Shareholder Action by Written Consent Any action which may be taken by Shareholders by vote may be taken without a meeting if the holders entitled to vote thereon of the proportion of Shares required for approval of such action at a meeting of Shareholders pursuant to Section 10.4 consent to the action in writing and the written consents are filed with the records of the meetings of Shareholders. Such consent shall be treated for all purposes as a vote taken at a meeting of Shareholders.
Matters Requiring Investor Director Approval So long as either (x) the holders of Series A Preferred Stock are entitled to elect one or more Series A Directors or (y) the holders of the Series B Preferred Stock are entitled to elect one or more Series B Directors, the Company hereby covenants and agrees with each of the Investors that it shall not, nor shall it permit any subsidiary of the Company to, without approval of the Board, which approval must include the affirmative vote of a majority of the Preferred Directors (which majority shall include a Series B Director), or the approval of the Requisite Holders:
(a) make, or permit any subsidiary to make, any loan or advance to, or own any stock or other securities of, any subsidiary or other corporation, partnership, or other entity unless it is wholly owned by the Company;
(b) make, or permit any subsidiary to make, any loan or advance to any Person, including, without limitation, any employee or director of the Company or any subsidiary, in excess of $100,000 (in the case of individuals) or $500,000 (in the case of Persons that are not individuals), except advances and similar expenditures in the ordinary course of business or under the terms of an employee stock or option plan approved by the Board;
(c) guarantee, directly or indirectly, or permit any subsidiary to guarantee, directly or indirectly, any indebtedness of any third party, except for trade accounts of the Company or any subsidiary arising in the ordinary course of business;
(d) make any investment inconsistent with any investment policy approved by the Board;
(e) incur any aggregate indebtedness in excess of $500,000 that is not already included in a budget approved by the Board, other than trade credit incurred in the ordinary course of business;
(f) enter into or be a party to any transaction with any stockholder, director or officer of the Company or any “associate” (as defined in Rule 12b-2 promulgated under the Exchange Act) of any such Person, except for transactions contemplated by this Agreement and the Purchase Agreement or transactions (including agreements related to the compensation of the Company’s executive officers) made in the ordinary course of business upon fair and reasonable terms that are approved by a majority of the disinterested members of the Board;
(g) increase the shares of Common Stock reserved for issuance under the Company’s equity incentive plan or adopt any other equity incentive plan;
(h) hire or terminate the chief executive officer;
(i) enter into any corporate strategic relationship involving the payment, contribution, or assignment of money or assets which exceeds $5,000,000 in any single transaction or in the aggregate ten percent (10%) of the aggregate value of the Company’s net assets on a consolidated basis in any consecutive twelve-month period;
(j) sell, lease, transfer, exclusively license or otherwise dispose of material assets and/or intellectual property of the Company or its subsidiaries, in one or a series of related transactions, the aggregate value of which exceeds $5,000,000 in any single transaction or in the aggregate ten percent (10%) of the aggregate value of the Company’s net assets on a consolidated basis in any consecutive twelve-month period;
(k) acquire (by merger or stock or asset purchase or otherwise) any Person, business or asset in one or a series of related transactions, the aggregate value of which exceeds $5,000,0000 in any such one or series of related transactions or in the aggregate ten percent (10%) of the aggregate value of the Company’s net assets on a consolidated basis in any consecutive twelve-month period;
(l) make any material change in the business plan or business scope;
(m) settle any material litigation, arbitration or legal disputes;
(n) appoint or remove the Company’s auditor or change materially in accounting policies and standards, including financial year or tax year of the Company;
(o) effect any single capital expenditure, the value of which exceeds $5,000,000 in any single transaction or in the aggregate ten percent (10%) of the aggregate value of the Company’s net assets in any fiscal year; or
(p) enter into an agreement to do any of the foregoing. For purposes of this Section 5.4, the value of any net assets shall be the value as determined by the Company in good faith. Upon the request of any Investor, the Company shall provide such Investor with reasonable written documentation supporting the basis of such determination of value, and provide such Investor with reasonable access to the personnel, properties, books and records of the Company for the purpose of evaluating the foregoing determination. If such Investor raises any reasonable objections to the foregoing determination, the Company shall consider in good faith such objections and make such revisions to the final determination of value as may be mutually agreed between the Company and such Investor. Notwithstanding anything to the contrary in this Section 5.4, such approval of the Board or the Requisite Holders shall not be required with respect to actions contemplated by any agreements entered into between the Company and its stockholder(s) on or prior to the date hereof.
Stockholder Consent (a) So long as the Board of Directors of the Company shall not have withdrawn, modified or changed its recommendation in accordance with the provisions of Section 7.8(b) hereof, the Company, acting through its Board of Directors, shall, in accordance with Delaware law and its certificate of incorporation and by-laws, take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene, and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders. The Company shall notify each Stockholder, whether or not entitled to vote, of the proposed Company stockholders’ meeting. Such meeting notice shall state that the purpose, or one of the purposes, of the meeting is to consider the Merger and shall contain or be accompanied by a copy or summary of this Agreement. Notwithstanding the foregoing, the Board of Directors of the Company shall not be required to take all actions reasonably necessary to establish a record date for, duly call, give notice of, convene and hold a stockholders meeting for the purpose of obtaining the requisite approval and adoption of this Agreement and the transactions contemplated hereby by the Stockholders if the Company’s Board of Directors and the requisite Stockholders otherwise take all actions reasonably necessary to approve this Agreement and the transactions contemplated hereby by written consent in lieu of a meeting of the stockholders of the Company to the extent permitted by applicable law.
(b) The Board of Directors of the Company shall unanimously recommend such approval and shall use all reasonable efforts to solicit and obtain such approval; provided, however, that the Board of Directors of the Company may at any time prior to approval of the Stockholders (i) decline to make, withdraw, modify or change any recommendation or declaration regarding this Agreement or the Merger or (ii) recommend and declare advisable any other offer or proposal, to the extent the Board of Directors of the Company determines in good faith, based upon advice of legal counsel, that withdrawing, modifying, changing or declining to make its recommendation regarding this Agreement or the Merger or recommending and declaring advisable any other offer or proposal is necessary to comply with its fiduciary duties under applicable law (which declinations, withdrawal, modification or change shall not constitute a breach by the Company of this Agreement). The Company shall provide written notice to Parent promptly upon the Company taking any action referred to in the foregoing proviso.
(c) Pursuant to the DCGL, at any time before the certificate of merger is filed with the Secretary of State of the State of Delaware, including any time after the Merger is authorized by the Stockholders, the Merger may be abandoned and this Agreement may be terminated in accordance with the terms hereof, without further action by the Stockholders.
Shareholder Action by Written Consent without a Meeting Any action which may be taken at any meeting of Shareholders may be taken without a meeting and without prior notice if a consent in writing setting forth the action so taken is signed by the holders of Shares having not less than the minimum number of votes that would be necessary to authorize or take that action at a meeting at which all Shares entitled to vote on that action were present and voted. All such consents shall be filed with the secretary of the Trust and shall be maintained in the Trust’s records. Any Shareholder giving a written consent or the Shareholder’s proxy holders or a transferee of the Shares or a personal representative of the Shareholder or its respective proxy-holder may revoke the consent by a writing received by the secretary of the Trust before written consents of the number of Shares required to authorize the proposed action have been filed with the secretary. If the consents of all Shareholders entitled to vote have not been solicited in writing and if the unanimous written consent of all such Shareholders shall not have been received, the secretary shall give prompt notice of the action taken without a meeting to such Shareholders. This notice shall be given in the manner specified in the By-Laws.
Obligations to or by Stockholders Except as disclosed in the Parent SEC Documents, the Parent has no Liability or obligation or commitment to any stockholder of Parent or any Affiliate or “associate” (as such term is defined in Rule 405 under the Securities Act) of any stockholder of Parent, nor does any stockholder of Parent or any such Affiliate or associate have any Liability, obligation or commitment to the Parent.
Holder Action by Written Consent Any action which may be taken by Holders at a meeting may be taken without a meeting if Holders holding at least a Majority in Liquidation Amount of all Trust Securities entitled to vote in respect of such action (or such larger proportion thereof as shall be required by any other provision of this Trust Agreement) shall consent to the action in writing.
Stockholder Vote Anything in this Agreement to the contrary notwithstanding, in the event that any amounts payable to Xxxxxx hereunder, alone or together with other payments that Xxxxxx has a right to receive from Bandwidth, would constitute an “excess parachute payment” (as defined in Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”)), then Bandwidth will reduce the amounts payable to the minimum extent necessary to avoid the payment of any excess parachute payments and to avoid Xxxxxx being subject to the excise tax imposed by Section 4999 of the Code. In the event that any payment or benefit intended to be provided hereunder is required to be reduced pursuant to this Section, then the reduction shall occur in the following order: (a) reduction of cash payments described in Section 3 (with such reduction being applied to the payments in the reverse order in which they would otherwise be made, that is, later payments shall be reduced before earlier payments); (b) cancellation of acceleration of vesting on any equity awards for which the exercise price exceeds the then fair market value of the underlying equity; and (c) cancellation of acceleration of vesting of equity awards not covered under (b) above. In the event that acceleration of vesting of equity awards is to be cancelled, such acceleration of vesting shall be cancelled in the reverse order of the date of grant of such equity awards, that is, later equity awards shall be canceled before earlier equity awards. Without limiting the foregoing, if Bandwidth is not then a public company, it will use its best efforts to secure the approval of its stockholders to exempt the excess parachute payments from the loss of corporate tax deductions imposed under Section 280G and the excise tax imposed under Section 4999. If Bandwidth becomes publicly traded, it will comply with Section 951 of the Xxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act that requires public companies subject to the federal proxy rules to provide their shareholders with an advisory vote on: executive compensation; the desired frequency of say-on-pay votes; and on golden parachute arrangements, and will seek shareholder votes under Internal Revenue Code Section 162(m), and any other law, regulation or rule that requires a shareholder vote on this Agreement, or that permits a vote to preserve tax benefits or avoid tax penalties.
Stockholders Approval This Agreement and the transactions contemplated hereby shall have been approved by the requisite affirmative vote of the holders of the outstanding shares of Seller Common Stock present and voting at the Seller Stockholders Meeting in accordance with applicable law.
Requisite Stockholder Approval The Requisite Stockholder Approval shall have been obtained.
Shareholder Consent The execution, delivery and performance of the Articles Amendment shall have received the Shareholder Approval.