Required Approvals. In addition to any approvals required by law, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class: (a) amend, restate, alter, modify or repeal (directly or indirectly by merger or otherwise) the Company’s Certificate of Incorporation or Bylaws (including, without limitation, (I) amending, restating, modifying or repealing (directly or indirectly by merger or otherwise) any certificate of designation or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock); (b) reclassify Common Stock or Preferred Stock; (c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock; (d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans; (e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above; (f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company; (g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or (h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 4 contracts
Samples: Investors’ Rights Agreement (Digirad Corp), Investors’ Rights Agreement (Digirad Corp), Investors’ Rights Agreement (Digirad Corp)
Required Approvals. In a. From the date of this Agreement for so long as XX Xxxxxx is entitled to designate at least one director to the Board pursuant to Subsection 3(a)(i), in addition to any approvals vote or consent of the Board or the stockholders of the Company required by applicable law, so long as shares the Charter or by-laws of Series H Preferred Stock are outstandingthe Company, the Board may not approve, or cause the Company or any of its Subsidiaries to approve, and neither the Company nor any of its Subsidiaries shallmay take, without first obtaining the approval any action set forth on Exhibit 4(a) (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (whether directly or indirectly by merger amendment, merger, recapitalization, consolidation or otherwise) ), other than as explicitly contemplated by this Agreement, the Company’s Certificate of Incorporation Merger Agreement or Bylaws (includingthe Registration Rights Agreement, without limitation, (I) amending, restating, modifying or repealing (directly or indirectly by merger or otherwise) any certificate the prior written consent of designation or preferences (XX Xxxxxx.
b. From the date of this Agreement for so long as in effect from time XX Xxxxxx is entitled to time) relating designate at least two directors to the Preferred Stock and (II) authorizing Board pursuant to Subsection 3(a)(i), in addition to any new class vote or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation consent of the Company redeem, purchase Board or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transactionrequired by applicable law, the Charter or by-laws of the Company, the Board may not approve, or series cause the Company or any of transactionsits Subsidiaries to approve, would hold stock representing and neither the Company nor any of its Subsidiaries may take, any action set forth on Exhibit 4(b) (whether directly or indirectly by amendment, merger, recapitalization, consolidation or otherwise), other than as explicitly contemplated by this Agreement, the Merger Agreement or the Registration Rights Agreement, without the prior written consent of XX Xxxxxx.
c. Until the Sunset Date, except as set forth on Exhibit 4(c), in addition to any vote or consent of the Board or the stockholders of the Company required by applicable law, the Charter or by-laws of the Company, the Board may not approve, or cause the Company or any of its Subsidiaries to approve any transaction (excluding transactions involving consideration less than $120,000) between an Interested Stockholder, on the one hand, and the Company or any subsidiary of the Company, on the other, without the affirmative vote of at least a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary directors of the Company that is are not whollyVG Designees.
d. Until the Sunset Date, the XX Xxxxxx will first consult and discuss with the Board before (i) adopting, amending or repealing, in whole or in part, the Charter or by-owned laws of the Company and (ii) taking any action by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary written consent as a stockholder of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 3 contracts
Samples: Stockholders’ Agreement (Virgin Galactic Holdings, Inc), Stockholders’ Agreement (Social Capital Hedosophia Holdings Corp.), Stockholders’ Agreement (Social Capital Hedosophia Holdings Corp.)
Required Approvals. In addition It shall not, and shall not permit any of its Eligible Subsidiaries to, without the prior written consent of Lender, (i) create, incur, assume or suffer to exist any approvals required indebtedness, except for (x) trade debt and debt incurred to finance the purchase of equipment, (y) intercompany indebtedness incurred in the ordinary course of business between or among Eligible Subsidiaries and (z) indebtedness set forth in Schedule 13(l); (ii) cancel any debt owing to it in excess of $100,000 in the aggregate during any 12 month period, except for intercompany indebtedness incurred in the ordinary course of business between or among Eligible Subsidiaries and up to $500,000 of currently existing intercompany indebtedness between Digital Angel International and Digital Angel S.A. that could be capitalized as an investment in the Foreign Subsidiary; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by lawit or its Eligible Subsidiaries for deposit or collection or similar transactions in the ordinary course of business; (iv) directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock or apply any of its funds, property or assets to the purchase, redemption or other retirement of any of its or its Eligible Subsidiaries’ Stock, or issue any preferred stock; (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (A) travel advances, (B) loans to its and its Eligible Subsidiaries’ (other than Inactive Subsidiaries’ and Foreign Subsidiaries’) officers and employees not exceeding at any one time an aggregate of $10,000, (C) loans to or investments in any existing Eligible Subsidiaries or another Domestic Subsidiary so long as shares of Series H Preferred Stock are outstandingsuch entity is designated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by Lender, neither the Company nor any of its Subsidiaries shallincluding, without limitation, to grant to Lender a first obtaining priority perfected security interest in substantially all of such Eligible Subsidiary’s assets to secure the approval Obligations, (D) intercompany loans to Foreign Subsidiaries made in the ordinary course consistent with past practices and not exceeding $750,000 , net of payments received on intercompany indebtedness from Foreign Subsidiaries individually or in the aggregate and (E) investments in Foreign Subsidiaries not exceeding $500,000 individually or in the aggregate; (vi) create or permit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by vote Lender as either a co-borrower or written consentguarantor hereunder and such Subsidiary shall have entered into all such documentation required by Lender, as including, without limitation, to grant to Lender a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vii) directly or indirectly, prepay any indebtedness (other than to Lender and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Lender and in the ordinary course of business) except to make scheduled payments of principal and interest thereof or any prepayment that is in connection with a refinancing of existing indebtedness on similar terms; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it (other than (i) the ADSX Merger, or (ii) with the consent of Lender, which shall not be unreasonably withheld, a transaction between Eligible Subsidiaries), unless (1) such Company is the surviving entity of such merger or consolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) such Company shall have provided by lawLender copies of all documentation relating to such merger or consolidation and (4) of both (a) such Company shall have provided Lender with at least half in number thirty (30) days’ prior written notice of such merger or consolidation; (ix) materially change the nature of the Major Investors and business in which it is presently engaged; (bx) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly by merger or otherwise) the Company’s Certificate of Incorporation or Bylaws become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict its or any of designation its Eligible Subsidiaries’ right to perform the provisions of this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase Ancillary Agreements or otherwise acquire any of the agreements contemplated hereby or thereby; (xi) change its fiscal year or make any distribution with respect changes in accounting treatment and reporting practices without prior written notice to Lender except as permitted by GAAP or in the tax reporting treatment or except as required by law; (xii) bxxx Accounts under any outstanding securities name except the present name of the Company or its Subsidiaries such Company; (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ixiii) sell, conveylease, transfer or otherwise dispose of all any of its properties or substantially all assets, or any of the properties or assets of the its Eligible Subsidiaries, except for (1) sales, leases, transfer or dispositions by any Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgageother Company, deed (2) the sale of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred Inventory in the ordinary course of business, (3) assignments, transfers or conveyances of Intellectual Property or interests therein in the ordinary course of business that do not materially impair the security interests granted to Lender pursuant to the IP Security Agreement and (4) the disposition or transfer in the ordinary course of business during any fiscal year of obsolete and worn-out Equipment and only to the Company extent that (x) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Lender’s first priority security interest, subject to Permitted Liens or its applicable Subsidiaryare used to repay Loans or to pay general corporate expenses, or (y) following the occurrence of an Event of Default which continues to exist, the proceeds of which are remitted to Lender to be held as cash collateral for the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase DateObligations; or (Bxv) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or except as otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (viithis Section 13(l), invest in, lend to, contribute and/or transfer any assets to and/or provide any other form of financial assistance to, whether directly or indirectly, Holdings, any Inactive Subsidiary and/or any Foreign Subsidiary.
Appears in 2 contracts
Samples: Security Agreement (Digital Angel Corp), Security Agreement (Applied Digital Solutions Inc)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor Company, without the prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwise) pay any dividends, other than dividends paid to the Company or any wholly owned Subsidiary of the Company’s Certificate , (ii) issue any preferred stock that is manditorily redeemable prior to the one year anniversary of Incorporation Maturity Date (as defined in the Note) or Bylaws (iii) redeem any of its preferred stock or other equity interests;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company or any of its Subsidiaries dissolve, liquidate or merge with any other person or entity (unless, in the case of a merger, the Company or such Subsidiary, as applicable, is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company’s or any of designation its Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planstaken as a whole;
(e) (Ii) sellcreate, conveyincur, assume or suffer to exist any indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment (not in excess of five percent (5%) of the fair market value of the Company’s and its Subsidiaries’ assets)) whether secured or unsecured other than (x) the Company’s indebtedness to the Purchaser, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or otherwise dispose of all any refinancings or substantially all of replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, so long as any lien relating thereto shall only encumber the fixed assets so purchased and no other assets of the Company or any Subsidiary of its Subsidiaries; (as defined belowii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other person or entity, except the endorsement of negotiable instruments by the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge for deposit or other encumbrance collection or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;and
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes a party to the Master Security Agreement, the Stock Pledge Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the Company; or effect Purchaser, satisfies each condition of this Agreement and the liquidation, bankruptcy or dissolution of any Related Agreements as if such Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any were a Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Closing Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 2 contracts
Samples: Securities Purchase Agreement (Biodelivery Sciences International Inc), Securities Purchase Agreement (Biodelivery Sciences International Inc)
Required Approvals. 4.1 Actions that Require Unanimous Approval of the Investor Designees. In addition to any approvals other approval required by lawthe Governing Documents or by applicable Law, so long and until such time as shares of Series H Preferred Stock are outstanding, neither the Company nor is no longer a Controlled Company, the unanimous approval of the Investor Designees shall be required for the Company or any of its Subsidiaries shallto take any of the following actions, and the Company and its Subsidiaries shall not take any of the following actions without first obtaining receiving the unanimous approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly by merger or otherwise) the Company’s Certificate of Incorporation or Bylaws (including, without limitation, (I) amending, restating, modifying or repealing (directly or indirectly by merger or otherwise) any certificate of designation or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its SubsidiariesInvestor Designees; provided, however, that if either Investor Shareholder ceases to own at least 15% of the foregoing issued and outstanding Shares, the following actions shall not impose require the approval of any condition on of the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;Investor Designees nominated for election by such Investor Shareholder:
(ea) Change of Control. Enter into or effect a Change of Control.
(Ib) sellCertain Dispositions. Directly or indirectly, conveyenter into or effect any transaction or series of related transactions, involving the sale, lease, license, exchange or otherwise dispose other disposal (including by merger, amalgamation, consolidation, sale of all stock or substantially all sale of the assets of assets) by the Company or any Subsidiary of its Subsidiaries of any assets (including equity interests in any Person and any licenses) having a fair market value or for consideration having a fair market value (in each case as defined belowreasonably determined by the Board) in excess of $100,000,000, other than transactions solely between and among the Company and its wholly owned Subsidiaries.
(providedc) Certain Acquisitions and Joint Ventures. Enter into or effect (i) any transaction or series of related transactions involving the purchase, howeverrent, that this restriction shall not apply to any mortgagelease, deed of trustlicense, pledge exchange or other encumbrance acquisition (whether by merger, amalgamation, consolidation, acquisition of stock or hypothecation acquisition of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)assets) or grant any exclusive license to the assets of by the Company or any Subsidiary of the Company; its Subsidiaries of any assets and equity securities of any Person for consideration or (IIii) effect any merger, consolidation, acquisition joint venture or similar transaction of the Company with one business alliance involving investment, contribution or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned disposition by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary of its Subsidiaries of assets (A) creating or incurring indebtedness under credit facilities existing as including stock of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creatingSubsidiaries), incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through and (viiii), having a fair market value (as reasonably determined by the Board) in excess of $100,000,000, other than transactions solely between and among the Company and its wholly owned Subsidiaries.
Appears in 2 contracts
Samples: Shareholder Agreement, Shareholder Agreement (NDS Group Holdings, LTD)
Required Approvals. In addition to any approvals required by lawIt shall not, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor and shall not permit any of its Subsidiaries shallto, without the prior written consent of Laurus, which shall not be unreasonably withheld, (i) except for operating leases in the ordinary course of its or its Subsidiaries’ business, create, incur, assume or suffer to exist any indebtedness in excess of $250,000 (exclusive of trade debt), whether secured or unsecured other than each Company’s indebtedness to Laurus and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by it or its Subsidiaries for deposit or collection or similar transactions in the ordinary course of business; (iv), purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture in excess of $250,000, except (x) travel advances, (y) loans to its and its Subsidiaries’ officers and employees not exceeding at any one time an aggregate of $10,000, and (z) loans to its existing Subsidiaries so long as such Subsidiaries are designated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by Laurus, including, without limitation, to grant to Laurus a first obtaining priority perfected security interest in substantially all of such Subsidiary’s assets to secure the approval Obligations; (by vote v) directly or written consentindirectly, as provided by lawprepay any indebtedness (other than to Laurus and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Laurus and in the ordinary course of business) except to make scheduled payments of both principal and interest thereof; (avi) at least half in number materially change the nature of the Major Investors and business in which it is presently engaged; (bvii) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly by merger or otherwise) the Company’s Certificate of Incorporation or Bylaws become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate of designation agreement or preferences instrument which by its terms would (as in effect from time to timeunder any circumstances) relating to the Preferred Stock and (II) authorizing any new class restrict its or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock Subsidiaries’ right to perform the provisions of this Agreement or other equity securities directly any of the Ancillary Agreements; (viii) enter into any transaction with any employee, director or indirectlyAffiliate, except in the ordinary course on arms-length terms; (ix) xxxx Accounts under any name except the present name of such Company; or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ix) sell, conveylease, transfer or otherwise dispose of all any of its properties or substantially all assets, or any of the properties or assets of the its Subsidiaries, except for (1) sales, leases, transfer or dispositions by any Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgageother Company, deed (2) the sale of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred Inventory in the ordinary course of business and (3) the disposition or transfer in the ordinary course of business during any fiscal year of obsolete and worn-out Equipment and only to the Company extent that (xi) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Laurus’ first priority security interest or its applicable Subsidiaryare used to repay Loans or to pay general corporate expenses, or (y) following the occurrence of an Event of Default which continues to exist, the proceeds of which are remitted to Laurus to be held as cash collateral for the case may be; providedObligations. Notwithstanding the foregoing, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by neither it nor any of such facilities prior its Subsidiaries shall provide any material, non-public information to Laurus unless Laurus signs a confidentiality agreement and otherwise complies with Regulation FD, under the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)federal securities laws.
Appears in 2 contracts
Samples: Security Agreement (Spacedev Inc), Security Agreement (Spacedev Inc)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock the aggregate principal amount of the Term Notes and the Term Notes dated as of May 19, 2005 are outstanding, neither the Company nor Company, without the prior written consent of the Purchasers, shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwisepay any dividends, other than dividends paid to the Company or any of its wholly-owned Subsidiaries, (ii) issue any preferred stock that is mandatorily redeemable prior to the Company’s Certificate one year anniversary of Incorporation Maturity Date (as defined in the Term Notes) or Bylaws (iii) redeem any of its preferred stock or other equity interests;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company dissolve, liquidate or merge with any other person or entity (unless the Company is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company’s or any of designation its Subsidiaries’ right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planstaken as a whole;
(e) (Ii) sellcreate, conveyincur, assume or otherwise dispose suffer to exist any indebtedness (exclusive of all or substantially all debt incurred to finance the purchase of the assets equipment not in excess of the Company or any Subsidiary five percent (as defined below5%) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation fair market value of the Company’s and its Subsidiaries’ assets) whether secured or unsecured other than (x) the Company’s indebtedness to the Purchasers, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Company than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any Subsidiary’s assets for the purpose of securing indebtedness of refinancings or replacements thereof on terms no less favorable to the Company than the indebtedness being refinanced or such Subsidiary which existed prior replaced; (ii) cancel any debt owing to the Series H Initial Purchase Date (as defined it in excess of $50,000 in the Amended and Restated Certificate aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of Incorporation any other Person, except the endorsement of the Company)) or grant any exclusive license to the assets of negotiable instruments by the Company for deposit or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition collection or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders ordinary course of the Company prior business or guarantees of indebtedness otherwise permitted to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the be outstanding stock of the surviving corporation immediately after such transaction, or series of transactionspursuant to this clause (e); or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;and
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes party to the Term Note Security Agreement, the Stock Pledge Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the Company; or effect Purchasers, satisfies each condition of this Agreement and the liquidation, bankruptcy or dissolution of any Related Agreements as if such Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any were a Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Closing Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 2 contracts
Samples: Securities Purchase Agreement (Corgenix Medical Corp/Co), Securities Purchase Agreement (Corgenix Medical Corp/Co)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty -five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor any of its Subsidiaries shallCompany, without first obtaining the approval (by vote or prior written consent, as provided by law) of both (a) at least half in number consent of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred StockPurchaser, voting as a single classwhich shall not be unreasonably withheld, shall not:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwisepay any dividends, other than dividends paid to the Parent or any of its wholly-owned Subsidiaries, (ii) issue any preferred stock that is mandatorily redeemable prior to October 19, 2007, or (iii) redeem any of its preferred stock or other equity interests during before the Company’s Certificate Maturity Date ;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company dissolve, liquidate or merge with any other person or entity unless, the Company is the surviving entity or the successor entity expressly assumes all of Incorporation or Bylaws the duties and obligations of the Company and its Subsidiaries under this Agreement and Related Agreements);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) materially restrict the Company’s right to perform the provisions of designation this Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockagreements contemplated thereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation business of the Company redeemCompany, purchase or otherwise acquire or make any distribution unless such change in scope is consistent with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planspast practice;
(e) (Ii) sellcreate, conveyincur, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create assume or suffer to exist any Subsidiary indebtedness, exclusive of trade debt, debt subordinated to or on collateral other than the security provided by the Related Agreements and debt incurred to finance the purchase of equipment (not in excess of ten percent (10%) of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary fair market value of the Company;
’s and its Subsidiaries’ assets) whether secured or unsecured other than (gx) createthe Company’s indebtedness to the Purchaser, incur(y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the debt being refinanced or replaced, guarantee, assume or be directly or indirectly liable with respect to and (z) any indebtedness (other than indebtedness which existed prior to incurred in connection with the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred purchase of assets in the ordinary course of business, and any refinancings or replacements thereof on terms no less favorable to the business Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any indebtedness owing to it in excess of $200,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company collection or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) similar transactions in the case ordinary course of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars business; and
($500,000i) per year in each of the years 2002make investments in, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to make any negative covenants with respect loans or advances to, or prohibitions ontransfer assets to, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take Subsidiaries, other than any actions set forth immaterial investments, loans, advances and/or asset transfers made in the foregoing subparagraphs ordinary course of business or (iii) through (vii)create or acquire any Subsidiary without the prior written consent of the Purchaser, which shall not be unreasonably withheld.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Clinical Data Inc), Securities Purchase Agreement (Icoria, Inc.)
Required Approvals. In addition to any approvals required by lawIt shall not, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor and shall not permit any of its Subsidiaries shallto, without first obtaining the approval prior written consent of Laurus, (i) create, incur, assume or suffer to exist any indebtedness (exclusive of (i) Purchase Money Indebtedness and standby letters of credit, not to exceed $500,000 in the aggregate outstanding at any time (after giving full effect to the stated amount of any such letter of credit), (ii) trade accounts payable and (iii) accrued payroll not to exceed $500,000 at any one time) whether secured or unsecured other than each Company’s indebtedness to Laurus and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by vote it or written consent, as provided by lawits Subsidiaries for deposit or collection or similar transactions in the ordinary course of business and except in connection with indebtedness permitted under clause (i) of both this subsection (al); (iv) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock or apply any of its funds, property or assets to the purchase, redemption or other retirement of any of its or its Subsidiaries’ Stock outstanding on the date hereof, or issue any preferred stock (except if the proceeds are used to repay the Obligations to Laurus in full); (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to its and its Subsidiaries’ officers and employees not exceeding at any one time an aggregate of $10,000, and (z) loans to its existing Subsidiaries so long as such Subsidiaries are designated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vi) create or permit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by Laurus as either a co-borrower or guarantor hereunder and such Subsidiary shall have entered into all such documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vii) directly or indirectly, prepay any indebtedness (other than to Laurus and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Laurus and in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (1) such Company is the surviving entity of such merger or otherwiseconsolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) such Company shall have provided Laurus copies of all documentation relating to such merger or consolidation and (4) such Company shall have provided Laurus with at least thirty (30) days’ prior written notice of such merger or consolidation; (ix) materially change the Company’s Certificate nature of Incorporation or Bylaws the business in which it is presently engaged; (x) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict its or any of designation its Subsidiaries’ right to perform the provisions of this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire Ancillary Agreements; (xi) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with respect to any outstanding securities employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiii) xxxx Accounts under any name except the present name of the Company such Company; or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ixiv) sell, conveylease, transfer or otherwise dispose of all any of its properties or substantially all assets, or any of the properties or assets of the its Subsidiaries, except for (1) sales, leases, transfers or dispositions by any Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgageother Company, deed (2) the sale of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred Inventory in the ordinary course of business and (3) the disposition or transfer in the ordinary course of business during any fiscal year of obsolete and worn-out Equipment and only to the Company extent that (x) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Laurus’ first priority security interest or its applicable Subsidiaryare used to repay Loans or to pay general corporate expenses, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (By) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in following the case occurrence of the Company such new indebtedness shall be limited an Event of Default which continues to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions onexist, the Company’s ability proceeds of which are remitted to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit Laurus to take any actions set forth in be held as cash collateral for the foregoing subparagraphs (i) through (vii)Obligations.
Appears in 2 contracts
Samples: Security Agreement (Airnet Communications Corp), Security Agreement (Airnet Communications Corp)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor Company, without the prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries shallto:
(i) directly or indirectly declare or pay any dividends, without first obtaining other than (x) dividends paid to the approval Parent or any of its wholly-owned Subsidiaries and (by vote y) dividends paid to the Purchaser with respect to the Series A Preferred, (ii) issue any preferred stock that is manditorily redeemable prior to July 29, 2005 or written consent, as provided by law(iii) redeem any of both (a) at least half in number of the Major Investors and its preferred stock or other equity interests;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the holders of a majority of Company dissolve, liquidate or merge with any other person or entity (unless the then outstanding voting power of Company is the Series H Preferred Stock, voting as a single class:surviving entity);
(ac) amend, restate, alter, modify or repeal (directly or indirectly by merger or otherwise) the Company’s Certificate of Incorporation or Bylaws become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planstaken as a whole;
(ei) except in the ordinary course of business, create, incur, assume or suffer to exist any indebtedness (I) sell, convey, or otherwise dispose exclusive of all or substantially all trade debt and debt incurred to finance the purchase of the assets equipment (not in excess of the Company or any Subsidiary ten percent (as defined below10%) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation fair market value of the Company’s 's and its Subsidiaries’ assets) whether secured or unsecured other than (x) the Company's indebtedness to the Purchaser, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof or any Subsidiary’s refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets for in the purpose ordinary course of securing business, or any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined collection or similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;and
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes party to the Master Security Agreement, the Stock Pledge Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the Company; or effect Purchaser, satisfies each condition of this Agreement and the liquidation, bankruptcy or dissolution of any Related Agreements as if such Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any were a Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Closing Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 2 contracts
Samples: Securities Purchase Agreement (Powercold Corp), Securities Purchase Agreement (Powercold Corp)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor any of its Subsidiaries shallCompany, without first obtaining the approval (by vote or prior written consent, as provided by law) of both (a) at least half in number consent of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred StockPurchaser, voting as a single classshall not:
(a) amend, restate, alter, modify or repeal (directly or indirectly declare or pay any dividends, other than (i) dividends paid to the Company or any of its wholly-owned Subsidiaries or (ii) dividends paid in connection with preferred stock issued by merger or otherwise) the Company’s Certificate , so long as any such dividends paid pursuant to this clause (ii) do not exceed, in the aggregate $400,000 in any fiscal year of Incorporation the Company;
(b) liquidate, dissolve or Bylaws effect a material reorganization;
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries right to perform the provisions of this Agreement, any other Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate of Incorporation scope of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities business of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ii) sellcreate, conveyincur, assume or suffer to exist any indebtedness, or otherwise dispose issue or suffer to exist any preferred equity interests (exclusive of all or substantially all trade debt and debt incurred to finance the purchase of equipment and/or inventory (not in excess of five percent (5%) per annum of the assets fair market value of the Company's and its Subsidiaries assets) whether secured or unsecured other than (w) the Company's and its indebtedness to the Purchaser, (x) indebtedness and preferred equity interests set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness or preferred equity interests being refinanced or replaced, (y) subject to Section 11.14, additional indebtedness incurred, and/or preferred equity issuances issued (with the amount of such preferred equity interests to equal the greater of the liquidation preference with respect thereto and the maximum fixed repurchase price with respect thereto), not to exceed three million dollars ($3,000,000) in the aggregate at any time outstanding, so long as the obligation of the Company and/or any of its Subsidiaries to repay such indebtedness and/or the redeem such preferred equity interests incurred or any Subsidiary issued, as the case may be, pursuant to this clause (as defined below) of y), shall be unsecured and expressly subordinated to the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation payment in full of the Company’s 's and its Subsidiaries obligations to the Purchaser under this Agreement and the Related Agreements, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any Subsidiary’s assets for refinancings or replacements thereof on terms no less favorable to the purpose Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of securing indebtedness $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined collection or similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes party to the 2004 Master Security Agreement and the 2004 Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the CompanyPurchaser, satisfies each condition of this Agreement and the Related Agreements as if such Subsidiary were a Subsidiary on the Closing Date; and
(i) make investments in, make any loans or effect the liquidationadvances to, bankruptcy or dissolution of transfer assets to, any Subsidiary of the Company;
Immaterial Subsidiaries or (gii) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do somake investments in, except with respect to trade debts incurred make any loans or advances to, or transfer assets to, any of the Immaterial Subsidiaries, other than, in the case of each of the foregoing clauses (i) and (ii), immaterial investments, loans, advances and/or asset transfers made in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)business.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Synergy Brands Inc), Securities Purchase Agreement (Synergy Brands Inc)
Required Approvals. In addition to any approvals required by lawExcept as set forth on Schedule 6.12, so long as shares the ------------------- Company, without the prior written consent of Series H Preferred Stock are outstandingthe Purchaser, neither the Company nor shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwise) pay any dividends, other than dividends paid to the parent of the Company’s Certificate , the Company or any of Incorporation its wholly-owned Subsidiaries, (ii) issue any preferred stock that is mandatorily redeemable prior to the one year anniversary of Maturity Date (as defined in the Note) or Bylaws (iii) redeem any of its preferred stock or other equity interests;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company or any of its Subsidiaries dissolve, liquidate or merge with any other person or entity (unless, in the case of such a merger, the Company or, in the case of merger not involving the Company, such Subsidiary, as applicable, is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries' right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planstaken as a whole;
(e) (Ii) sellcreate, conveyincur, assume or suffer to exist any indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment (not in excess of five percent (5%) of the fair market value of the Company's and its Subsidiaries' assets)) whether secured or unsecured other than (x) the Company's obligations owed to the Purchaser, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any indebtedness incurred in connection with the purchase of assets (other than equipment) in the ordinary course of business, or otherwise dispose of all any refinancings or substantially all of replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, so long as any lien relating thereto shall only encumber the fixed assets so purchased and no other assets of the Company or any Subsidiary of its Subsidiaries; (as defined belowii) cancel any indebtedness owing to it in excess of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined $50,000 in the Amended and Restated Certificate aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of Incorporation any other person or entity, except the endorsement of the Company)) or grant any exclusive license to the assets of negotiable instruments by the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition thereof for deposit or collection or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders ordinary course of the Company prior business or guarantees of indebtedness otherwise permitted to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the be outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or pursuant to this clause (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Companye), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes a party to the Master Security Agreement, the Stock Pledge Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the CompanyPurchaser, satisfies each condition of this Agreement and the Related Agreements as if such Subsidiary were a Subsidiary on the Closing Date; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;and
(g) create, incur, guarantee, assume transfer or be directly or indirectly liable with respect assign in any manner whatsoever any of its assets to any indebtedness (other than indebtedness which existed prior to person or entity, including without limitation any subsidiary created after the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)date hereof.
Appears in 2 contracts
Samples: Securities Purchase Agreement (New Century Energy Corp.), Securities Purchase Agreement (New Century Energy Corp.)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor Company, without the prior written consent of the Purchaser, shall not:
(i) directly or indirectly declare or pay any dividends, other than (x) dividends paid to any of its wholly-owned Subsidiaries shalland (y) dividends paid to the Purchaser with respect to the Common Stock, without first obtaining (ii) issue any preferred stock that is manditorily redeemable prior to the approval one year anniversary of Maturity Date (by vote as defined in the Note) or written consent, as provided by law(iii) redeem any of both (a) at least half in number of the Major Investors and its preferred stock or other equity interests;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the holders of a majority of Company dissolve, liquidate or merge with any other person or entity (unless the then outstanding voting power of Company is the Series H Preferred Stock, voting as a single class:surviving entity);
(ac) amend, restate, alter, modify or repeal (directly or indirectly by merger or otherwise) the Company’s Certificate of Incorporation or Bylaws become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's right to perform the provisions of designation this Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockagreements contemplated thereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate of Incorporation scope of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary business of the Company;
(ge) create, incur, guarantee, assume or be directly or indirectly liable with respect suffer to exist any indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment (not in excess of five percent (5%) per annum of the fair market value of the Company's assets) whether secured or unsecured other than (x) the Company's indebtedness which existed prior to the Series H Initial Purchase Date)Purchaser, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or permit replacements thereof on terms no less favorable to the Purchaser than the debt being refinanced or replaced, and (z) any Subsidiary to do so, except indebtedness incurred in connection with respect to trade debts incurred the purchase of assets in the ordinary course of business, and any refinancings or replacements thereof on terms no less favorable to the business Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any indebtedness owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company collection or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) similar transactions in the case ordinary course of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars business; and
($500,000f) per year in each of the years 2002make investments in, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to make any negative covenants with respect loans or advances to, or prohibitions ontransfer assets to, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take Subsidiaries, other than any actions set forth immaterial investments, loans, advances and/or asset transfers made in the foregoing subparagraphs (i) through (vii)ordinary course of business.
Appears in 2 contracts
Samples: Securities Purchase Agreement (It&e International Group), Securities Purchase Agreement (It&e International Group)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor Company, without the prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwisepay any dividends, other than dividends paid to the Company or any of its wholly-owned Subsidiaries, (ii) issue any preferred stock that is manditorily redeemable prior to the Company’s Certificate one year anniversary of Incorporation Maturity Date (as defined in the Note) or Bylaws (iii) redeem any of its preferred stock or other equity interests
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company dissolve, liquidate or merge with any other person or entity (unless the Company is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planstaken as a whole;
(e) (Ii) sellcreate, conveyincur, assume or otherwise dispose suffer to exist any indebtedness (exclusive of all or substantially all trade debt and debt incurred to finance the purchase of the assets equipment (not in excess of the Company or any Subsidiary five percent (as defined below5%) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation fair market value of the Company’s 's and its Subsidiaries' assets) whether secured or unsecured other than (w) up to $5,000,000 principal amount of unsecured subordinated indebtedness subject to terms, conditions and documentation satisfactory to the Purchaser, (x) the Company's indebtedness to the Purchaser, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any Subsidiary’s assets for refinancings or replacements thereof on terms no less favorable to the purpose Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of securing indebtedness $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined collection or similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;and
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes party to the Master Security Agreement (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof), executes such other documentation satisfactory to the Purchaser and, to the extent required by the Company; or effect Purchaser, satisfies each condition of this Agreement and the liquidation, bankruptcy or dissolution of any Related Agreements as if such Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any were a Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Closing Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 2 contracts
Samples: Securities Purchase Agreement (Centurion Gold Holdings Inc), Securities Purchase Agreement (Centurion Gold Holdings Inc)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor Company, without the prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwise) pay any dividends, other than dividends paid to the parent of the Company or the parent of any Subsidiary of the Company’s Certificate , (ii) issue any preferred stock that is manditorily redeemable prior to the date which is one year anniversary of Incorporation Maturity Date or Bylaws (iii) redeem any of its preferred stock or other equity interests;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company or any of its Subsidiaries dissolve, liquidate or merge with any other person or entity (unless the Company or such Subsidiary, as applicable, is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company’s or any of designation its Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planstaken as a whole;
(e) (Ii) sellcreate, conveyincur, assume or suffer to exist any indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment (not in excess of five percent (5%) of the fair market value of the Company’s and its Subsidiaries’ assets)) whether secured or unsecured other than (x) the Company’s indebtedness to the Purchaser, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or otherwise dispose of all any refinancings or substantially all of replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, so long as any lien relating thereto shall only encumber the fixed assets so purchased and no other assets of the Company or any Subsidiary of its Subsidiaries; (as defined belowii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other person or entity, except the endorsement of negotiable instruments by the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge for deposit or other encumbrance collection or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer acquire any Subsidiary after the date hereof unless such Subsidiary becomes a party to exist the Master Security Agreement, the Stock Pledge Agreement and the Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the Purchaser, satisfies each condition of this Agreement and the Related Agreements as if such Subsidiary were a Subsidiary on the Closing Date; and
(g) (i) make, or permit any of its Subsidiaries which are not Inactive Subsidiaries to make, any investments in, or any loans or advances to, any Subsidiary of the Company that which is not wholly-owned by an Inactive Subsidiary, other than, so long as no Event of Default (as defined in the Company; Note) has occurred and is continuing, immaterial investments, loans and/or advances made in the ordinary course of business or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(gii) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date)transfer, or permit any Subsidiary of the Company which is not an Inactive Subsidiary to do sotransfer, except with respect assets to trade debts incurred any Subsidiary of the Company which is an Inactive Subsidiary, other than, so long as no Event of Default has occurred and is continuing, immaterial asset transfers made in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)business.
Appears in 1 contract
Samples: Securities Purchase Agreement (Earthfirst Technologies Inc)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor any of its Subsidiaries shallCompany, without first obtaining the approval (by vote or prior written consent, as provided by law) of both (a) at least half in number consent of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred StockPurchaser ( which consent shall not be unreasonably withheld), voting as a single classshall not:
(a) amend, restate, alter, modify or repeal (directly or indirectly by merger declare or otherwisepay any dividends, other than dividends with respect to its preferred stock;
(b) the Company’s Certificate of Incorporation liquidate, dissolve or Bylaws effect a material reorganization;
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company’s right to perform the provisions of designation this Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockagreements contemplated thereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate of Incorporation scope of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities business of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ii) sellcreate, conveyincur, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create assume or suffer to exist any Subsidiary indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment whether secured or unsecured other than the Company’s indebtedness to Laurus and as set forth on Exhibit 6.12(e) attached hereto and made a part hereof or any refinancings or replacements thereof or any debt incurred in connection with the purchase of assets (including indebtedness incurred or assumed in connection with the acquisition of physician practices and businesses (“Physician Acquisition Indebtedness”) (provided that such Physician Acquisition Indebtedness shall be expressly subordinated to Purchaser, secured solely by the assets of the acquisition target (including for this purpose the shares of stock or limited liability company interests of the Company subsidiary formed to hold the Acquisition Assets (“Acquisition Assets”)and shall not be secured by a lien on any other assets of PainCare Inc. and PainCare Holdings, Inc (to the extent that is such assets are not wholly-owned by Acquisition Assets.)), or in connection with operating lines of credit as necessary to operate such assets, or any refinancings or replacements thereof; (ii) cancel any debt owing to it in excess of $50,000 in the Companyaggregate during any 12 month period; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(giii) create, incurassume, guarantee, assume endorse or be otherwise become directly or indirectly contingently liable in connection with respect to any indebtedness (obligations of any other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do soPerson, except with respect to trade debts incurred the endorsement of negotiable instruments by a Company for deposit or collection or similar transactions in the ordinary course of the business or guarantees provided to any of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions lenders set forth in the foregoing subparagraphs subparagraph (i) through (vii)immediately above.
Appears in 1 contract
Samples: Securities Purchase Agreement (Paincare Holdings Inc)
Required Approvals. In addition It shall not, without the prior written consent of Laurus, (i) create, incur, assume or suffer to exist any approvals required indebtedness (exclusive of trade debt) whether secured or unsecured other than each Company's indebtedness to Laurus and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof, or disclosed in any of the Parent's SEC Reports or Exchange Act Filings; (ii) cancel any debt owing to it in excess of $100,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by lawit or its Subsidiaries for deposit or collection or similar transactions in the ordinary course of business; (iv) directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock (except for the payment of dividends, in shares of the Parent's Common Stock, with respect to the Parent's 6% Convertible Series A Preferred Stock issued prior to the date hereof) or apply any of its funds, property or assets to the purchase, redemption or other retirement of any of its or its Subsidiaries' Stock outstanding on the date hereof, or issue any preferred stock; (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to its and its Subsidiaries' officers and employees not exceeding at any one time an aggregate of $100,000, and (z) loans to its existing Subsidiaries so long as shares of Series H Preferred Stock such Subsidiaries are outstandingdesignated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by Laurus, neither the Company nor any of its Subsidiaries shallincluding, without limitation, to grant to Laurus a first obtaining priority perfected security interest in substantially all of such Subsidiary's assets to secure the approval Obligations; (vi) create or permit to exist any Subsidiary organized in the United States of America, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by vote Laurus as either a co-borrower or written consentguarantor hereunder and such Subsidiary shall have entered into all such documentation required by Laurus, as including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary's assets to secure the Obligations; (vii) directly or indirectly, prepay any indebtedness (other than to Laurus and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Laurus and in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (1) such Company is the surviving entity of such merger or consolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) such Company shall have provided by lawLaurus copies of all documentation relating to such merger or consolidation and (4) of both (a) such Company shall have provided Laurus with at least half in number thirty (30) days' prior written notice of such merger or consolidation; (ix) materially change the nature of the Major Investors and business in which it is presently engaged; (bx) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly by merger or otherwise) the Company’s Certificate of Incorporation or Bylaws become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict its right to perform the provisions of designation this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire Ancillary Agreements; (xi) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with respect to any outstanding securities employee, director or Affiliate, involving compensation or other payments by any of the Company Companies to such employee, director or its Subsidiaries Affiliate, in an aggregate amount after the date hereof in excess of $100,000, except in the ordinary course on arms-length terms; (including, without limitation, warrants, options and other rights to acquire any xiii) bill Accounts under axx xame except the present name of its capital stock such Company; or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ixiv) sell, conveylease, transfer or otherwise dispose of all any of its properties or substantially all of the assets of the assets, except for (1) sales, leases, transfer or dispositions by any Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgageother Company, deed (2) the sale of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred Inventory in the ordinary course of business and (3) the disposition or transfer in the ordinary course of business during any fiscal year of obsolete and worn-out Equipment and only to the Company extent that (x) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Laurus' first priority security interest or its applicable Subsidiaryare used to repay Loans or to pay general corporate expenses, or (y) following the occurrence of an Event of Default which continues to exist, the proceeds of which are remitted to Laurus to be held as cash collateral for the case may be; providedObligations. Notwithstanding anything to the contrary contained in this Section 12(l), however, that the foregoing Laurus' approval shall not impose be required with respect to any condition on the Company or transfer of cash to any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreementsNon-US Subsidiary, provided that (x) such transfers are made in the ordinary course of business and consistent with its business practices and (y) such transfers are made by a Company to a Non-US Subsidiary for the direct purposing of reimbursing and/or paying such Non-US Subsidiary for (I) in the case cost of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, shipping expenses and (II) in the case of all of the Subsidiaries of the Companyairline carrier expenses, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each case, incurred by such Non-US Subsidiary for the benefit of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the such Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 1 contract
Samples: Security Agreement (Pacific Cma Inc)
Required Approvals. In addition to any approvals required by lawDuring the Term, so long as shares of Series H Preferred Stock are outstandingCompany shall not, neither the Company nor and shall not permit any of its Eligible Subsidiaries shallto, without first obtaining the approval prior written consent of Laurus, (i) create, incur, assume or suffer to exist any indebtedness (exclusive of trade debt) whether secured or unsecured other than Company’s indebtedness to Laurus and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by vote Company for deposit or written consent, as provided by lawcollection or similar transactions in the ordinary course of business; (iv) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock other than to pay dividends on shares of its Preferred Stock outstanding on the date hereof or apply any of its funds, property or assets to the purchase, redemption or other retirement of any Stock of Company outstanding on the date hereof, or issue any Preferred Stock manditorily redeemable prior to the sixth month anniversary of the Maturity Date (as defined in the Notes); (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to Company’s and its Eligible Subsidiaries’ officers and employees not exceeding at any one time an aggregate of $10,000, and (z) existing subsidiaries of Company; (vi) create or permit to exist any subsidiary, other than any subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new subsidiary is a wholly-owned subsidiary and is designated by Laurus as either a co-borrower or guarantor hereunder and such subsidiary shall have entered into all such documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such subsidiary’s assets to secure the Obligations; (vii) directly or indirectly, prepay any indebtedness (other than to Laurus or in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Laurus or in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person constituting Collateral or permit any other Person to consolidate with or merge with it, unless (1) Company is the surviving entity of such merger or otherwiseconsolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) Company shall have provided Laurus copies of all documentation relating to such merger or consolidation and (4) Company shall have provided Laurus with at least thirty (30) days’ prior written notice of such merger or consolidation; (ix) materially change the Company’s Certificate nature of Incorporation or Bylaws the business in which it is presently engaged; (x) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company’s right to perform the provisions of designation this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire agreements contemplated thereby; (xi) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with respect to any outstanding securities employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiii) bxxx Accounts under any name except the present name of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its existing Eligible Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (IIIxiv) authorizemake any intercompany or inter-subsidiary loans or transfers of assets, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred loans and transfers in the ordinary course of the business of consistent with past practice among the Company and the Eligible Subsidiaries or its applicable Subsidiary, as with the case may be; provided, however, that the foregoing shall prior written consent of Laurus (such consent not impose any condition on the Company to be unreasonably withheld or any Subsidiary (Aconditioned) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 1 contract
Required Approvals. Section 8.1 In addition to any other approvals required by law, so long as shares of Series H Preferred Stock are outstanding, neither Global will not take the Company nor any of its Subsidiaries shall, following actions without first obtaining the approval (by vote or written consent, as provided by law) consent of both (a) at least half in number of the Major Investors and (b) the holders of not less than a majority of the then outstanding voting power shares of the Series H Preferred StockStock entitled to vote on such matter (treating all Convertible Securities as converted for purposes of this Section 8.1), voting together as a single classclass on an as-converted basis:
(a) amendthe issuance, restatepurchase, alterredemption or repurchase, modify or repeal (directly determination whether to exercise repurchase rights, of any Common Stock or indirectly by merger or otherwise) other Equity Securities and the Company’s Certificate equity securities of Incorporation or Bylaws (its Subsidiaries, including, without limitation, (I) amendingoptions, restatingwarrants and preemptive rights, modifying or repealing (directly or indirectly by merger or otherwise) any certificate of designation or preferences (as in effect from time to time) relating except to the Preferred extent such Equity Securities are issued in connection with the grant of options to purchase Common Stock or other stock-based awards or sales, with exercise or purchase prices not less than the market price of the Common Stock on the date of grant or issuance, which are issued or sold to employees, officers, directors or consultants of Global for the primary purpose of soliciting or retaining their employment or service pursuant to an equity compensation plan approved by the Board, and (II) authorizing any new class or series of stock)the Common Stock issued upon the exercise thereof;
(b) reclassify Common Stock the declaration or Preferred Stockpayment of any dividends or other distributions in respect of the capital stock of Global and its Subsidiaries;
(c) declare or pay the entering into of any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockagreement to effect a Public Offering;
(d) except as otherwise provided incur any indebtedness for borrowed money or grant, create or permit the imposition of any lien, charge, security interest or other encumbrance upon any of the assets or properties of Global or any Subsidiary, or guaranty or provide surety for the obligations of any third party, other than (i) ordinary course trade payables, and (ii) financings of budgeted capital expenditures reflected in annual budgets approved by the vote of the Board;
(e) the amendment or modification or any documentation relating to indebtedness for borrowed money of Global or any Subsidiary, other than indebtedness permitted under clause (d) above;
(f) the creation, modification, amendment or repeal of the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate By-Laws of Incorporation of the Company)) Global or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution equivalent organizational documents of any Subsidiary of the Companyits Subsidiaries;
(g) createthe entering into or consummating of any Sale of Global or, incurany sale, guaranteelease, assume sublease or be directly other transfer or indirectly liable with respect to disposition of any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date)material assets of Global or any of its Subsidiaries , or permit any voting stock of any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; orGlobal;
(h) agree except pursuant to the terms of Section 3.3(b) or otherwise commit to take Article V, make any actions payment on account of, or set forth in aside any assets for a sinking or other analogous fund for, the foregoing subparagraphs purchase, redemption, defeasance, retirement or other acquisition of any equity interest of Global or any Subsidiary;
(i) through voluntarily liquidate, wind-up, dissolve or commence any bankruptcy, insolvency, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law or make a general assignment for the benefit of creditors;
(vii)j) change the line of business of Global or any Subsidiary;
(k) increase the size of the Board; and
(l) the entering into by Global or any of its Subsidiaries of any agreement obliging, committing or binding Global or any such Subsidiary to do anything or take any action referred to in clauses (a) — (k) above, and any amendment or modification of any such agreement.
Appears in 1 contract
Samples: Shareholders Agreement (Victory Park Capital Advisors, LLC)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor Company, without the prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwisepay any dividends, other than dividends paid to the Parent or any of its wholly-owned Subsidiaries, (ii) issue any preferred stock that is manditorily redeemable prior to the Company’s Certificate one year anniversary of Incorporation the Maturity Date (as defined in the Note) or Bylaws (iii) redeem any of its preferred stock or other equity interests;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company dissolve, liquidate or merge with any other person or entity (unless the Company is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planstaken as a whole;
(e) (Ii) sellcreate, conveyincur, assume or otherwise dispose suffer to exist any indebtedness (exclusive of all or substantially all trade debt and debt incurred to finance the purchase of the assets equipment (not in excess of the Company or any Subsidiary five percent (as defined below5%) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation fair market value of the Company’s 's and its Subsidiaries' assets) whether secured or unsecured other than (x) the Company's indebtedness to the Purchaser, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any Subsidiary’s assets for refinancings or replacements thereof on terms no less favorable to the purpose Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of securing indebtedness $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined collection or similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;and
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes party to the Master Security Agreement, the Stock Pledge Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the Company; or effect Purchaser, satisfies each condition of this Agreement and the liquidation, bankruptcy or dissolution of any Related Agreements as if such Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any were a Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Closing Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 1 contract
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of (i) the principal amount of the Notes or (ii) Series H B Preferred Stock are outstanding, neither the Company nor Company, without the prior written consent of the Purchasers, shall not, and shall not permit any of its Subsidiaries shallto:
(i) directly or indirectly declare or pay any dividends, without first obtaining other than dividends paid to the approval Parent or any of its wholly-owned Subsidiaries or to the holders of its Preferred Stock to the extent that it is required to do so,
(by vote or written consent, as provided by lawii) issue any preferred stock that is mandatorily redeemable at any time that twenty-five percent (25%) of both (a) at least half in number the principal amount of the Major Investors Notes or Series B Preferred Stock remains outstanding, or
(iii) redeem any of its preferred stock or other equity interests, except for the Company’s Series A Preferred Stock and Series B Preferred Stock, in each case to the extent that it is required to do so pursuant to the Charter;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the holders of a majority of Company dissolve, liquidate or merge with any other person or entity (unless the then outstanding voting power of Company is the Series H Preferred Stock, voting as a single class:surviving entity);
(ac) amend, restate, alter, modify or repeal (directly or indirectly by merger or otherwise) the Company’s Certificate of Incorporation or Bylaws become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company’s or any of designation its Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course scope of the business of the Company and its Subsidiaries taken as a whole;
(i) create, incur, assume or suffer to exist any indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment (not in excess of five percent (5%) of the fair market value of the Company’s and its applicable SubsidiarySubsidiaries’ assets) whether secured or unsecured other than (x) the Company’s indebtedness disclosed in any Exchange Act Filing, as (y) indebtedness set forth on Schedule 6.12(d) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the case may be; providedPurchaser than the indebtedness being refinanced or replaced, howeverand (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, that or any refinancings or replacements thereof on terms no less favorable to the foregoing shall not impose Purchaser than the indebtedness being refinanced or replaced;
(ii) cancel any condition on debt owing to it in excess of $50,000 in the aggregate during any 12 month period;
(iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or collection or similar transactions in the ordinary course of business or guarantees of indebtedness otherwise permitted to be outstanding pursuant to this clause (e); and
(e) create or acquire any Subsidiary after the date hereof unless (Ai) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case Subsidiary is a wholly-owned Subsidiary of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (IIii) in and, to the case extent required by the Purchasers, satisfies each condition of all of this Agreement and the Subsidiaries of Related Agreements as if such Subsidiary were a Subsidiary on the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)Closing Date.
Appears in 1 contract
Samples: Securities Purchase Agreement (Bio Key International Inc)
Required Approvals. In addition to any approvals required by lawIt shall not, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor and shall not permit any of its Subsidiaries shallto, without first obtaining the approval (by vote or prior written consent, as provided by law) of both (a) at least half in number consent of the Major Investors Agent, (i) create, incur, assume or suffer to exist any indebtedness (exclusive of trade debt) whether secured or unsecured other than each Company’s indebtedness to the Creditor Parties, until the Sabes Payoff Date, indebtedness to Sabes not to exceed $2,200,000 and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof; (bii) cancel any debt owing to it in excess of $50,000 in the holders aggregate during any twelve (12) month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of a majority any other Person, except the endorsement of negotiable instruments by it or its Subsidiaries for deposit or collection or similar transactions in the then outstanding voting power ordinary course of the Series H Preferred Stock, voting as a single class:
business; (aiv) amend, restate, alter, modify or repeal (directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock or apply any of its funds, property or assets to the purchase, redemption or other retirement of any of its or its Subsidiaries’ Stock, or issue any preferred stock; (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to its and its Subsidiaries’ officers and employees not exceeding at any one time an aggregate of $10,000, and (z) loans to its existing Subsidiaries so long as such Subsidiaries are designated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by the Agent, including, without limitation, to grant to the Agent a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vi) create or permit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by the Agent as either a co-borrower or guarantor hereunder and such Subsidiary shall have entered into all such documentation required by the Agent, including, without limitation, to grant to the Agent a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vii) directly or indirectly, prepay any indebtedness (other than to the Agent and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to the Agent and in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (1) such Company is the surviving entity of such merger or otherwiseconsolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) such Company shall have provided the Company’s Certificate Agent copies of Incorporation all documentation relating to such merger or Bylaws consolidation and (4) such Company shall have provided the Agent with at least thirty (30) days’ prior written notice of such merger or consolidation; (ix) materially change the nature of the business in which it is presently engaged; (x) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict its or any of designation its Subsidiaries’ right to perform the provisions of this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire Ancillary Agreements; (xi) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to the Agent except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with respect any employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiii) xxxx Accounts under any name except the present name of such Company; (xiv) sell, lease, transfer or otherwise dispose of any of its properties or assets, or any of the properties or assets of its Subsidiaries, except for (1) sales, leases, transfer or dispositions by any Company to any outstanding securities other Company, (2) the sale of Inventory in the ordinary course of business, (3) the disposition or transfer in the ordinary course of business during any fiscal year of obsolete and worn-out Equipment and only to the extent that (x) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to the Agent’s first priority security interest or are used to repay Loans or to pay general corporate expenses, or (y) following the occurrence of an Event of Default which continues to exist, the proceeds of which are remitted to the Agent to be held as cash collateral for the Obligations and (4) the transfer of title to the real property owned by BTAC Properties, Inc. to the purchaser of the Burger Time assets and the release of each Company by each lienholder holding a mortgage lien thereon; (xv) make any payment or distribution in respect of any subordinated indebtedness of any Company or any of its Subsidiaries in violation of any subordination or other agreement made in favor of any Creditor Party; or (xvi) make any optional payment or prepayment on or redemption (including, without limitation, warrants, options and other rights by making payments to acquire any of its capital stock a sinking fund or other equity securities directly or indirectlyanalogous fund) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (for borrowed money other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)Obligations.
Appears in 1 contract
Samples: Security Agreement (Sten Corp)
Required Approvals. In addition to any approvals required by law, For so long as shares of Series H Preferred Stock are outstandingthe Capital Availability Amount is greater than or equal to $1,000,000, neither the Company nor it shall not, and shall not permit any of its Subsidiaries shallto, without first obtaining the approval prior written consent of Laurus, (by vote i) create, incur, assume or written consent, as provided by lawsuffer to exist any indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment (not in excess of five percent (5%) of both (a) at least half in number the fair market value of the Major Investors Company’s and its Subsidiaries’ assets) whether secured or unsecured other than (x) each Company’s indebtedness to Laurus, (y) indebtedness set forth on Schedule 13(l)(i) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the applicable Company or Subsidiary than the indebtedness being refinanced or replaced, and (bz) any debt incurred in connection with the holders purchase of a majority assets in the ordinary course of business or any refinancings or replacement thereof on terms no less favorable to the then outstanding voting power applicable Company or Subsidiary than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of $50,000 in the Series H Preferred Stockaggregate during any 12 month period; (iii) assume, voting as a single class:
guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by it or its Subsidiaries for deposit or collection or similar transactions in the ordinary course of business; (aiv) amend, restate, alter, modify or repeal (directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock or apply any of its funds, property or assets to the purchase, redemption or other retirement of any of its or its Subsidiaries’ Stock outstanding on the date hereof, or issue any preferred stock that is mandatorily redeemable prior to the one year anniversary of the Maturity Date (as defined in the Notes); (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to its and its Subsidiaries’ officers and employees not exceeding at any one time an aggregate of $10,000, and (z) loans to its existing Subsidiaries so long as such Subsidiaries are designated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vi) create or permit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by Laurus as either a co-borrower or guarantor hereunder and such Subsidiary shall have entered into all such documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vii) directly or indirectly, prepay any indebtedness (other than to Laurus and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Laurus and in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) except as set forth on Schedule 13(l)(vii), enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (1) such Company is the surviving entity of such merger or otherwiseconsolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) such Company shall have provided Laurus copies of all documentation relating to such merger or consolidation and (4) such Company shall have provided Laurus with at least thirty (30) days’ prior written notice of such merger or consolidation; (ix) materially change the Company’s Certificate nature of Incorporation or Bylaws the business in which it is presently engaged; (x) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict its or any of designation its Subsidiaries’ right to perform the provisions of this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire Ancillary Agreements; (xi) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with respect to any outstanding securities employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiii) xxxx Accounts under any name except the present name of the Company such Company; or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ixiv) sell, conveylease, transfer or otherwise dispose of all any of its properties or substantially all assets, or any of the properties or assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do soits Subsidiaries, except with respect to trade debts incurred for (1) the sale of Inventory in the ordinary course of business and (2) the disposition or transfer in the ordinary course of business during any fiscal year of obsolete and worn-out Equipment and only to the Company extent that (x) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Laurus’ first priority security interest or its applicable Subsidiaryare used to repay Loans or to pay general corporate expenses, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (By) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in following the case occurrence of the Company such new indebtedness shall be limited an Event of Default which continues to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions onexist, the Company’s ability proceeds of which are remitted to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit Laurus to take any actions set forth in be held as cash collateral for the foregoing subparagraphs (i) through (vii)Obligations.
Appears in 1 contract
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor any of its Subsidiaries shallCompany, without first obtaining the approval (by vote or prior written consent, as provided by law) of both (a) at least half in number consent of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred StockPurchaser, voting as a single classwhich shall not be unreasonably withheld, shall not:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwisepay any dividends, other than dividends paid to the Parent or any of its wholly-owned Subsidiaries, (ii) issue any preferred stock that is mandatorily redeemable prior to October 19, 2007, or (iii) redeem any of its preferred stock or other equity interests during before the Company’s Certificate Maturity Date ;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company dissolve, liquidate or merge with any other person or entity unless, the Company is the surviving entity or the successor entity expressly assumes all of Incorporation or Bylaws the duties and obligations of the Company and its Subsidiaries under this Agreement and Related Agreements);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) materially restrict the Company's right to perform the provisions of designation this Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockagreements contemplated thereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation business of the Company redeemCompany, purchase or otherwise acquire or make any distribution unless such change in scope is consistent with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planspast practice;
(e) (Ii) sellcreate, conveyincur, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create assume or suffer to exist any Subsidiary indebtedness, exclusive of trade debt, debt subordinated to or on collateral other than the security provided by the Related Agreements and debt incurred to finance the purchase of equipment (not in excess of ten percent (10%) of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary fair market value of the Company;
's and its Subsidiaries' assets) whether secured or unsecured other than (gx) createthe Company's indebtedness to the Purchaser, incur(y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the debt being refinanced or replaced, guarantee, assume or be directly or indirectly liable with respect to and (z) any indebtedness (other than indebtedness which existed prior to incurred in connection with the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred purchase of assets in the ordinary course of business, and any refinancings or replacements thereof on terms no less favorable to the business Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any indebtedness owing to it in excess of $200,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company collection or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) similar transactions in the case ordinary course of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars business; and
($500,000i) per year in each of the years 2002make investments in, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to make any negative covenants with respect loans or advances to, or prohibitions ontransfer assets to, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take Subsidiaries, other than any actions set forth immaterial investments, loans, advances and/or asset transfers made in the foregoing subparagraphs ordinary course of business or (iii) through (vii)create or acquire any Subsidiary without the prior written consent of the Purchaser, which shall not be unreasonably withheld.
Appears in 1 contract
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor any of its Subsidiaries shallCompany, without first obtaining the approval (by vote or prior written consent, as provided by law) of both (a) at least half in number consent of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred StockPurchaser, voting as a single classshall not:
(a) amend, restate, alter, modify or repeal (directly or indirectly declare or pay any dividends, other than (i) dividends paid to the Company or any of its wholly-owned Subsidiaries or (ii) dividends paid in connection with preferred stock issued by merger or otherwise) the Company’s Certificate , so long as any such dividends paid pursuant to this clause (ii) do not exceed, in the aggregate $400,000 in any fiscal year of Incorporation the Company;
(b) liquidate, dissolve or Bylaws effect a material reorganization;
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries right to perform the provisions of this Agreement, any other Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate of Incorporation scope of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities business of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ii) sellcreate, conveyincur, assume or suffer to exist any indebtedness, or otherwise dispose issue or suffer to exist any preferred equity interests (exclusive of all or substantially all trade debt and debt incurred to finance the purchase of equipment and/or inventory (not in excess of five percent (5%) per annum of the assets fair market value of the Company's and its Subsidiaries assets) whether secured or unsecured other than (w) the Company's and its indebtedness to the Purchaser, (x) indebtedness and preferred equity interests set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness or preferred equity interests being refinanced or replaced, (y) subject to Section 11.14, additional indebtedness incurred, and/or preferred equity issuances issued (with the amount of such preferred equity interests to equal the greater of the liquidation preference with respect thereto and the maximum fixed repurchase price with respect thereto), not to exceed three million dollars ($3,000,000) in the aggregate at any time outstanding, so long as the obligation of the Company and/or any of its Subsidiaries to repay such indebtedness and/or the redeem such preferred equity interests incurred or any Subsidiary issued, as the case may be, pursuant to this clause (as defined below) of y), shall be unsecured and expressly subordinated to the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation payment in full of the Company’s 's and its Subsidiaries obligations to the Purchaser under this Agreement and the Related Agreements, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any Subsidiary’s assets for refinancings or replacements thereof on terms no less favorable to the purpose Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of securing indebtedness $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined collection or similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes party to the Master Security Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the CompanyPurchaser, satisfies each condition of this Agreement and the Related Agreements as if such Subsidiary were a Subsidiary on the Closing Date; and
(i) make investments in, make any loans or effect the liquidationadvances to, bankruptcy or dissolution of transfer assets to, any Subsidiary of the Company;
Immaterial Subsidiaries or (gii) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do somake investments in, except with respect to trade debts incurred make any loans or advances to, or transfer assets to, any of the Immaterial Subsidiaries, other than, in the case of each of the foregoing clauses (i) and (ii), immaterial investments, loans, advances and/or asset transfers made in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)business.
Appears in 1 contract
Required Approvals. In addition to any approvals required by law(I) Except as set forth on Schedule 6.9, so long as shares the ------------------- ------------ Company, without the prior written consent of Series H Preferred Stock are outstandingthe Purchaser, neither the Company nor shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by declare or pay any dividends, other than dividends paid to the Company or any of its wholly-owned Subsidiaries, (ii) issue any preferred stock that is mandatorily redeemable prior to the one year anniversary of the Maturity Date (as defined in the Note) or (iii) redeem any of its preferred stock or other equity interests;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company or any of its Subsidiaries dissolve, liquidate or merge with any other person or entity (unless, in the case of such a merger, the Company or, in the case of merger or otherwise) not involving the Company’s Certificate of Incorporation or Bylaws , such Subsidiary, as applicable, is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries, right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiariestaken as a whole; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;or
(e) (Ii) sellcreate, conveyincur, assume or suffer to exist any indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment (not in excess of five percent (5%) of the fair market value of the Company's and its Subsidiaries' assets)) whether secured or unsecured other than (x) the Company's obligations owed to the Purchaser, (y) indebtedness set forth on Schedule 6.9 attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any indebtedness incurred in connection with the purchase of assets (other than equipment) in the ordinary course of business, or otherwise dispose of all any refinancings or substantially all of replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, so long as any lien relating thereto shall only encumber the fixed assets so purchased and no other assets of the Company or any Subsidiary of its Subsidiaries; (as defined belowii) cancel any indebtedness owing to it in excess of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined $50,000 in the Amended and Restated Certificate aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of Incorporation any other person or entity, except the endorsement of the Company)) or grant any exclusive license to the assets of negotiable instruments by the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition thereof for deposit or collection or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of business or guarantees of indebtedness otherwise permitted to be outstanding pursuant to this clause (e); and
(II) The Company, without the business prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries to, create or acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company and (ii) such Subsidiary becomes a party to the Master Security Agreement, the Stock Pledge Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or its applicable Subsidiaryan assumption or joinder agreement in respect thereof) and, to the extent required by the Purchaser, satisfies each condition of this Agreement and the Related Agreements as the case may be; provided, however, that the foregoing shall not impose any condition if such Subsidiary were a Subsidiary on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Closing Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 1 contract
Samples: Securities Purchase Agreement (New Century Energy Corp.)
Required Approvals. In addition to any approvals required by law, so long as shares Without the prior written consent of Series H Preferred Stock are outstanding, neither the Purchaser the Company nor any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classshall not:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwise) the Company’s Certificate of Incorporation or Bylaws (including, without limitationpay any dividends, (Iii) amending, restating, modifying or repealing (directly or indirectly by merger or otherwise) issue any certificate of designation or preferences preferred stock that is mandatorily redeemable prior to the date that occurs 91 days after the Maturity Date (as defined in effect from time to timeeach Note) relating to the Preferred Stock and or (IIiii) authorizing redeem any new class of its preferred stock or series of stock)other Equity Interests;
(b) reclassify Common Stock liquidate or Preferred Stockdissolve the Company;
(c) declare (i) create, incur, assume or pay suffer to exist any dividend Lien (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectlythan Permitted Encumbrances) or redeem, repurchase Indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment in each case incurred the ordinary course of business) whether secured or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to unsecured other than (w) the Company’s stock option/stock issuance plans;
obligations owed to Purchaser, (ex) Indebtedness existing as of the date hereof and any refinancings or replacements thereof on terms no less favorable to the Purchasers than the Indebtedness being refinanced or replaced and in a principal amount not in excess of the principal amount of the Indebtedness being refinanced or replaced, (Iy) sell, conveyany Indebtedness incurred in connection with the purchase of assets (other than equipment) in the ordinary course of business, or otherwise dispose of all any refinancings or substantially all of replacements thereof on terms no less favorable to the Purchasers than the Indebtedness being refinanced or replaced, so long as any lien relating thereto shall only encumber the fixed assets so purchased and no other assets of the Company or any Subsidiary (as defined below) of its subsidiaries and the principal amount thereof shall not exceed the principal amount of the Company Indebtedness being refinanced or replaced ; and (providedz) up to $3,500,000 of additional Indebtedness (the “Additional Indebtedness”), howeverprovided that (A) Purchaser shall have the right to approve or disapprove, that this restriction in its sole discretion, any prospective provider of Additional Indebtedness, and (B) any and all Additional Indebtedness incurred shall not apply to any mortgage, deed of trust, pledge be purchasable by Purchaser or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant at any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company)time, regardless of whether such Liquidation Event maturity date or Products Business Sale would constitute default and without any penalty or premium, at the outstanding amount of the Additional Indebtedness plus any interest accrued thereon and shall provide that Purchaser shall have the sole power to exercise remedies upon a transaction described in clauses (I) default of any Additional Indebtedness, or (IIii) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incurassume, guarantee, assume endorse or be otherwise become directly or indirectly contingently liable in connection with respect to any indebtedness (obligations of any other than indebtedness which existed prior to the Series H Initial Purchase Date), person or permit any Subsidiary to do soentity, except with respect to trade debts incurred the endorsement of negotiable instruments by the Company thereof for deposit or collection or similar transactions in the ordinary course of the business or guarantees of Indebtedness of subsidiaries of the Company or its applicable Subsidiary, as the case may beotherwise permitted to be outstanding pursuant to this clause (c); provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) As used in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions onthis Section 1.4, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in following terms have the foregoing subparagraphs (i) through (vii).following meanings:
Appears in 1 contract
Samples: Senior Secured Note (Proelite, Inc.)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor Company, without the prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwisepay any dividends, other than dividends paid to the Parent of any of its wholly-owned Subsidiaries, (ii) issue any preferred stock that is mandatorily redeemable prior to one year anniversary of Maturity Date (as defined in the Company’s Certificate Note) or (iii) redeem any of Incorporation its preferred stock or Bylaws other equity interests;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company dissolve, liquidate or merge with any other person or entity (unless the Company is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planstaken as a whole;
(e) (Ii) sellcreate, conveyincur, assume or otherwise dispose suffer to exist any indebtedness (exclusive of all or substantially all trade debt and debt incurred to finance the purchase of the assets equipment (not in excess of the Company or any Subsidiary five percent (as defined below5%) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation fair market value of the Company’s 's and its Subsidiaries' assets) whether secured or unsecured other than (x) the Company's indebtedness to the Purchaser, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or collection or similar transactions in the ordinary course of business or guarantees of indebtedness otherwise permitted to be outstanding pursuant to this clause (e); (iv) incur, create, assume or permit to exist, any lien (other than the liens set forth in Schedule 4.9), mortgage, pledge, security interest, encumbrance, lien or charge of any kind, including liens arising under conditional sales or other title retention agreements upon any of its or any Subsidiary’s 's assets for or properties of any character other than in the purpose ordinary course of securing indebtedness business, without the prior written consent of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) abovePurchaser;
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes party to the Master Security Agreement, the Stock Pledge Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the CompanyPurchaser, satisfies each condition of this Agreement and the Related Agreements as if such Subsidiary were a Subsidiary on the Closing Date; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;or
(g) createTransfer, incursell, guaranteeassign, assume lease or be directly otherwise dispose of a material portion of its properties or indirectly liable with respect assets, or any assets or properties necessary or desirable for the proper conduct of its business, or transfer, sell, assign or otherwise dispose of any of the Note, a material portion of its accounts, or contract rights to any indebtedness (Person, or change the nature of its business, wind-up, liquidate or dissolve, or agree to any of the foregoing, other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of business, without the business prior written consent of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)Lender.
Appears in 1 contract
Samples: Securities Purchase Agreement (Trimedia Entertainment Group Inc)
Required Approvals. In addition It shall not, without the prior written consent of Laurus, (i) create, incur, assume or suffer to exist any approvals required indebtedness (exclusive of trade debt) whether secured or unsecured other than each Company's indebtedness to Laurus and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof, or disclosed in any of the Parent's SEC Reports or Exchange Act Filings; (ii) cancel any debt owing to it in excess of $100,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by lawit or its Subsidiaries for deposit or collection or similar transactions in the ordinary course of business; (iv) directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock (except for the payment of dividends, in shares of the Parent's Common Stock, with respect to the Parent's 6% Convertible Series A Preferred Stock issued prior to the date hereof) or apply any of its funds, property or assets to the purchase, redemption or other retirement of any of its or its Subsidiaries' Stock outstanding on the date hereof, or issue any preferred stock; (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to its and its Subsidiaries' officers and employees not exceeding at any one time an aggregate of $100,000, and (z) loans to its existing Subsidiaries so long as shares of Series H Preferred Stock such Subsidiaries are outstandingdesignated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by Laurus, neither the Company nor any of its Subsidiaries shallincluding, without limitation, to grant to Laurus a first obtaining priority perfected security interest in substantially all of such Subsidiary's assets to secure the approval Obligations; (vi) create or permit to exist any Subsidiary organized in the United States of America, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by vote Laurus as either a co-borrower or written consentguarantor hereunder and such Subsidiary shall have entered into all such documentation required by Laurus, as including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary's assets to secure the Obligations; (vii) directly or indirectly, prepay any indebtedness (other than to Laurus and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Laurus and in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (1) such Company is the surviving entity of such merger or consolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) such Company shall have provided by lawLaurus copies of all documentation relating to such merger or consolidation and (4) of both (a) such Company shall have provided Laurus with at least half in number thirty (30) days' prior written notice of such merger or consolidation; (ix) materially change the nature of the Major Investors and business in which it is presently engaged; (bx) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly by merger or otherwise) the Company’s Certificate of Incorporation or Bylaws become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict its right to perform the provisions of designation this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire Ancillary Agreements; (xi) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with respect to any outstanding securities employee, director or Affiliate, involving compensation or other payments by any of the Company Companies to such employee, director or its Subsidiaries Affiliate, in an aggregate amount after the date hereof in excess of $100,000, except in the ordinary course on arms-length terms; (including, without limitation, warrants, options and other rights to acquire xiii) bill Accounts under any name exxxxt the present name of its capital stock such Company; or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ixiv) sell, conveylease, transfer or otherwise dispose of all any of its properties or substantially all of the assets of the assets, except for (1) sales, leases, transfer or dispositions by any Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgageother Company, deed (2) the sale of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred Inventory in the ordinary course of business and (3) the disposition or transfer in the ordinary course of business during any fiscal year of obsolete and worn-out Equipment and only to the Company extent that (x) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Laurus' first priority security interest or its applicable Subsidiaryare used to repay Loans or to pay general corporate expenses, or (y) following the occurrence of an Event of Default which continues to exist, the proceeds of which are remitted to Laurus to be held as cash collateral for the case may be; providedObligations. Notwithstanding anything to the contrary contained in this Section 12(l), however, that the foregoing Laurus' approval shall not impose be required with respect to any condition on the Company or transfer of cash to any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreementsNon-US Subsidiary, provided that (x) such transfers are made in the ordinary course of business and consistent with its business practices and (y) such transfers are made by a Company to a Non-US Subsidiary for the direct purposing of reimbursing and/or paying such Non-US Subsidiary for (I) in the case cost of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, shipping expenses and (II) in the case of all of the Subsidiaries of the Companyairline carrier expenses, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each case, incurred by such Non-US Subsidiary for the benefit of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the such Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 1 contract
Samples: Security Agreement (Pacific Cma Inc)
Required Approvals. In addition to any approvals required by lawIt shall not, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor and shall not permit any of its Subsidiaries shallto, without first obtaining the approval prior written consent of Laurus, (i) create, incur, assume or suffer to exist any indebtedness (exclusive of trade debt) whether secured or unsecured other than each Company’s indebtedness to Laurus and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by vote it or written consentits Subsidiaries for deposit or collection or similar transactions in the ordinary course of business; (iv) directly or indirectly declare, as provided by law) pay or make any dividend or distribution on any class of both (a) at least half in number its Stock, other than dividends paid to the Company, any of the Major Investors and (b) its wholly-owned subsidiaries or to the holders of a majority its two currently outstanding series of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly by merger or otherwise) ; provided that any cash dividends paid to the holders of the Company’s Certificate two currently outstanding series of Incorporation Preferred Stock shall not be in excess of $378,000 in aggregate (plus any dividends accumulated from prior fiscal years) for any fiscal year of the Company; it being understood and agreed that as of the date of hereof, the Company has no more than $270,000 of accrued unpaid dividends from earlier in 2005, or Bylaws apply any of its funds, property or assets to the purchase, redemption or other retirement of any of its or its Subsidiaries’ Stock outstanding on the date hereof, (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to its and its Subsidiaries’ officers and employees not exceeding at any one time an aggregate of $10,000, and (z) loans to its existing Subsidiaries so long as such Subsidiaries are designated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vi) create or permit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by Laurus as either a co-borrower or guarantor hereunder and such Subsidiary shall have entered into all such documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vii) directly or indirectly, prepay any indebtedness (other than to Laurus and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Laurus and in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (1) such Company is the surviving entity of such merger or consolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) such Company shall have provided Laurus copies of all documentation relating to such merger or consolidation and (4) such Company shall have provided Laurus with at least thirty (30) days’ prior written notice of such merger or consolidation; (ix) materially change the nature of the business in which it is presently engaged; (x) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict its or any of designation its Subsidiaries’ right to perform the provisions of this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire Ancillary Agreements; (xi) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with respect to any outstanding securities employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiii) xxxx Accounts under any name except the present name of the Company such Company; or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ixiv) sell, conveylease, transfer or otherwise dispose of all any of its properties or substantially all assets, or any of the properties or assets of the its Subsidiaries, except for (1) sales, leases, transfer or dispositions by any Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgageother Company, deed (2) the sale of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred Inventory in the ordinary course of business and (3) the disposition or transfer in the ordinary course of business during any fiscal year of obsolete and worn-out Equipment and only to the Company extent that (x) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Laurus’ first priority security interest or its applicable Subsidiaryare used to repay Loans or to pay general corporate expenses, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (By) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in following the case occurrence of the Company such new indebtedness shall be limited an Event of Default which continues to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions onexist, the Company’s ability proceeds of which are remitted to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit Laurus to take any actions set forth in be held as cash collateral for the foregoing subparagraphs (i) through (vii)Obligations.
Appears in 1 contract
Samples: Security Agreement (Path 1 Network Technologies Inc)
Required Approvals. In addition to any approvals required by lawCompany shall not, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor and shall not permit any of its Subsidiaries shallto, without first obtaining the approval prior written consent of Laurus, (i) create, incur, assume or suffer to exist any indebtedness (exclusive of trade debt) whether secured or unsecured other than Company’s indebtedness to Laurus and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by vote Company for deposit or written consent, as provided by lawcollection or similar transactions in the ordinary course of business; (iv) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock other than to pay dividends on shares of its Preferred Stock outstanding on the date hereof or apply any of its funds, property or assets to the purchase, redemption or other retirement of any Stock of Company outstanding on the date hereof, or issue any Preferred Stock manditorily redeemable prior to the sixth month anniversary of the Maturity Date (as defined in the Notes); (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to Company’s and its Subsidiaries’ officers and employees not exceeding at any one time an aggregate of $10,000, and (z) existing Subsidiaries of Company; (vi) create or permit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by Laurus as either a co-borrower or guarantor hereunder and such Subsidiary shall have entered into all such documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vii) directly or indirectly, prepay any indebtedness (other than to Laurus and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Laurus and in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (1) Company is the surviving entity of such merger or otherwiseconsolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) Company shall have provided Laurus copies of all documentation relating to such merger or consolidation and (4) Company shall have provided Laurus with at least thirty (30) days’ prior written notice of such merger or consolidation; (ix) materially change the Company’s Certificate nature of Incorporation or Bylaws the business in which it is presently engaged; (x) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's right to perform the provisions of designation this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire agreements contemplated thereby; (xi) change its fiscal year or make any distribution with respect changes in accounting treatment and reporting practices without prior written notice to any outstanding securities of the Company Laurus except as required by GAAP or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) tax reporting treatment or grant any exclusive license to the assets of the Company or any Subsidiary of the Companyexcept as required by law; (IIxii) effect enter into any mergertransaction with any employee, consolidation, acquisition director or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do soAffiliate, except with respect to trade debts incurred in the ordinary course on arms-length terms; or (xiii) xxxx Accounts under any name except the present name of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)Subsidiaries.
Appears in 1 contract
Samples: Security Agreement (Comc Inc)
Required Approvals. In addition to any approvals required by law, (A) For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor Company, without the prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (directly or indirectly declare or pay any dividends, other than (i) dividends paid to the Company or any of its wholly-owned Subsidiaries or (ii) dividends paid in connection with preferred stock issued by merger or otherwise) the Company’s Certificate , so long as any such dividends paid pursuant to this clause (ii) do not exceed, in the aggregate $400,000 in any fiscal year of Incorporation the Company;
(b) liquidate, dissolve or Bylaws effect a material reorganization;
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries right to perform the provisions of this Agreement, any other Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate of Incorporation scope of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities business of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ii) sellcreate, conveyincur, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create assume or suffer to exist any Subsidiary indebtedness, or issue or suffer to exist any preferred equity interests (exclusive of trade debt and debt incurred to finance the purchase of equipment and/or inventory (not in excess of five percent (5%) per annum of the fair market value of the Company's and its Subsidiaries assets) whether secured or unsecured other than (w) the Company's and its Subsidiaries' indebtedness to the Purchaser, Xxxxx X Xxxxxx, III and Milfam I L.P. (to the extent subject to the terms and conditions of the Intercreditor Agreement), (x) indebtedness and preferred equity interests set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness or preferred equity interests being refinanced or replaced, (y) subject to Section 10.14, additional indebtedness incurred, and/or preferred equity issuances issued (with the amount of such preferred equity interests to equal the greater of the liquidation preference with respect thereto and the maximum fixed repurchase price with respect thereto), not to exceed three million dollars ($3,000,000) in the aggregate at any time outstanding, so long as the obligation of the Company that is not wholly-owned by and/or any of its Subsidiaries to repay such indebtedness and/or the Company; redeem such preferred equity interests incurred or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiaryissued, as the case may be, pursuant to this clause (y), shall be unsecured and expressly subordinated to the payment in full of the Company's and its Subsidiaries obligations to the Purchaser under this Agreement and the Related Agreements, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced; provided(ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, howeverguarantee, that endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the foregoing shall not impose any condition on endorsement of negotiable instruments by the Company for deposit or collection or similar transactions in the ordinary course of business or guarantees of indebtedness otherwise permitted to be outstanding pursuant to this clause (e); and/or
(i) make investments in, make any loans or advances to, or transfer assets to, any of the Immaterial Subsidiaries or (ii) permit any Subsidiary (A) creating to make investments in, make any loans or incurring indebtedness under credit facilities existing as advances to, or transfer assets to, any of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creatingImmaterial Subsidiaries, incurring or authorizing indebtedness under master equipment lease agreementsother than, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs clauses (i) through and (viiii), immaterial investments, loans, advances and/or asset transfers made in the ordinary course of business; and/or
(B) The Company shall not, and shall not permit any of its Subsidiaries to, create or acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company and (ii) such Subsidiary becomes party to the Master Security Agreement and a Subsidiary Guaranty in form and substance satisfactory to Purchaser (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the Purchaser, satisfies each condition of this Agreement and the Related Agreements as if such Subsidiary were a Subsidiary on the Closing Date.
Appears in 1 contract
Required Approvals. In addition It shall not, and shall not permit any of its Subsidiaries to, without the prior written consent of Laurus, (i) create, incur, assume or suffer to exist any approvals required by lawindebtedness (exclusive of trade debt) whether secured or unsecured other than each Company’s indebtedness to Laurus and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof and capital leases, so long as shares the aggregate amount of Series H Preferred all such obligations under such capital leases does not exceed $75,000 at any time outstanding; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period other than any of the obligations evidenced by the Subordinated Debt Documentation (unless such cancellation is Security and Purchase Agreement permitted pursuant to the Subordination Agreements); (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by it or its Subsidiaries for deposit or collection or similar transactions in the ordinary course of business; (iv) directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock are outstanding, neither the Company nor or apply any of its Subsidiaries shallfunds, without first obtaining property or assets to the approval purchase, redemption or other retirement of any of its or its Subsidiaries’ Stock, or issue any preferred stock; (by vote v) purchase or written consenthold beneficially any Stock or other securities or evidences of indebtedness of, as provided by lawmake or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to its and its Subsidiaries’ officers and employees not exceeding at any one time an aggregate of both (a) at least half in number of the Major Investors $10,000, and (bz) the holders of loans to its existing Subsidiaries so long as such Subsidiaries are designated as either a majority of the then outstanding voting power of the Series H Preferred Stockco-borrower hereunder or has entered into such guaranty and security documentation required by Laurus, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly by merger or otherwise) the Company’s Certificate of Incorporation or Bylaws (including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (Ivi) amendingcreate or permit to exist any Subsidiary, restating, modifying or repealing (directly or indirectly by merger or otherwise) other than any certificate of designation or preferences (as Subsidiary in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) existence on the Common Stock date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by Laurus as either a co-borrower or the Preferred Stock;
(d) except as otherwise provided in the Amended guarantor hereunder and Restated Certificate of Incorporation of the Company redeemsuch Subsidiary shall have entered into all such documentation required by Laurus, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any grant to Laurus a first priority perfected security interest in substantially all of its capital stock or other equity securities such Subsidiary’s assets to secure the Obligations; (vii) directly or indirectly) , prepay any indebtedness (other than to Laurus and in the ordinary course of business), or repurchase, redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, retire or otherwise dispose acquire any indebtedness (other than to Laurus and in the ordinary course of all or substantially all business) except to make scheduled payments of the assets of the Company or any Subsidiary principal and interest thereof; (as defined belowviii) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets except for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect Public Transaction, enter into any merger, consolidation, acquisition or similar transaction other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (1) such Company with one or more other corporations or series is the surviving entity of such transactions merger, acquisition or consolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger, acquisition or consolidation, (3) such Company shall have provided Laurus copies of all documentation relating to such merger, acquisition or consolidation and (4) such Company shall have provided Laurus with at least thirty (30) days’ prior written notice of such merger, acquisition or consolidation; (ix) materially change the nature of the business in which it is presently engaged; (x) become subject to (including, without limitation, by way of amendment to or modification of) any agreement or instrument which by its terms would (under any circumstances) restrict its or any of its Subsidiaries’ right to perform the stockholders provisions of this Agreement or any of the Ancillary Agreements; (xi) change its fiscal year or make any changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with any employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiii) bxxx Accounts under any name except the present name of such Company or any other legal trade name associated with the Companies or the Public Company (following the Public Transaction), so long as such Company or the Public Company has provided prior written notice to Laurus of such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactionslegal trade name; or (IIIxiv) authorizesell, effect lease, transfer or consummate otherwise dispose of any Liquidation Event (including without limitation of its properties or assets, or any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Companyproperties or assets of its Subsidiaries, except for (1) sales, leases, transfer or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist dispositions by any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness other Company, (other than indebtedness which existed prior to 2) the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred sale of Inventory in the ordinary course of business and (3) the Security and Purchase Agreement disposition or transfer in the ordinary course of business during any fiscal year of obsolete and worn-out Equipment and only to the Company extent that (x) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Laurus’ first priority security interest or its applicable Subsidiaryare used to repay Loans or to pay general corporate expenses, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (By) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in following the case occurrence of the Company such new indebtedness shall be limited an Event of Default which continues to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions onexist, the Company’s ability proceeds of which are remitted to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit Laurus to take any actions set forth in be held as cash collateral for the foregoing subparagraphs (i) through (vii)Obligations.
Appears in 1 contract
Samples: Security and Purchase Agreement (Silicon Mountain Holdings, Inc.)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor Company, without the prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (directly or indirectly by merger declare or otherwise) pay any dividends, other than dividends paid to the Company or any of its wholly-owned Subsidiaries or dividends payable on the Company’s Certificate 's Series A Preferred Stock and Series B Preferred Stock (each as issued and outstanding on the date hereof) pursuant to the Company's Charter or any related certificate of Incorporation designation filed with the Delaware Secretary of State;
(b) liquidate, dissolve or Bylaws effect a material reorganization (it being understood that in no event shall the Company dissolve, liquidate or merge with any other person or entity (unless the Company is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planstaken as a whole;
(e) (Ii) sellcreate, conveyincur, assume or otherwise dispose suffer to exist any indebtedness (exclusive of all or substantially all trade debt and debt incurred to finance the purchase of equipment (not in excess of ten percent (10%) per annum of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation fair market value of the Company’s 's assets) whether secured or unsecured other than (x) the Company's indebtedness to the Purchaser, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any Subsidiary’s assets for refinancings or replacements thereof on terms no less favorable to the purpose Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of securing indebtedness $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined collection or similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;and
(f) create or suffer to exist acquire any Subsidiary of after the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs date hereof unless (i) through such Subsidiary is controlled by the Company and (vii)ii) such Subsidiary becomes party to the Master Security Agreement, the Stock Pledge Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent reasonably required by the Purchaser, satisfies each condition of this Agreement and the Related Agreements as if such Subsidiary were a Subsidiary on the Closing Date.
Appears in 1 contract
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor any of its Subsidiaries shallCompany, without first obtaining the approval (by vote or prior written consent, as provided by law) of both (a) at least half in number consent of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred StockPurchaser, voting as a single classshall not:
(a) amend, restate, alter, modify or repeal (directly or indirectly declare or pay any dividends, other than (i) dividends paid to the Company or any of its wholly-owned Subsidiaries or (ii) dividends paid in connection with preferred stock issued by merger or otherwise) the Company’s Certificate , so long as any such dividends paid pursuant to this clause (ii) do not exceed, in the aggregate $400,000 in any fiscal year of Incorporation the Company;
(b) liquidate, dissolve or Bylaws effect a material reorganization;
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries right to perform the provisions of this Agreement, any other Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate of Incorporation scope of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities business of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sellcreate, conveyincur, assume or suffer to exist any indebtedness, or otherwise dispose issue or suffer to exist any preferred equity interests (exclusive of all or substantially all trade debt and debt incurred to finance the purchase of equipment and/or inventory (not in excess of five percent (5%) per annum of the assets fair market value of the Company's and its Subsidiaries assets) whether secured or unsecured other than (w) the Company's and its indebtedness to the Purchaser, (x) indebtedness and preferred equity interersts set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness or preferred equity interests being refinanced or replaced, (y) subject to Section 11.14, additional indebtedness incurred, and/or preferred equity issuances issued (with the amount of such preferred equity interests to equal the greater of the liquidation preference with respect thereto and the maximum fixed repurchase price with respect thereto), not to exceed three million dollars ($3,000,000) in the aggregate at any time outstanding, so long as the obligation of the Company and/or any of its Subsidiaries to repay such indebtedness and/or the redeem such preferred equity interests incurred or any Subsidiary issued, as the case may be, pursuant to this clause (as defined below) of y), shall be unsecured and expressly subordinated to the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation payment in full of the Company’s 's and its Subsidiaries obligations to the Purchaser under this Agreement and the Related Agreements, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any Subsidiary’s assets for refinancings or replacements thereof on terms no less favorable to the purpose Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of securing indebtedness $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined collection or similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes party to the Master Security Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the CompanyPurchaser, satisfies each condition of this Agreement and the Related Agreements as if such Subsidiary were a Subsidiary on the Closing Date; and
(i) make investments in, make any loans or effect the liquidationadvances to, bankruptcy or dissolution of transfer assets to, any Subsidiary of the Company;
Immaterial Subsidiaries or (gii) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do somake investments in, except with respect to trade debts incurred make any loans or advances to, or transfer assets to, any of the Immaterial Subsidiaries, other than, in the case of each of the foregoing clauses (i) and (ii), immaterial investments, loans, advances and/or asset transfers made in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)business.
Appears in 1 contract
Required Approvals. In addition to any approvals required by lawEach of the Company, so long as shares Iview and Iview Parent, without the prior written consent of Series H Preferred Stock are outstandingthe Purchaser, neither the Company nor shall not, and shall not permit any of its their respective Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwise) pay any dividends, other than dividends paid to the Company’s Certificate , Iview or to Iview Parent or any of Incorporation their respective wholly-owned Subsidiaries, (ii) issue any preferred stock that is mandatorily redeemable prior to the one year anniversary of Maturity Date (as defined in each of the Company Note and the Iview Note) or Bylaws (iii) redeem any of its preferred stock or other equity interests other than, in the case of (i), contributions to the corporate expenses and overhead of the Company and all management services and analogous fees paid to the Company not to exceed Cdn$350,000 per annum and (ii) repayment to A.C. Ltd. for monthly expenses paid by A.C. Ltd. on behalf of Iview;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company, Iview and/or Iview Parent dissolve, liquidate or merge with any other person or entity (unless the Company, Iview and/or Iview Parent is the surviving entity, as applicable));
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company’s, Iview’s, Iview Parent’s or any of designation their respective Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate of Incorporation scope of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities business of the Company Company, Iview, Iview Parent and their respective Subsidiaries taken as a whole (other than as necessary or its Subsidiaries (including, without limitation, warrants, options and other rights desirable to acquire any align such businesses with that of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans);
(e) (Ii) sellcreate, conveyincur, assume or otherwise dispose suffer to exist any indebtedness (exclusive of all or substantially all trade debt and debt incurred to finance the purchase of the assets equipment (not in excess of the Company or any Subsidiary five percent (as defined below5%) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation fair market value of the Company’s, Iview, Iview Parent’s and their respective Subsidiaries’ assets) whether secured or unsecured other than (x) the Company’s, Cancable’s and Iview’s indebtedness to the Purchaser, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favourable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any Subsidiary’s assets for refinancings or replacements thereof on terms no less favourable to the purpose Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of securing indebtedness USD$100,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company and/or Iview for deposit or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined collection or similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned or Iview and (ii) such Subsidiary becomes party to the 2005 Master Security Agreement, the 2005 Stock Pledge Agreement and the Amended and Restated Guaranty (in each case, either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent reasonably required by the CompanyPurchaser, satisfies each condition of this Agreement and the Related Agreements as if such Subsidiary were a Subsidiary on the Closing Date; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;or
(g) create, incur, guarantee, assume issue or be directly or indirectly liable with respect to sell any indebtedness (other than indebtedness which existed prior to of the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred share capital in the ordinary course of the business of the Company or its applicable SubsidiaryCompany, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company Iview and/or Iview Parent or any Subsidiary (A) creating rights, warrants or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by securities convertible into or exercisable or exchangeable for any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) share in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries capital of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)Iview and/or Iview Parent.
Appears in 1 contract
Samples: Securities Purchase Agreement (Creative Vistas Inc)
Required Approvals. In addition to any approvals required by law, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half The Company shall not take (and shall cause its Affiliates (as defined in number the Purchase Agreement) not to take) any of the Major Investors and (b) following actions without the holders prior consent of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classNewco:
(ai) amendauthorize or issue, restateor obligate itself to issue, alterto any automotive original equipment manufacturer any other security of the Company, modify including any other security convertible into or repeal exercisable for any security of the Company, having a preference over, or being on a parity with, the Series E Preferred Stock with respect to voting, dividends, conversion, redemption or upon liquidation;
(directly ii) amend or indirectly change (by reclassification, merger or otherwise) the last sentence of Article IV, Section 5(b) of the Company’s Certificate of Incorporation or Bylaws (including, without limitation, (I) amending, restating, modifying or repealing (directly or indirectly by merger or otherwise) any certificate of designation or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Sixth Amended and Restated Certificate of Incorporation of the Company Incorporation;
(iii) redeem, purchase or otherwise acquire (or make pay into or set funds aside for a sinking fund for such purpose) any distribution with respect to any outstanding securities share or shares of Preferred Stock or Common Stock or other security of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its SubsidiariesCompany; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgageto: the repurchase of shares of Common Stock from employees, deed of trustofficers, pledge directors, consultants or other encumbrance persons performing services for the Company or hypothecation any subsidiary pursuant to agreements under which the Company has the option to repurchase such shares at no greater than cost upon the occurrence of certain events, such as the termination of employment, or through the exercise of any right of first refusal; or
(iv) effect any material change in the nature of the Company’s or business. Notwithstanding the foregoing, Newco’s consent shall not, solely with respect to clauses (i) and (iii) of this Section 3.2(a), be required in connection with any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date Deemed Liquidation (as defined in the Purchase Agreement) if the proceeds payable to the Company’s stockholders in connection with such Deemed Liquidation are distributed in a manner consistent with the provisions set forth in Article IV, Sections 2(a)-(b) of the Company’s Sixth Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable SubsidiaryIncorporation, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up be further amended from time to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)time.
Appears in 1 contract
Required Approvals. In addition to any approvals required by lawThe Debtor shall not, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor and shall not permit any of its Subsidiaries shallto, without first obtaining the approval (by vote or prior written consent, as provided by law) of both (a) at least half in number consent of the Major Investors Lender, (i) create, incur, assume or suffer to exist any indebtedness (exclusive of trade debt) whether secured or unsecured other than the Debtor’s indebtedness to the Lender pursuant to the Guarantee Agreements and as otherwise set forth on Schedule 4.8; (bii) cancel any debt owing to it in excess of $140,000 in the holders aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of a majority any other Person, except the endorsement of negotiable instruments by the then outstanding voting power Debtor for deposit or collection or similar transactions in the ordinary course of business and the Series H Preferred Stock, voting as a single class:
Guarantee Agreement; (aiv) amend, restate, alter, modify or repeal (directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock or apply any of its funds, property or assets to the purchase, redemption or other retirement of any Stock of the Debtor outstanding on the date hereof, or issue any preferred stock other than as set forth on Schedule 4.8; (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture other than the Subsidiaries in existence on the date hereof and listed in Schedule 2.3 and any new Subsidiary formed in accordance with subsection (vii) below; (vi) make or permit to exist any loans or advances to any other Person, including any partnership or joint venture, except (y) travel advances, (z) loans to the Debtor’s officers and employees not exceeding at any one time an aggregate of $12,000; (vii) create or permit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 2.3 unless such new Subsidiary is a wholly-owned Subsidiary and is designated by the Lender as either a co-borrower or guarantor under the Loan Agreement and such Subsidiary shall have entered into all such documentation required by the Lender, including, without limitation, to grant to the Lender a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (viii) directly or indirectly, prepay any indebtedness (other than to the Lender and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to the Lender and in the ordinary course of business) except to make scheduled payments of principal and interest thereof as permitted by the Lender in writing; (ix) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (1) the Debtor is the surviving entity of such merger or otherwiseconsolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) the Company’s Certificate Debtor shall have provided the Lender copies of Incorporation all documentation relating to such merger or Bylaws consolidation and (4) the Debtor shall have provided the Lender with at least thirty (30) days’ prior written notice of such merger or consolidation; (x) materially change the nature of the business in which it is presently engaged; (xi) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Debtor’s right to perform the provisions of designation this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire other Debtor Agreements; (xii) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to the Lender except as required by GAAP or in the tax reporting treatment or except as required by law; (xiii) enter into any transaction with respect to any outstanding securities employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiv) bxxx Accounts under any name except the present name of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactionsDebtor; or (IIIxv) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate except for sale of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred inventory in the ordinary course of the business business, sell, lease, transfer or otherwise dispose of any of its properties or assets, or any of the Company properties or assets of its applicable SubsidiarySubsidiaries (collectively, as the case may be“Permitted Asset Sale”); provided, however, that the foregoing aggregate fair market value of all Permitted Asset Sales during any fiscal year shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars (exceed $500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)140,000.
Appears in 1 contract
Required Approvals. In addition to any approvals required by lawExcept as set forth on Schedule 6.9, so long as shares of Series H Preferred Stock are outstanding------------------- ------------ Garwood shall not, neither the Company nor any of its Subsidiaries shall, without first obtaining the approval (by vote or withxxx xxe prior written consent, as provided by law) of both (a) at least half in number consent of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classPurchaser,:
(a) amend, restate, alter, modify or repeal (directly or indirectly by merger declare or otherwisepay any dividends;
(b) the Company’s Certificate of Incorporation liquidate, dissolve or Bylaws effect a reorganization (it being understood that in no event shall Garwood dissolve, liquidatx xx xxrge with any other person or entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict Garwood's right to pexxxxx xxe provisions of designation this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in alter or change the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any scope of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plansbusiness;
(e) (Ii) sellcreate, conveyincur, assume or otherwise dispose suffer to exist any indebtedness (exclusive of all or substantially all trade debt and debt incurred to finance the purchase of the assets equipment (not in excess of the Company or any Subsidiary five percent (as defined below5%) of the Company fair market value of Garwood's assets)) whethxx xxxxxed or unsecured other than (providedx) Garwood's obligations xxxx xo the Purchaser, however(y) indebtedness set forth on Schedule 6.9 attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, that this restriction shall not apply to and (z) any mortgageindebtedness incurred in connection with the purchase of assets (other than equipment) in the ordinary course of business, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company refinancings or such Subsidiary which existed prior replacements thereof on terms no less favorable to the Series H Initial Purchase Date Purchaser than the indebtedness being refinanced or replaced, so long as any lien relating thereto shall only encumber the fixed assets so purchased and no other assets of Garwood; (as defined ii) cancel xxx indebtedness owing to it in excess of $10,000 in the Amended and Restated Certificate of Incorporation of the Company)) or grant aggregate during any exclusive license to the assets of the Company or any Subsidiary of the Company12 month period; (IIiii) effect assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any mergerobligations of any other person or entity, consolidation, acquisition except the endorsement of negotiable instruments by Garwood for deposit or cxxxxxxxon or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders ordinary course of the Company prior business or guarantees of indebtedness otherwise permitted to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the be outstanding stock of the surviving corporation immediately after such transaction, or series of transactionspursuant to this clause (e); or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;and/or
(f) create or suffer to exist acquire any Subsidiary of after the Company that date hereof unless (i) such Subsidiary is not a wholly-owned Subsidiary of Garwood and (ii) such Xxxxxdiary becomes a party to the Master Security Agreement, a Stock Pledge Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the Company; or effect Purchaser, satisfies each condition of this Agreement and the liquidation, bankruptcy or dissolution of any Related Agreements as if such Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any were a Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Closing Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 1 contract
Samples: Securities Purchase Agreement (Petrosearch Energy Corp)
Required Approvals. In addition to any approvals required by law, For so long as shares of Series H Preferred Stock are outstanding, neither the Company nor any of its Subsidiaries shall, without first obtaining the approval Purchaser holds thirty five percent (by vote or written consent, as provided by law35%) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power stated value of the Series H Preferred StockA Preferred, voting as a single classthe Company, without the prior written consent of the Purchaser, shall not:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwisepay any dividends, other than (x) dividends paid to the Company’s Certificate Company or any of Incorporation its wholly-owned Subsidiaries and (y) dividends paid to the Purchaser with respect to the Series A Preferred, (ii) issue any preferred stock that is manditorily redeemable prior to May 27, 2008 or Bylaws (iii) redeem any of its preferred stock or other equity interests;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company dissolve, liquidate or merge with any other person or entity (unless the Company is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company’s or any of designation its Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planstaken as a whole;
(e) (Ii) sellcreate, conveyincur, assume or otherwise dispose suffer to exist any indebtedness (exclusive of all or substantially all trade debt and debt incurred to finance the purchase of equipment (not in excess of ten percent (10%) per annum of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation fair market value of the Company’s assets) whether secured or unsecured other than (x) the Company’s indebtedness to Laurus, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any Subsidiary’s assets for refinancings or replacements thereof on terms no less favorable to the purpose Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of securing indebtedness $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined collection or similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;and
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes party to the Master Security Agreement, the Stock Pledge Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the Company; or effect Purchaser, satisfies each condition of this Agreement and the liquidation, bankruptcy or dissolution of any Related Agreements as if such Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any were a Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Closing Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 1 contract
Samples: Securities Purchase Agreement (Vertical Health Solutions Inc)
Required Approvals. In addition to any approvals required by law, For so long as shares fifty percent (50%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor Company, without the prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amendliquidate, restatedissolve or effect a material reorganization (it being understood that in no event shall the Company dissolve, alter, modify liquidate or repeal merge with any other person or entity (directly or indirectly by merger or otherwiseunless the Company is the surviving entity));
(b) the Company’s Certificate of Incorporation or Bylaws become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;thereby; or
(c) declare or pay any dividend (whether in cash or otherwisei) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeemcreate, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or its Subsidiaries (includingincur, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create assume or suffer to exist any Subsidiary indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment (not in excess of ten percent (10%) of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary fair market value of the Company;
(g's and its Subsidiaries’ assets) create, incur, guarantee, assume whether secured or be directly or indirectly liable with respect to any indebtedness (unsecured other than (x) the Company's indebtedness which existed prior to the Series H Initial Purchase Date)Purchaser, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or permit replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any Subsidiary to do so, except debt incurred in connection with respect to trade debts incurred the purchase of assets in the ordinary course of business, or any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of $350,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or collection or similar transactions in the ordinary course of business or guarantees of indebtedness otherwise permitted to be outstanding pursuant to this clause (c); and
(d) materially alter or change the scope of the business of the Company or and its applicable Subsidiary, Subsidiaries taken as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)whole.
Appears in 1 contract
Required Approvals. In addition to any approvals required by law, For so long as shares the principal amount of Series H Preferred Stock are the Note is outstanding, neither the Company nor any of and its Subsidiaries shallSubsidiaries, without first obtaining the approval (by vote or prior written consent, as provided by law) of both (a) at least half in number consent of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred StockPurchaser, voting as a single classshall not:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwise) pay any dividends other than to the Company or a 100% owned Subsidiary of the Company’s Certificate , (ii) issue any preferred stock or (iii) redeem or repurchase any of Incorporation its securities;
(b) liquidate, dissolve or Bylaws effect a material reorganization (unless the Company or the applicable Subsidiary is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planstaken as a whole;
(e) (Ii) sellcreate, conveyincur, assume or suffer to exist any indebtedness whether secured or unsecured other than (x) the Company's indebtedness to the Purchaser, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise dispose become directly or contingently liable in connection with any obligations of all or substantially all any other Person, except the endorsement of the assets of negotiable instruments by the Company for deposit or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge collection or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;and
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes party to the Security Agreement, (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the Company; or effect Purchaser, satisfies each condition of this Agreement and the liquidation, bankruptcy or dissolution of any Related Agreements as if such Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any were a Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Closing Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 1 contract
Samples: Securities Purchase Agreement (AGU Entertainment Corp.)
Required Approvals. In addition to any approvals required by law, (i) For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor Company, without the prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (x) directly or indirectly by declare or pay any dividends, other than dividends paid to the Company or any of its wholly-owned Subsidiaries, (y) issue any preferred stock that is manditorily redeemable prior to the one year anniversary of Maturity Date (as defined in the Note or (z) redeem any of its preferred stock or other equity interests;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company or any of its Subsidiaries dissolve, liquidate or merge with any other person or entity (unless, in the case of such a merger, the Company or, in the case of merger or otherwise) not involving the Company’s Certificate of Incorporation or Bylaws , such Subsidiary, as applicable, is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries, right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeemand its Subsidiaries taken as a whole; or
(e) create, purchase incur, assume or otherwise acquire suffer to exist any indebtedness whether secured or make any distribution with respect to any outstanding securities unsecured other than (w) unsecured subordinated indebtedness of the Company or any Subsidiary thereof in an aggregate principal amount not to exceed US$3,000,000 at any time outstanding, which indebtedness referred to in this clause (w) shall be subordinated to the indebtedness incurred by the Company and its Subsidiaries (includingunder this Agreement and the Related Agreements, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution solely with respect to any stock appreciation rightssuch subordination, phantom stock plans or similar rights or plans relating on terms and subject to documentation reasonably satisfactory to the Company or its SubsidiariesPurchaser; provided, however, that (x) the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant Company's obligations owed to the Company’s stock option/stock issuance plans;
Purchaser, (ey) indebtedness set forth on Schedule 6.11(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (Iz) sell, conveyany indebtedness incurred in connection with the purchase of assets (other than equipment) in the ordinary course of business, or otherwise dispose of all any refinancings or substantially all of replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, so long as any lien relating thereto shall only encumber the fixed assets so purchased and no other assets of the Company or any Subsidiary of its Subsidiaries; (as defined belowii) cancel any indebtedness owing to it in excess of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined $50,000 in the Amended and Restated Certificate aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of Incorporation any other person or entity, except the endorsement of the Company)) or grant any exclusive license to the assets of negotiable instruments by the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition thereof for deposit or collection or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of business or guarantees of indebtedness otherwise permitted to be outstanding pursuant to this clause (e); and
(ii) The Company, without the business prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries to:
(a) create or acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company and (ii) such Subsidiary becomes a party to the Master Security Agreement or the foreign equivalent thereof in form and substance satisfactory to the Purchaser and its applicable Subsidiarylegal counsel (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the Purchaser, satisfies each condition of this Agreement and the Related Agreements as the case may be; provided, however, that the foregoing shall not impose any condition if such Subsidiary were a Subsidiary on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Closing Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(hb) agree make investments in, make any loans or otherwise commit advances to, or transfer assets to, the Immaterial Subsidiary or (ii) permit any Subsidiary to take make investments in, make any actions set forth in loans or advances to, or transfer assets to, the foregoing subparagraphs (i) through (vii)Immaterial Subsidiary.
Appears in 1 contract
Required Approvals. In addition to any approvals required by lawDuring the Term, so long as shares of Series H Preferred Stock are outstandingCompany shall not, neither the Company nor and shall not permit any of its Eligible Subsidiaries shallto, without first obtaining the approval prior written consent of Laurus, (i) create, incur, assume or suffer to exist any indebtedness (exclusive of trade debt) whether secured or unsecured other than Company's indebtedness to Laurus and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by vote Company for deposit or written consent, as provided by lawcollection or similar transactions in the ordinary course of business; (iv) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock other than to pay dividends on shares of its Preferred Stock outstanding on the date hereof or apply any of its funds, property or assets to the purchase, redemption or other retirement of any Stock of Company outstanding on the date hereof, or issue any Preferred Stock manditorily redeemable prior to the sixth month anniversary of the Maturity Date (as defined in the Notes); (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to Company's and its Eligible Subsidiaries' officers and employees not exceeding at any one time an aggregate of $10,000, and (z) existing subsidiaries of Company; (vi) create or permit to exist any subsidiary, other than any subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new subsidiary is a wholly-owned subsidiary and is designated by Laurus as either a co-borrower or guarantor hereunder and such subsidiary shall have entered into all such documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such subsidiary's assets to secure the Obligations; (vii) directly or indirectly, prepay any indebtedness (other than to Laurus or in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Laurus or in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person constituting Collateral or permit any other Person to consolidate with or merge with it, unless (1) Company is the surviving entity of such merger or otherwiseconsolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) Company shall have provided Laurus copies of all documentation relating to such merger or consolidation and (4) Company shall have provided Laurus with at least thirty (30) days' prior written notice of such merger or consolidation; (ix) materially change the Company’s Certificate nature of Incorporation or Bylaws the business in which it is presently engaged; (x) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's right to perform the provisions of designation this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire agreements contemplated thereby; (xi) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with respect to any outstanding securities employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiii) bill Accounts under any name except the present name of the Company Comxxxx or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its existing Eligible Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (IIIxiv) authorizemake any intercompany or inter-subsidiary loans or transfers of assets, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred loans and transfers in the ordinary course of the business of consistent with past practice among the Company and the Eligible Subsidiaries or its applicable Subsidiary, as with the case may be; provided, however, that the foregoing shall prior written consent of Laurus (such consent not impose any condition on the Company to be unreasonably withheld or any Subsidiary (Aconditioned) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 1 contract
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor any of its Subsidiaries shallCompany, without first obtaining the approval (by vote or prior written consent, as provided by law) of both (a) at least half in number consent of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred StockPurchaser ( which consent shall not be unreasonably withheld), voting as a single classshall not:
(a) amend, restate, alter, modify or repeal (directly or indirectly by merger declare or otherwisepay any dividends, other than dividends with respect to its preferred stock;
(b) the Company’s Certificate of Incorporation liquidate, dissolve or Bylaws effect a material reorganization;
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company’s right to perform the provisions of designation this Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockagreements contemplated thereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate of Incorporation scope of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities business of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ii) sellcreate, conveyincur, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create assume or suffer to exist any Subsidiary indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment whether secured or unsecured other than the Company’s indebtedness to Laurus and as set forth on Exhibit 6.12(e) attached hereto and made a part hereof or any refinancings or replacements thereof or any debt incurred in connection with the purchase of assets (including indebtedness incurred or assumed in connection with the acquisition of physician practices and businesses (“Physician Acquisition Indebtedness”) (provided that such Physician Acquisition Indebtedness shall be expressly subordinated to Purchaser, secured solely by the assets of the acquisition target (including for this purpose the shares of stock or limited liability company interests of the Company subsidiary formed to hold the Acquisition Assets (“Acquisition Assets”) and shall not be secured by a lien on any other assets of PainCare Inc. and PainCare Holdings, Inc (to the extent that is such assets are not wholly-owned by Acquisition Assets.)), or in connection with operating lines of credit as necessary to operate such assets, or any refinancings or replacements thereof; (ii) cancel any debt owing to it in excess of $50,000 in the Companyaggregate during any 12 month period; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(giii) create, incurassume, guarantee, assume endorse or be otherwise become directly or indirectly contingently liable in connection with respect to any indebtedness (obligations of any other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do soPerson, except with respect to trade debts incurred the endorsement of negotiable instruments by a Company for deposit or collection or similar transactions in the ordinary course of the business or guarantees provided to any of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions lenders set forth in the foregoing subparagraphs subparagraph (i) through (vii)immediately above.
Appears in 1 contract
Samples: Securities Purchase Agreement (Paincare Holdings Inc)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor any of its Subsidiaries shallCompany, without first obtaining the approval (by vote or prior written consent, as provided by law) of both (a) at least half in number consent of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred StockPurchaser, voting as a single classshall not:
(a) amend, restate, alter, modify or repeal (directly or indirectly by merger declare or otherwisepay any dividends, other than dividends paid to the Company or any of its wholly-owned Subsidiaries;
(b) the Company’s Certificate of Incorporation issue any preferred equity interests;
(c) liquidate, dissolve or Bylaws effect a material reorganization;
(d) become subject to (including, without limitation, by way of amendment to or modification of) any agreement or instrument which by its terms would (Iunder any circumstances) amendingrestrict the Company's or any of its Subsidiaries right to perform the provisions of this Agreement, restatingany other Related Agreement or any of the agreements contemplated hereby or thereby;
(e) materially alter or change the scope of the business of the Company and its Subsidiaries taken as a whole;
(f) (i) create, modifying incur, assume or repealing suffer to exist any indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment (not in excess of five percent (5%) per annum of the fair market value of the Company's assets) whether secured or unsecured other than (x) the Company's indebtedness to the Purchaser, (y) indebtedness set forth on Schedule 6.12(f) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or indirectly contingently liable in connection with any obligations of any other person, except (x) the endorsement of negotiable instruments by merger the Company for deposit or otherwisecollection or similar transactions in the ordinary course of business, (y) guarantees of indebtedness otherwise permitted to be outstanding pursuant to this clause (f) or (z) obligations of the Company and/or any of its Subsidiaries to indemnify directors’ officers’ and agents’ pursuant to customary and ordinary course indemnification arrangements set forth in the respective certificate of designation incorporation, by-laws or preferences other agreement;
(g) create or acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company and (ii) such Subsidiary becomes party to the Master Security Agreement, the Stock Pledge Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or join under agreement in respect thereof) and, to the extent required by the Purchaser, satisfies each condition of this Agreement and the Related Agreements as if such Subsidiary were a Subsidiary on the Closing Date;
(h) issue any capital stock other than: (i) in effect connection with any existing stock options, warrants, stock appreciation rights. Restricted stock grants or any other securities convertible into capital stock of the Company (collectively, “Convertible Securities”); (ii) in connection with any grants of securities pursuant to the Company’s 2003 Employee Stock Incentive Plan or the Sequiam Corporation 2003 Non-Employee Directors and Consultants Stock Plan, each as may be amended or modified from time to time, or any other equity compensation plan registered on Form S-8 with the SEC; or (iii) relating in connection with any existing or future commitments to the Preferred Stock and (II) authorizing issue Convertible Securities in connection with any new class existing or series of stock);future employment agreements.
(bi) reclassify Common Stock or Preferred Stock;spend funds in contravention of the budget approved by the Purchaser; and
(cj) declare prevent the Purchaser or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation its representatives from attending meetings of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities Board of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its SubsidiariesCompany; provided, however, that in the foregoing shall not impose any condition event that a representative of the Purchaser is elected to serve on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries Board of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(Bthen this Section 6.12(j) shall be subject deemed to any negative covenants with respect to, or prohibitions on, have been waived by the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)Purchaser.
Appears in 1 contract
Required Approvals. In addition to any approvals required by lawIt shall not, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor and shall not permit any of its Subsidiaries shallto, without first obtaining the approval prior written consent of Laurus, (by vote i) create, incur, assume or written consentsuffer to exist any indebtedness (exclusive of trade debt) whether secured or unsecured other than (x) each Company’s indebtedness to Laurus, (y) the Parent’s unsecured indebtedness owing to Whitco so long as, at such time as provided by law) the aggregate amount of both (a) at least half such indebtedness exceeds $50,000, Whitco executes and delivers to Laurus a subordination agreement in number form and substance satisfactory to Laurus pursuant to which all of the Major Investors indebtedness owing by the Parent to Whitco is subordinated to the Obligations and (bz) as set forth on Schedule 13(l)(i) attached hereto and made a part hereof; (ii) cancel any debt owing to it in excess of $100,000 in the holders aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of a majority any other Person, except the endorsement of negotiable instruments by it or its Subsidiaries for deposit or collection or similar transactions in the then outstanding voting power ordinary course of the Series H Preferred Stock, voting as a single class:
business; (aiv) amend, restate, alter, modify or repeal (directly or indirectly by merger declare, pay or otherwise) the Company’s Certificate make any dividend or distribution on any class of Incorporation or Bylaws its Stock (including, without limitation, any dividends or distributions by NTSCO to any other Company) other than (Ix) amendingso long as the Parent has received prior written consent from Laurus with respect to any such dividend or distribution, restatingwhich consent shall not be unreasonably withheld, modifying dividends or repealing distributions to the Parent, the proceeds of which shall be used by the Parent solely to pay the Parent’s reasonable and actual costs and expenses for the preparation and filing of all proxy statements, reports and other documents required to be filed by the Parent under the Exchange Act and (y) dividends and distributions by Whitco to any Company) or apply any of its funds, property or assets to the purchase, redemption or other retirement of any of its or its Subsidiaries’ Stock outstanding on the date hereof, or issue any preferred stock; (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to its and its Subsidiaries’ officers and employees not exceeding at any one time an aggregate of $10,000, and (z) loans to its existing Subsidiaries so long as such Subsidiaries are designated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vi) create or permit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by Laurus as either a co-borrower or guarantor hereunder and such Subsidiary shall have entered into all such documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vii) directly or indirectly by indirectly, prepay any indebtedness (other than to Laurus and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Laurus and in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (A) (1) such Company is the surviving entity of such merger or otherwiseconsolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) such Company shall have provided Laurus copies of all documentation relating to such merger or consolidation and (4) such Company shall have provided Laurus with at least thirty (30) days’ prior written notice of such merger or consolidation or (B) (1) such merger or consolidation results in the indefeasible payment in full of all Obligations (including, without limitation, all early termination and prepayment fees required to be paid hereunder and under the terms of the Ancillary Agreements), (2) such Company shall have provided Laurus copies of all documentation relating to such merger or consolidation and (3) such Company shall have provided Laurus at least thirty (30) days’ prior written notice of such early prepayment of the Obligations; (ix) materially change the nature of the business in which it is presently engaged; (x) become subject to (including, without limitation, by way of amendment to or modification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict its or any of designation its Subsidiaries’ right to perform the provisions of this Agreement or preferences any of the Ancillary Agreements; (xi) change its fiscal year or make any changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in effect from time to timethe tax reporting treatment or except as required by law; (xii) relating enter into any transaction with any employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiii) bxxx Accounts under any name except the present name of such Company; (xiv) sell, lease, transfer or otherwise dispose of any of its properties or assets, or any of the properties or assets of its Subsidiaries, except for (1) the sale of Inventory in the ordinary course of business, (2) the disposition or transfer in the ordinary course of business during any fiscal year of obsolete and worn-out Equipment and only to the Preferred Stock extent that (x) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Laurus’ first priority security interest or are used to repay Loans or to pay general corporate expenses, or (y) following the occurrence of an Event of Default which continues to exist, the proceeds of which are remitted to Laurus to be held as cash collateral for the Obligations; and (II3) authorizing any new class or series the sale of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except real property so long as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company Agent has received the prior written consent of Laurus with respect to such sale, which consent shall not be unreasonably withheld, provided that, (x) the Company Agent provided Laurus not less than thirty (30) days prior written notice of such sale, (y) such sale is on commercially reasonable terms in an arms-length transaction and (z) all proceeds of such sale are remitted directly to Laurus to repay the Obligations in such order as Laurus shall elect; (xv) directly or indirectly, redeem, purchase repurchase, retire or otherwise acquire or make any payment or distribution with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating Subordinated Debt except to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock extent permitted pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactionsapplicable Subordination Agreement; or (IIIxvi) authorize, effect change or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in modify the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution terms of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)Subordinated Debt Documentation.
Appears in 1 contract
Samples: Security Agreement (American Technologies Group Inc)
Required Approvals. In addition to any approvals required by law, (I) For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Notes is outstanding, neither the Company nor any of its Subsidiaries shallCompany, without first obtaining the approval (by vote or prior written consent, as provided by law) of both (a) at least half in number consent of the Major Investors and Purchaser (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stockwhich consent shall not be unreasonably withheld), voting as a single classshall not:
(a) amend, restate, alter, modify or repeal (directly or indirectly by merger declare or otherwisepay any dividends, other than dividends paid to the Company or any of its wholly owned Subsidiaries;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company’s Certificate of Incorporation Company dissolve, liquidate or Bylaws merge with any other person or entity (unless the Company is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries right to perform the provisions of this Agreement, any other Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;thereby; and/or
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem(i) create, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or its Subsidiaries (includingincur, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create assume or suffer to exist any secured indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment (not in excess of five percent (5%) per annum of the fair market value of the Company's assets) other than (x) the Company's indebtedness to Laurus, (y) indebtedness set forth on SCHEDULE 6.12(C) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced; or (ii) cancel any debt owning to it in excess of $250,000 in the aggregate during any 12 month period; and/or
(II) The Company shall not, and shall not permit any of its Subsidiaries to:
(a) create or acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes party to the 2004 Master Security Agreement, the 2006 Security Agreement, the 2006 Stock Pledge Agreement and the 2006 Subsidiary Guarantee (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the CompanyPurchaser, satisfies each condition of this Agreement and the Related Agreements as if such Subsidiary were a Subsidiary on the Closing Date; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;and/or
(gi) createmake investments in, incur, guarantee, assume make any loans or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date)advances to, or transfer assets to, Front Porch Digital International, SAS or (ii) permit any Subsidiary to do somake investments in, except with respect make any loans or advances to, or transfer assets to, Front Porch Digital International, SAS (the "French Subsidiary"), other than, in the case of each of the foregoing clauses (i) and (ii), (a) immaterial investments, loans, advances and/or asset transfers made in the ordinary course of business and (b) payments to trade debts the French Subsidiary to pay operating expenses of the French Subsidiary incurred in the ordinary course of business and consistent with past practices, in an amount, taken in the business aggregate for the Company and its Subsidiaries, not to exceed $_______ in any fiscal quarter of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 1 contract
Samples: Securities Purchase Agreement (Incentra Solutions, Inc.)
Required Approvals. In addition to any approvals required by law, so long as shares Without the prior written consent of Series H Preferred Stock are outstanding, neither the Purchaser (which consent shall not be unreasonably withheld or delayed) the Company nor any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classshall not:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwise) the Company’s Certificate of Incorporation or Bylaws (including, without limitationpay any dividends, (Iii) amending, restating, modifying or repealing (directly or indirectly by merger or otherwise) issue any certificate of designation or preferences preferred stock that is mandatorily redeemable prior to the date that occurs 91 days after the Maturity Date (as defined in effect from time to timeeach Note) relating to the Preferred Stock and or (IIiii) authorizing redeem any new class of its preferred stock or series of stock)other Equity Interests;
(b) reclassify Common Stock liquidate or Preferred Stockdissolve the Company;
(c) declare (i) create, incur, assume or pay suffer to exist any dividend Lien (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectlythan Permitted Encumbrances) or redeem, repurchase Indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment in each case incurred the ordinary course of business) whether secured or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to unsecured other than (w) the Company’s stock option/stock issuance plans;
obligations owed to Purchaser, (ex) Indebtedness existing as of the date hereof and any refinancings or replacements thereof on terms no less favorable to the Purchasers than the Indebtedness being refinanced or replaced and in a principal amount not in excess of the principal amount of the Indebtedness being refinanced or replaced, (Iy) sell, conveyany Indebtedness incurred in connection with the purchase of assets (other than equipment) in the ordinary course of business, or otherwise dispose of all any refinancings or substantially all of replacements thereof on terms no less favorable to the Purchasers than the Indebtedness being refinanced or replaced, so long as any lien relating thereto shall only encumber the fixed assets so purchased and no other assets of the Company or any Subsidiary (as defined below) of its subsidiaries and the principal amount thereof shall not exceed the principal amount of the Company Indebtedness being refinanced or replaced ; and (providedz) up to $3,500,000 of additional Indebtedness (the “Additional Indebtedness”), howeverprovided that (A) Purchaser shall have the right to approve or disapprove, that this restriction in its sole discretion, any prospective provider of Additional Indebtedness, and (B) any and all Additional Indebtedness incurred shall not apply to any mortgage, deed of trust, pledge be purchasable by Purchaser or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant at any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company)time, regardless of whether such Liquidation Event maturity date or Products Business Sale would constitute default and without any penalty or premium, at the outstanding amount of the Additional Indebtedness plus any interest accrued thereon and shall provide that Purchaser shall have the sole power to exercise remedies upon a transaction described in clauses (I) default of any Additional Indebtedness, or (IIii) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incurassume, guarantee, assume endorse or be otherwise become directly or indirectly contingently liable in connection with respect to any indebtedness (obligations of any other than indebtedness which existed prior to the Series H Initial Purchase Date), person or permit any Subsidiary to do soentity, except with respect to trade debts incurred the endorsement of negotiable instruments by the Company thereof for deposit or collection or similar transactions in the ordinary course of the business or guarantees of Indebtedness of subsidiaries of the Company or its applicable Subsidiary, as the case may beotherwise permitted to be outstanding pursuant to this clause (c); provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) As used in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions onthis Section 5.2, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in following terms have the foregoing subparagraphs (i) through (vii).following meanings:
Appears in 1 contract
Samples: Senior Secured Note Purchase Agreement (Proelite, Inc.)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor Company, without the prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwisepay any dividends, other than dividends paid to the Parent or any of its wholly-owned Subsidiaries, (ii) issue any preferred stock that is mandatorily redeemable prior to the Company’s Certificate one year anniversary of Incorporation the Maturity Date (as defined in the Note) or Bylaws (iii) redeem any of its preferred stock or other equity interests;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company dissolve, liquidate or merge with any other person or entity (unless the Company is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company’s or any of designation its Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planstaken as a whole;
(e) (Ii) sellcreate, conveyincur, assume or otherwise dispose suffer to exist any indebtedness (exclusive of all or substantially all trade debt and debt incurred to finance the purchase of the assets equipment (not in excess of the Company or any Subsidiary five percent (as defined below5%) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation fair market value of the Company’s and its Subsidiaries’ assets) whether secured or unsecured other than (x) the Company’s indebtedness to the Purchaser, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any Subsidiary’s assets for refinancings or replacements thereof on terms no less favorable to the purpose Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of securing indebtedness $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined collection or similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;and
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes party to the Master Security Agreement, the Stock Pledge Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the Company; or effect Purchaser, satisfies each condition of this Agreement and the liquidation, bankruptcy or dissolution of any Related Agreements as if such Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any were a Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Closing Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 1 contract
Samples: Securities Purchase Agreement (Dynamic Health Products Inc)
Required Approvals. In addition to any approvals required by law, (I) For so long as shares the New Loan or any of Series H Preferred Stock are the Obligaitons remains outstanding, neither CCIG, without the prior written consent of Laurus, shall not, and shall not permit the Company nor or any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classGuarantor to:
(a) amendliquidate, restatedissolve or effect a material reorganization (it being understood that in no event shall the Company or any Guarantor dissolve, alterliquidate or merge with any other person or entity (unless, modify or repeal (directly or indirectly by in the case of such a merger, the Company or, in the case of merger or otherwise) not involving the Company’s Certificate of Incorporation or Bylaws , such Subsidiary, as applicable, is the surviving entity);
(b) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company’s or any Guarantor’s right to perform the provisions of designation this Guaranty, any Document or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stockthereby;
(c) declare materially alter or pay any dividend (whether in cash or otherwise) on change the Common Stock or scope of the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation business of the Company redeemand the Guarantors taken as a whole; or
(i) create, incur, assume or suffer to exist any indebtedness (exclusive of trade debt and debt incurred to finance the purchase or otherwise acquire or make any distribution with respect to any outstanding securities of equipment (not in excess of five percent (5%) of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any fair market value of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
and the Guarantors’ assets)) whether secured or unsecured other than: (ew) the Company’s obligations owed to Laurus, (Ix) sellindebtedness set forth on Schedule 6(l)(iv) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to Laurus than the indebtedness being refinanced or replaced, convey(y) any indebtedness incurred in connection with the purchase of assets (other than equipment) in the ordinary course of business, or otherwise dispose of all any refinancings or substantially all of replacements thereof on terms no less favorable to Laurus than the indebtedness being refinanced or replaced, so long as any lien relating thereto shall only encumber the fixed assets so purchased and no other assets of the Company or any Guarantor; and (z) indebtedness incurred by the Company, any Guarantor or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of than the Company’s ), so long as (i) the proceeds of any such indebtedness are used to finance the acquisition of a third-party entity or any Subsidiary’s assets for the purpose of securing indebtedness thereof; (ii) such acquisition does not effect a merger, material organization or change in control of the Company or such any Guarantor; (iii) the rights of any creditor with respect to any indebtedness incurred by the Company or any Guarantor Subsidiary which existed prior thereof pursuant to this clause (z) is subordinated to Laurus in a manner satisfactory to Laurus with respect to the Series H Initial Purchase Date (as defined in indebtedness incurred by the Amended and Restated Certificate of Incorporation of Company under the Company)) or grant any exclusive license to Documents, the assets of the Company and CCIG’s equity in the Company. (ii) cancel any indebtedness owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other person or entity, except the endorsement of negotiable instruments by the Company or any Subsidiary Guarantor thereof for deposit or collection or similar transactions in the ordinary course of business or guarantees of indebtedness otherwise permitted to be outstanding pursuant to this clause (e); and
(e) transfer money, make investments, sell assets, make loans to any of its Subsidiaries or to any other person other than (i) to the Company; , and (IIii) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Companycontemplated by Section 6(l)(v)(z), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create add any directors to the Board of Directors of Borrower, or suffer to exist substitute or replace any Subsidiary members thereof, without the prior written consent of the Company that is not wholly-owned by the CompanyLender; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;or
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect transfer assets to any indebtedness direct or indirect subsidiary of CCIGother than (other than indebtedness which existed prior to i) the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004Company, and (IIii) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (viias contemplated by Section 6(l)(v)(z).
Appears in 1 contract
Samples: Loan Agreement (Cci Group Inc)
Required Approvals. In addition to any approvals required by lawIt shall not, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor and shall not permit any of its Subsidiaries shallto, without first obtaining the approval prior written consent of Laurus, (by vote i) create, incur, assume or written consentsuffer to exist any indebtedness (exclusive of trade debt, as provided by law) of both (a) at least half in number earn out obligations of the Major Investors and (b) the holders of a majority Companies set forth on Schedule 13(l), earn out obligations of the then outstanding voting power Companies incurred after the date hereof pursuant to acquisitions by the Companies approved, in each case, in writing by Laurus and Subordinated Debt) whether secured or unsecured other than each Company’s indebtedness to Laurus and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof; (ii) cancel any debt owing to it in excess of $50,000 in the Series H Preferred Stockaggregate during any 12 month period; (iii) except as set forth in Schedule 13(l)(iii), voting assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by it or its Subsidiaries for deposit or collection or similar transactions in the ordinary course of business; (iv) except as a single class:
(a) amendset forth in Schedule 13(1)(iv), restate, alter, modify or repeal (directly or indirectly declare, pay or make any cash dividend or distribution on any class of its Stock or apply any of its funds, property or assets to the purchase, redemption or other retirement of any of its or its Subsidiaries’ Stock outstanding on the date hereof, or issue any preferred stock (other than preferred stock, including convertible preferred stock, which does not permit the payment of cash dividends or permits the payment of dividends in kind); (v) except as set forth in Schedule 13(l)(v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to its and its Subsidiaries’ officers and employees not exceeding at any one time an aggregate of $10,000, and (z) loans to its existing Subsidiaries so long as such Subsidiaries are designated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vi) create or permit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by Laurus as either a co-borrower or guarantor hereunder and such Subsidiary shall have entered into all such documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vii) directly or indirectly, prepay any indebtedness (other than to Laurus and in the ordinary course of business consistent with past practice), or, except as set forth in Schedule 12(c), repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Laurus and in the ordinary course of business consistent with past practice) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless, in the case of a merger or otherwiseconsolidation, (1) such Company is the Company’s Certificate surviving entity of Incorporation such merger or Bylaws consolidation or the Company of which such Company is a subsidiary controls the surviving entity after the consummation of such merger or consolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) such Company shall have provided Laurus copies of all documentation relating to such merger or consolidation and (4) such Company shall have provided Laurus with at least thirty (30) days’ prior written notice of such merger or consolidation; (ix) materially change the nature of the business in which it is presently engaged; (x) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict its or any of designation its Subsidiaries’ right to perform the provisions of this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire Ancillary Agreements; (xi) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with respect to any outstanding securities employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiii) bxxx Accounts under any name except the present name of such Company, as such name may be amended in accordance with the Company provisions of Section 13(o) hereof; or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ixiv) sell, conveylease, transfer or otherwise dispose of all any of its properties or substantially all assets, or any of the properties or assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do soits Subsidiaries, except with respect to trade debts incurred for (1) the sale of Inventory in the ordinary course of business and (2) the disposition or transfer in the ordinary course of business during any fiscal year of obsolete and worn-out Equipment and only to the Company extent that (x) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Laurus’ first priority security interest or its applicable Subsidiaryare used to repay Loans or to pay general corporate expenses, or (y) following the occurrence of an Event of Default which continues to exist, the proceeds of which are remitted to Laurus to be held as cash collateral for the case may be; providedObligations. Notwithstanding anything to the contrary contained in this Section 13(l), however, that the foregoing Laurus’ approval shall not impose be required with respect to any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized transfer by any Company of such facilities prior cash to any Foreign Subsidiary of not more than $50,000 in the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreementsaggregate per Business Day, provided that (x) such transfers are made in the ordinary course of business consistent with its business practices and (y) such transfers are made by a Company to a Foreign Subsidiary for the direct purpose of reimbursing and/or paying such Foreign Subsidiary for (I) in the case cost of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, shipping expenses and (II) in the case of all of the Subsidiaries of the Companyairline carrier expenses, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each case, incurred by such Foreign Subsidiary for the benefit of such Company. Company Agent shall provide Laurus a report not later than the years 2003 and 2004, and provided further that none fifth Business Day of each month detailing all such cash transfers made by the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, Companies for the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)immediately preceding month.
Appears in 1 contract
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor Company, without the prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (directly or indirectly declare or pay any dividends, other than dividends paid to the Company or any of its wholly-owned Subsidiaries, (ii) issue any preferred stock that is manditorily redeemable by merger the holder thereof prior to the one year anniversary of the Maturity Date or otherwise(iii) redeem any of its preferred stock or other equity interests;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company’s Certificate of Incorporation Company dissolve, liquidate or Bylaws merge with any other person or entity (unless the Company is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planstaken as a whole;
(e) (Ii) sellcreate, conveyincur, assume or otherwise dispose suffer to exist any indebtedness (exclusive of all or substantially all trade debt and debt incurred to finance the purchase of equipment (not in excess of five percent (5%) per annum of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation fair market value of the Company’s 's assets) whether secured or unsecured other than (x) the Company's indebtedness to Laurus, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any Subsidiary’s assets for refinancings or replacements thereof on terms no less favorable to the purpose Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of securing indebtedness $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined collection or similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;and
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes party to the Master Security Agreement, the Stock Pledge Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the Company; or effect Purchaser, satisfies each condition of this Agreement and the liquidation, bankruptcy or dissolution of any Related Agreements as if such Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any were a Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Closing Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 1 contract
Samples: Securities Purchase Agreement (Datalogic International Inc)
Required Approvals. In addition to any approvals required by lawIt shall not, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor and shall not permit any of its Subsidiaries shallto, without first obtaining the approval prior written consent of Calliope, (i) create, incur, assume or suffer to exist any indebtedness (exclusive of trade debt) whether secured or unsecured other than each Company’s indebtedness to Calliope and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by vote it or written consent, as provided by lawits Subsidiaries for deposit or collection or similar transactions in the ordinary course of business; (iv) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock except for dividends or distributions paid or made to the Parent on account of its ownership interest in its Subsidiaries, or apply any of its funds, property or assets to the purchase, redemption or other retirement of any of its or its Subsidiaries’ Stock, or issue any preferred stock; (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to its and its Subsidiaries’ officers and employees not exceeding at any one time an aggregate of $10,000, and (z) loans to its existing Subsidiaries so long as such Subsidiaries are designated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by merger Calliope, including, without limitation, to grant to Calliope a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vi) create or otherwisepermit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by Calliope as either a co-borrower or guarantor hereunder and such Subsidiary shall have entered into all such documentation required by Calliope, including, without limitation, to grant to Calliope a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the CompanyObligations; (vii) directly or indirectly, prepay any indebtedness (other than to Calliope and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Calliope and in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it; provided, however, such Company may enter into a merger, consolidation or other reorganization so long as (1) Calliope has received at least thirty (30) days written notice of such merger, consolidation or reorganization prior to the consummation thereof and, simultaneously with the consummation of such merger, consolidation or reorganization, all of the Obligations are indefeasibly paid in full in cash and this Agreement is irrevocably terminated (“Permitted Reorganization”) or (2) if, simultaneously with the consummation of such merger, consolidation or reorganization, all of the Obligations are not indefeasibly paid in full in cash and this Agreement is not irrevocably terminated, each of the following conditions have been satisfied to Calliope’s Certificate satisfaction: (A) such Company or any other Company is the surviving entity of Incorporation such merger, consolidation or Bylaws reorganization, (B) no Event of Default shall exist immediately prior to and after giving effect to such merger, consolidation or reorganization, (C) such Company shall have provided Calliope copies of all documentation relating to such merger, consolidation or reorganization, and (D) such Company shall have provided Calliope with at least thirty (30) days prior written notice of such merger, consolidation or reorganization prior to the consummation thereof; (ix) materially change the nature of the business in which it is presently engaged; (x) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict its or any of designation its Subsidiaries’ right to perform the provisions of this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire Ancillary Agreements; (xi) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to Calliope except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with respect to any outstanding securities employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiii) xxxx Accounts under any name except the present name of the Company such Company; or its Subsidiaries (includingxiv) sell, without limitationlease, warrants, options and other rights to acquire transfer or otherwise dispose of any of its capital stock properties or other equity securities directly assets, or indirectlyany of the properties or assets of its Subsidiaries, except for (1) sales, leases, transfer or redeem, repurchase or make dispositions by any distribution with respect Company to any stock appreciation rightsother Company, phantom stock plans (2) the sale of Inventory in the ordinary course of business and (3) the disposition or similar rights or plans relating transfer in the ordinary course of business during any fiscal year of obsolete and worn-out Equipment and only to the Company extent that (x) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Calliope’s first priority security interest or its Subsidiariesare used to repay Loans or to pay general corporate expenses, or (y) following the occurrence of an Event of Default which continues to exist, the proceeds of which are remitted to Calliope to be held as cash collateral for the Obligations; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant Companies may, upon no less than thirty (30) days prior written notice to the Company’s stock option/stock issuance plans;
(e) (I) Calliope, sell, conveylease, transfer or otherwise dispose of all or substantially all of their properties or assets without the assets consent of Calliope if the Company Obligations are indefeasibly paid in full in cash and this Agreement is irrevocably terminated prior to or simultaneously with the consummation of any Subsidiary such sale, lease, transfer or other disposition (as defined below) of the Company (provided, however, that this restriction “Permitted Disposition”). A Permitted Reorganization or a Permitted Disposition shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) Default or (II) above;
(f) create Event of Default under the Agreement or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)Ancillary Agreements.
Appears in 1 contract
Required Approvals. In addition to any approvals required by lawIt shall not, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor and shall not permit any of its Subsidiaries shallto, without first obtaining the approval prior written consent of Laurus, (i) create, incur, assume or suffer to exist any indebtedness (exclusive of trade debt) whether secured or unsecured, other than each Company’s indebtedness to Laurus and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by vote it or written consent, as provided by lawits Subsidiaries for deposit or collection or similar transactions in the ordinary course of business; (iv) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock or apply any of its funds, property or assets to the purchase, redemption or other retirement of any of its or its Subsidiaries’ Stock outstanding on the date hereof, or issue any preferred stock; (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to its and its Subsidiaries’ officers and employees not exceeding at any one time an aggregate of $10,000, and (z) loans to its existing Subsidiaries so long as such Subsidiaries are designated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vi) create or permit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by Laurus as either a co-borrower or guarantor hereunder and such Subsidiary shall have entered into all such documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vii) directly or indirectly, prepay any indebtedness (other than to Laurus and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Laurus and in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (1) such Company is the surviving entity of such merger or otherwiseconsolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) such Company shall have provided Laurus copies of all documentation relating to such merger or consolidation and (4) such Company shall have provided Laurus with at least thirty (30) days’ prior written notice of such merger or consolidation; (ix) materially change the Company’s Certificate nature of Incorporation or Bylaws the business in which it is presently engaged; (x) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict its or any of designation its Subsidiaries’ right to perform the provisions of this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire Ancillary Agreements; (xi) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with respect to any outstanding securities employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiii) xxxx Accounts under any name except the present name of the Company such Company; or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ixiv) sell, conveylease, transfer or otherwise dispose of all any of its properties or substantially all assets, or any of the properties or assets of the its Subsidiaries, except for (1) sales, leases, transfer or dispositions by any Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgageother Company, deed (2) the sale of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred Inventory in the ordinary course of business and (3) the disposition or transfer in the ordinary course of business during any fiscal year of obsolete and worn-out Equipment and only to the Company extent that (x) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Laurus’ first priority security interest or its applicable Subsidiaryare used to repay Loans or to pay general corporate expenses, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (By) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in following the case occurrence of the Company such new indebtedness shall be limited an Event of Default which continues to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions onexist, the Company’s ability proceeds of which are remitted to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit Laurus to take any actions set forth in be held as cash collateral for the foregoing subparagraphs (i) through (vii)Obligations.
Appears in 1 contract
Required Approvals. In addition to any approvals required by law, so long as shares Each of Series H Preferred Stock are outstanding, neither the Company nor and Cancable Parent, without the prior written consent of the Purchaser, shall not, and shall not permit any of its their respective Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwisepay any dividends, other than dividends paid to the Company or to Cancable Parent or any of their respective wholly-owned Subsidiaries, (ii) issue any preferred stock that is mandatorily redeemable prior to the Company’s Certificate one year anniversary of Incorporation Maturity Date (as defined in the Note) or Bylaws (iii) redeem any of its preferred stock or other equity interests other than, in the case of (i), contributions to the corporate expenses and overhead of Creative Vistas, Inc. not to exceed, when aggregated with all dividends and distributions made to CVAS and all management services and analogous fees paid to CVAS, Cdn.$350,000 per annum;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company dissolve, liquidate or merge with any other person or entity (unless the Company is the surviving entity));
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company’s, Cancable Parent’s or any of designation their respective Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate of Incorporation scope of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities business of the Company Company, Cancable Parent and their respective Subsidiaries taken as a whole (other than as necessary or its Subsidiaries (includingdesirable to align such businesses with that of Creative Vistas, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company Inc. or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans);
(e) (Ii) sellcreate, conveyincur, assume or otherwise dispose suffer to exist any indebtedness (exclusive of all or substantially all trade debt and debt incurred to finance the purchase of the assets equipment (not in excess of the Company or any Subsidiary five percent (as defined below5%) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation fair market value of the Company’s, Cancable Parent’s and their respective Subsidiaries’ assets) whether secured or unsecured other than (x) the Company’s indebtedness to the Purchaser, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any Subsidiary’s assets for refinancings or replacements thereof on terms no less favorable to the purpose Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of securing indebtedness USD100,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined collection or similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary becomes party to the Master Security Agreement, the Stock Pledge Agreement and the Subsidiary Guaranty (in each case, either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent reasonably required by the CompanyPurchaser, satisfies each condition of this Agreement and the Related Agreements as if such Subsidiary were a Subsidiary on the Closing Date; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;or
(g) create, incur, guarantee, assume issue or be directly or indirectly liable with respect to sell any indebtedness (other than indebtedness which existed prior to of the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred share capital in the ordinary course of Company and/or Cancable Parent or any rights, warrants or securities convertible into or exercisable or exchangeable for any share in the business capital of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)and/or Cancable Parent.
Appears in 1 contract
Samples: Securities Purchase Agreement (Creative Vistas Inc)
Required Approvals. In addition to any approvals required by law, (I) For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor any of its Subsidiaries shallCompany, without first obtaining the approval (by vote or prior written consent, as provided by law) of both (a) at least half in number consent of the Major Investors and Purchaser (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stockwhich consent shall not be unreasonably withheld), voting as a single classshall not:
(a) amend, restate, alter, modify or repeal (directly or indirectly by merger declare or otherwisepay any dividends, other than dividends paid to the Company or any of its wholly owned Subsidiaries;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company’s Certificate of Incorporation Company dissolve, liquidate or Bylaws merge with any other person or entity (unless the Company is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate of designation agreement or preferences instrument which by its terms would (as in effect from time to timeunder any circumstances) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of restrict the Company’s or any Subsidiary’s assets for of its Subsidiaries right to perform the purpose provisions of securing indebtedness this Agreement, any other Related Agreement or any of the Company agreements contemplated hereby or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Companythereby; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;and/or
(fd) create (i) create, incur, assume or suffer to exist any Subsidiary secured indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment, not in excess of five percent (5%) per annum of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary fair market value of the Company;
(g’s assets) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than (x) the Company’s indebtedness which existed prior to Laurus, (y) indebtedness set forth on Schedule 6.12(c) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Series H Initial Purchase Date)Purchaser than the indebtedness being refinanced or replaced, or permit and (z) any Subsidiary to do so, except debt incurred in connection with respect to trade debts incurred the purchase of assets in the ordinary course of business, or any refinancings or replacements thereof on terms no less favorable to the business Purchaser than the indebtedness being refinanced or replaced; or (ii) cancel any debt owning to it in excess of $250,000 in the aggregate during any 12 month period; and/or
(e) The Company shall not, and shall not permit any of its Subsidiaries to create or acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company and (ii) such Subsidiary becomes party to the Master Security Agreement, the Stock Pledge Agreement and the Subsidiary Guarantee (either by executing a counterpart thereof or its applicable Subsidiaryan assumption or joinder agreement in respect thereof) and, to the extent required by the Purchaser, satisfies each condition of this Agreement and the Related Agreements as the case may be; provided, however, that the foregoing shall not impose any condition if such Subsidiary were a Subsidiary on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Closing Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 1 contract
Samples: Securities Purchase Agreement (Incentra Solutions, Inc.)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor Company, without the prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by merger declare or otherwisepay any dividends, other than dividends paid to the Parent or any of its wholly-owned Subsidiaries, (ii) issue any preferred stock that is mandatorialy redeemable prior to the Company’s Certificate one year anniversary of Incorporation Maturity Date (as defined in the Note) or Bylaws (iii) redeem any of its preferred stock or other equity interests
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall the Company dissolve, liquidate or merge with any other person or entity (unless the Company is the surviving entity);
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any of designation its Subsidiaries right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate scope of Incorporation the business of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planstaken as a whole;
(e) (Ii) sellcreate, conveyincur, assume or otherwise dispose suffer to exist any indebtedness (exclusive of all or substantially all trade debt and debt incurred to finance the purchase of the assets equipment (not in excess of the Company or any Subsidiary ten percent (as defined below10%) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation fair market value of the Company’s 's and its Subsidiaries' assets) whether secured or unsecured other than (x) the Company's indebtedness to the Purchaser, (y) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, and (z) any debt incurred in connection with the purchase of assets in the ordinary course of business, or any Subsidiary’s assets for refinancings or replacements thereof on terms no less favorable to the purpose Purchaser than the indebtedness being refinanced or replaced; (ii) cancel any debt owing to it in excess of securing indebtedness $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by the Company for deposit or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined collection or similar transactions in the Amended and Restated Certificate ordinary course of Incorporation business or guarantees of the Companyindebtedness otherwise permitted to be outstanding pursuant to this clause (e)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist acquire any Subsidiary after the date hereof unless (i) such Subsidiary is a wholly-owned Subsidiary of the Company that is not wholly-owned and (ii) such Subsidiary executes a Security Agreement, Stock Pledge Agreement and Guaranty (or becomes party thereto), (either by executing a counterpart of any such document, executing an assumption or joinder agreement with respect to any such document, or executing documents substantially similar to the Security Agreements, Stock Pledge Agreements and Guaranty executed on the Closing Date) and, to the extent required by the CompanyPurchaser, satisfies each condition of this Agreement and the Related Agreements as if such Subsidiary were a Subsidiary on the Closing Date; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;and
(g) createmake investments in, incurmake any loans or advances to, guaranteeor transfer assets to, assume or be directly or indirectly liable with respect to any indebtedness EXS Acquisition, Inc., a Delaware corporation ("EXS"), other than indebtedness which existed prior to the Series H Initial Purchase Date)any immaterial investments, or permit any Subsidiary to do soloans, except with respect to trade debts incurred advances and/or asset transfers made in the ordinary course of the business of the Company or its applicable Subsidiarybusiness, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants unless EXS complies with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).Section 6.12
Appears in 1 contract
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither Patients, without the Company nor prior written consent of the Purchaser, shall not, and shall not permit any of its Subsidiaries shall, without first obtaining the approval (by vote or written consent, as provided by law) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classto:
(a) amend, restate, alter, modify or repeal (i) directly or indirectly by declare or pay any dividends, other than dividends paid to Patients or any of its wholly-owned Subsidiaries, (ii) issue any preferred stock that is mandatorily redeemable prior to the one year anniversary of Maturity Date (as defined in the Note) or (iii) redeem any of its preferred stock or other equity interests;
(b) liquidate, dissolve or effect a material reorganization (it being understood that in no event shall Patients or any of its Subsidiaries dissolve, liquidate or merge with any other person or entity (unless, in the case of such a merger, Patients or, in the case of merger or otherwisenot involving Patients, such Subsidiary, as applicable, is the surviving entity);
(c) the Company’s Certificate of Incorporation or Bylaws become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict Patients’ or any of designation its Subsidiaries’ right to perform the provisions of this Agreement, any Related Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class agreements contemplated hereby or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockthereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate of Incorporation scope of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities business of the Company or Patients and its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance planstaken as a whole;
(e) (Ii) sellcreate, conveyincur, assume or otherwise dispose suffer to exist any indebtedness (exclusive of all or substantially all trade debt and debt incurred to finance the purchase of the assets equipment (not in excess of the Company or any Subsidiary five percent (as defined below5%) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation fair market value of the Company’s and its Subsidiaries’ assets)) whether secured or unsecured other than (v) each of Patients’ and the Company’s obligations owed to the Purchaser, (w) indebtedness set forth on Schedule 6.12(e) attached hereto and made a part hereof and any refinancings or replacements thereof on terms no less favorable to the Purchaser than the indebtedness being refinanced or replaced, (x) the obligations under the Junior Secured Notes, in the aggregate amount of $3,000,000, and related documents, including a Securities Purchase Agreement, Secured Convertible Term Note, Registration Rights Agreement and Warrant, which obligations shall be subject to a subordination and intercreditor agreement (the “Subordination Agreement”) with the Purchaser, which shall be in form and substance satisfactory to Purchaser in its sole discretion, and (y) any indebtedness incurred in connection with the purchase of assets (other than equipment) in the ordinary course of business, or any Subsidiary’s assets for the purpose of securing indebtedness of the Company refinancings or such Subsidiary which existed prior replacements thereof on terms no less favorable to the Series H Initial Purchase Date Purchaser than the indebtedness being refinanced or replaced, so long as any lien relating thereto shall only encumber the fixed assets so purchased and no other assets of Patients or any of its Subsidiaries; (as defined ii) cancel any indebtedness owing to it in excess of $50,000 in the Amended and Restated Certificate aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of Incorporation any other person or entity, except the endorsement of the Company)) or grant any exclusive license to the assets of the Company negotiable instruments by Patients or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition thereof for deposit or collection or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders ordinary course of the Company prior business or guarantees of indebtedness otherwise permitted to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the be outstanding stock of the surviving corporation immediately after such transaction, or series of transactionspursuant to this clause (e); or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;and
(f) create or suffer to exist acquire any Subsidiary of after the Company that date hereof unless (i) such Subsidiary is not a wholly-owned Subsidiary of Patients and (ii) such Subsidiary becomes a party to the Master Security Agreement, the Stock Pledge Agreement, the Intellectual Property Security Agreement and the Subsidiary Guaranty (either by executing a counterpart thereof or an assumption or joinder agreement in respect thereof) and, to the extent required by the Company; or effect Purchaser, satisfies each condition of this Agreement and the liquidation, bankruptcy or dissolution of any Related Agreements as if such Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any were a Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Amendment and Restatement Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii).
Appears in 1 contract
Samples: Securities Purchase Agreement (Patients & Physicians, Inc.)
Required Approvals. In addition to any approvals required by lawIt shall not, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor and shall not permit any of its Subsidiaries shallto, without first obtaining the approval prior written consent of Laurus, (i) create, incur, assume or suffer to exist any indebtedness (exclusive of trade debt) whether secured or unsecured other than each Company’s indebtedness to Laurus and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by vote it or written consent, as provided by lawits Subsidiaries for deposit or collection or similar transactions in the ordinary course of business; (iv) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock or apply any of its funds, property or assets to the purchase, redemption or other retirement of any of its or its Subsidiaries’ Stock outstanding on the date hereof, or issue any preferred stock; (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to its and its Subsidiaries’ officers and employees not exceeding at any one time an aggregate of $10,000, and (z) loans to its existing Subsidiaries so long as such Subsidiaries are organized in the United States and are designated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vi) create or permit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by Laurus as either a co-borrower or guarantor hereunder and such Subsidiary shall have entered into all such documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vii) directly or indirectly, prepay any indebtedness (other than to Laurus and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Laurus and in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (1) such Company is the surviving entity of such merger or otherwiseconsolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) such Company shall have provided Laurus copies of all documentation relating to such merger or consolidation and (4) such Company shall have provided Laurus with at least thirty (30) days’ prior written notice of such merger or consolidation; (ix) materially change the Company’s Certificate nature of Incorporation or Bylaws the business in which it is presently engaged; (x) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict its or any of designation its Subsidiaries’ right to perform the provisions of this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire Ancillary Agreements; (xi) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with respect to any outstanding securities employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiii) xxxx Accounts under any name except the present name of the Company such Company; or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ixiv) sell, conveylease, transfer or otherwise dispose of all any of its properties or substantially all assets, or any of the properties or assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do soits Subsidiaries, except with respect to trade debts incurred for (1) the sale of Inventory in the ordinary course of business and (2) the disposition or transfer in the ordinary course of business during any fiscal year of obsolete and worn-out Equipment and only to the Company extent that (x) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Laurus’ first priority perfected security interest or its applicable Subsidiaryare used to repay Loans or to pay general corporate expenses, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (By) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in following the case occurrence of the Company such new indebtedness shall be limited an Event of Default which continues to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions onexist, the Company’s ability proceeds of which are remitted to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit Laurus to take any actions set forth in be held as cash collateral for the foregoing subparagraphs (i) through (vii)Obligations.
Appears in 1 contract
Samples: Security and Purchase Agreement (Micro Component Technology Inc)
Required Approvals. In addition to any approvals required by lawIt shall not, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor and shall not permit any of its Subsidiaries shallto, without first obtaining the approval prior written consent of Laurus, (i) create, incur, assume or suffer to exist any indebtedness (exclusive of trade debt) whether secured or unsecured other than Company's and each Eligible Subsidiary's indebtedness to Laurus and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by vote Company or written consent, as provided by lawan Eligible Subsidiary for deposit or collection or similar transactions in the ordinary course of business; (iv) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock or apply any of its funds, property or assets to the purchase, redemption or other retirement of any Stock of Company or any Eligible Subsidiary outstanding on the date hereof, or issue any preferred stock; (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to Company's and each Eligible Subsidiaries officers and employees not exceeding at any one time an aggregate of $10,000, and (z) existing Subsidiaries of Company; (vi) create or permit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by Laurus as either a co-borrower or guarantor hereunder and such Subsidiary shall have entered into all such documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary's assets to secure the Obligations; (vii) directly or indirectly, prepay any indebtedness (other than to Laurus and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Laurus and in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (1) Company or an Eligible Subsidiary, as applicable, is the surviving entity of such merger or otherwiseconsolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) Company and each Eligible Subsidiary, as applicable, shall have provided Laurus copies of all documentation relating to such merger or consolidation and (4) Company shall have provided Laurus with at least thirty (30) days' prior written notice of such merger or consolidation; (ix) materially change the Company’s Certificate nature of Incorporation or Bylaws the business in which it is presently engaged; (x) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company's or any Eligible Subsidiary's right to perform the provisions of designation this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire agreements contemplated thereby; (xi) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with respect to any outstanding securities employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiii) bxxx Accounts under any name except the present name of the Company or its Subsidiaries any Eligible Subsidiary; or (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ixiv) sell, conveylease, transfer or otherwise dispose of all any of its properties or substantially all assets, or any of the properties or assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do soits Subsidiaries, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants consistent with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)past practice.
Appears in 1 contract
Required Approvals. In addition to any approvals required by lawIt shall not, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor and shall not permit any of its Subsidiaries shallto, without first obtaining the approval prior written consent of Laurus (i) create, incur, assume or suffer to exist any indebtedness (exclusive of trade debt) whether secured or unsecured other than each Company's indebtedness to Laurus and as set forth on Schedule 13(l)(i) attached hereto and made a part hereof; (ii) cancel any debt owing to it in excess of $75,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by vote it or written consent, as provided by lawits Subsidiaries for deposit or collection or similar transactions in the ordinary course of business; (iv) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock or apply any of its funds, property or assets to the purchase, redemption or other retirement of any of its or its Subsidiaries' S tock outstanding on the date hereof, other than as set forth in that certain Certificate of Designation with respect to the 8% cumulative convertible preferred stock dated February 28, 2006 (the "Certificate of Designation") and attached hereto as Exhibit C, or issue any shares of preferred stock of any class other than as set forth in the Certificate of Designation ; (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except for loans to its existing Subsidiaries so long as such Subsidiaries are designated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary's assets to secure the Obligations, and except for loans and advances up to $500,000 in the ordinary course of business to foreign or domestic Subsidiaries, partnerships or joint ventures; (vi) create or permit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by Laurus as either a co-borrower or guarantor hereunder and such Subsidiary shall have entered into all such documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary's assets to secure the Obligations, except for loans and advances up to $500,000 in the ordinary course of business to foreign or domestic Subsidiaries, partnerships or joint ventures; (vii) directly or indirectly, prepay any indebtedness (other than to Laurus and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to La urus and in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (1) such Company is the surviving entity of such merger or otherwiseconsolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) such Company shall have provided Laurus copies of all documentation relating to such merger or consolidation and (4) such Company shall have provided Laurus with at least thirty (30) days' prior written notice of such merger or consolidation; (ix) materially change the Company’s Certificate nature of Incorporation or Bylaws the business in which it is presently engaged; (x) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (unde r any circumstances) restrict its or any of designation its Subsidiaries' right to perform the provisions of this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire Ancillary Agreements; (xi) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with respect to any outstanding securities employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiii) bill Accounts under any name exxxxt the present name of the Company or its Subsidiaries such Company; (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ixiv) sell, conveylease, transfer or otherwise dispose of all any of its properties or substantially all assets, or any of the properties or assets of its Subsidiaries, except for (1) the Company sale of Inventory in the ordinary course of business and (2) the disposition or transfer in the ordinary course of business during any Subsidiary fiscal year of obsolete and worn-out Equipment and only to the extent that (xv) the proceeds of any such disposition are used to acquire replacement E quipment which is subject to Laurus' first priority security interest or are used to repay Loans or to pay general corporate expenses, or (y) following the occurrence of an Event of Default which continues to exist, the proceeds of which are remitted to Laurus to be held as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets cash collateral for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactionsObligations; or (IIIxvi) authorizemake, effect or consummate permit any Liquidation Event of its Subsidiaries which are Credit Parties to (including without limitation 1) make, any Deemed Liquidation Eventinvestments in, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company)any loans or advances to, regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that which is not whollya Non-owned by the Company; or effect the liquidationCredit Party, bankruptcy or dissolution other than, so long as no Event of any Subsidiary of the Company;
(g) createDefault has occurred and is continuing, incurimmaterial investments, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred loans and/or advances made in the ordinary course of the business or (2) transfer, or permit any of its Subsidiaries to transfer, assets to any Subsidiary of the Company or its applicable Subsidiarywhich is a Non-Credit Party, other than, so long as the case may be; providedno Event of Default has occurred and is continuing, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) immaterial asset transfers made in the case ordinary course of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)business.
Appears in 1 contract
Samples: Security Agreement (Gse Systems Inc)
Required Approvals. In addition to any approvals required by lawIt shall not, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor and shall not permit any of its Subsidiaries shallto, without first obtaining the approval (by vote or prior written consent, as provided by law) consent of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single classLaurus:
(ai) amendcreate, restateincur, alterassume or suffer to exist any Indebtedness (exclusive of Permitted Indebtedness) whether secured or unsecured other than (A) each Company’s Indebtedness to Laurus, modify (B) each Company’s Indebtedness as set forth on Schedule 13(l)(i) attached hereto and made a part hereof and (C) any Indebtedness that is subordinated in right of payment, priority, structure and otherwise to the Obligations on terms and conditions reasonably and mutually acceptable to the Companies and Laurus and the provider of such subordinated Indebtedness;
(ii) cancel any Indebtedness owing to it in excess of $50,000 in the aggregate during any twelve (12) month period (other than in exchange for which cancelled Indebtedness, it receives reasonably equivalent consideration and fair value), provided, however, the foregoing shall not authorize or repeal permit the cancellation of any Indebtedness or obligation in any amount owed by any of any Company’s officers, directors, stockholders or employees;
(iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by it or its Subsidiaries for deposit or collection or similar transactions in the ordinary course of business or any guarantees and indemnifications respecting Indebtedness otherwise permitted to be outstanding pursuant to this clause;
(iv) directly or indirectly declare, pay or make any cash dividend or cash distribution on any class of its Stock or apply any of its funds, property or assets to the purchase, redemption or other retirement of any of its or its Subsidiaries’ Stock; provided, however, that so long as (i) no Event of Default has occurred and is continuing or would result therefrom and (ii) the aggregate amount of such dividends in any twelve-month (12) period does not exceed $1,700,000, the Parent may pay quarterly dividends on the Series B Preferred Stock;
(v) purchase or hold beneficially any Stock or other securities or evidences of Indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (w) travel advances, (x) the extension of commercial trade credit in connection with the performance of services and sale of Equipment in the ordinary course of business, (y) loans to its and its Subsidiaries’ officers and employees not exceeding at any one time an aggregate of $10,000, other than advancement of expenses in the ordinary course of business, and (z) loans to its existing Subsidiaries so long as such Subsidiaries are designated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations;
(vi) create or permit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by Laurus as either a co-borrower or guarantor hereunder and such Subsidiary shall have entered into all such documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations;
(vii) directly or indirectly, prepay any Indebtedness (other than to Laurus and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any Indebtedness (other than to Laurus and in the ordinary course of business) except to make scheduled payments of principal and interest thereof;
(viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (1) such Company is the surviving entity of such merger or otherwiseconsolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) such Company shall have provided Laurus copies of all documentation relating to such merger or consolidation and (4) such Company shall have provided Laurus with at least thirty (30) days’ prior written notice of such merger or consolidation;
(ix) materially change the Company’s Certificate nature of Incorporation or Bylaws the business in which it is presently engaged;
(x) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict its or any of designation its Subsidiaries’ right to perform the provisions of this Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class or series of stock)Ancillary Agreements;
(bxi) reclassify Common Stock change its fiscal year or Preferred Stockmake any changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in the tax reporting treatment or except as required by law;
(cxii) declare enter into any transaction with any executive officer, director or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (I) sell, convey, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do soAffiliate, except with respect to trade debts incurred (A) in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stockon arms-length terms; or
(hxiii) agree bxxx Accounts under any name except the present name of such Company or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)its trade names.
Appears in 1 contract
Samples: Security Agreement (Kitty Hawk Inc)
Required Approvals. In addition to any approvals required by law, For so long as shares twenty-five percent (25%) of Series H Preferred Stock are the principal amount of the Note is outstanding, neither the Company nor any of its Subsidiaries shallCompany, without first obtaining the approval (by vote or prior written consent, as provided by law) of both (a) at least half in number consent of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred StockPurchaser ( which consent shall not be unreasonably withheld), voting as a single classshall not:
(a) amend, restate, alter, modify or repeal (directly or indirectly by merger declare or otherwisepay any dividends, other than dividends with respect to its preferred stock;
(b) the Company’s Certificate of Incorporation liquidate, dissolve or Bylaws effect a material reorganization;
(c) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict the Company’s right to perform the provisions of designation this Agreement or preferences (as in effect from time to time) relating to any of the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stockagreements contemplated thereby;
(d) except as otherwise provided in materially alter or change the Amended and Restated Certificate of Incorporation scope of the Company redeem, purchase or otherwise acquire or make any distribution with respect to any outstanding securities business of the Company or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ii) sellcreate, conveyincur, or otherwise dispose of all or substantially all of the assets of the Company or any Subsidiary (as defined below) of the Company (provided, however, that this restriction shall not apply to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date (as defined in the Amended and Restated Certificate of Incorporation of the Company)) or grant any exclusive license to the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create assume or suffer to exist any Subsidiary indebtedness (exclusive of trade debt and debt incurred to finance the purchase of equipment whether secured or unsecured other than the Company’s indebtedness to Laurus and as set forth on Exhibit 6.12(e) attached hereto and made a part hereof or any refinancings or replacements thereof or any debt incurred in connection with the purchase of assets (including indebtedness incurred or assumed in connection with the acquisition of physician practices and businesses (“Physician Acquisition Indebtedness”) (provided that such Physician Acquisition Indebtedness shall be expressly subordinated to Purchaser, secured solely by the assets of the acquisition target (including for this purpose the shares of stock or limited liability company interests of the Company subsidiary formed to hold the Acquisition Assets (“Acquisition Assets”)and shall not be secured by a lien on any other assets of PainCare Inc.and PainCare Holdings, Inc (to the extent that is such assets are not wholly-owned by Acquisition Assets.)), or in connection with operating lines of credit as necessary to operate such assets, or any refinancings or replacements thereof; (ii) cancel any debt owing to it in excess of $50,000 in the Companyaggregate during any 12 month period; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(giii) create, incurassume, guarantee, assume endorse or be otherwise become directly or indirectly contingently liable in connection with respect to any indebtedness (obligations of any other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do soPerson, except with respect to trade debts incurred the endorsement of negotiable instruments by a Company for deposit or collection or similar transactions in the ordinary course of the business or guarantees provided to any of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness shall be limited to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions lenders set forth in the foregoing subparagraphs subparagraph (i) through (vii)immediately above.
Appears in 1 contract
Samples: Securities Purchase Agreement (Paincare Holdings Inc)
Required Approvals. In addition to any approvals required by lawIt shall not, so long as shares of Series H Preferred Stock are outstanding, neither the Company nor and shall not permit any of its Subsidiaries shallto, without first obtaining the approval prior written consent of Laurus, (i) create, incur, assume or suffer to exist any indebtedness (exclusive of trade debt) whether secured or unsecured other than each Company’s indebtedness to Laurus or as set forth on Schedule 13(l)(i) attached hereto and made a part hereof; (ii) cancel any debt owing to it in excess of $50,000 in the aggregate during any 12 month period; (iii) assume, guarantee, endorse or otherwise become directly or contingently liable in connection with any obligations of any other Person, except the endorsement of negotiable instruments by vote it or written consent, its Subsidiaries for deposit or collection or similar transactions in the ordinary course of business or as provided by lawset forth on Schedule 13(l)(iii); (iv) of both (a) at least half in number of the Major Investors and (b) the holders of a majority of the then outstanding voting power of the Series H Preferred Stock, voting as a single class:
(a) amend, restate, alter, modify or repeal (directly or indirectly declare, pay or make any dividend or distribution on any class of its Stock or apply any of its funds, property or assets to the purchase, redemption or other retirement of any of its or its Subsidiaries’ Stock outstanding on the date hereof, or issue any preferred stock, other than any dividends or distributions by any Subsidiary to its parent; (v) purchase or hold beneficially any Stock or other securities or evidences of indebtedness of, make or permit to exist any loans or advances to, or make any investment or acquire any interest whatsoever in, any other Person, including any partnership or joint venture, except (x) travel advances, (y) loans to its and its Subsidiaries’ officers and employees not exceeding at any one time an aggregate of $10,000, and (z) loans to its existing Subsidiaries, except that (I) so long as such Subsidiaries are designated as either a co-borrower hereunder or has entered into such guaranty and security documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (II) loans to Verso Technologies (UK) shall be permissible to the extent that the proceeds thereof are used solely to pay the ordinary operating expenses of such entity in the ordinary course of business, consistent with past practice; and (III) the loans set forth on Schedule 12(b) shall be permissible without the prior consent of Laurus; (vi) create or permit to exist any Subsidiary, other than any Subsidiary in existence on the date hereof and listed in Schedule 12(b) unless such new Subsidiary is a wholly-owned Subsidiary and is designated by Laurus as either a co-borrower or guarantor hereunder and such Subsidiary shall have entered into all such documentation required by Laurus, including, without limitation, to grant to Laurus a first priority perfected security interest in substantially all of such Subsidiary’s assets to secure the Obligations; (vii) directly or indirectly, prepay any indebtedness (other than to Laurus and in the ordinary course of business), or repurchase, redeem, retire or otherwise acquire any indebtedness (other than to Laurus and in the ordinary course of business) except to make scheduled payments of principal and interest thereof; (viii) enter into any merger, consolidation or other reorganization with or into any other Person or acquire all or a portion of the assets or Stock of any Person or permit any other Person to consolidate with or merge with it, unless (1) such Company is the surviving entity of such merger or otherwiseconsolidation, (2) no Event of Default shall exist immediately prior to and after giving effect to such merger or consolidation, (3) such Company shall have provided Laurus copies of all documentation relating to such merger or consolidation and (4) such Company shall have provided Laurus with at least twenty (20) days’ prior written notice of such merger or consolidation; (ix) materially change the Company’s Certificate nature of Incorporation or Bylaws the business in which it is presently engaged; (x) become subject to (including, without limitation, (I) amending, restating, modifying by way of amendment to or repealing (directly or indirectly by merger or otherwisemodification of) any certificate agreement or instrument which by its terms would (under any circumstances) restrict its or any of designation its Subsidiaries’ right to perform the provisions of this Agreement or preferences (as in effect from time to time) relating to the Preferred Stock and (II) authorizing any new class or series of stock);
(b) reclassify Common Stock or Preferred Stock;
(c) declare or pay any dividend (whether in cash or otherwise) on the Common Stock or the Preferred Stock;
(d) except as otherwise provided in the Amended and Restated Certificate of Incorporation of the Company redeem, purchase or otherwise acquire Ancillary Agreements; (xi) change its fiscal year or make any distribution changes in accounting treatment and reporting practices without prior written notice to Laurus except as required by GAAP or in the tax reporting treatment or except as required by law; (xii) enter into any transaction with respect to any outstanding securities employee, director or Affiliate, except in the ordinary course on arms-length terms; (xiii) bxxx Accounts under any name except the present name of the Company such Company; or its Subsidiaries (including, without limitation, warrants, options and other rights to acquire any of its capital stock or other equity securities directly or indirectly) or redeem, repurchase or make any distribution with respect to any stock appreciation rights, phantom stock plans or similar rights or plans relating to the Company or its Subsidiaries; provided, however, that the foregoing shall not impose any condition on the Company repurchasing at cost shares of its Common Stock pursuant to the Company’s stock option/stock issuance plans;
(e) (Ixiv) sell, conveylease, transfer or otherwise dispose of all any of its properties or substantially all assets, or any of the properties or assets of its Subsidiaries, except for (1) sales, leases, transfer or dispositions by any Company to any other Company, (2) the Company sale of Inventory or the granting of licenses in the ordinary course of business, (3) the disposition or transfer in the ordinary course of business during any Subsidiary fiscal year of obsolete and worn-out Equipment and only to the extent that (x) the proceeds of any such disposition are used to acquire replacement Equipment which is subject to Laurus’ first priority security interest or are used to repay Loans or to pay general corporate expenses, or (y) following the occurrence of an Event of Default which continues to exist, the proceeds of which are remitted to Laurus to be held as defined belowcash collateral for the Obligations, and (4) the sale of any Collateral pursuant to Section 3.9 of the Company (providedVerilink Purchase Agreement, however, provided that this restriction shall any net proceeds not apply paid to any mortgage, deed of trust, pledge or other encumbrance or hypothecation of the Company’s or any Subsidiary’s assets for the purpose of securing indebtedness of the Company or such Subsidiary which existed prior to the Series H Initial Purchase Date Seller (as defined in the Amended and Restated Certificate of Incorporation of Verilink Purchase Agreement) that are received by the Company)) or grant any exclusive license to Companies from the assets of the Company or any Subsidiary of the Company; (II) effect any merger, consolidation, acquisition or similar transaction of the Company with one or more other corporations or series sale of such transactions in which the stockholders of the Company prior to such transaction, or series of transactions, would hold stock representing less than a majority of the voting power of the outstanding stock of the surviving corporation immediately after such transaction, or series of transactions; or (III) authorize, effect or consummate any Liquidation Event (including without limitation any Deemed Liquidation Event, each as defined in the Amended and Restated Certificate of Incorporation of the Company) or Products Business Sale (as defined in the Amended and Restated Certificate of Incorporation of the Company), regardless of whether such Liquidation Event or Products Business Sale would constitute a transaction described in clauses (I) or (II) above;
(f) create or suffer to exist any Subsidiary of the Company that is not wholly-owned by the Company; or effect the liquidation, bankruptcy or dissolution of any Subsidiary of the Company;
(g) create, incur, guarantee, assume or be directly or indirectly liable with respect to any indebtedness (other than indebtedness which existed prior to the Series H Initial Purchase Date), or permit any Subsidiary to do so, except with respect to trade debts incurred in the ordinary course of the business of the Company or its applicable Subsidiary, as the case may be; provided, however, that the foregoing shall not impose any condition on the Company or any Subsidiary (A) creating or incurring indebtedness under credit facilities existing as of the Series H Initial Purchase Date up to amounts authorized by any of such facilities prior the Series H Initial Purchase Date; or (B) creating, incurring or authorizing indebtedness under master equipment lease agreements, provided that (I) in the case of the Company such new indebtedness Collateral shall be limited promptly remitted to a maximum of Five Hundred Thousand Dollars ($500,000) per year in each of the years 2002, 2003 and 2004, and (II) in the case of all of the Subsidiaries of the Company, considered together, such new indebtedness shall be limited to a maximum of One Million Five Hundred Thousand Dollars ($1,500,000) per year in each of the years 2003 and 2004, and provided further that none of the indebtedness referred to in Subsection 3.3(g)(B) shall be subject to any negative covenants with respect to, or prohibitions on, the Company’s ability to effect any distribution or redemption of shares of its capital stock; or
(h) agree or otherwise commit to take any actions set forth in the foregoing subparagraphs (i) through (vii)Laurus.
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