than such changes as may be required to effectuate the issuance of Junior Stock or otherwise not prohibited by this Schedule 2 and permitted by the Articles Supplementary, which would not alter or modify the terms of the Series D Preferred Stock, as set forth in the proviso Transaction Documents, in Section 3(a)(i)(I)):
I. amending, altering or changingany manner, or waiving Parity Stock specifically permitted by Section 2(a)(i) hereof and Section 8(c)(i) of the Articles Supplementary; provided, further, that prior to effecting any rights undersuch change in reliance thereon, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company (which A) no later than 10 Business Days before effecting any such change and issuing such Junior Stock, shall also be subject to Section 5 hereof), and/or the organizational documents of any subsidiary have provided a reasonable description of the Companyparticulars of the change together with a draft of the proposed amendment to the holders of all Series D Preferred Stock, and (B) if requested by the iStar Representative or the BREDS Representative within 5 Business Days after receipt of such notice, the Company shall refrain from effecting such change until any questions or concerns raised by the iStar Representative or the BREDS Representative have been resolved to their respective reasonable satisfaction; provided that, notwithstanding the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver underin no event shall the Company amend its bylaws to grant a director, other organizational documentsthan a Preferred Stock Director, including more than one vote on any matter presented to the Fourth Amended and Restated Certificate of Incorporation Board or Amended and Restated Bylaws increase the size of the CompanyBoard to a number of members greater than 11;
(iv) amend, that would alter or repeal the provisions of the charter or the bylaws or other governing instrument or constitutional document of any Component Entity (other than the Operating Partnership), whether by merger, consolidation, transfer or conveyance of all or substantially all of its assets or otherwise, so as to adversely affect any rights specific to Turing EquityCo (subject to applicable law) require right, preference, privilege, obligation or voting power of the written consent of Turing EquityCoSeries D Preferred Stock or holders thereof;
II. authorizing (v) incur or issuing permit any equity securities Component Entity to incur, or enter into any agreement, contract, commitment or other obligation to incur, any Indebtedness (including, without limitation, any Indebtedness to refinance then existing Indebtedness and any accordion feature with respect to any Indebtedness, whether with respect to any Existing Property or otherwise, but excluding, for the purposes of this Section 2(a)(v), any Indebtedness with respect to any Future Property); provided, that the incurrence of Indebtedness shall be allowed if (A) the aggregate Indebtedness of the Company having and all Component Entities at no time shall exceed the amount of such aggregate Indebtedness (measured in dollars) as of the Original Issue Date as set forth in the Schedule B attached to the SPA at the time of such determination, (B) if (x) the aggregate Indebtedness of the Company and all Component Entities with respect to any one Existing Property at no time shall exceed the greater of (1) the amount of such aggregate Indebtedness (measured in dollars) with respect to such Property as of the Original Issue Date and (2) 70% of the value of such Property, in each case, at the time of such determination, (C) the Indebtedness would not result in a breach of any Financial Covenant and (D) such Indebtedness does not restrict or adversely affect any of the rights of the Series D Holders and/or the Series D Preferred Stock, or otherwise prevent the Series D Holders from exercising their rights, preferences under any Transaction Document in any manner (including, without limitation, in connection with “event of default”, “change of control” or privileges that are superior lock-out restrictions with respect to such Indebtedness; provided, however, that, for the purpose of this clause (D), a contract for Indebtedness will not be deemed to restrict or senior adversely affect any of the rights of the Series D Holders and/or the Series D Preferred Stock, or otherwise prevent the Series D Holders from exercising their rights solely because of a “change of control” provision contained therein if such “change of control” provision is substantially similar to the outstanding Common Stock (“change of control” provisions used in contracts for the Properties known as Landmark at Grand Meadow, Landmark at Greenbrooke Commons, ▇▇▇▇▇▇ Creek, Milana Reserve or Reserve at Mill Landing shall not be deemed to restrict or adversely affect any securities convertible or exchangeable therefor pursuant to their termsof the rights of the Series D Holders and/or the Series D Preferred Stock);
III. (vi) incur or permit any Component Entity to incur, or enter into any agreement, contract, commitment or other obligation to incur, Indebtedness (including, without limitation, any Indebtedness to refinance then existing Indebtedness) with respect to any Future Property (including, without limitation, any such Future Property acquired pursuant to a Qualified Contribution Transaction), except (A) that with respect to and solely for the purposes of closing the acquisition of the Future Properties set forth on Schedule B attached to the SPA, Indebtedness up to the amount set forth on such Schedule B for such Future Properties may be incurred without requiring the prior approval of the Representatives; provided, however, that nothing contained herein shall permit such Indebtedness to be excluded from the calculations of Indebtedness for purposes of clauses (B)(x)-(z) below following the closing of the acquisition for such Future Properties (including any refinancing of such Indebtedness) and provided, further that clause B(w) below shall also apply to any refinancing of such Indebtedness) or (B) that to the extent such Indebtedness would not (w) exceed 60% (or such greater percentage, up to 70%, as the Board of Directors may approve) of the purchase price (including closing costs and expenses) of such Future Property, (x) cause the Company or any Component Entity to be unable to comply with any Financial Covenant, (y) restrict or adversely affect any of the rights or remedies of the Series D Holders and/or the Series D Preferred Stock, or otherwise prevent the Series D Holders from exercising their rights, under any Transaction Document in any manner (including, without limitation, in connection with “event of default”, “change of control” or lock-out restrictions with respect to such Indebtedness; provided, however, that, for the purpose of this clause (y), a contract for Indebtedness will not be deemed to restrict or adversely affect any of the rights of the Series D Holders and/or the Series D Preferred Stock, or otherwise prevent the Series D Holders from exercising their rights solely because of a “change of control” provision contained therein if such “change of control” provision is substantially similar to the “change of control” provisions used in contracts the Properties known as Landmark at Grand Meadow, Landmark at Greenbrooke Commons, ▇▇▇▇▇▇ Creek, Milana Reserve or Reserve at Mill Landing shall not be deemed to restrict or adversely affect any of the rights of the Series D Holders and/or the Series D Preferred Stock) or (z) allow for any recourse against the Company or any Component Entity other than the entity incurring the Indebtedness (other than for customary covenant matters such as fraud, misappropriation and environmental matters and other than the Indebtedness under the Senior Credit Facility);
(vii) fail to satisfy any of the following financial covenants (each, a “Financial Covenant” and collectively, the “Financial Covenants”), tested as of (1) in the case of the Financial Covenants set forth in Section 2(a)(vii)(A) – (C) of this Schedule 2 and Section 8(c)(vii)(A) – (C) of the Articles Supplementary, the end of each fiscal quarter beginning with the fiscal quarter ending March 31, 2014 and (2) in the case of the Financial Covenant set forth in Section 2(a)(vii)(D) of this Schedule 2 and Section 8(c)(vii)(D) of the Articles Supplementary, December 31, 2013:
(A) a Maximum Senior Loan LTV Ratio not exceeding 70%, calculated, using the Applicable Capitalization Rate (the “LTV Formula”);
(B) a Minimum Senior Loan Debt Yield of 8.75%;
(C) a Maximum Preferred Equity Investment LTV not exceeding 80% (calculated using the LTV Formula); or
(D) 65 million Common Units (excluding any Common Units held by the Company) and shares of Common Equity, in each case, outstanding in the aggregate;
(viii) engage in any transaction with any stockholder or Affiliate of a stockholder between the Company or any Director Component Entity, on the one hand, and any Affiliate (including iStar, BREDS or officer their Affiliates for the purpose of this Section 2(a)(viii)) of the Company or any of its subsidiaries such Component Entity, on the other hand (other than employment agreements with officers not otherwise affiliated with such a stockholdertransaction, an “Affiliate Transaction”);
IV. winding up the Company;
V. the declaration or payment of any dividend or other distribution to the stockholders by the Company or redemption, repurchase or exchange (as applicable) of any equity securities of the Company;
VI. issuing or granting any equity securities of the Company or its subsidiaries, other than (A) grants any Qualified Contribution Transaction (but only to the extent that in respect of any such Qualified Contribution Transaction (1) one or more Preferred Stock Directors were either (x) present at all meetings of the Board during which such Qualified Contribution Transaction was considered or (y) were appointed to the committee of the Board charged with evaluating Affiliate Transactions, and were present at all committee meetings during which such Qualified Contribution Transaction was considered; (2) the Company receives an appraisal with respect to such Qualified Contribution Transaction, prior to its consummation, from a third-party appraiser selected by the Company and reasonably acceptable to both the iStar Representative and the BREDS Representative; and (3) the prior written consent of the iStar Representative and the BREDS Representative would not have been required if such Qualified Contribution Transaction was not an Affiliate Transaction, either pursuant to the Series D Preferred Terms or under applicable law) and (B) any property management agreement between the Thoughtworks Holding, Inc 2021 Omnibus Incentive PlanCompany and any Component Entity that is a “taxable REIT subsidiary” (as defined in section 856(l) of the Code);
(ix) enter into any transaction or take any corporate action which could reasonably be expected to result in, or suffer to exist, a Change of Control;
(x) take any corporate action in the furtherance of, or suffer to exist, any of the following:
(A) the commencement by the Company or any Component Entity of a voluntary case or proceeding under any applicable Bankruptcy Law or any other case or proceeding to be adjudicated bankrupt or insolvent;
(B) the consent by the Company or any Component Entity to the entry of a decree or order for relief in respect of the Company or such Component Entity in an involuntary case or proceeding under any applicable Bankruptcy Law or to the commencement of any bankruptcy or insolvency case or proceeding against it;
(C) the filing of a petition or answer or consent by the Company or a Component Entity seeking reorganization or relief under any applicable federal or state law;
(D) the Company or any Component Entity:
(1) consenting to the filing of such petition or the appointment of, or taking possession by, a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or such Component Entity or of any substantial part of its property;
(2) making an assignment for the benefit of creditors; or
(3) admitting in writing its inability to pay its debts generally as they become due.
(xi) fail to maintain the Required Reserves;
(xii) declare or pay distributions on Junior Stock (except as permitted in Section 8(d), 8(e) or 8(j) of the Articles Supplementary);
(xiii) redeem, purchase, subscribe for or otherwise acquire any outstanding Capital Stock, Common Units or preferred units issued by the Operating Partnership except for (A) in the case of Common Units, by conversion into or exchange for other shares of any class or series of Junior Stock and (B) in connection the case of Series D Preferred Stock, in accordance with transactions consistent with certain specified strategiesSection 6 or Section 7 of the Articles Supplementary.
(xiv) expend or incur any amount during a fiscal year in excess of the Permitted Budget Variance;
(xv) enter into, amend, modify or terminate any Material Contract (provided, that upon the Company requesting approval from the iStar Representative and BREDS Representative to enter into, amend, modify or terminate a Material Contract, the iStar Representative and BREDS Representative shall respond to the Company’s request for approval within ten Business Days and the failure of both Representatives to respond shall be deemed approval by the iStar Representative and the BREDS Representative; andprovided, further, that the if the iStar Representative or BREDS Representative notify the Company within such ten Business Day period of its need for additional time to evaluate the Material Contract, the iStar Representative or BREDS Representative shall have such additional time to review as is reasonably necessary);
VII. engaging in (xvi) enter into or allow any mergers, acquisitions, business combinations or similar transactions or entering Component Entity to enter into any arrangements Tax Protection Agreement or agreements relating amend any Tax Protection Agreement unless such agreement or amendment subordinates all rights to joint ventures payment thereunder by a Component Entity to the rights of the holders of Series D Preferred Stock and the holders of Series D Preferred Partnership Units and is otherwise reasonably acceptable to the iStar Representative and the BREDS Representative;
(xvii) appoint or strategic partnerships with replace a value Key Person;
(xviii) incur any portfolio or asset-level Indebtedness that would cause the failure of such transaction any Financial Covenant or arrangement exceeding $500.0 million; andof the terms of Section 2(a)(v) – (vi) hereof or Section 8(c)(v) – (vi) of the Articles Supplementary;
VIII. entry (xix) take any action, grant any consent, waive any rights or make any election in its capacity as a holder of Series D Preferred Partnership Units;
(xx) sell or dispose of any asset (whether directly or indirectly) held by the Company into or by any agreement Component Entity; provided, however, that (A) any sale pursuant to an Asset Disposition Plan approved by the iStar Representative and the BREDS Representative in accordance with respect Section 6(b) of the Articles Supplementary (B) any sale effected as a single transaction or a series of related transactions to a third party and its Affiliates for less than $25,000,000 (provided, that 100% of the Sale Proceeds therefrom are distributed to the matters described in the foregoing clauses (I) through (VIIIholders of Series D Preferred Stock) or taking any such action indirectly.(C) the sale of the Baypoint Property (provided, that 100% of the Sale Proceeds are used to finance acquisitions of the Collin Creek property and the Spring Creek property), shall be permitted without the prior written consent of the iStar Representative and the BREDS Representative pursuant to this Section 2(a)(xx);
(xxi) amend an Approved Budget or otherwise fail to
Appears in 1 contract
Sources: Corporate Governance (Landmark Apartment Trust of America, Inc.)
Protective Provisions. Notwithstanding (a) So long as any other provision shares of this Agreement and to the fullest extent permitted by applicable law, in addition to the approval of the DirectorsSeries A Preferred Stock shall be outstanding, the following actions described in this Section 3(a) (collectivelyCorporation shall not, without first having obtained the “Consent Matters”) shall require the prior affirmative vote or written consent of Turing EquityCo the holders of not less than a majority of the outstanding shares of Series A Preferred Stock, voting as set out belowa single class:
i. none (i) take any action or enter into any agreement to increase or decrease the number 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 the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own authorized shares of Common Stock representing at least 50% of the total voting power of the Total Outstanding Securities Series A Preferred Stock; or
(except as set forth in the proviso in Section 3(a)(i)(I)):
I. amendingii) take an action or amend, altering alter, repeal or changingwaive any provision of, or waiving add any rights underprovision to, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company (which shall also be subject to Section 5 hereof), and/or the organizational documents of any subsidiary of the Company; provided that, notwithstanding the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Ninth Amended and Restated Certificate of Incorporation or Amended and Restated the Corporation’s Bylaws of (whether by merger, consolidation or otherwise) in a manner that changes the Company, that would adversely affect any rights specific to Turing EquityCo (subject to applicable law) require the written consent of Turing EquityCo;
II. authorizing or issuing any equity securities of the Company having rights, preferences or privileges of the Series A Preferred Stock or that are superior otherwise changes or senior to adversely affects the rights of the holders of the Series A Preferred Stock without changing or adversely affecting the rights of every other series of Preferred Stock in the same manner.
(b) So long as any shares of Series B Preferred Stock shall be outstanding, the Corporation shall not, without first having obtained the affirmative vote or written consent of the holders of not less than a majority of the outstanding Common shares of Series B Preferred Stock, voting as a single class:
(i) take any action or enter into any agreement to increase or decrease the number of authorized shares of Series B Preferred Stock; or
(ii) take an action or amend, alter, repeal or waive any provision of, or add any provision to, this Ninth Amended and Restated Certificate of Incorporation or the Corporation’s Bylaws (whether by merger, consolidation or otherwise) in a manner that changes the rights, preferences or privileges of the Series B Preferred Stock or that otherwise changes or adversely affects the rights of the holders of the Series B Preferred Stock without changing or adversely affecting the rights of every other series of Preferred Stock in the same manner.
(c) So long as any shares of Series C Preferred Stock shall be outstanding, the Corporation shall not, without first having obtained the affirmative vote or written consent of the holders of not less than a majority of the outstanding shares of Series C Preferred Stock, voting as a single class:
(i) take any securities convertible action or exchangeable therefor pursuant enter into any agreement to their terms)increase or decrease the number of authorized shares of Series C Preferred Stock; or
(ii) take an action or amend, alter, repeal or waive any provision of, or add any provision to, this Ninth Amended and Restated Certificate of Incorporation or the Corporation’s Bylaws (whether by merger, consolidation or otherwise) in a manner that changes the rights, preferences or privileges of the Series C Preferred Stock or that otherwise changes or adversely affects the rights of the holders of the Series C Preferred Stock without changing or adversely affecting the rights of every other series of Preferred Stock in the same manner.
(d) So long as any shares of Series D Preferred Stock shall be outstanding, the Corporation shall not, without first having obtained the affirmative vote or written consent of the holders of not less than a majority of the outstanding shares of Series D Preferred Stock, voting as a single class:
(i) take any action or enter into any agreement to increase or decrease the number of authorized shares of Series D Preferred Stock;
III. (ii) take an action or amend, alter, repeal or waive any transaction with provision of, or add any stockholder provision to, this Ninth Amended and Restated Certificate of Incorporation or Affiliate of the Corporation’s Bylaws (whether by merger, consolidation or otherwise) in a stockholder manner that changes the rights, preferences or any Director or officer privileges of the Company Series D Preferred Stock or any of its subsidiaries (other than employment agreements with officers not that otherwise affiliated with a stockholder);
IV. winding up changes or adversely affects the Company;
V. the declaration or payment of any dividend or other distribution to the stockholders by the Company or redemption, repurchase or exchange (as applicable) of any equity securities rights of the Company;
VI. issuing or granting any equity securities holders of the Company Series D Preferred Stock without changing or its subsidiaries, adversely affecting the rights of every other than series of Preferred Stock in the same manner; or
(iii) effect any Liquidation Event or Extraordinary Transaction in which the aggregate consideration payable (A) grants under to the Thoughtworks HoldingCorporation, Inc 2021 Omnibus Incentive Plan, or (B) in connection with transactions consistent with certain specified strategies; andto the Corporation to be distributed to its stockholders or (C) to the Corporation’s stockholders is less than $40,000,000.
VII. engaging in (e) So long as any mergersshares of Series E Preferred Stock shall be outstanding, acquisitionsthe Corporation shall not, business combinations without first having obtained the affirmative vote or similar transactions written consent of the holders of not less than a majority of the outstanding shares of Series E Preferred Stock, voting as a single class:
(i) take any action or entering into any arrangements or agreements relating to joint ventures or strategic partnerships with a value of such transaction or arrangement exceeding $500.0 million; and
VIII. entry by the Company enter into any agreement to increase or decrease the number of authorized shares of Series E Preferred Stock; or
(ii) take an action or amend, alter, repeal or waive any provision of, or add any provision to, this Ninth Amended and Restated Certificate of Incorporation or the Corporation’s Bylaws (whether by merger, consolidation or otherwise) in a manner that changes the rights, preferences or privileges of the Series E Preferred Stock or that otherwise changes or adversely affects the rights of the holders of the Series E Preferred Stock without changing or adversely affecting the rights of every other series of Preferred Stock in the same manner.
(f) So long as any shares of Series F Preferred Stock shall be outstanding, the Corporation shall not, without first having obtained the affirmative vote or written consent of the holders of not less than sixty-six and two-thirds percent (66 2/3%) of the outstanding shares of Series F Preferred Stock, voting as a single class:
(i) take any action or enter into any agreement to increase or decrease the number of authorized shares of Series F Preferred Stock; or
(ii) take an action or amend, alter, repeal or waive any provision of, or add any provision to, this Ninth Amended and Restated Certificate of Incorporation or the Corporation’s Bylaws (whether by merger, consolidation or otherwise) in a manner that changes the rights, preferences or privileges of the Series F Preferred Stock or that otherwise changes or adversely affects the rights of the holders of the Series F Preferred Stock without changing or adversely affecting the rights of every other series of Preferred Stock in the same manner.
(g) So long as any shares of Series F Preferred Stock shall be outstanding, the Corporation shall not, without first having obtained the affirmative vote or written consent of the holders of not less than ninety-five percent (95%) of the outstanding shares of Series F Preferred Stock, voting as a single class, (i) effect any Liquidation Event or Extraordinary Transaction in which the aggregate consideration payable (A) to the Corporation, (B) to the Corporation to be distributed to its stockholders or (C) to the Corporation’s stockholders is less than $210,000,000 or (ii) amend, alter, repeal or waive any provision of this Section 8(g).
(h) So long as any shares of Preferred Stock shall be outstanding, the Corporation shall not, without first having obtained the affirmative vote or written consent of the holders of not less than sixty-six and two-thirds percent (66 2/3%) of the outstanding shares of Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F Preferred Stock, voting together as a single class and on an as-converted basis:
(i) create or authorize any new class of securities which has a preference over, or is offered with rights on a pari passu basis with, the Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock or Series F Preferred Stock with respect to the matters described distribution of assets or other amounts in connection with a Liquidation Event or an Extraordinary Transaction or as to dividends or redemption rights;
(ii) effect any Liquidation Event, Extraordinary Transaction or any other merger, consolidation or similar transaction involving the Corporation;
(iii) declare or pay dividends or make any distributions of cash, property or securities of the Corporation with respect to any shares of its Common Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock, Series F Preferred Stock or any other capital stock of the Corporation other than dividends payable solely in Common Stock;
(iv) repurchase, redeem or otherwise acquire any of the outstanding capital stock of the Corporation, except for (i) the repurchase of unvested shares from employees, directors or consultants at cost pursuant to the terms of agreements providing for the original issuance of such capital stock (or options to purchase such capital stock) and (ii) the redemption of the Preferred Stock pursuant to and as provided in this Ninth Amended and Restated Certificate of Incorporation;
(v) authorize or engage in any acquisition of any corporation or business concern, whether by acquisition of cash, capital stock or otherwise, or make any other investment in another business entity or any joint venture or similar arrangement if such acquisition or investment would involve a payment or other commitment by the Company in excess of $150,000;
(vi) authorize any reclassification or recapitalization of the outstanding capital stock of the Corporation;
(vii) increase the number of shares authorized to be issued pursuant to the Corporation’s stock option plans or other equity incentive plans;
(viii) increase the authorized number of directors constituting the Corporation’s Board of Directors to more than eight (8);
(ix) other than as covered by Section A.8(a)(ii), Section A.8(b)(ii), Section A.8(c)(ii), Section A.8(d)(ii), Section A.8(e)(ii), Section A.8(f)(ii) and Section A.8(g)above, take any an action or amend, alter, repeal or waive any provision of, or add any provision to, this Ninth Amended and Restated Certificate of Incorporation or the By-laws of the Corporation (whether merger, consolidation or otherwise) in a manner that changes the rights, preferences or privileges of the Preferred Stock as a class or that otherwise adversely affects the rights of the holders of Preferred Stock as a class; or
(x) amend this Section A.8(h).
(i) So long as any shares of Series 1 Stock shall be outstanding, the Corporation shall not, without first having obtained the affirmative vote or written consent of the holders of not less than a majority of the outstanding shares of Series 1 Stock, voting as a single class:
(i) take any action or enter into any agreement to increase or decrease the number of authorized shares of Series 1 Stock; or
(ii) take an action or amend, alter, repeal or waive any provision of, or add any provision to, this Ninth Amended and Restated Certificate of Incorporation or the Corporation’s Bylaws (whether by merger, consolidation or otherwise) in a manner that changes the rights, preferences or privileges of the Series 1 Stock or that otherwise changes or adversely affects the rights of the holders of the Series 1 Stock without changing or adversely affecting the rights of any series of Preferred Stock in the foregoing clauses same manner.
(Ij) Other than upon exercise of any warrants to purchase shares of Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock outstanding as of the date of filing of this Ninth Amended and Restated Certificate of Incorporation or upon the conversion of any promissory notes convertible into shares of Series E Preferred Stock, after the date hereof, the Corporation shall not issue additional shares of Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock or Series E Preferred Stock. Further, the Corporation shall not, by amendment of this Ninth Amended and Restated Certificate of Incorporation or through (VIII) any Extraordinary Transaction or other reorganization, transfer of assets, consolidation, merger, dissolution, issue or sale of securities, agreement or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation but shall at all times in good faith assist in the carrying out of all the provisions set forth herein and in the taking any of all such action indirectlyas may be necessary or appropriate in order to protect the rights of the holders of the Preferred Stock and Series 1 Stock against impairment. Without limitation of the foregoing, the Corporation shall take such action as shall be necessary or appropriate, to the extent reasonably within its control, to remove promptly any impediments to its ability to redeem shares of Preferred Stock under the circumstances contemplated by Section A.5 hereof. Any successor to the Corporation shall agree, as a condition to such succession, to carry out and observe the obligations of the Corporation hereunder with respect to the Preferred Stock and Series 1 Stock.
Appears in 1 contract
Sources: Series F Preferred Stock Purchase Agreement (GlassHouse Technologies Inc)
Protective Provisions. 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 Turing EquityCo Pride Aggregator 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 the prior written consent of Turing EquityCo until such time Pride Aggregator for so long as Turing EquityCo and its Affiliates cease to Beneficially Own shares of Common Stock representing Pride Aggregator owns at least 505% of the total voting power of the Total Outstanding Securities Original Amount (except as set forth in the proviso in Section 3(a)(i)(I3(a)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth Second Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company (which shall also be subject to Section 5 hereof), and/or the organizational documents of any subsidiary of the Company; provided that, notwithstanding the foregoing, for so long as Turing EquityCo Pride Aggregator owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Second Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws of the Company, and/or the organizational documents of any subsidiary of the Company that would adversely affect in any respect any rights specific to Turing EquityCo Pride Aggregator (subject to applicable law) require the written consent of Turing EquityCoPride Aggregator;
II. authorizing or issuing any equity securities 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 any agreement with respect to the matters described in the foregoing clauses (I) through (IV) or taking any such action indirectly.
ii. 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 the prior written consent of Pride Aggregator for so long as Pride Aggregator owns at least 20% of the Original Amount:
I. the declaration or payment of any dividend or other distribution to the stockholders by the Company or redemption, repurchase or exchange (as applicable) of any equity securities of the Company;
VIII. issuing or granting any equity securities of the Company or its subsidiaries, other than (A) grants under the Thoughtworks HoldingPaycor HCM, Inc Inc. 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 such transaction or arrangement exceeding $500.0 million; and
VIIIIII. entry by the Company into any agreement with respect to the matters described in the foregoing clauses (I) through (VIIIII) or taking any such action indirectly.
Appears in 1 contract
Protective Provisions. Notwithstanding any other provision of this Agreement and anything to the fullest extent permitted by applicable law, contrary in addition to the approval Constitutional Documents of the DirectorsCompany or any Group Company, the following actions described in this Section 3(a) (collectively, the “Consent Matters”) parties hereto shall require the prior written consent of Turing EquityCo as set out below:
i. ensure that none of the following Company or the Group Companies shall take any of the actions shall be taken described below unless approved in a resolution adopted by the Company, including any proposal by the Board to be put to the affirmative vote of (or consented to in writing by) the stockholders holders of the Company with respect thereto, without the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own shares of Common Stock representing at least more than fifty percent (50% of the total %) in voting power of the Total Outstanding Securities Series A Preferred Shares then issued and outstanding:
(except as set forth in 1) A material change to the proviso in Section 3(a)(i)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth Amended objectives and Restated Certificate of Incorporation and Amended and Restated Bylaws principal business of the Company or any Group Company outside the retailing of pharmaceuticals.
(2) Any change in the number of directors permitted to serve on the Board of Directors of the Company or any Group Company other than as required by Section 2.1.
(3) The winding up, dissolution or liquidation of any of the Company or the Group Companies.
(4) The issuance, sale, offer to sell, redemption or acquisition by the Company or any Group Company of any equity interest therein or equity derivatives, including any options, warrants or other interests representing, or convertible into, an equity interest therein or a right to obtain an equity interest therein or rights equivalent thereto, except:
(i) securities issued upon conversion of the Series A Preferred Shares; (ii) securities to be issued under the Securities Purchase Agreement; (iii) securities issued pursuant to any Earnout Warrant; (iv) securities issued pursuant to the Milestone Warrant; (v) securities issued pursuant to the True-Up Subscription Agreement or (vi) the repurchase of Series A Preferred Shares pursuant to the Redemption Agreement.
(5) The payment or declaration of a distribution or dividend with respect to any of the share capital of the Company or any Group Company except for (i) any redemption of the Series A Preferred Shares pursuant to the Redemption Agreement, (ii) any distribution payable with respect to the Series A Preferred Shares upon conversion thereof, whether in the way of payment for fractional shares or otherwise; or (iii) any distribution or dividend with respect to which shall also the sole recipient of any proceeds therefrom will be subject the Company or any Group Company.
(6) The alteration or re-organization of the share capital of the Company or any Group Company, including, without limitation, any increase, reduction or cancellation of authorized share capital or any consolidation, subdivision or conversion of, or any alteration of the rights in respect of, any share capital.
(7) Except as specifically contemplated in the Securities Purchase Agreement and the ancillary documents thereto, the entry into any transaction or series of transactions between (or the termination, extension, continuation after expiry, renewal, amendment, variation or waiver of any term under agreement with respect to Section 5 hereofany transaction or series of transactions) (i) which is between, the Company or any Group Company, on the one hand, and the holder of any equity interest in the Company or any Group Company (other than with respect to any equity interest held therein by the Company or another Group Company), and/or or any director, officer or employee of the organizational documents of Company or any subsidiary Group Company, or any director, officer or employee of the Company; provided that's Affiliates, notwithstanding on the other hand, and (ii) which is not in the ordinary course of business or for which the aggregate value exceeds the equivalent of RMBY1,000,000.
(8) The adoption of the annual budget, operating plan for each of the Company and the Group Companies.
(9) The selection of, and any change in, the Company's Auditors or the auditors for any Group Company.
(10) The selection of, and any change in, any Person retained by the Company or any Group Company (other than employees hired thereby in the ordinary course) to provide Tax advisory services thereto or to assist in the preparation of Tax Returns therefor.
(11) Any significant change in the accounting principles of the Company or any Group Company, except as required by applicable laws or regulations.
(12) The timing and circumstances of any proposed initial public offering by the Company or any Group Company other than a Qualified IPO.
(13) The sale, transfer, lease, assignment, parting with or disposal by the Company or any Group Company, whether directly or indirectly, of all or substantially all of the property, assets or revenues of the Company or such Group Company. except as required by the Redemption Agreement.
(14) The merger, consolidation, reorganization, or amalgamation of the Company or any Group Company with or into any other Person or any scheme of arrangement or other business combination with or into any other Person
(15) The purchase or other acquisition by any of the Company or the Group Companies, or any combination of the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, of another Person or change to, all (or waiver under, other organizational documents, including the Fourth Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws substantially all) of the Company, that would adversely affect business and/or assets of another Person.
(16) The adoption of any rights specific amendment to Turing EquityCo (subject to applicable law) require the written consent of Turing EquityCo;
II. authorizing or issuing any equity securities Constitutional Documents of the Company having rights, preferences or privileges that are superior or senior to the outstanding Common Stock (or any securities convertible Group Company.
(17) The appointment or exchangeable therefor pursuant to their terms);
III. removal of any transaction with senior member of management for any stockholder of the Company or Affiliate of a stockholder the Group Companies, including, without limitation, the chief executive officer, chief financial officer or any Director or chief operating officer of the Company or any Group Company.
(18) As among all the employees of its subsidiaries (other than employment agreements with officers not otherwise affiliated with a stockholder);
IV. winding up the Company;
V. Company and the declaration or payment Group Companies, any increase in the compensation of any dividend of the five most highly compensated employees by more than 15% in any twelve-month period, whether in the form of cash, shares, options or other distribution to cash or non-cash consideration.
(19) Any capital commitment on the stockholders by the Company or redemption, repurchase or exchange (as applicable) part of any equity securities of the Company;
VI. issuing or granting any equity securities of the Company or its subsidiaries, other than (A) grants under the Thoughtworks Holding, Inc 2021 Omnibus Incentive PlanGroup Companies, or any combination of the foregoing (Bi) in connection with transactions consistent with certain specified strategies; and
VII. engaging excess of RMBY5,000,000 where incurred in any mergers, acquisitions, business combinations a single transaction or similar a series of related transactions or entering into any arrangements or agreements relating to joint ventures or strategic partnerships (ii) in excess of RMBY15,000,000 where taken together with a value of such transaction or arrangement exceeding $500.0 million; and
VIII. entry all other capital commitments undertaken by the Company into and the Group Companies within the immediately preceding twelve-month period.
(20) Any borrowing by any agreement with respect of the Company or the Group Companies, or any combination of the foregoing, whether in a single transaction or a series of related transactions, which exceeds the equivalent of RMBY5,000,000. For purposes of this paragraph, "borrowing" shall include money raised in any transaction or series of related transactions on acceptances or deposits or by discounting, factoring, finance leases, hire purchase, sale and lease-back, sale and repurchase and any other financing arrangements which are intended to achieve the matters described in the foregoing clauses (I) through (VIII) same or taking any such action indirectlysubstantially similar commercial effect.
Appears in 1 contract
Sources: Securities Purchase Agreement (China Nepstar Chain Drugstore Ltd.)
Protective Provisions. Notwithstanding At any other provision time when at least 15% of this Agreement and to the fullest extent permitted by applicable lawshares of Series A Preferred Stock issued on the Original Issue Date are outstanding, the Company shall not, either directly or indirectly, do any of the following without (in addition to any other vote required by law or the approval Certificate of Incorporation) the Directors, the following actions described in this Section 3(a) (collectively, the “Consent Matters”) shall require the prior written consent of Turing EquityCo 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 or affirmative vote of the stockholders holders of the Company with respect thereto, without the prior written consent of Turing EquityCo until such time as Turing EquityCo and its Affiliates cease to Beneficially Own shares of Common Stock representing at least 5066% of the total voting power outstanding shares of Series A Preferred Stock separately as a class: (i) amend, alter or repeal any provision of the Total Outstanding Securities (except as set forth in the proviso in Section 3(a)(i)(I)):
I. amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Fourth Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Company (which shall also be subject to Section 5 hereof), and/or the organizational documents of any subsidiary of the Company; provided that, notwithstanding the foregoing, for so long as Turing EquityCo owns any outstanding Common Stock, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Fourth Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws in a manner adverse to rights of the Companyholders of the Shares; (ii) create, that would adversely affect authorize, designate or issue any rights specific to Turing EquityCo (subject to applicable law) require the written consent other shares of Turing EquityCo;
II. authorizing any class or issuing any equity securities series of capital stock of the Company convertible into or exercisable for any equity security, having rights, preferences or privileges that are superior or senior to or on parity with the outstanding Common Stock Shares; or (iii) purchase or redeem or pay any securities convertible or exchangeable therefor pursuant to their terms);
III. dividend on any transaction with any stockholder or Affiliate of a stockholder or any Director or officer of the Company or any of its subsidiaries capital stock (other than employment agreements with officers not otherwise affiliated with a stockholder);
IV. winding up the Company;
V. the declaration dividend payable only in Common Stock or payment of in any dividend or other distribution stock ranking junior to the stockholders by Series A Preferred Stock) unless the Company or redemption, repurchase or exchange (as applicable) of any equity securities of same ranks junior to the Company;
VI. issuing or granting any equity securities of the Company or its subsidiaries, other than (A) grants under the Thoughtworks Holding, Inc 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 such transaction or arrangement exceeding $500.0 million; and
VIII. entry by the Company into any agreement Series A Preferred Stock with respect to the matters described distribution of assets on the liquidation, dissolution or winding up of the Company, the payment of dividends and rights of redemption. The Shares and the Common Stock into which the Shares are convertible have not been registered under the Securities Act or any applicable state securities laws and may not be offered or sold except pursuant to an effective registration statement or in accordance with an exemption from the registration requirements of the Securities Act and applicable state securities laws. See “Restrictions on Transferability of Securities and Other Rights.” The Company entered into a Monitoring Fee Agreement, dated July 14, 2008 (as amended, the “Monitoring Fee Agreement”), with Compass Partners, L.L.C. (“Compass Partners”), which is the general partner of our majority stockholder, ExamWorks Holdings, LLLP. In accordance with the Monitoring Fee Agreement, Compass Partners renders to us monitoring, advisory and consulting services in relation to our debt and equity offerings, dispositions or acquisitions and other similar transactions. In consideration of the services provided, we originally agreed to pay Compass Partners a monitoring fee equal to five percent of our Adjusted EBITDA (as defined in that certain Credit Agreement, dated July 14, 2008, between us and Bank of America, N.A., as amended from time to time). In order to, among other things, maximize the amount of cash available to the Company, the Board of Directors determined that it was in the foregoing clauses Company’s and its stockholders’ best interest to eliminate our obligation to pay Compass Partners this monitoring fee. Accordingly, the Monitoring Fee Agreement has been amended to eliminate the ongoing obligation to pay the monitoring fee in exchange for the one-time issuance of 143,842 shares issued in connection with our recent offering of Common Stock which concluded on January 7, 2010. Compass Partners directed us to issue one half of such shares to each of R▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and J▇▇▇▇ ▇. ▇▇▇▇▇, our Co-Chairmen and Co-Chief Executive Officers. The consideration paid represents the present value of projected future cash payments due to Compass Partners as determined by an independent appraisal obtained by us. In addition, the Company paid Compass Partners approximately $290,000 pursuant to the Monitoring Fee Agreement for services rendered prior to the effectiveness of the amendment described above. Redridge Finance Group (I“Redridge”) through provides the Company with financial due diligence services in connection with the Company’s acquisition program and served as our financial advisor with respect to our Credit Facility. P&P Investments, LLC (VIII) “P&P”), a company owned by R▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and J▇▇▇▇ ▇. ▇▇▇▇▇, owns approximately 33% of Redridge. In 2009, the Company paid approximately $84,000 to Redridge for diligence services and $500,000 in connection with the Credit Facility. Pursuant to a letter agreement dated December 11, 2009, R▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and J▇▇▇▇ ▇. ▇▇▇▇▇ agreed to waive any direct or taking any such action indirectlyindirect right P&P has to the fees Redridge received in connection with our Credit Facility.
Appears in 1 contract