Reserved Matters. (a) The Company shall not, and shall cause its Subsidiaries not to, take any of the following actions (including any action by the Board or any committee of the Board) (each, a “Reserved Matter”) without the prior written approval of (i) an MCK Member, and (ii) Echo; provided, that no such prior written approval shall be required in the case of any action to be taken by the Company or any of its Subsidiaries pursuant to an express right of any Person set forth in this Agreement or in any other Transaction Document: (i) any material change in the line of business of the Company and its Subsidiaries (which shall initially be a health care information technology company) or the entry into any new material line of business by the Company and its Subsidiaries; (ii) any change in either the name of the Company or its registered address or the Fiscal Year; (iii) any appointment, removal or replacement of, or determination or approval of, or change in, compensation, benefits, perquisites and other incentives for, the Chief Executive Officer (other than the appointment of Xxxx xx Xxxxxxxxx as the Chief Executive Officer at Closing), including the entry into and any amendment of any employment contract with such officer; (iv) approval of the Company’s annual operating plan and the Annual Operating and Capital Budget and any amendment or modification thereto and any material deviation from the Annual Operating and Capital Budget; provided, that to the extent an MCK Member and Echo cannot agree on the Annual Operating and Capital Budget for a given year, the Annual Operating and Capital Budget for the immediately preceding year of such given year shall be deemed to be the Annual Operating and Capital Budget for such given year; for purposes of the foregoing, it shall not be deemed a “material deviation” from any Annual Operating and Capital Budget previously approved as a Reserved Matter hereunder unless expenditures for any given fiscal quarter are greater than one hundred five percent (105%) of the total expenditures, in the aggregate, included in such Annual Operating and Capital Budget for such fiscal quarter; (v) entry into any agreement or arrangement that limits, or otherwise restricts in any material respect, either the Company (other than any employees of the Company or its Subsidiaries), the Company’s Subsidiaries, any Echo Shareholder or its Affiliates or MCK or its Affiliates, from engaging in any line of business, selling, licensing or otherwise distributing services or products in any geographic area, competing with any Person (including, for the avoidance of doubt, any material agreement that includes (1) grants of exclusive rights, exclusive territories, exclusive licenses or “most favored party” rights, (2) any non-competition or non-solicitation restrictions, (3) any rights of first refusal or rights of first offer or (4) any limits on the use of any Intellectual Property Rights (as defined in the Contribution Agreement) or, with respect to any Echo Shareholder or its Affiliates or MCK or its Affiliates, otherwise binds such Person other than with respect to an obligation of the Company or its Subsidiaries in such Person’s capacity as a Member; (vi) prior to a Qualified IPO, appointment, removal or replacement of the Auditor of the Company; (vii) approval of the annual financial report, adoption of any financial and accounting procedures or accounting policies, or any material changes thereto, unless permitted pursuant to policies and procedures previously approved by the Members as a Reserved Matter; (viii) filing of any litigation, arbitration or other legal proceedings or actions in relation to a claim (or a series of related claims) of $15,000,000 or more, or any settlement of any litigation, arbitration, other legal proceeding, actions or series of related claims of $15,000,000 or more, except for any legal action involving the Members and/or their Affiliates; and provided, that notwithstanding anything to the contrary in this Agreement, in the event of any legal proceeding by or against the Company or any of its Subsidiaries, in which either Echo or any MCK Member or any Affiliate thereof is (or would be) an adverse party, the other party shall have the right to control the initiation, defense, conduct and settlement of such legal proceedings by the Company; (ix) entry into any agreements or other transactions between a Member or any of its Affiliates, on the one hand, and the Company or any of its Subsidiaries, on the other hand, other than: (A) the Transaction Documents (and any transactions or agreements contemplated by or ancillary to such Transaction Documents); provided, that any amendment or modification to any Transaction Document shall require approval under clause (xxx) below; or (B) agreements or transactions with MCK or its Subsidiaries and/or portfolio companies of any Echo Shareholder that are entered into on arm’s length terms and in the ordinary course of business for the purchase of materials, supplies, goods, services (excluding any employment agreements), equipment or other assets that are generally available for purchase by business entities in the Company’s line of business on substantially similar terms from non-affiliated suppliers or providers; (x) any increase or decrease in the size of the Board; (xi) any establishment of, or change in the size of, any committee of the Board; (xii) selection of the Mutual Independent Director, so long as each of Echo (together with its Permitted Transferees) and the MCK Members (together with their Permitted Transferees) own 10% or more of the Echo Units or MCK Units, respectively; (xiii) the appointment, removal or replacement of the Chairman of the Board, who shall initially be Xxxx X. Xxxxxxxxxx, a Nominee Director of the MCK Members; (xiv) the appointment, removal or replacement of the Executive Vice Chairman of the Board, who shall initially be Xxxxxx Xxxxx, a Nominee Director of Echo;
Appears in 4 contracts
Samples: Limited Liability Company Agreement (PF2 SpinCo, Inc.), Limited Liability Company Agreement (Change Healthcare Inc.), Limited Liability Company Agreement (Change Healthcare Inc.)
Reserved Matters. For the purpose of this clause 6, the Reserved Matters are as follows:
(a) The Company shall notincurring or agreeing to incur, and shall cause its Subsidiaries not toin relation to the Sportingbet Spanish Business, take any capital expenditure purchase commitments exceeding, in aggregate, the equivalent of the following actions (including any action by the Board or any committee of the Board) (each, a “Reserved Matter”) without the prior written approval of (i) an MCK Member, and (ii) Echo; provided, that no such prior written approval shall be required in the case of any action to be taken by the Company or any of its Subsidiaries pursuant to an express right of any Person set forth in this Agreement or in any other Transaction Document:
(i) any material change in the line of business of the Company and its Subsidiaries (which shall initially be a health care information technology company) or the entry into any new material line of business by the Company and its Subsidiaries€100,000;
(iib) any change in either the name disposing of the Company or its registered address or the Fiscal Year;
(iii) any appointment, removal or replacement agreeing to dispose of, or determination granting or approval agreeing to grant any option in respect of, or change in, compensation, benefits, perquisites and other incentives for, the Chief Executive Officer (other than the appointment of Xxxx xx Xxxxxxxxx as the Chief Executive Officer at Closing), including the entry into and any amendment of any employment contract with such officer;
(iv) approval part of the Company’s annual operating plan and the Annual Operating and Capital Budget and Sportingbet Spanish Business or any amendment or modification thereto and any material deviation from the Annual Operating and Capital Budget; provided, that to the extent an MCK Member and Echo cannot agree on the Annual Operating and Capital Budget for a given year, the Annual Operating and Capital Budget for the immediately preceding year of such given year shall be deemed to be the Annual Operating and Capital Budget for such given year; for purposes of the foregoing, it shall not be deemed a “material deviation” from any Annual Operating and Capital Budget previously approved as a Reserved Matter hereunder unless expenditures for any given fiscal quarter are greater than one hundred five percent (105%) of the total expenditures, interest in them except in the aggregate, included in such Annual Operating ordinary and Capital Budget for such fiscal quarter;
(v) entry into any agreement or arrangement that limits, or otherwise restricts in any material respect, either the Company (other than any employees usual course of the Company or its Subsidiaries), the Company’s Subsidiaries, any Echo Shareholder or its Affiliates or MCK or its Affiliates, from engaging in any line of business, selling, licensing or otherwise distributing services or products in any geographic area, competing with any Person (including, for the avoidance of doubt, any material agreement that includes (1) grants of exclusive rights, exclusive territories, exclusive licenses or “most favored party” rights, (2) any non-competition or non-solicitation restrictions, (3) any rights of first refusal or rights of first offer or (4) any limits business on the use of any Intellectual Property Rights (as defined in the Contribution Agreement) or, with respect to any Echo Shareholder or its Affiliates or MCK or its Affiliates, otherwise binds such Person other than with respect to an obligation of the Company or its Subsidiaries in such Person’s capacity as a Member;
(vi) prior to a Qualified IPO, appointment, removal or replacement of the Auditor of the Company;
(vii) approval of the annual financial report, adoption of any financial and accounting procedures or accounting policies, or any material changes thereto, unless permitted pursuant to policies and procedures previously approved by the Members as a Reserved Matter;
(viii) filing of any litigation, arbitration or other legal proceedings or actions in relation to a claim (or a series of related claims) of $15,000,000 or more, or any settlement of any litigation, arbitration, other legal proceeding, actions or series of related claims of $15,000,000 or more, except for any legal action involving the Members and/or their Affiliates; and provided, that notwithstanding anything to the contrary in this Agreement, in the event of any legal proceeding by or against the Company or any of its Subsidiaries, in which either Echo or any MCK Member or any Affiliate thereof is (or would be) an adverse party, the other party shall have the right to control the initiation, defense, conduct and settlement of such legal proceedings by the Company;
(ix) entry into any agreements or other transactions between a Member or any of its Affiliates, on the one hand, and the Company or any of its Subsidiaries, on the other hand, other than:
(A) the Transaction Documents (and any transactions or agreements contemplated by or ancillary to such Transaction Documents); provided, that any amendment or modification to any Transaction Document shall require approval under clause (xxx) below; or
(B) agreements or transactions with MCK or its Subsidiaries and/or portfolio companies of any Echo Shareholder that are entered into on normal arm’s length terms and in any event, consistent with past practice;
(c) disposing of or agreeing to dispose of any asset of the Sportingbet Spanish Business having a book value in excess of €50,000 or any interest in any such asset;
(d) discontinuing or ceasing to operate all or a material part of the Sportingbet Spanish Business;
(e) entering into, terminating or changing any material contract (which includes, amongst other things, any agreement, arrangement or commitment) or any materially unusual, abnormal or onerous contract relating to or affecting a part of the Sportingbet Spanish Business, where a "material contract" for the purposes of this clause is a contract which commits to the spending of more than €250,000 per annum or commits the Sportingbet Spanish Business to a contract of 12 months or longer term;
(f) doing or permitting to be done any act which might reasonably be expected to materially adversely affect the Sportingbet Spanish Business Goodwill, or the relationship of the Sportingbet Spanish Business with its customers, suppliers or the Sportingbet Spanish Business Employees (in each case, in the context of the Sportingbet Spanish Business taken as a whole);
(g) agreeing to any new material customer discounts or rebates in relation to the Sportingbet Spanish Business;
(h) creating any Encumbrance over any of the assets of the Sportingbet Spanish Business;
(i) dismissing or giving notice to an employee or consultant in the Sportingbet Spanish Business at an annual salary or fee per employee or consultant (on the basis of full time employment or consultancy) in excess of €50,000 per annum, other than for cause or unless not to do so would, in the reasonable opinion of GVC, materially damage the Sportingbet Spanish Business;
(j) materially amending, including increasing any emoluments (including without limitation, pension contributions, bonuses, commissions and benefits in kind and whether contractual or otherwise), the terms of employment of the Sportingbet Spanish Business Employees or any of them, or the introduction of any new bonus or incentive scheme, other than salary increases in the ordinary course of business for the purchase of materials, supplies, goods, services (excluding any employment agreements), equipment or other assets that are generally available for purchase by business entities in the Company’s line of business on substantially similar terms from non-affiliated suppliers or providersand at normal market rates;
(xk) offering to engage any increase new employee or decrease consultant in the size Sportingbet Spanish Business at an annual salary or fee per employee or consultant (on the basis of the Boardfull time employment or consultancy) in excess of €50,000 per annum;
(xil) making any establishment of, statements (whether written or change in the size of, any committee oral) to employee representatives of the BoardSportingbet Spanish Business Employees without giving prior notice of the contents of such statements to the WH Steering Group Representatives;
(xiim) selection assigning or granting any licence in respect of any intellectual property other than in accordance with this deed; and
(n) entering into any contract, agreement or other arrangement with any member of the Mutual Independent Director, so long as each of Echo (together with GVC Group or its Permitted Transferees) and the MCK Members (together with their Permitted Transferees) own 10% or more of the Echo Units or MCK Units, respectively;
(xiii) the appointment, removal or replacement of the Chairman of the Board, who shall initially be Xxxx X. Xxxxxxxxxx, a Nominee Director of the MCK Members;
(xiv) the appointment, removal or replacement of the Executive Vice Chairman of the Board, who shall initially be Xxxxxx Xxxxx, a Nominee Director of Echo;respective Affiliates.
Appears in 1 contract
Samples: Transfer Deed
Reserved Matters. (a) The Notwithstanding any provisions to the contrary in this Agreement, the Company shall not, and shall cause its Subsidiaries not to, be authorized (directly or through any Subsidiary) to take any of the following actions (including any action by the Board or any committee of the Board) (each, a “Reserved Matter”) without the prior written approval of (i) an MCK Member, and (ii) Echo; provided, that no such prior the Board at a meeting or by a written approval shall be required in the case of any action to be taken consent executed by the Company or any of its Subsidiaries pursuant to an express right of any Person set forth requisite Managers in this Agreement or in any other Transaction Documentaccordance with Section 7.04 through Section 7.06:
(i) approve any material change in the line of business of the Company proposal for a new Project, which proposal shall include expected capacity, expected ramp-up schedule and its Subsidiaries (which shall initially be a health care information technology company) or the entry into any new material line of business by the Company budgeted expenses and its Subsidiariesrevenues;
(ii) enter into any change agreement (including any engineering, procurement, and/or construction contract) or commit to: incur expenses to, develop, construct, install, rent, finance, transfer, sell, acquire or operate any Project, in either each case other than in accordance with the name Budget, unless in the reasonable judgment of the Company or its registered address or Operator such expenditure is necessary because of an Emergency (as defined in the Fiscal Yearapplicable Property Management Agreement) with regard to such Project;
(iii) incur any appointmentobligation, removal expend any sum or replacement ofenter into any agreement that would reasonably be expected to cause the aggregate expenditures with respect to any Project for any Fiscal Year to exceed one hundred ten percent (110%) of the aggregate expenditures for that year set forth in the Budget for that Project, or determination or approval of, or change in, compensation, benefits, perquisites and other incentives for, unless in the Chief Executive Officer reasonable judgment of the Operator such expenditure is necessary because of an Emergency (other than as defined in the appointment of Xxxx xx Xxxxxxxxx as the Chief Executive Officer at Closing), including the entry into and any amendment of any employment contract applicable Property Management Agreement) with regard to such officerProject;
(iv) approval enter into, make or approve any Financing, make a material prepayment of, or make a material modification to the terms of, any indebtedness other than as contemplated in the Budget, unless in the reasonable judgment of the Company’s annual operating plan and the Annual Operating and Capital Budget and any amendment Operator such prepayment or modification thereto and any material deviation from the Annual Operating and Capital Budget; provided, that to the extent is necessary because of an MCK Member and Echo cannot agree on the Annual Operating and Capital Budget for a given year, the Annual Operating and Capital Budget for the immediately preceding year of such given year shall be deemed to be the Annual Operating and Capital Budget for such given year; for purposes of the foregoing, it shall not be deemed a “material deviation” from any Annual Operating and Capital Budget previously approved Emergency (as a Reserved Matter hereunder unless expenditures for any given fiscal quarter are greater than one hundred five percent (105%) of the total expenditures, defined in the aggregate, included in such Annual Operating and Capital Budget for such fiscal quarterapplicable Property Management Agreement) with regard to a Project;
(v) entry into any agreement or arrangement that limitsapprove the Budget, or otherwise restricts any amendment thereto;
(vi) make or approve any agreement, expenditure or obligation that has an aggregate value in any material respect, either the Company excess of ten percent (other than any employees 10%) of the Company or its Subsidiaries), the Company’s Subsidiaries, any Echo Shareholder or its Affiliates or MCK or its Affiliates, from engaging in any line of business, selling, licensing or otherwise distributing services or products in any geographic area, competing with any Person (including, aggregate expenditures for the avoidance then-current Fiscal Year as set forth in the applicable Project Budget, unless in the reasonable judgment of doubt, any material agreement that includes (1) grants the Operator such expenditure is necessary because of exclusive rights, exclusive territories, exclusive licenses or “most favored party” rights, (2) any non-competition or non-solicitation restrictions, (3) any rights of first refusal or rights of first offer or (4) any limits on the use of any Intellectual Property Rights an Emergency (as defined in the Contribution applicable Property Management Agreement) orwith regard to such Project;
(vii) approve reserves for the expenses and potential liabilities of the Company (or for any other items) for purposes of determining distributions to the Members pursuant to ARTICLE VI as well as for any required tax withholdings, to the extent not already covered in the Budget;
(viii) adopt policies relating to holding, using, accepting, mining, liquidating, selling and distributing Cryptocurrency, which shall be documented as updates to Exhibit A hereto (or any successor document to it setting froth the Company’s policies with regard to such matters);
(ix) except as provided in Section 7.15 and Section 7.16, enter into, amend, revoke, cancel or terminate a Property Management Agreement, DCRBN Member PPA, DCRBN Member Site Lease, DCRBN Member SFA, any Related-Party Agreement or other material contract pertaining to the Business or take any action that could result in a material default under any such contract;
(x) enter into or amend any agreement with any customer, including any Assigned Customer Agreement;
(xi) issue additional membership interests in the Company, admit new members to the Company or approve any Transfers, except for Permitted Transfers or pursuant to Section 9.04;
(xii) use the “NextEra” brand in any marketing or other activities;
(xiii) dispose in any transaction or series of related transactions of any asset or group of assets that would, individually or in the aggregate, exceed $25,000; provided that in the event of a Member Loan Event of Default following an acceleration of the Member Loan in connection with the enforcement of rights pursuant to Section 3.02(b)(i)(L), the Contributing Member’s appointed Manager may unilaterally approve the Company’s disposition of any assets the Contributing Member deems necessary or advisable to recover the Member Loan Secured Obligations;
(xiv) make, amend or change any tax election or tax allocation with respect to any Echo Shareholder the Company;
(xv) select or its Affiliates replace the independent auditor for the Company;
(xvi) issue or MCK approve a guaranty or its Affiliates, otherwise binds such Person other than type of credit support instrument with respect to an a Financing or any other indebtedness or obligation of any Person (including Subsidiaries of the Company), other than as expressly and specifically contemplated in the Budget;
(xvii) commence, settle, discontinue or terminate any litigation, proceeding, governmental or regulatory action, or other claim (or group of such items), or seek or agree to any injunctive or equitable remedy, or admit to any civil or criminal penalty/liability;
(xviii) waive or elect to allow to lapse or elect not to enforce the Company’s material rights and available remedies under any material agreements or arrangements;
(xix) change the Business of the Company or its Subsidiaries engage in such Person’s capacity as a Memberan activity or business that is not incidental to, within the scope of, or consistent with the purpose set forth in Section 2.05 of this Agreement;
(vixx) prior cause or permit the Company to a Qualified IPObecome Bankrupt, appointmentfile or permit any action or institute any proceeding to declare the Company Bankrupt;
(xxi) merge, removal divide or replacement consolidate the Company, convert the Company to any other form of business organization, amend or waive any provisions of the Auditor Certificate of Formation, this Agreement, or the organizational documents of the Company in a manner that adversely affects a Member’s interest in the Company or form any new Subsidiaries of the Company;
(viixxii) approval of dissolve or wind up the annual financial reportCompany, adoption of any financial and accounting procedures or accounting policies, or any material changes thereto, unless permitted pursuant to policies and procedures previously approved by the Members except as a Reserved Matterprovided for in ARTICLE XII;
(viiixxiii) filing of any litigation, arbitration change or other legal proceedings or actions in relation to a claim (or a series of related claims) of $15,000,000 or more, or any settlement of any litigation, arbitration, other legal proceeding, actions or series of related claims of $15,000,000 or more, except for any legal action involving amend the Members and/or their Affiliates; and provided, that notwithstanding anything to the contrary in this Agreement, in the event of any legal proceeding by or against the Company or any of its Subsidiaries, in which either Echo or any MCK Member or any Affiliate thereof is (or would be) an adverse party, the other party shall have the right to control the initiation, defense, conduct and settlement of such legal proceedings by the Company;
(ix) entry into any agreements or other transactions between a Member or any of its Affiliates, on the one hand, and the Company or any of its Subsidiaries, on the other hand, other than:
(A) the Transaction Documents (and any transactions or agreements contemplated by or ancillary to such Transaction Documents); provided, that any amendment or modification to any Transaction Document shall require approval under clause (xxx) belowAccounting Principles; or
(Bxxiv) agreements contract for financial enhancement services for one or transactions with MCK more Projects to be provided by DCRBN Member or its Subsidiaries and/or portfolio companies of any Echo Shareholder that are entered into on arm’s length terms and in the ordinary course of business for the purchase of materials, supplies, goods, services (excluding any employment agreements), equipment or other assets that are generally available for purchase by business entities in the Company’s line of business on substantially similar terms from non-affiliated suppliers or providers;
(x) any increase or decrease in the size of the Board;
(xi) any establishment of, or change in the size of, any committee of the Board;
(xii) selection of the Mutual Independent Director, so long as each of Echo (together with its Permitted Transferees) and the MCK Members (together with their Permitted Transferees) own 10% or more of the Echo Units or MCK Units, respectively;
(xiii) the appointment, removal or replacement of the Chairman of the Board, who shall initially be Xxxx X. Xxxxxxxxxx, a Nominee Director of the MCK Members;
(xiv) the appointment, removal or replacement of the Executive Vice Chairman of the Board, who shall initially be Xxxxxx Xxxxx, a Nominee Director of Echo;Affiliate.
Appears in 1 contract
Reserved Matters. (a) The Company Sponsor Reserved Matters, in respect of which no action shall not, and shall cause its Subsidiaries not to, take any of the following actions (including any action be permitted to be undertaken by the Board or any committee of the Board) (each, a “Reserved Matter”) Group without the prior written approval affirmative consent in writing of Sponsor 1, shall be those matters set forth in Part A of Schedule 3. In respect of the Existing Shareholders’ Reserved Matters, no action shall be permitted to be undertaken by the Group without the prior affirmative consent in writing of the Existing Shareholders Director. Further, in respect of the Sabre Reserved Matters, no action shall be permitted to be undertaken by the Group without the prior affirmative consent in writing of Sabre. Provided that, Parties shall exercise their rights hereunder in accordance with and so as to give effect to the terms of this Agreement. Further, provided that, notwithstanding anything stated in this Agreement, if Sabre’s shareholding together with its Affiliates falls below 2% (two percent) of the Company’s share capital (calculated on a Fully Diluted Basis), then, its right relating to Sabre Reserved Matters as provided under this Clause 5 shall fall away.
(b) Notwithstanding anything to the contrary provided under this Agreement (i) an MCK Member, no Party shall exercise its rights under Clause 5.2 in a manner that prevents or restricts any transfer of securities by Sabre and /or the Sponsors in accordance with this Agreement; and (ii) Echoif any other provision of this Agreement conflicts with the provisions of this Clause 5.2, the provisions of this Clause 5.2 shall prevail and be given effect to; provided, that no such prior written approval shall be required in the case of any action following subject matters: (a) investment to be taken made in Bioneeds India Private Limited by the Company or any of its Subsidiaries pursuant to an express right of any Person set forth in this Agreement or in any other Transaction Document:
Company; and (ib) any material change in the line of business of joint venture between the Company and its Subsidiaries Somru Bioscience Inc., (which shall initially be a health care information technology companyc) any action pursuant to the initiation or process of an Exit IPO, in spite of forming part of any of the entry into any new material line of business Sponsor Reserved Matters or Existing Shareholders Reserved Matters or Sabre Reserved Matters, as the case may be, have been expressly agreed upon by the Company Parties under this Agreement and its Subsidiaries;
(ii) any change in either the name of the Company or its registered address or the Fiscal Year;
(iii) any appointment, removal or replacement of, or determination or approval of, or change in, compensation, benefits, perquisites and other incentives for, the Chief Executive Officer (other than the appointment of Xxxx xx Xxxxxxxxx as the Chief Executive Officer at Closing), including the entry into and any amendment of any employment contract with such officer;
(iv) no prior approval of the Company’s annual operating plan relevant Party would be required for such aforementioned matters. Provided that, nothing stated herein shall prevent Existing Shareholders from transferring their Shares in accordance with the terms of Clause 8.1 of this Agreement.
(c) It is hereby clarified that Sabre has been provided rights with respect to the Sabre Reserved Matters in order to protect its financial investment and the Annual Operating and Capital Budget and any amendment or modification thereto and any material deviation from the Annual Operating and Capital Budget; provided, that to the extent an MCK Member and Echo cannot agree on the Annual Operating and Capital Budget for a given year, the Annual Operating and Capital Budget for the immediately preceding year of such given year shall be deemed to be the Annual Operating and Capital Budget for such given year; for purposes of the foregoing, it same shall not be deemed a “material deviation” from any Annual Operating and Capital Budget previously approved construed as a Reserved Matter hereunder unless expenditures for any given fiscal quarter are greater than one hundred five percent (105%) of the total expenditures, Sabre being in the aggregate, included in such Annual Operating and Capital Budget for such fiscal quarter;
(v) entry into any agreement or arrangement that limits, or otherwise restricts in any material respect, either the Company (other than any employees of the Company or its Subsidiaries), the Company’s Subsidiaries, any Echo Shareholder or its Affiliates or MCK or its Affiliates, from engaging in any line of business, selling, licensing or otherwise distributing services or products in any geographic area, competing with any Person (including, for the avoidance of doubt, any material agreement that includes (1) grants of exclusive rights, exclusive territories, exclusive licenses or “most favored party” rights, (2) any non-competition or non-solicitation restrictions, (3) any rights of first refusal or rights of first offer or (4) any limits on the use of any Intellectual Property Rights (as defined in the Contribution Agreement) or, with respect to any Echo Shareholder or its Affiliates or MCK or its Affiliates, otherwise binds such Person other than with respect to an obligation of the Company or its Subsidiaries in such Person’s capacity as a Member;
(vi) prior to a Qualified IPO, appointment, removal or replacement of the Auditor Control of the Company;
(vii) approval of the annual financial report, adoption of any financial and accounting procedures or accounting policies, or any material changes thereto, unless permitted pursuant to policies and procedures previously approved by the Members as a Reserved Matter;
(viii) filing of any litigation, arbitration or other legal proceedings or actions in relation to a claim (or a series of related claims) of $15,000,000 or more, or any settlement of any litigation, arbitration, other legal proceeding, actions or series of related claims of $15,000,000 or more, except for any legal action involving the Members and/or their Affiliates; and provided, that notwithstanding anything to the contrary in this Agreement, in the event of any legal proceeding by or against the Company or any of its Subsidiaries, in which either Echo or any MCK Member or any Affiliate thereof is (or would be) an adverse party, the other party shall have the right to control the initiation, defense, conduct and settlement of such legal proceedings by the Company;
(ix) entry into any agreements or other transactions between a Member or any of its Affiliates, on the one hand, and the Company or any of its Subsidiaries, on the other hand, other than:
(A) the Transaction Documents (and any transactions or agreements contemplated by or ancillary to such Transaction Documents); provided, that any amendment or modification to any Transaction Document shall require approval under clause (xxx) below; or
(B) agreements or transactions with MCK or its Subsidiaries and/or portfolio companies of any Echo Shareholder that are entered into on arm’s length terms and in the ordinary course of business for the purchase of materials, supplies, goods, services (excluding any employment agreements), equipment or other assets that are generally available for purchase by business entities in the Company’s line of business on substantially similar terms from non-affiliated suppliers or providers;
(x) any increase or decrease in the size of the Board;
(xi) any establishment of, or change in the size of, any committee of the Board;
(xii) selection of the Mutual Independent Director, so long as each of Echo (together with its Permitted Transferees) and the MCK Members (together with their Permitted Transferees) own 10% or more of the Echo Units or MCK Units, respectively;
(xiii) the appointment, removal or replacement of the Chairman of the Board, who shall initially be Xxxx X. Xxxxxxxxxx, a Nominee Director of the MCK Members;
(xiv) the appointment, removal or replacement of the Executive Vice Chairman of the Board, who shall initially be Xxxxxx Xxxxx, a Nominee Director of Echo;.
Appears in 1 contract
Samples: Shareholders Agreement
Reserved Matters. (a) The 8.1 Each Shareholder agrees that it shall procure that the Company shall not, and shall cause its Subsidiaries not to, do or omit to take any actions on any of the following matters without the affirmative vote of more than 74% (seventy four percent) of the Shareholders:
(a) Alteration of the Company's name;
(b) Alteration of the Constitutional Documents;
(c) Change the Company's Business including whether by opening or closing any business operation, merging or acquiring another entity, reorganising or winding up;
(d) Approval, entering into, revoking or varying any of the Project Agreements;
(e) Determination or initiation of actions (including any action by to terminate the Board Development Agreement for a Force Majeure or any committee other event;
(f) Alteration or modification of the BoardApproved Business Plan or Budget. The Parties agree that upon any alteration or modification of the Approved Business Plan in accordance with this clause and with the Development Agreement, the amended or modified Approved Business Plan shall replace the present Schedule 5 as the Agreed Form of the Approved Business Plan;
(g) Application for the appointment of a receiver or an administrator or similar officer over the Company's assets;
(each, a “Reserved Matter”h) without the prior written approval of (i) an MCK Member, and (ii) Echo; provided, that no such prior written approval shall be required in the case Commencement of any action to be taken by wind up or initiate dissolution of the Company or any of its Subsidiaries pursuant including passing a resolution to an express right of any Person set forth in this Agreement or in any other Transaction Document:liquidate the Company;
(i) Consolidation, subdivision or alteration of any material change in the line of business rights attached to any Share capital of the Company and its Subsidiaries (which shall initially be a health care information technology company) or Company, purchase of the entry into Company’s own Shares, reduction of the Company’s share capital, capitalisation of any new material line amount standing to the credit of business by the Company and its Subsidiaries;
(ii) any change in either the name reserve of the Company or its registered address or the Fiscal Year;
(iii) any appointment, removal or replacement of, or determination or approval of, or change in, compensation, benefits, perquisites and other incentives for, the Chief Executive Officer (other than the appointment of Xxxx xx Xxxxxxxxx as the Chief Executive Officer at Closing), including the entry into and any amendment reorganisation of any employment contract with such officer;
(iv) approval of the Company’s annual operating plan and the Annual Operating and Capital Budget and any amendment or modification thereto and any material deviation from the Annual Operating and Capital Budget; provided, that to the extent an MCK Member and Echo cannot agree on the Annual Operating and Capital Budget for a given year, the Annual Operating and Capital Budget for the immediately preceding year of such given year shall be deemed to be the Annual Operating and Capital Budget for such given year; for purposes of the foregoing, it shall not be deemed a “material deviation” from any Annual Operating and Capital Budget previously approved as a Reserved Matter hereunder unless expenditures for any given fiscal quarter are greater than one hundred five percent (105%) of the total expenditures, in the aggregate, included in such Annual Operating and Capital Budget for such fiscal quarter;
(v) entry into any agreement or arrangement that limits, or otherwise restricts in any material respect, either the Company (other than any employees of the Company or its Subsidiaries), the Company’s Subsidiaries, any Echo Shareholder or its Affiliates or MCK or its Affiliates, from engaging in any line of business, selling, licensing or otherwise distributing services or products in any geographic area, competing with any Person (including, for the avoidance of doubt, any material agreement that includes (1) grants of exclusive rights, exclusive territories, exclusive licenses or “most favored party” rights, (2) any non-competition or non-solicitation restrictions, (3) any rights of first refusal or rights of first offer or (4) any limits on the use of any Intellectual Property Rights (as defined in the Contribution Agreement) or, with respect to any Echo Shareholder or its Affiliates or MCK or its Affiliates, otherwise binds such Person other than with respect to an obligation of the Company or its Subsidiaries in such Person’s capacity as a Member;
(vi) prior to a Qualified IPO, appointment, removal or replacement of the Auditor share capital of the Company;
(viij) approval Approval, entering into, revoking or materially varying any contract where such contract would involve a total outlay by any Party over the term of the contract in excess of Rs. 20 Crore (Rupees Twenty Crore Only);
(k) Taking any action contrary to any Budget or Approved Business Plan;
(l) Approval or knowingly permitting any cost overrun in respect of the annual financial report, adoption Budget (being any cost overrun in excess of any financial and accounting procedures or accounting policies, or any material changes thereto, unless permitted pursuant to policies and procedures previously two per cent. (2%) of the relevant approved by the Members as a Reserved Matterannual Budget);
(viiim) filing Incorporation or acquisition of any litigation, arbitration subsidiary or subscription for or acquisition of any shares or other legal proceedings securities or actions interest in relation to a claim any company, trust or business;
(or a series of related claimsn) of $15,000,000 or more, or any settlement Giving of any litigation, arbitration, guarantee or indemnity or securing the liabilities or obligations of any Person or provide credit other legal proceeding, actions or series than which is incurred in the ordinary course of related claims business and which has a value of $15,000,000 or more, except for any legal action involving the Members and/or their Affiliates; and provided, that notwithstanding anything more than Rs. 10 crore (Rupees Ten Crore Only);
(o) Save to the contrary extent that the activity would otherwise have been caught by any of the other provisions in this AgreementClause, in the event of but is expressly carved out or is below a financial threshold, enter into any legal proceeding partnership, joint venture or profit sharing arrangement with any other person;
(p) Require cash calls or financial contribution from any Shareholder;
(q) Approval or incurring any expenditure with any Shareholder or its Affiliate which would involve a total outlay by or against the Company with any Shareholder or any of its Subsidiaries, Affiliates in which either Echo respect of that expenditure in excess of Rs. 10 Crore (Rupees Ten Crore Only);
(r) Changing any of the accounting policies of the Company in any material respect;
(s) Revoking or materially varying any MCK Member document in the Agreed Form;
(t) Creating or modifying the delegated authority of the Managing Director;
(u) Appointment or change the Auditors;
(v) Making any Affiliate thereof is material change or material extension to the Approved Business Plan;
(or would bew) an adverse party, Approving the other party shall have statutory accounts of the right to control the initiation, defense, conduct and settlement Company;
(x) Approving issue of such legal proceedings press releases by the Company;
(ixy) entry into Approving the writing off of amounts/assets of the Company being in excess of Rs. 10 Crore (Rupees Ten Crore Only); and
(z) Approving the dividend policy of the Company.
8.2 If any agreements Shareholder (in each case, an “Interested Shareholder”) or its Affiliates is in material breach of any obligation or obligations which it owes to the Company under any agreement with the Company (other transactions between a Member than the Constitutional Documents) and such breach has not been cured within forty (40) Business Days of the Interested Shareholder being given written notice of such breach by or on behalf of the Company, then the Interested Shareholder agrees that:
(a) the prosecution of any right of action which the Company may have in respect thereof shall be exercisable by those Directors nominated by any Shareholder (or Shareholders) who is not or are not an Interested Shareholder (Other Shareholder(s)) who shall have full authority on behalf of the Company (but without any limitation of their duties to the Company) to negotiate, litigate and settle any claim arising thereout and the Interested Shareholder shall take all steps within its power to give effect to the provisions of this sub clause 8.2; and
(b) in relation to any such breach, neither it nor any of its Affiliatesadvisers nor any Director appointed by it shall have any right to see or take copies of Company papers, on the one handdocuments, and the Company instructions or any of its Subsidiaries, on the other hand, other than:
(A) the Transaction Documents (and any transactions or agreements contemplated by or ancillary provisions in relation to such Transaction Documents); provided, that any amendment breach which in litigation (whether commenced or modification to any Transaction Document shall require approval under clause (xxxnot) below; or
(B) agreements or transactions with MCK or its Subsidiaries and/or portfolio companies of any Echo Shareholder that are entered into on arm’s length terms and in the ordinary course of business for the purchase of materials, supplies, goods, services (excluding any employment agreements), equipment or other assets that are generally available for purchase by business entities in the Company’s line of business on substantially similar terms from non-affiliated suppliers or providers;
(x) any increase or decrease in the size of the Board;
(xi) any establishment of, or change in the size of, any committee of the Board;
(xii) selection of the Mutual Independent Director, so long as each of Echo (together with its Permitted Transferees) and the MCK Members (together with their Permitted Transferees) own 10% or more of the Echo Units or MCK Units, respectively;
(xiii) the appointment, removal or replacement of the Chairman of the Board, who shall initially would be Xxxx X. Xxxxxxxxxx, a Nominee Director of the MCK Members;
(xiv) the appointment, removal or replacement of the Executive Vice Chairman of the Board, who shall initially be Xxxxxx Xxxxx, a Nominee Director of Echo;privileged.
Appears in 1 contract
Samples: Shareholders’ Agreement
Reserved Matters. (a) The Company shall not, and shall cause its Subsidiaries not to, take any of the following actions (including any action by the Board or any committee of the Board) (each, a “Reserved Matter”) without the prior written approval of (i) an MCK Member, and (ii) Echo; provided, that no such prior written approval shall be required in the case of any action to be taken by the Company or any of its Subsidiaries pursuant to an express right of any Person set forth in this Agreement or in any other Transaction Document:
(i) any material change in the line of business of the Company and its Subsidiaries (which shall initially be a health care information technology company) or the entry into any new material line of business by the Company and its Subsidiaries;
(ii) any change in either the name of the Company or its registered address or the Fiscal Year;
(iii) any appointment, removal or replacement of, or determination or approval of, or change in, compensation, benefits, perquisites and other incentives for, the Chief Executive Officer (other than the appointment of Xxxx xx Xxxxxxxxx as the Chief Executive Officer at Closing), including the entry into and any amendment of any employment contract with such officer;
(iv) approval of the Company’s annual operating plan and the Annual Operating and Capital Budget and any amendment or modification thereto and any material deviation from the Annual Operating and Capital Budget; provided, that to the extent an MCK Member and Echo cannot agree on the Annual Operating and Capital Budget for a given year, the Annual Operating and Capital Budget for the immediately preceding year of such given year shall be deemed to be the Annual Operating and Capital Budget for such given year; for purposes of the foregoing, it shall not be deemed a “material deviation” from any Annual Operating and Capital Budget previously approved as a Reserved Matter hereunder unless expenditures for any given fiscal quarter are greater than one hundred five percent (105%) of the total expenditures, in the aggregate, included in such Annual Operating and Capital Budget for such fiscal quarter;
(v) entry into any agreement or arrangement that limits, or otherwise restricts in any material respect, either the Company (other than any employees of the Company or its Subsidiaries), the Company’s Subsidiaries, any Echo Shareholder or its Affiliates or MCK or its Affiliates, from engaging in any line of business, selling, licensing or otherwise distributing services or products in any geographic area, competing with any Person (including, for the avoidance of doubt, any material agreement that includes (1) grants of exclusive rights, exclusive territories, exclusive licenses or “most favored party” rights, (2) any non-competition or non-solicitation restrictions, (3) any rights of first refusal or rights of first offer or (4) any limits on the use of any Intellectual Property Rights (as defined in the Contribution Agreement) or, with respect to any Echo Shareholder or its Affiliates or MCK or its Affiliates, otherwise binds such Person other than with respect to an obligation of the Company or its Subsidiaries in such Person’s capacity as a Member;
(vi) prior to a Qualified IPO, appointment, removal or replacement of the Auditor of the Company;
(vii) approval of the annual financial report, adoption of any financial and accounting procedures or accounting policies, or any material changes thereto, unless permitted pursuant to policies and procedures previously approved by the Members as a Reserved Matter;
(viii) filing of any litigation, arbitration or other legal proceedings or actions in relation to a claim (or a series of related claims) of $15,000,000 or more, or any settlement of any litigation, arbitration, other legal proceeding, actions or series of related claims of $15,000,000 or more, except for any legal action involving the Members and/or their Affiliates; and provided, that notwithstanding anything to the contrary in this Agreement, in the event of any legal proceeding by or against the Company or any of its Subsidiaries, in which either Echo or any MCK Member or any Affiliate thereof is (or would be) an adverse party, the other party shall have the right to control the initiation, defense, conduct and settlement of such legal proceedings by the Company;
(ix) entry into any agreements or other transactions between a Member or any of its Affiliates, on the one hand, and the Company or any of its Subsidiaries, on the other hand, other than:
(A) the Transaction Documents (and any transactions or agreements contemplated by or ancillary to such Transaction Documents); provided, that any amendment or modification to any Transaction Document shall require approval under clause (xxx) below; or
(B) agreements or transactions with MCK or its Subsidiaries and/or portfolio companies of any Echo Shareholder that are entered into on arm’s length terms and in the ordinary course of business for the purchase of materials, supplies, goods, services (excluding any employment agreements), equipment or other assets that are generally available for purchase by business entities in the Company’s line of business on substantially similar terms from non-affiliated suppliers or providers;
(x) any increase or decrease in the size of the Board;
(xi) any establishment of, or change in the size of, any committee of the Board;
(xii) selection of the Mutual Independent Director, so long as each of Echo (together with its Permitted Transferees) and the MCK Members (together with their Permitted Transferees) own 10% or more of the Echo Units or MCK Units, respectively;
(xiii) the appointment, removal or replacement of the Chairman of the Board, who shall initially be Xxxx X. Xxxxxxxxxx, a Nominee Director of the MCK Members;
(xiv) the appointment, removal or replacement of the Executive Vice Chairman of the Board, who shall initially be Xxxxxx Xxxxx, a Nominee Director of Echo;
Appears in 1 contract
Samples: Agreement of Contribution and Sale (Change Healthcare Holdings, Inc.)
