Restricted Actions. Without the prior written consent of the holders of (i) two-thirds (2/3) (or such higher percentage of holders as may then be required by law) of the then outstanding shares of Preferred Stock and (ii) two-thirds (2/3) of the then outstanding aggregate principal amount of the Notes, and for so long as any of the Preferred Stock or Notes remain outstanding, the Company shall not, and shall not permit any Subsidiary to: (a) become subject to any agreement or instrument which by its terms would (under any circumstances) restrict or impair the Company's right to comply with or fulfill its obligations under the terms of this Agreement or any of the Related Documents; (b) use the proceeds from the sale of the Securities other than for repayment of indebtedness, working capital and other general corporate purposes; provided, that the Company will in no event use the proceeds to invest in any securities other than short-term, interest-bearing government securities; (c) enter into any transaction or series of transactions with any stockholder, director, officer, employee or Affiliate, including, without limitation, the purchase, sale, lease orexchange of any property, the rendering of any service or any investment, loan or advance, unless such transaction (i) is consummated by the Company in good faith on an arm's-length basis, (ii) is less than $100,000 per occurrence or $250,000 in the aggregate, and (iii) is approved by the Board of Directors, including by a majority of the Company's disinterested directors; (d) expand the Board of Directors to greater than eight (8) members; (e) except with respect to the sale of the synthetic fuel facilities of the Company set forth on Schedule 8.1(e), sell all or any material portion of its assets, determined on a consolidated basis; (f) declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests or other Capital Stock now or hereafter outstanding, return any capital to its members as such, or make any other payment or distribution of assets to its stockholders as such, or permit any of its Subsidiaries to do any of the foregoing or to purchase or otherwise acquire for value any Capital Stock of the Company or its Subsidiaries, or make any payment or prepayment of principal of, premium, if any, or interest on, or redeem, decrease or otherwise retire, any Indebtedness before its scheduled due date; (g) materially alter or change the business of the Company; (h) issue any stock option at less than the fair market value at the time of grant; (i) create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, other than: (i) Indebtedness created hereunder and under the Notes; (ii) Indebtedness existing on the date hereof, as set forth in Schedule 8.1(i) hereto, and any extension of maturity, refinancing or modification of the terms thereof; provided, however, that such extension, refinancing or modification (A) is pursuant to terms that are not materially less favorable to the Purchaser than the terms of the Indebtedness being extended, refinanced or modified and (B) after giving effect to the extension, refinancing or modification, such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, refinancing or modification; (iii) Indebtedness under Capitalized Leases permitted by subparagraph (p) of this Section 8.1; and (iv) additional Indebtedness at any one time outstanding not to exceed $4,000,000. (j) enter into any merger, combination, consolidation, reorganization, recapitalization, liquidation or other similar transaction of the Company or any agreement with respect to any of the foregoing, other than a transaction for the purpose of changing the Company's domicile; (k) amend the Certificate of Incorporation or Bylaws, or alter the rights, preferences and privileges of the Securities, the Conversion Shares or the Warrant Shares; (l) create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its properties, rights or other assets, whether now owned or hereafter acquired, or assign or otherwise transfer, or permit any of its Subsidiaries to assign or otherwise transfer, any right to receive income, other than the following ("Permitted Liens"): (i) Liens existing on the date hereof, as set forth in Schedule 8.1(l) hereto, but not the extension of coverage thereof to other property or the extension of maturity, refinancing or other modification of the terms thereof or of the Indebtedness secured thereby; (ii) Liens created by operation of law (other than Environmental Liens), such as materialmen's liens, mechanics' liens and other similar Liens arising in the ordinary course of business; (iii) deposits, pledges or Liens (other than Liens arising under ERISA or the Code) securing (A) obligations incurred in respect of workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, (B) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business and secure obligations which are not past due; (iv) restrictions or covenants on the use of real property and minor irregularities in the title thereto which do not (A) secure obligations for the payment of money or (B) materially adversely impair the value or marketability of such property or its use by the Company or any of its Subsidiaries in the normal conduct of such Person's business; provided, that in all such cases the Company or relevant Subsidiary complies in all material respects with all of its obligations under such title restrictions or covenants; (v) Liens securing Capitalized Leases permitted by subparagraph (p) of this Section 8.1; and (vi) non-consensual Liens, but only if the Company has posted a bond or other financial assurance sufficient to satisfy the Indebtedness secured by such Lien. (m) assume, guarantee, endorse or otherwise become directly or contingently liable (including, without limitation, liable by way of agreement, contingent or otherwise, to purchase, to provide funds for payment, to supply funds to or otherwise invest in the debtor or otherwise to assure the creditor against loss), in connection with any Indebtedness of any other Person (other than, in the case of the Company, guaranties of Indebtedness of any Subsidiaries), other than (i) guaranties by endorsement of negotiable instruments for deposit or collection in the ordinary course of business; and (ii) guaranties existing on the date hereof, as set forth in Schedule 8.1(m) hereto, but not any renewal or other modification thereof; (n) make, or permit any of its Subsidiaries to make, any loan or advance to any Person or purchase or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any capital stock, properties, assets or obligations of, or any interest in, any Person, other than (i) raw material purchased in the ordinary course of business and (ii) trade credit extended in the ordinary course of business; (o) create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any obligations as lessee (i) for the payment of rent for any real or personal property in connection with any sale and leaseback transaction, or (ii) for the payment of rent for any real or personal property under Capitalized Leases which would cause the aggregate amount of all obligations under Capitalized Leases entered into after the Closing Date owing by the Company in any fiscal year to exceed the amounts set forth in subsection (p) of this Section 8.1; (p) except as set forth on Schedule 8.1(p), make or be committed to make, or permit any of its Subsidiaries to make or be committed to make, any Capital Expenditure (by purchase or capitalized lease) other than Capital Expenditures (including obligations under Capitalized Leases) which would not cause the aggregate amount of all such Capital Expenditures to exceed the greater of (i) $300,000 and (ii) 15% of the greater of (A) Consolidated EBITDA (as defined in the Notes) for the prior fiscal year of the Company and (B) Consolidated EBITDA for the current fiscal year of the Company, in any fiscal year of the Company; (q) allow the use, handling, generation, storage, treatment, release or disposal of Hazardous Materials at any property owned or leased by the Company or any of its Subsidiaries except in compliance with Environmental Laws and so long as such use, handling, generation, storage, treatment, release or disposal of Hazardous Materials does not result in a violation of Environmental Law which would result in a Material Adverse Change; (A) engage or permit any ERISA Affiliate to engage in any transaction described in Section 4069 of ERISA; (B) engage, or permit any ERISA Affiliate to engage, in any prohibited transaction described in Section 406 of ERISA or 4975 of the Code for which a statutory or class exemption is not available or a private exemption has not previously been obtained from the Department of Labor; (C) adopt or permit any ERISA Affiliate to adopt any employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA or applicable law; (D) fail to make any contribution or payment to any Multiemployer Plan which the Company or any Subsidiary or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereof; (E) fail, or permit any ERISA Affiliate to fail, to pay any required installment or any other payment required under Section 412 of the Code on or before the due date for such installment or other payment; and (s) grant any rights of registration under the Securities Act relating to any of its shares of capital stock or other securities to any Person other than pursuant to this Agreement, unless (i) the rights so granted to another Person do not limit, restrict or impair the rights of the Purchaser under this Agreement and under the Related Documents and (ii) such rights so granted to another Person do not grant priority in registration rights to such other Person over rights granted to Purchaser under this Agreement and under the Related Documents.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Oz Management LLC), Securities Purchase Agreement (Covol Technologies Inc)
Restricted Actions. Without None of the General Atlantic Stockholders:
(a) shall acquire, announce an intention to acquire, offer to acquire, or enter into any agreement, arrangement or undertaking of any kind the purpose of which is to acquire, by purchase, exchange or otherwise, (a) any shares of Capital Stock or Common Stock Equivalents of the Company or (b) any shares of Capital Stock or Common Stock Equivalents of the Exchange, whether by tender offer, market purchase, privately negotiated purchase, merger or otherwise, if after such acquisition, the General Atlantic Stockholders, together with any investment entity that is an Affiliate of General Atlantic, would own voting securities of the Company or the Exchange representing greater than 20% of the voting power of the Company or the Exchange, as the case may be (such percentage, the “Standstill Ceiling”); provided, however, that, solely at the time of the Stock Election, if any, the increase in voting power resulting from such Stock Election shall not result in a breach of the Standstill Ceiling;
(b) shall at any time prior to the Standstill Expiration Date, propose (or publicly announce or otherwise disclose an intention to propose), any tender or exchange offer, merger, consolidation, share exchange, business combination, restructuring, recapitalization or similar transaction involving the Company that would constitute a Sale Transaction;
(c) shall at any time prior to the Standstill Expiration Date, propose or otherwise seek or solicit stockholders of the Company to nominate or attempt to nominate any Person for election as a Director (except in accordance with Section 7 and except as set forth in Article Fourth, Section (b) of the Certificate of Incorporation) or seek the removal or resignation of any Director (except in accordance with Section 7 and except as set forth in Article Fourth, Section (b) of the Certificate of Incorporation);
(d) shall at any time prior to the Standstill Expiration Date, otherwise seek to control the Board of Directors or the management of the Company or the Exchange (each of subsections (a) through (d), a “Restricted Action” and together, the “Restricted Actions”); or
(e) shall at any time prior to the Standstill Expiration Date (other than with respect to subsection (a) which applies before and after the Standstill Expiration Date), form, join or in any way participate in a “group” (within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise act in concert with any Person in connection with any of the Restricted Actions; provided, however, that, notwithstanding the foregoing, any General Atlantic Stockholder may propose to take or take any of the actions set forth in subclauses (b), (c), (d) or (e) above at any time with the prior written consent of the holders Board of Directors; provided, further, that, notwithstanding the foregoing (iv) two-thirds the General Atlantic Director may, in his or her sole discretion, take any action or omit to take any action in his or her capacity as a Director, (2/3w) (or such higher percentage of holders as may then be required by law) each of the then outstanding General Atlantic Stockholders may vote its shares of Preferred Capital Stock and (ii) two-thirds (2/3) of the then outstanding aggregate principal amount Company at any Stockholders Meeting or in a Written Consent in any manner it, in its sole discretion, determines, (x) each of the NotesGeneral Atlantic Stockholders may consent to or approve, and for so long as or withhold consent to or approval of, any of the Preferred Stock or Notes remain outstandingMajor Actions, the Company shall not, and shall not permit (y) any Subsidiary to:
(a) become subject to any agreement or instrument which by its terms would (under any circumstances) restrict or impair the Company's right to comply with or fulfill its obligations under the terms representative of this Agreement General Atlantic or any of the Related Documents;
(b) use the proceeds from the sale of the Securities other than for repayment of indebtedness, working capital and other general corporate purposes; provided, that the Company will in no event use the proceeds to invest in any securities other than short-term, interest-bearing government securities;
(c) enter into any transaction or series of transactions with any stockholder, director, officer, employee or Affiliate, including, without limitation, the purchase, sale, lease orexchange of any property, the rendering of any service or any investment, loan or advance, unless such transaction (i) is consummated by the Company in good faith on an arm's-length basis, (ii) is less than $100,000 per occurrence or $250,000 in the aggregate, and (iii) is approved by the Board of Directors, including by a majority of the Company's disinterested directors;
(d) expand the Board of Directors to greater than eight (8) members;
(e) except with respect to the sale of the synthetic fuel facilities of the Company set forth on Schedule 8.1(e), sell all or any material portion of its assets, determined on a consolidated basis;
(f) declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests or other Capital Stock now or hereafter outstanding, return any capital to its members Affiliates who serves as such, or make a director of any other payment portfolio company of General Atlantic or distribution its Affiliates may take any action or omit to take any action, in his or her sole discretion, in his or her capacity as a director of assets to its stockholders such portfolio company and (z) the General Atlantic Stockholders may collectively act as sucha “group” for the purpose of acquiring, holding, voting or permit disposing of any shares of its Subsidiaries to do any of the foregoing or to purchase or otherwise acquire for value any Capital Stock of the Company or its Subsidiaries, or make any payment or prepayment of principal of, premium, if any, or interest on, or redeem, decrease or otherwise retire, any Indebtedness before its scheduled due date;
(g) materially alter or change the business of the Company;
(h) issue any stock option at less than the fair market value at the time of grant;
(i) create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, other than:
(i) Indebtedness created hereunder and under the Notes;
(ii) Indebtedness existing on the date hereof, as set forth in Schedule 8.1(i) hereto, and any extension of maturity, refinancing or modification of the terms thereof; provided, however, that such extension, refinancing or modification (A) is pursuant to terms that are not materially less favorable to the Purchaser than the terms of the Indebtedness being extended, refinanced or modified and (B) after giving effect to the extension, refinancing or modification, such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, refinancing or modification;
(iii) Indebtedness under Capitalized Leases permitted by subparagraph (p) of this Section 8.1; and
(iv) additional Indebtedness at any one time outstanding not to exceed $4,000,000.
(j) enter into any merger, combination, consolidation, reorganization, recapitalization, liquidation or other similar transaction of the Company or any agreement with respect to any of the foregoing, other than a transaction for the purpose of changing the Company's domicile;
(k) amend the Certificate of Incorporation or Bylaws, or alter the rights, preferences and privileges of the Securities, the Conversion Shares or the Warrant Shares;
(l) create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its properties, rights or other assets, whether now owned or hereafter acquired, or assign or otherwise transfer, or permit any of its Subsidiaries to assign or otherwise transfer, any right to receive income, other than the following ("Permitted Liens"):
(i) Liens existing on the date hereof, as set forth in Schedule 8.1(l) hereto, but not the extension of coverage thereof to other property or the extension of maturity, refinancing or other modification of the terms thereof or of the Indebtedness secured thereby;
(ii) Liens created by operation of law (other than Environmental Liens), such as materialmen's liens, mechanics' liens and other similar Liens arising in the ordinary course of business;
(iii) deposits, pledges or Liens (other than Liens arising under ERISA or the Code) securing (A) obligations incurred in respect of workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, (B) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business and secure obligations which are not past due;
(iv) restrictions or covenants on the use of real property and minor irregularities in the title thereto which do not (A) secure obligations for the payment of money or (B) materially adversely impair the value or marketability of such property or its use by the Company or any of its Subsidiaries in the normal conduct of such Person's business; provided, that in all such cases the Company or relevant Subsidiary complies in all material respects with all of its obligations under such title restrictions or covenants;
(v) Liens securing Capitalized Leases permitted by subparagraph (p) of this Section 8.1; and
(vi) non-consensual Liens, but only if the Company has posted a bond or other financial assurance sufficient to satisfy the Indebtedness secured by such Lien.
(m) assume, guarantee, endorse or otherwise become directly or contingently liable (including, without limitation, liable by way of agreement, contingent or otherwise, to purchase, to provide funds for payment, to supply funds to or otherwise invest in the debtor or otherwise to assure the creditor against loss), in connection with any Indebtedness of any other Person (other than, in the case Common Stock Equivalents of the Company, guaranties of Indebtedness of but in such event may not undertake any Subsidiaries), other than
(i) guaranties by endorsement of negotiable instruments for deposit or collection in the ordinary course of business; and
(ii) guaranties existing on the date hereof, as set forth in Schedule 8.1(m) hereto, but not any renewal or other modification thereof;
(n) make, or permit any of its Subsidiaries to make, any loan or advance to any Person or purchase or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any capital stock, properties, assets or obligations of, or any interest in, any Person, other than (i) raw material purchased in the ordinary course of business and (ii) trade credit extended in the ordinary course of business;
(o) create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any obligations as lessee (i) for the payment of rent for any real or personal property in connection with any sale and leaseback transaction, or (ii) for the payment of rent for any real or personal property under Capitalized Leases which would cause the aggregate amount of all obligations under Capitalized Leases entered into after the Closing Date owing by the Company in any fiscal year to exceed the amounts set forth in subsection (p) of this Section 8.1;
(p) except as set forth on Schedule 8.1(p), make or be committed to make, or permit any of its Subsidiaries to make or be committed to make, any Capital Expenditure (by purchase or capitalized lease) other than Capital Expenditures (including obligations under Capitalized Leases) which would not cause the aggregate amount of all such Capital Expenditures to exceed the greater of (i) $300,000 and (ii) 15% of the greater of (A) Consolidated EBITDA (as defined in the Notes) for the prior fiscal year of the Company and (B) Consolidated EBITDA for the current fiscal year of the Company, in any fiscal year of the Company;
(q) allow the use, handling, generation, storage, treatment, release or disposal of Hazardous Materials at any property owned or leased by the Company or any of its Subsidiaries except in compliance with Environmental Laws and so long as such use, handling, generation, storage, treatment, release or disposal of Hazardous Materials does not result in a violation of Environmental Law which would result in a Material Adverse Change;
(A) engage or permit any ERISA Affiliate to engage in any transaction described in Section 4069 of ERISA; (B) engage, or permit any ERISA Affiliate to engage, in any prohibited transaction described in Section 406 of ERISA or 4975 of the Code for which a statutory or class exemption is not available or a private exemption has not previously been obtained from the Department of Labor; (C) adopt or permit any ERISA Affiliate to adopt any employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA or applicable law; (D) fail to make any contribution or payment to any Multiemployer Plan which the Company or any Subsidiary or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereof; (E) fail, or permit any ERISA Affiliate to fail, to pay any required installment or any other payment required under Section 412 of the Code on or before the due date for such installment or other payment; and
(s) grant any rights of registration under the Securities Act relating to any of its shares of capital stock or other securities to any Person other than pursuant to this Agreement, unless (i) the rights so granted to another Person do not limit, restrict or impair the rights of the Purchaser under this Agreement and under the Related Documents and (ii) such rights so granted to another Person do not grant priority in registration rights to such other Person over rights granted to Purchaser under this Agreement and under the Related DocumentsRestricted Action.
Appears in 1 contract
Restricted Actions. Without The Company shall not, and shall cause its Subsidiaries not to, without the prior written consent of the holders of (i) two-thirds (2/3) (or such higher percentage of holders as may then be required by law) of the then outstanding shares of Preferred Stock and (ii) two-thirds (2/3) of the then outstanding aggregate principal amount of the Notes, and for so long as any of the Preferred Stock or Notes remain outstanding, the Company shall not, and shall not permit any Subsidiary toHolder:
(a) become subject to Amalgamate, merge, consolidate or enter into a business combination, including any agreement joint venture arrangements, with another Person or instrument which acquire (including by its terms would (under any circumstances) restrict merger, consolidation or impair the Company's right to comply with acquisition of stock or fulfill its obligations under the terms of this Agreement assets or any other business combination) any Person or any division thereof or any material amount of assets (other than in the Related Documentsordinary course of business);
(b) use Other than in the proceeds from the sale ordinary course of the Securities other than for repayment of indebtednessbusiness and consistent with past practice, working capital and other general corporate purposes; providedenter into, that the Company will in no event use the proceeds to invest in any securities other than short-term, interest-bearing government securities;
(c) enter into renew or extend any transaction or series of transactions with any stockholder, director, officer, employee or Affiliate, (including, without limitation, the purchase, sale, lease orexchange or exchange of any propertyproperty or assets, or the rendering of any service service) with any Affiliate, other xxxx Xxxxxxx Xxxxx Global Emerging Market Partners, LLC or any investmentits Affiliates, loan or advanceexcept upon fair and reasonable terms no less favorable to the Company than could be obtained, unless at the time of such transaction (i) or, if such transaction is consummated by pursuant to a written agreement, at the Company in good faith on an arm's-length basis, (ii) is less than $100,000 per occurrence or $250,000 in the aggregate, and (iii) is approved by the Board of Directors, including by a majority time of the Company's disinterested directorsexecution of the agreement providing therefor in a comparable arm’s length transaction with a Person that is not an Affiliate;
(dc) expand the Board Sell or otherwise dispose (including pursuant to any recapitalization or spin-off) of Directors to greater than eight (8) members;
(e) except with respect to the sale of the synthetic fuel facilities any Subsidiary or material assets of the Company set forth on Schedule 8.1(e), sell all or any material portion of its assets, determined on a consolidated basis;
(f) declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests or other Capital Stock now or hereafter outstanding, return any capital to its members as such, or make any other payment or distribution of assets to its stockholders as such, or permit any of its Subsidiaries to do any that would result in the disposition of more than 5% of the foregoing or to purchase or otherwise acquire for book value any Capital Stock of the Company or its Subsidiaries, or make any payment or prepayment of principal of, premium, if any, or interest on, or redeem, decrease or otherwise retire, any Indebtedness before its scheduled due date;
(g) materially alter or change the business of the Company;
(hd) issue Declare, set aside, make or pay any stock option at less than the fair market value at the time of grant;
(i) createdividend or make any distribution, incur payable in cash, stock, property or suffer to existotherwise, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, other than:
(i) Indebtedness created hereunder and under the Notes;
(ii) Indebtedness existing on the date hereof, as set forth in Schedule 8.1(i) hereto, and any extension of maturity, refinancing or modification of the terms thereof; provided, however, that such extension, refinancing or modification (A) is pursuant to terms that are not materially less favorable to the Purchaser than the terms of the Indebtedness being extended, refinanced or modified and (B) after giving effect to the extension, refinancing or modification, such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, refinancing or modification;
(iii) Indebtedness under Capitalized Leases permitted by subparagraph (p) of this Section 8.1; and
(iv) additional Indebtedness at any one time outstanding not to exceed $4,000,000.
(j) enter into any merger, combination, consolidation, reorganization, recapitalization, liquidation or other similar transaction of the Company or any agreement with respect to any of the foregoing, other than a transaction for the purpose of changing the Company's domicile;
(k) amend the Certificate of Incorporation or Bylaws, or alter the rights, preferences and privileges of the Securities, the Conversion Shares or the Warrant Shares;
(l) create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its propertiescapital stock; purchase, rights or other assetsredeem, whether now owned or hereafter acquired, or assign retire or otherwise transfer, or permit acquire value for any shares of its Subsidiaries to assign or otherwise transfer, any right to receive income, other than the following ("Permitted Liens"):
(i) Liens existing on the date hereof, as set forth in Schedule 8.1(l) hereto, but not the extension capital stock of coverage thereof to other property or the extension of maturity, refinancing or other modification of the terms thereof or of the Indebtedness secured thereby;
(ii) Liens created by operation of law (other than Environmental Liens), such as materialmen's liens, mechanics' liens and other similar Liens arising in the ordinary course of business;
(iii) deposits, pledges or Liens (other than Liens arising under ERISA or the Code) securing (A) obligations incurred in respect of workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, (B) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business and secure obligations which are not past due;
(iv) restrictions or covenants on the use of real property and minor irregularities in the title thereto which do not (A) secure obligations for the payment of money or (B) materially adversely impair the value or marketability of such property or its use by the Company or any of its Subsidiaries in the normal conduct Subsidiaries; make any voluntary or optional principal payment, or voluntary or optional redemption, repurchase, defeasance or other acquisition or retirement for value, of such Person's business; provided, that in all such cases Indebtedness of the Company that is pari passu or relevant subordinate in right of payment to this Note; or make any Investment in any Person other than PSi Technologies Laguna, Inc. or any wholly-owned Subsidiary complies in all material respects with all of its obligations under such title restrictions or covenantsthe Company;
(ve) Liens securing Capitalized Leases permitted by subparagraph Create, incur, assume or otherwise suffer to exist any Indebtedness other than (pi) Indebtedness outstanding as of this Section 8.1; andthe date hereof and (ii) Indebtedness under the Senior Credit Facility;
(vif) non-consensual LiensCreate, but only incur, assume or suffer to exist any Encumbrance on any of its assets or properties of any character without making effective provision for this Note and all other amounts due hereunder to be directly secured equally and ratably with (or, if the Company has posted a bond obligation or other financial assurance sufficient liability to satisfy the Indebtedness be secured by such Lien.
(mEncumbrance is subordinated in right of payment to this Note, prior to) assume, guarantee, endorse the obligation or otherwise become directly or contingently liable (including, without limitation, liable liability secured by way of agreement, contingent or otherwise, to purchase, to provide funds for payment, to supply funds to or otherwise invest in the debtor or otherwise to assure the creditor against loss), in connection with any Indebtedness of any other Person (other than, in the case of the Company, guaranties of Indebtedness of any Subsidiaries), other than
(i) guaranties by endorsement of negotiable instruments for deposit or collection in the ordinary course of business; and
(ii) guaranties existing on the date hereof, as set forth in Schedule 8.1(m) hereto, but not any renewal or other modification thereof;
(n) make, or permit any of its Subsidiaries to make, any loan or advance to any Person or purchase or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any capital stock, properties, assets or obligations of, or any interest in, any Personsuch Encumbrance, other than (i) raw material purchased in Encumbrances existing on the ordinary course of business date hereof and (ii) trade credit extended Encumbrances incurred in connection with the ordinary course of businessSenior Credit Facility;
(og) createCause or otherwise permit any Subsidiary of the Company, incur to issue, sell, pledge, dispose of, grant or suffer to existencumber, or permit any authorize the issuance, sale, pledge, disposition, grant or encumbrance of its Subsidiaries to create, incur or suffer to exist, any obligations as lessee (i) for any shares of any class of its capital stock or any options, warrants, convertible securities or other rights of any kind to acquire any shares of its capital stock or any other ownership interest in such Subsidiary other than to the payment Company, PSi Technologies Laguna, Inc. or any wholly-owned Subsidiary of rent for any real or personal property in connection with any sale and leaseback transaction, the Company or (ii) for the payment any assets of rent for any real or personal property under Capitalized Leases which would cause the aggregate amount of all obligations under Capitalized Leases entered into after the Closing Date owing by the Company in any fiscal year to exceed the amounts set forth in subsection (p) of this Section 8.1;
(p) except as set forth on Schedule 8.1(p), make or be committed to make, or permit any of its Subsidiaries to make or be committed to make, any Capital Expenditure (by purchase or capitalized lease) other than Capital Expenditures (including obligations under Capitalized Leases) which would not cause the aggregate amount of all such Capital Expenditures to exceed the greater of (i) $300,000 and (ii) 15% of the greater of (A) Consolidated EBITDA (as defined in the Notes) for the prior fiscal year of the Company and (B) Consolidated EBITDA for the current fiscal year of the Company, in any fiscal year of the Company;
(q) allow the use, handling, generation, storage, treatment, release or disposal of Hazardous Materials at any property owned or leased by the Company or any of its Subsidiaries except in compliance with Environmental Laws and so long as such use, handling, generation, storage, treatment, release or disposal of Hazardous Materials does not result in a violation of Environmental Law which would result in a Material Adverse Change;
(A) engage or permit any ERISA Affiliate to engage in any transaction described in Section 4069 of ERISA; (B) engage, or permit any ERISA Affiliate to engage, in any prohibited transaction described in Section 406 of ERISA or 4975 of the Code for which a statutory or class exemption is not available or a private exemption has not previously been obtained from the Department of Labor; (C) adopt or permit any ERISA Affiliate to adopt any employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA or applicable law; (D) fail to make any contribution or payment to any Multiemployer Plan which the Company or any Subsidiary or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereof; (E) fail, or permit any ERISA Affiliate to fail, to pay any required installment or any other payment required under Section 412 of the Code on or before the due date for such installment or other paymentSubsidiary; and
(sh) grant Enter into any rights of registration under the Securities Act relating formal or informal agreement or otherwise make a commitment to do any of its shares of capital stock or other securities to any Person other than pursuant to this Agreement, unless (i) the rights so granted to another Person do not limit, restrict or impair the rights of the Purchaser under this Agreement and under the Related Documents and (ii) such rights so granted to another Person do not grant priority in registration rights to such other Person over rights granted to Purchaser under this Agreement and under the Related Documentsforegoing.
Appears in 1 contract
Restricted Actions. Without Subject to SECTION 4.06, from and after the prior written consent of the holders of (i) two-thirds (2/3) (or such higher percentage of holders as may then be required by law) of the then outstanding shares of Preferred Stock and (ii) two-thirds (2/3) of the then outstanding aggregate principal amount of the Notes, and for so long as any of the Preferred Stock or Notes remain outstandingClosing Date, the Company shall not, and shall not permit any Company Subsidiary to, directly or indirectly, take any of the following actions without the prior written consent of at least a majority of the then-outstanding Preferred Shares or the affirmative vote in person or by proxy at a meeting called for that purpose of the holders of at least a majority of the Preferred Shares voting thereat:
(a) become subject to sell, lease, transfer or otherwise dispose of any agreement asset or instrument which by its terms would (under assets of the Company or Company Subsidiaries, including the capital stock of any circumstances) restrict Company Subsidiary, other than a disposition of all or impair substantially all of the Company's right to comply with or fulfill its obligations under the terms of this Agreement or any assets in a transaction governed by Section 271 of the Related DocumentsDelaware General Corporation Law, unless (i) the aggregate net proceeds received in connection with all of such transactions in any given twelve-month period (whether paid in cash or property) does not exceed $115 million, or (ii) such transaction is between the Company or its wholly owned Company Subsidiary, on the one hand, and any other wholly owned Company Subsidiary, on the other hand;
(b) use enter into or suffer to exist any contract, agreement, arrangement or transaction with any Affiliate (other than DonTech, any Company Subsidiary, and any company that is acquired pursuant to the proceeds from the sale Other Transaction Documents), officer, director or stockholder holding greater than 5% of the Securities other than for repayment Company's outstanding Common Stock (an "AFFILIATE TRANSACTION"), unless such Affiliate Transaction (i) is determined by a majority of indebtednessthe Board of Directors to be fair and reasonable to the Company, working capital and other general corporate purposes; provided, that no less favorable to the Company will than could have been obtained in no event use an arm's length transaction with a third party, and (ii) is approved by a majority of the proceeds to invest members of the Board of Directors that are disinterested in any securities other than short-term, interest-bearing government securitiessuch transaction;
(c) enter into any transaction or series materially alter its principal line of transactions with any stockholder, director, officer, employee or Affiliate, including, without limitation, business as conducted on the purchase, sale, lease orexchange of any property, the rendering of any service or any investment, loan or advance, unless such transaction (i) is consummated by the Company in good faith on an arm's-length basis, (ii) is less than $100,000 per occurrence or $250,000 in the aggregate, and (iii) is approved by the Board of Directors, including by a majority of the Company's disinterested directorsClosing Date;
(d) expand the Board of Directors to greater than eight (8) members;
(e) except incur, create, guarantee, become or be liable in any manner with respect to or permit to exist (other than pursuant to the sale of Other Transaction Documents) any Indebtedness (as such term will be defined by the synthetic fuel facilities of parties prior to the Company set forth on Schedule 8.1(eClosing Date) if the Leverage Ratio (as such term will be defined by the parties prior to the Closing Date), sell all or any material portion of its assetsas at such time, determined on a consolidated basis;
(f) declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests or other Capital Stock now or hereafter outstanding, return any capital is greater than 5.0 to its members as such, or make any other payment or distribution of assets to its stockholders as such, or permit any of its Subsidiaries to do any of the foregoing or to purchase or otherwise acquire for value any Capital Stock of the Company or its Subsidiaries, or make any payment or prepayment of principal of, premium, if any, or interest on, or redeem, decrease or otherwise retire, any Indebtedness before its scheduled due date;
(g) materially alter or change the business of the Company;
(h) issue any stock option at less than the fair market value at the time of grant;
(i) create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, other than:
(i) Indebtedness created hereunder and under the Notes;
(ii) Indebtedness existing on the date hereof, as set forth in Schedule 8.1(i) hereto, and any extension of maturity, refinancing or modification of the terms thereof1.0; provided, however, that such extension, refinancing or modification (Anothing in this SECTION 4.04(d) is pursuant shall prohibit the Company from incurring up to terms that are not materially less favorable to the Purchaser than the terms of the Indebtedness being extended, refinanced or modified and (B) after giving effect to the extension, refinancing or modification, such Indebtedness is not greater than the amount $25 million of Indebtedness outstanding immediately prior to such extension, refinancing or modificationin any given twelve-month period;
(iiie) Indebtedness under Capitalized Leases permitted acquire (by subparagraph (pmerging or consolidating with, or by purchasing an equity interest in or a portion of the assets of, or by any other manner) of this Section 8.1; and
(iv) additional Indebtedness at any one time outstanding not to exceed $4,000,000.
(j) enter into business or any mergercorporation, combinationpartnership, consolidation, reorganization, recapitalization, liquidation association or other similar transaction business organization or division thereof or otherwise acquire or agree to acquire any assets in excess of the Company or $100 million in any agreement with respect to any of the foregoinggiven twelve-month period, other than a transaction for the purpose of changing the Company's domicile;
(k) amend the Certificate of Incorporation or Bylaws, or alter the rights, preferences and privileges of the Securities, the Conversion Shares or the Warrant Shares;
(l) create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its properties, rights or other assets, whether now owned or hereafter acquired, or assign or otherwise transfer, or permit any of its Subsidiaries to assign or otherwise transfer, any right to receive income, other than the following ("Permitted Liens"):
(i) Liens existing on the date hereof, as set forth in Schedule 8.1(l) hereto, but not the extension of coverage thereof to other property or the extension of maturity, refinancing or other modification of the terms thereof or of the Indebtedness secured thereby;
(ii) Liens created by operation of law (other than Environmental Liens), such as materialmen's liens, mechanics' liens inventory and other similar Liens arising assets to be sold or used in the ordinary course of business;
(iiif) depositsamend the Certificate of Incorporation of the Company to authorize the creation or issuance, pledges or Liens the increase in the authorized amount, of the Preferred Stock, any Parity Securities (as defined in the Certificate of Designations) or Senior Securities (as defined in the Certificate of Designations), or to authorize the creation or issuance of securities convertible into or exchangeable for, or options, warrants or other rights to acquire, the Preferred Stock, any Parity Securities or Senior Securities;
(g) reclassify any series of Junior Securities (as defined in the Certificate of Designations) as Senior Securities or Parity Securities;
(h) amend, repeal or change (whether by merger, consolidation or otherwise) any of the provisions of the Certificate of Incorporation or By-laws of the Company or the provisions of the Certificate of Designations or the Warrants in any manner that would alter or change the powers, preferences or rights of the shares of the Preferred Stock or the Warrants, as the case may be, so as to affect them adversely, or otherwise restrict the rights, preferences or privileges of the Preferred Stock or the Warrants;
(i) pay or declare any dividend or distribution on any shares of its capital stock (other than Liens arising under ERISA dividends on the Common Stock payable in additional shares of Common Stock) or apply any of its assets to the Code) securing redemption, retirement, purchase or acquisition, directly or indirectly, through Company Subsidiaries or otherwise, of any shares of its capital stock (other than (A) obligations incurred redemptions, retirements, purchases or acquisitions of the Preferred Stock in respect accordance with the terms of workers' compensationthe Certificate of Designations, unemployment insurance or other forms of governmental insurance or benefits, and (B) (x) the performance repurchase of bids, tenders, leases, contracts (other than for the payment shares of money) and statutory obligations, Common Stock from employees or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course former employees of business and secure obligations which are not past due;
(iv) restrictions or covenants on the use of real property and minor irregularities in the title thereto which do not (A) secure obligations for the payment of money or (B) materially adversely impair the value or marketability of such property or its use by the Company or any of its Subsidiaries in the normal conduct of who acquired such Person's business; provided, that in all such cases shares directly from the Company or relevant Subsidiary complies in all material respects with all and which repurchases are approved by a majority of its obligations under such title restrictions or covenants;
the board of directors and (vy) Liens securing Capitalized Leases permitted by subparagraph (p) of this Section 8.1; and
(vi) non-consensual Liensopen market purchases, but only if the Company has posted a bond or other financial assurance sufficient to satisfy the Indebtedness secured by such Lien.
(m) assume, guarantee, endorse or otherwise become directly or contingently liable (including, without limitation, liable by way of agreement, contingent or otherwise, to purchase, to provide funds for payment, to supply funds to or otherwise invest in the debtor or otherwise to assure the creditor against loss), in connection with any Indebtedness of any other Person (other thanwhich, in the case of both (x) and (y) taken together are not in excess of the lesser of $25 million or 25% of the Company, guaranties of Indebtedness of 's Net Income for the immediately preceding twelve months in any Subsidiariesgiven twelve-month period), other than
(i) guaranties by endorsement of negotiable instruments for deposit or collection in the ordinary course of business; and
(ii) guaranties existing on the date hereof, as set forth in Schedule 8.1(m) hereto, but not any renewal or other modification thereof;
(nj) makesell, offer for sale or permit solicit offers to buy any of its Subsidiaries to make, any loan or advance to any Person or purchase or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any capital stock, properties, assets or obligations of, or any interest in, any Person, other than (i) raw material purchased in the ordinary course of business and (ii) trade credit extended in the ordinary course of business;
(o) create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any obligations as lessee (i) for the payment of rent for any real or personal property in connection with any sale and leaseback transaction, or (ii) for the payment of rent for any real or personal property under Capitalized Leases which would cause the aggregate amount of all obligations under Capitalized Leases entered into after the Closing Date owing by the Company in any fiscal year to exceed the amounts set forth in subsection (p) of this Section 8.1;
(p) except as set forth on Schedule 8.1(p), make or be committed to make, or permit any of its Subsidiaries to make or be committed to make, any Capital Expenditure (by purchase or capitalized lease) other than Capital Expenditures (including obligations under Capitalized Leases) which would not cause the aggregate amount of all such Capital Expenditures to exceed the greater of (i) $300,000 and (ii) 15% of the greater of (A) Consolidated EBITDA security (as defined in the NotesSecurities Act) for that would be integrated with the prior fiscal year sale of the Company Preferred Shares and (B) Consolidated EBITDA for the current fiscal year of the Company, in any fiscal year of the Company;
(q) allow the use, handling, generation, storage, treatment, release or disposal of Hazardous Materials at any property owned or leased by the Company or any of its Subsidiaries except in compliance with Environmental Laws and so long as such use, handling, generation, storage, treatment, release or disposal of Hazardous Materials does not result Warrants in a violation of Environmental Law which manner that would result in a Material Adverse Change;
(A) engage or permit any ERISA Affiliate to engage in any transaction described in Section 4069 of ERISA; (B) engage, or permit any ERISA Affiliate to engage, in any prohibited transaction described in Section 406 of ERISA or 4975 of require the Code for which a statutory or class exemption is not available or a private exemption has not previously been obtained from the Department of Labor; (C) adopt or permit any ERISA Affiliate to adopt any employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA or applicable law; (D) fail to make any contribution or payment to any Multiemployer Plan which the Company or any Subsidiary or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereof; (E) fail, or permit any ERISA Affiliate to fail, to pay any required installment or any other payment required under Section 412 of the Code on or before the due date for such installment or other payment; and
(s) grant any rights of registration under the Securities Act relating of the sale of the Preferred Shares and the Warrants to the Purchasers or any Affiliate of its shares the Purchasers;
(k) prior to the 18-month anniversary of capital stock the Closing Date, issue any equity securities (or other securities exchangeable for or convertible into equity securities, or any options, warrants, rights to any Person subscribe to, scrip calls, contracts, undertakings, arrangements or commitments to issue which may result in the issuance of equity securities of the Company) other than pursuant a Permitted Issuance (as defined in the Certificate of Designations);
(l) increase the number of directors comprising the board of directors to this Agreementmore than ten directors; or
(m) amend, unless (i) modify or supplement any provision of the Rights Agreement in a manner that adversely affects the rights so granted to another Person do not limit, restrict or impair the rights and benefits of the any Purchaser under this Agreement and under the Related Documents and (ii) any such rights so granted to another Person do not grant priority in registration rights to such other Person over rights granted to Purchaser under this Agreement and under the Related Documentsprovision.
Appears in 1 contract
Samples: Preferred Stock and Warrant Purchase Agreement (R H Donnelley Corp)
Restricted Actions. Without During the Interim Period, except for the actions set forth in Exhibit 10.1.3, the Seller shall procure that the Group Entities do not take any of the following actions without the Purchaser's prior written consent, which consent shall not be unreasonably withheld or delayed:
(a) incur any liability (including any conditional, deferred or deferrable liabilities) which in the individual case exceeds the amount of EUR 25,000, with the exception of current liabilities arising from the purchase of goods and services in the ordinary course of business and in substantially the same business manner as before;
(b) any waiver or settlement of liabilities with an aggregate amount of more than EUR 25,000;
(c) incur any financial debt (Verbindlichkeiten gegenüber Kreditinstituten) or any kind of financing (including any kind of financing from other institutions or non-bank financing, factoring or private loans) without the prior written consent of the holders of Purchaser (i) two-thirds (2/3) (or such higher percentage of holders as may then be required by law) of the then outstanding shares of Preferred Stock and (ii) two-thirds (2/3) of the then outstanding aggregate principal amount of the Notes, and for so long as any of the Preferred Stock or Notes remain outstanding, the Company shall not, and which consent in each case shall not permit any Subsidiary to:
be unreasonably withheld or delayed beyond two (a2) become subject to any agreement or instrument which by its terms would (under any circumstances) restrict or impair Business Days after the CompanyPurchaser's right to comply with or fulfill its obligations under the terms of this Agreement or any of the Related Documents;
(b) use the proceeds from the sale of the Securities other than for repayment of indebtedness, working capital and other general corporate purposes; provided, that the Company will in no event use the proceeds to invest in any securities other than short-term, interest-bearing government securities;
(c) enter into any transaction or series of transactions with any stockholder, director, officer, employee or Affiliate, including, without limitation, the purchase, sale, lease orexchange of any property, the rendering of any service or any investment, loan or advance, unless such transaction (i) is consummated by the Company in good faith on an arm's-length basis, (ii) is less than $100,000 per occurrence or $250,000 in the aggregate, and (iii) is approved by the Board of Directors, including by a majority receipt of the Company's disinterested directorsrequest therefor);
(d) expand the Board of Directors to greater than eight (8) members;
(e) except with respect to the sale of the synthetic fuel facilities of the Company set forth on Schedule 8.1(e)shall make, sell all or any material portion of its assets, determined on a consolidated basis;
(f) declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests or other Capital Stock now or hereafter outstanding, return any capital to its members as such, or make any other payment or distribution of assets to its stockholders as such, or permit any of its Subsidiaries to do any of the foregoing or to purchase or otherwise acquire for value any Capital Stock of the Company or its Subsidiaries, or make any payment or prepayment of principal of, premium, if any, or interest on, or redeem, decrease or otherwise retire, any Indebtedness before its scheduled due date;
(g) materially alter or change the business of the Company;
(h) issue any stock option at less than the fair market value at the time of grant;
(i) create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, other than:
(i) Indebtedness created hereunder and under the Notes;
(ii) Indebtedness existing on the date hereof, as set forth in Schedule 8.1(i) hereto, and any extension of maturity, refinancing or modification of the terms thereof; provided, however, that such extension, refinancing or modification (A) is pursuant to terms that are not materially less favorable to the Purchaser than the terms of the Indebtedness being extended, refinanced or modified and (B) after giving effect to the extension, refinancing or modification, such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, refinancing or modification;
(iii) Indebtedness under Capitalized Leases permitted by subparagraph (p) of this Section 8.1; and
(iv) additional Indebtedness at any one time outstanding not to exceed $4,000,000.
(j) enter into any merger, combination, consolidation, reorganization, recapitalization, liquidation or other similar transaction of the Company or any agreement with respect to any of the foregoingofficer, other than a transaction for the purpose of changing the Company's domicile;
(k) amend the Certificate of Incorporation managing director, board member, employee, advisor, sales representative or Bylaws, or alter the rights, preferences and privileges of the Securities, the Conversion Shares or the Warrant Shares;
(l) create or suffer to exist, or permit any of its Subsidiaries to create or suffer to existdistributor, any Lien upon changes regarding salaries or with respect other (also performance-based) remuneration or other contractual terms or pay any bonuses or other extraordinary compensation or make any severance payments or otherwise commit (even conditionally) to make such payments or grant a loan to any of its properties, rights or other assets, whether now owned or hereafter acquired, or assign or otherwise transfer, or permit any of its Subsidiaries to assign or otherwise transfer, any right to receive income, other than the following ("Permitted Liens"):
(i) Liens existing on the date hereof, as set forth in Schedule 8.1(l) hereto, but not the extension of coverage thereof to other property or the extension of maturity, refinancing or other modification of the terms thereof or of the Indebtedness secured thereby;
(ii) Liens created by operation of law (other than Environmental Liens), such as materialmen's liens, mechanics' liens and other similar Liens arising in persons outside the ordinary course of business;
(iiie) depositspledge, pledges or Liens (other than Liens arising under ERISA or the Code) securing (A) obligations incurred in respect of workers' compensationassign, unemployment insurance or other forms of governmental insurance or benefits, (B) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligationscreate a security interest in, or otherwise encumber, any tangible or intangible assets (C) obligations regardless of whether such assets can or cannot be recognized on surety or appeal bondsthe balance sheet), but only to the extent such deposits, pledges or Liens are incurred or otherwise arise except in the ordinary course of business and secure obligations which are not past duein substantially the same business manner as before;
(ivf) restrictions sell, lease, transfer, or covenants purchase any tangible or intangible assets (regardless of whether such assets can or cannot be recognized on the use of real property and minor irregularities balance sheet) for a value which in the title thereto which individual case exceeds EUR 25,000, or undertake to do not (A) secure obligations any of the foregoing, except for the payment of money sale or (B) materially adversely impair the value or marketability purchase of such property or its use by the Company or any of its Subsidiaries in the normal conduct of such Person's business; provided, that in all such cases the Company or relevant Subsidiary complies in all material respects with all of its obligations under such title restrictions or covenants;
(v) Liens securing Capitalized Leases permitted by subparagraph (p) of this Section 8.1; and
(vi) non-consensual Liens, but only if the Company has posted a bond or other financial assurance sufficient to satisfy the Indebtedness secured by such Lien.
(m) assume, guarantee, endorse or otherwise become directly or contingently liable (including, without limitation, liable by way of agreement, contingent or otherwise, to purchase, to provide funds for payment, to supply funds to or otherwise invest in the debtor or otherwise to assure the creditor against loss), in connection with any Indebtedness of any other Person (other than, in the case of the Company, guaranties of Indebtedness of any Subsidiaries), other than
(i) guaranties by endorsement of negotiable instruments for deposit or collection in the ordinary course of business; and
(ii) guaranties existing on the date hereof, as set forth in Schedule 8.1(m) hereto, but not any renewal or other modification thereof;
(n) make, or permit any of its Subsidiaries to make, any loan or advance to any Person or purchase or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any capital stock, properties, assets or obligations of, or any interest in, any Person, other than (i) raw material purchased in the ordinary course of business and (ii) trade credit extended in substantially the ordinary course of businesssame business manner as before;
(og) createcancel, incur terminate or suffer to exist, materially amend or permit modify any of its Subsidiaries to create, incur or suffer to exist, any obligations as lessee (i) for the payment of rent for any real or personal property in connection with any sale and leaseback transaction, or (ii) for the payment of rent for any real or personal property under Capitalized Leases which would cause the aggregate amount of all obligations under Capitalized Leases entered into after the Closing Date owing by the Company in any fiscal year to exceed the amounts set forth in subsection (p) of this Section 8.1Material Agreement;
(ph) except as set forth on Schedule 8.1(p)any merger, make split-off or be committed to make, or permit any of its Subsidiaries to make or be committed to make, any Capital Expenditure (by purchase or capitalized lease) other than Capital Expenditures (including obligations under Capitalized Leases) which would not cause the aggregate amount of all such Capital Expenditures to exceed the greater of (i) $300,000 and (ii) 15% of the greater of (A) Consolidated EBITDA (as defined in the Notes) for the prior fiscal year of the Company and (B) Consolidated EBITDA for the current fiscal year of the Company, in any fiscal year of the Company;
(q) allow the use, handling, generation, storage, treatment, release or disposal of Hazardous Materials at any property owned or leased by the Company or any of its Subsidiaries except in compliance with Environmental Laws and so long as such use, handling, generation, storage, treatment, release or disposal of Hazardous Materials does not result in a violation of Environmental Law which would result in a Material Adverse Change;
(A) engage or permit any ERISA Affiliate to engage in any transaction described in Section 4069 of ERISA; (B) engage, or permit any ERISA Affiliate to engage, in any prohibited transaction described in Section 406 of ERISA or 4975 of the Code for which a statutory or class exemption is not available or a private exemption has not previously been obtained from the Department of Labor; (C) adopt or permit any ERISA Affiliate to adopt any employee welfare benefit plan company reorganization within the meaning of Section 3(1and pursuant to the German Reorganization Act (Umwandlungsgesetz) involving any Group Entity;
(i) any dissolution or liquidation of ERISA any Group Entity;
(j) any acquisition or disposal of shares or equity interests in any company or partnership for consideration in excess of EUR 25,000 (in words: Euro twenty-five thousand) in the individual case; for the avoidance of doubt, this does not apply for any measures as regards KEYMILE LLC (Russia);
(k) any acquisition or disposal of real estate for consideration in excess of EUR 25,000 (in words: Euro twenty five thousand) in the individual case; EU-DOCS\22159719
(l) enter into any new employment or service contracts without the prior written consent of the Purchaser (which provides benefits to employees consent in each case shall not be unreasonably withheld or delayed beyond five (5) Business Days after termination the Purchaser's receipt of employment other than as required by Section 601 of ERISA or applicable law; (D) fail to make any contribution or payment to any Multiemployer Plan which the Company's request therefor), provided that, when requesting such consent, the Company or any Subsidiary or any ERISA Affiliate may be required shall provide to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereof; (E) fail, or permit any ERISA Affiliate to fail, to pay any required installment or any other payment required under Section 412 of the Code on or before Purchaser all relevant information about the due date for such installment or other paymentcontract and the position; and
(sm) grant entering into any rights agreement to take any of registration the actions set forth under (a) through (1). For the Securities Act relating avoidance of doubt, the restricted actions set out above also apply to any of its shares of capital stock or other securities to any Person other than pursuant to this Agreement, unless (i) intragroup dealings between the rights so granted to another Person do not limit, restrict or impair the rights of the Purchaser under this Agreement and under the Related Documents and (ii) such rights so granted to another Person do not grant priority in registration rights to such other Person over rights granted to Purchaser under this Agreement and under the Related DocumentsGroup Entities.
Appears in 1 contract
Samples: Share Purchase Agreement (Dasan Zhone Solutions Inc)
Restricted Actions. Without the prior written consent of the holders of (i) two-thirds (2/3) (or such higher percentage of holders as may then be required by law) a majority of the then outstanding shares of Preferred Stock and (ii) two-thirds (2/3) of the then outstanding aggregate principal amount of the Notes, and for so long as any of the Preferred Stock or Notes remain outstandingShares, the Company shall not, and shall not permit any Subsidiary to:
(a) become subject to any agreement or instrument which by its terms would (under any circumstances) restrict or impair the Company's right to comply with or fulfill its obligations under the terms of this Agreement or any of the Related Documents;
(b) use the proceeds from the sale of the Securities Preferred Shares and Warrants other than (i) primarily for acquisitions of assets or businesses reasonably related to the Company's existing business, and repayment of indebtedness, and (ii) the remainder for other working capital and other general corporate purposes; provided, that purposes of the Company will in no event use the proceeds to invest in any securities other than short-term, interest-bearing government securitiesCompany;
(c) enter into any transaction or series of transactions with any stockholder, director, officer, employee or Affiliate, including, without limitation, the purchase, sale, lease orexchange or exchange of any property, property or the rendering of any service service, with any Affiliate, except for transactions (including any investments, loans or advances by or to any investment, loan or advance, unless such transaction (iAffiliate) is consummated by the Company conducted in good faith on an arm's-length basisfaith, (ii) is less than the terms of which are fair and reasonable to the Company. Any such transactions in excess of $100,000 per occurrence or $250,000 in the aggregate, and aggregate (iii$250,000/$500,000 in the case of transactions with a wholly owned subsidiary) is must be approved by the Board of Directors, including including, in the event the relevant Affiliate is an entity controlled by any director (although not a Subsidiary or a member of such director's immediate family (in either case, the "Interested Director) a majority of the Company's disinterested directorsdirectors other than the Interested Director;
(d) grant a stock option under any employee benefit plan or director stock plan at an exercise price below the fair market value on the date of grant of such option other than purchases for Common Stock, up to an aggregate of 50,000 shares, pursuant to the 2000 Employee Stock Purchase Plan; or
(e) expand the Company's Board of Directors to greater than eight (8) six members;
(e) except with respect to the sale of the synthetic fuel facilities of the Company set forth on Schedule 8.1(e), sell all or any material portion of its assets, determined on a consolidated basis;
(f) declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests or other Capital Stock now or hereafter outstanding, return any capital to its members as such, or make any other payment or distribution of assets to its stockholders as such, or permit any of its Subsidiaries to do any of the foregoing or to purchase or otherwise acquire for value any Capital Stock of the Company or its Subsidiaries, or make any payment or prepayment of principal of, premium, if any, or interest on, or redeem, decrease or otherwise retire, any Indebtedness before its scheduled due date;
(g) materially alter or change the business of the Company;
(h) issue any stock option at less than the fair market value at the time of grant;
(i) create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, other than:
(i) Indebtedness created hereunder and under the Notes;
(ii) Indebtedness existing on the date hereof, as set forth in Schedule 8.1(i) hereto, and any extension of maturity, refinancing or modification of the terms thereof; provided, however, that such extension, refinancing or modification (A) is pursuant to terms that are not materially less favorable to the Purchaser than the terms of the Indebtedness being extended, refinanced or modified and (B) after giving effect to the extension, refinancing or modification, such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, refinancing or modification;
(iii) Indebtedness under Capitalized Leases permitted by subparagraph (p) of this Section 8.1; and
(iv) additional Indebtedness at any one time outstanding not to exceed $4,000,000.
(j) enter into any merger, combination, consolidation, reorganization, recapitalization, liquidation or other similar transaction of the Company or any agreement with respect to any of the foregoing, other than a transaction for the purpose of changing the Company's domicile;
(k) amend the Certificate of Incorporation or Bylaws, or alter the rights, preferences and privileges of the Securities, the Conversion Shares or the Warrant Shares;
(l) create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its properties, rights or other assets, whether now owned or hereafter acquired, or assign or otherwise transfer, or permit any of its Subsidiaries to assign or otherwise transfer, any right to receive income, other than the following ("Permitted Liens"):
(i) Liens existing on the date hereof, as set forth in Schedule 8.1(l) hereto, but not the extension of coverage thereof to other property or the extension of maturity, refinancing or other modification of the terms thereof or of the Indebtedness secured thereby;
(ii) Liens created by operation of law (other than Environmental Liens), such as materialmen's liens, mechanics' liens and other similar Liens arising in the ordinary course of business;
(iii) deposits, pledges or Liens (other than Liens arising under ERISA or the Code) securing (A) obligations incurred in respect of workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, (B) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business and secure obligations which are not past due;
(iv) restrictions or covenants on the use of real property and minor irregularities in the title thereto which do not (A) secure obligations for the payment of money or (B) materially adversely impair the value or marketability of such property or its use by the Company or any of its Subsidiaries in the normal conduct of such Person's business; provided, that in all such cases the Company or relevant Subsidiary complies in all material respects with all of its obligations under such title restrictions or covenants;
(v) Liens securing Capitalized Leases permitted by subparagraph (p) of this Section 8.1; and
(vi) non-consensual Liens, but only if the Company has posted a bond or other financial assurance sufficient to satisfy the Indebtedness secured by such Lien.
(m) assume, guarantee, endorse or otherwise become directly or contingently liable (including, without limitation, liable by way of agreement, contingent or otherwise, to purchase, to provide funds for payment, to supply funds to or otherwise invest in the debtor or otherwise to assure the creditor against loss), in connection with any Indebtedness of any other Person (other than, in the case of the Company, guaranties of Indebtedness of any Subsidiaries), other than
(i) guaranties by endorsement of negotiable instruments for deposit or collection in the ordinary course of business; and
(ii) guaranties existing on the date hereof, as set forth in Schedule 8.1(m) hereto, but not any renewal or other modification thereof;
(n) make, or permit any of its Subsidiaries to make, any loan or advance to any Person or purchase or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any capital stock, properties, assets or obligations of, or any interest in, any Person, other than (i) raw material purchased in the ordinary course of business and (ii) trade credit extended in the ordinary course of business;
(o) create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any obligations as lessee (i) for the payment of rent for any real or personal property in connection with any sale and leaseback transaction, or (ii) for the payment of rent for any real or personal property under Capitalized Leases which would cause the aggregate amount of all obligations under Capitalized Leases entered into after the Closing Date owing by the Company in any fiscal year to exceed the amounts set forth in subsection (p) of this Section 8.1;
(p) except as set forth on Schedule 8.1(p), make or be committed to make, or permit any of its Subsidiaries to make or be committed to make, any Capital Expenditure (by purchase or capitalized lease) other than Capital Expenditures (including obligations under Capitalized Leases) which would not cause the aggregate amount of all such Capital Expenditures to exceed the greater of (i) $300,000 and (ii) 15% of the greater of (A) Consolidated EBITDA (as defined in the Notes) for the prior fiscal year of the Company and (B) Consolidated EBITDA for the current fiscal year of the Company, in any fiscal year of the Company;
(q) allow the use, handling, generation, storage, treatment, release or disposal of Hazardous Materials at any property owned or leased by the Company or any of its Subsidiaries except in compliance with Environmental Laws and so long as such use, handling, generation, storage, treatment, release or disposal of Hazardous Materials does not result in a violation of Environmental Law which would result in a Material Adverse Change;
(A) engage or permit any ERISA Affiliate to engage in any transaction described in Section 4069 of ERISA; (B) engage, or permit any ERISA Affiliate to engage, in any prohibited transaction described in Section 406 of ERISA or 4975 of the Code for which a statutory or class exemption is not available or a private exemption has not previously been obtained from the Department of Labor; (C) adopt or permit any ERISA Affiliate to adopt any employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA or applicable law; (D) fail to make any contribution or payment to any Multiemployer Plan which the Company or any Subsidiary or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereof; (E) fail, or permit any ERISA Affiliate to fail, to pay any required installment or any other payment required under Section 412 of the Code on or before the due date for such installment or other payment; and
(s) grant any rights of registration under the Securities Act relating to any of its shares of capital stock or other securities to any Person other than pursuant to this Agreement, unless (i) the rights so granted to another Person do not limit, restrict or impair the rights of the Purchaser under this Agreement and under the Related Documents and (ii) such rights so granted to another Person do not grant priority in registration rights to such other Person over rights granted to Purchaser under this Agreement and under the Related Documents.
Appears in 1 contract
Samples: Preferred Stock Purchase Agreement (Transact Technologies Inc)
Restricted Actions. Without Subject to Section 4.06, from and after the prior written consent of the holders of (i) two-thirds (2/3) (or such higher percentage of holders as may then be required by law) of the then outstanding shares of Preferred Stock and (ii) two-thirds (2/3) of the then outstanding aggregate principal amount of the Notes, and for so long as any of the Preferred Stock or Notes remain outstandingClosing Date, the Company shall not, and shall not permit any Company Subsidiary to, directly or indirectly, take any of the following actions without the prior written consent of at least a majority of the then-outstanding Preferred Shares or the affirmative vote in person or by proxy at a meeting called for that purpose of the holders of at least a majority of the Preferred Shares voting thereat:
(a) become subject to sell, lease, transfer or otherwise dispose of any agreement asset or instrument which by its terms would (under assets of the Company or Company Subsidiaries, including the capital stock of any circumstances) restrict Company Subsidiary, other than a disposition of all or impair substantially all of the Company's right to comply with or fulfill its obligations under the terms of this Agreement or any assets in a transaction governed by Section 271 of the Related DocumentsDelaware General Corporation Law, unless (i) the aggregate net proceeds received in connection with all of such transactions in any given twelve-month period (whether paid in cash or property) does not exceed $115 million, or (ii) such transaction is between the Company or its wholly owned Company Subsidiary, on the one hand, and any other wholly owned Company Subsidiary, on the other hand;
(b) use enter into or suffer to exist any contract, agreement, arrangement or transaction with any Affiliate (other than DonTech, any Company Subsidiary, and any company that is acquired pursuant to the proceeds from the sale Other Transaction Documents), officer, director or stockholder holding greater than 5% of the Securities other than for repayment Company's outstanding Common Stock (an "AFFILIATE TRANSACTION"), unless such Affiliate Transaction (i) is determined by a majority of indebtednessthe Board of Directors to be fair and reasonable to the Company, working capital and other general corporate purposes; provided, that no less favorable to the Company will than could have been obtained in no event use an arm's length transaction with a third party, and (ii) is approved by a majority of the proceeds to invest members of the Board of Directors that are disinterested in any securities other than short-term, interest-bearing government securitiessuch transaction;
(c) enter into any transaction or series materially alter its principal line of transactions with any stockholder, director, officer, employee or Affiliate, including, without limitation, business as conducted on the purchase, sale, lease orexchange of any property, the rendering of any service or any investment, loan or advance, unless such transaction (i) is consummated by the Company in good faith on an arm's-length basis, (ii) is less than $100,000 per occurrence or $250,000 in the aggregate, and (iii) is approved by the Board of Directors, including by a majority of the Company's disinterested directorsClosing Date;
(d) expand the Board of Directors to greater than eight (8) members;
(e) except incur, create, guarantee, become or be liable in any manner with respect to or permit to exist (other than pursuant to the sale of Other Transaction Documents) any Indebtedness (as such term will be defined by the synthetic fuel facilities of parties prior to the Company set forth on Schedule 8.1(eClosing Date) if the Leverage Ratio (as such term will be defined by the parties prior to the Closing Date), sell all or any material portion of its assetsas at such time, determined on a consolidated basis;
(f) declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests or other Capital Stock now or hereafter outstanding, return any capital is greater than 5.0 to its members as such, or make any other payment or distribution of assets to its stockholders as such, or permit any of its Subsidiaries to do any of the foregoing or to purchase or otherwise acquire for value any Capital Stock of the Company or its Subsidiaries, or make any payment or prepayment of principal of, premium, if any, or interest on, or redeem, decrease or otherwise retire, any Indebtedness before its scheduled due date;
(g) materially alter or change the business of the Company;
(h) issue any stock option at less than the fair market value at the time of grant;
(i) create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any Indebtedness, other than:
(i) Indebtedness created hereunder and under the Notes;
(ii) Indebtedness existing on the date hereof, as set forth in Schedule 8.1(i) hereto, and any extension of maturity, refinancing or modification of the terms thereof1.0; provided, however, that such extension, refinancing or modification (Anothing in this Section 4.04(d) is pursuant shall prohibit the Company from incurring up to terms that are not materially less favorable to the Purchaser than the terms of the Indebtedness being extended, refinanced or modified and (B) after giving effect to the extension, refinancing or modification, such Indebtedness is not greater than the amount $25 million of Indebtedness outstanding immediately prior to such extension, refinancing or modificationin any given twelve-month period;
(iiie) Indebtedness under Capitalized Leases permitted acquire (by subparagraph (pmerging or consolidating with, or by purchasing an equity interest in or a portion of the assets of, or by any other manner) of this Section 8.1; and
(iv) additional Indebtedness at any one time outstanding not to exceed $4,000,000.
(j) enter into business or any mergercorporation, combinationpartnership, consolidation, reorganization, recapitalization, liquidation association or other similar transaction business organization or division thereof or otherwise acquire or agree to acquire any assets in excess of the Company or $100 million in any agreement with respect to any of the foregoinggiven twelve-month period, other than a transaction for the purpose of changing the Company's domicile;
(k) amend the Certificate of Incorporation or Bylaws, or alter the rights, preferences and privileges of the Securities, the Conversion Shares or the Warrant Shares;
(l) create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its properties, rights or other assets, whether now owned or hereafter acquired, or assign or otherwise transfer, or permit any of its Subsidiaries to assign or otherwise transfer, any right to receive income, other than the following ("Permitted Liens"):
(i) Liens existing on the date hereof, as set forth in Schedule 8.1(l) hereto, but not the extension of coverage thereof to other property or the extension of maturity, refinancing or other modification of the terms thereof or of the Indebtedness secured thereby;
(ii) Liens created by operation of law (other than Environmental Liens), such as materialmen's liens, mechanics' liens inventory and other similar Liens arising assets to be sold or used in the ordinary course of business;
(iiif) depositsamend the Certificate of Incorporation of the Company to authorize the creation or issuance, pledges or Liens the increase in the authorized amount, of the Preferred Stock, any Parity Securities (as defined in the Certificate of Designations) or Senior Securities (as defined in the Certificate of Designations), or to authorize the creation or issuance of securities convertible into or exchangeable for, or options, warrants or other rights to acquire, the Preferred Stock, any Parity Securities or Senior Securities;
(g) reclassify any series of Junior Securities (as defined in the Certificate of Designations) as Senior Securities or Parity Securities;
(h) amend, repeal or change (whether by merger, consolidation or otherwise) any of the provisions of the Certificate of Incorporation or By-laws of the Company or the provisions of the Certificate of Designations or the Warrants in any manner that would alter or change the powers, preferences or rights of the shares of the Preferred Stock or the Warrants, as the case may be, so as to affect them adversely, or otherwise restrict the rights, preferences or privileges of the Preferred Stock or the Warrants;
(i) pay or declare any dividend or distribution on any shares of its capital stock (other than Liens arising under ERISA dividends on the Common Stock payable in additional shares of Common Stock) or apply any of its assets to the Code) securing redemption, retirement, purchase or acquisition, directly or indirectly, through Company Subsidiaries or otherwise, of any shares of its capital stock (other than (A) obligations incurred redemptions, retirements, purchases or acquisitions of the Preferred Stock in respect accordance with the terms of workers' compensationthe Certificate of Designations, unemployment insurance or other forms of governmental insurance or benefits, and (B) (x) the performance repurchase of bids, tenders, leases, contracts (other than for the payment shares of money) and statutory obligations, Common Stock from employees or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course former employees of business and secure obligations which are not past due;
(iv) restrictions or covenants on the use of real property and minor irregularities in the title thereto which do not (A) secure obligations for the payment of money or (B) materially adversely impair the value or marketability of such property or its use by the Company or any of its Subsidiaries in the normal conduct of who acquired such Person's business; provided, that in all such cases shares directly from the Company or relevant Subsidiary complies in all material respects with all and which repurchases are approved by a majority of its obligations under such title restrictions or covenants;
the board of directors and (vy) Liens securing Capitalized Leases permitted by subparagraph (p) of this Section 8.1; and
(vi) non-consensual Liensopen market purchases, but only if the Company has posted a bond or other financial assurance sufficient to satisfy the Indebtedness secured by such Lien.
(m) assume, guarantee, endorse or otherwise become directly or contingently liable (including, without limitation, liable by way of agreement, contingent or otherwise, to purchase, to provide funds for payment, to supply funds to or otherwise invest in the debtor or otherwise to assure the creditor against loss), in connection with any Indebtedness of any other Person (other thanwhich, in the case of both (x) and (y) taken together are not in excess of the lesser of $25 million or 25% of the Company, guaranties of Indebtedness of 's Net Income for the immediately preceding twelve months in any Subsidiariesgiven twelve-month period), other than
(i) guaranties by endorsement of negotiable instruments for deposit or collection in the ordinary course of business; and
(ii) guaranties existing on the date hereof, as set forth in Schedule 8.1(m) hereto, but not any renewal or other modification thereof;
(nj) makesell, offer for sale or permit solicit offers to buy any of its Subsidiaries to make, any loan or advance to any Person or purchase or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any capital stock, properties, assets or obligations of, or any interest in, any Person, other than (i) raw material purchased in the ordinary course of business and (ii) trade credit extended in the ordinary course of business;
(o) create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any obligations as lessee (i) for the payment of rent for any real or personal property in connection with any sale and leaseback transaction, or (ii) for the payment of rent for any real or personal property under Capitalized Leases which would cause the aggregate amount of all obligations under Capitalized Leases entered into after the Closing Date owing by the Company in any fiscal year to exceed the amounts set forth in subsection (p) of this Section 8.1;
(p) except as set forth on Schedule 8.1(p), make or be committed to make, or permit any of its Subsidiaries to make or be committed to make, any Capital Expenditure (by purchase or capitalized lease) other than Capital Expenditures (including obligations under Capitalized Leases) which would not cause the aggregate amount of all such Capital Expenditures to exceed the greater of (i) $300,000 and (ii) 15% of the greater of (A) Consolidated EBITDA security (as defined in the NotesSecurities Act) for that would be integrated with the prior fiscal year sale of the Company Preferred Shares and (B) Consolidated EBITDA for the current fiscal year of the Company, in any fiscal year of the Company;
(q) allow the use, handling, generation, storage, treatment, release or disposal of Hazardous Materials at any property owned or leased by the Company or any of its Subsidiaries except in compliance with Environmental Laws and so long as such use, handling, generation, storage, treatment, release or disposal of Hazardous Materials does not result Warrants in a violation of Environmental Law which manner that would result in a Material Adverse Change;
(A) engage or permit any ERISA Affiliate to engage in any transaction described in Section 4069 of ERISA; (B) engage, or permit any ERISA Affiliate to engage, in any prohibited transaction described in Section 406 of ERISA or 4975 of require the Code for which a statutory or class exemption is not available or a private exemption has not previously been obtained from the Department of Labor; (C) adopt or permit any ERISA Affiliate to adopt any employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA or applicable law; (D) fail to make any contribution or payment to any Multiemployer Plan which the Company or any Subsidiary or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereof; (E) fail, or permit any ERISA Affiliate to fail, to pay any required installment or any other payment required under Section 412 of the Code on or before the due date for such installment or other payment; and
(s) grant any rights of registration under the Securities Act relating of the sale of the Preferred Shares and the Warrants to the Purchasers or any Affiliate of its shares the Purchasers;
(k) prior to the 18-month anniversary of capital stock the Closing Date, issue any equity securities (or other securities exchangeable for or convertible into equity securities, or any options, warrants, rights to any Person subscribe to, scrip calls, contracts, undertakings, arrangements or commitments to issue which may result in the issuance of equity securities of the Company) other than pursuant a Permitted Issuance (as defined in the Certificate of Designations);
(l) increase the number of directors comprising the board of directors to this Agreementmore than ten directors; or
(m) amend, unless (i) modify or supplement any provision of the Rights Agreement in a manner that adversely affects the rights so granted to another Person do not limit, restrict or impair the rights and benefits of the any Purchaser under this Agreement and under the Related Documents and (ii) any such rights so granted to another Person do not grant priority in registration rights to such other Person over rights granted to Purchaser under this Agreement and under the Related Documentsprovision.
Appears in 1 contract
Samples: Preferred Stock and Warrant Purchase Agreement (Goldman Sachs Group Inc/)
Restricted Actions. Without the prior written consent of the holders of (i) two-thirds (2/3) (or such higher percentage of holders as may then be required by law) of the then outstanding shares of Preferred Stock and (ii) two-thirds (2/3) of the then outstanding aggregate principal amount of the NotesPurchaser, and for so long as any of the Preferred Stock or Notes Debentures remain outstanding, the Company shall not, and shall not permit any Subsidiary to:
(a) become subject to any agreement or instrument which by its terms would (under any circumstances) restrict or impair the Company's right to comply with or fulfill its obligations under the terms of this Agreement or any of the Related Documents;
(b) use the proceeds from the sale of the Securities other than for repayment of indebtedness, including the repayment of its note to The Xxxxx and Xxxxx Xxxxx Family Trust in the principal amount of $1,000,000.00, working capital and other general corporate purposes; provided, that the Company will in no event use the proceeds to invest in any securities other than short-term, interest-bearing government securities;
(c) enter into any transaction or series of transactions with any stockholder, director, officer, employee or Affiliate, including, without limitation, the purchase, sale, lease orexchange or exchange of any property, the rendering of any service or any investment, loan or advance, unless such transaction (i) is consummated by the Company in good faith on an arm's-length basis, (ii) is less than $100,000 per occurrence or $250,000 in the aggregate, and (iii) is approved by the Board of Directors, including by a majority of the Company's disinterested directors;
(d) expand the Board of Directors to greater than eight (8) members;
(e) except with respect to the sale of the synthetic fuel facilities of the Company set forth on Schedule 8.1(e), sell all or any material portion of its assets, determined on a consolidated basis;
(f) declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests or other Capital Stock now or hereafter outstanding, return any capital to its members as such, or make any other payment or distribution of assets to its stockholders as such, or permit any of its Subsidiaries to do any of the foregoing or to purchase or otherwise acquire for value any Capital Stock of the Company or its Subsidiaries, or make any payment or prepayment of principal of, premium, if any, or interest on, or redeem, decrease or otherwise retire, any Indebtedness before its scheduled due date;
(ge) materially alter or change the business of the Company;
(hf) issue any stock option or warrant at less than the fair market value Fair Market Value at the time of grant;
(ig) unless the Company has issued and sold $3,000,000.00 of the Debentures to the Purchaser, create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, exist any Indebtedness, other than:
(i) Indebtedness created hereunder and under the Notes;Debentures; and
(ii) Indebtedness existing on the date hereof, as set forth in Schedule 8.1(i) hereto, and any extension of maturity, refinancing or modification of the terms thereof; there of provided, however, that such extension, refinancing or modification (A) is pursuant to terms that are not materially less favorable to the Purchaser purchaser than the terms of the Indebtedness being extended, refinanced or modified and (B) after giving effect to the extension, refinancing or modification, such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, refinancing or modification;
(iii) Indebtedness under Capitalized Leases permitted by subparagraph (p) of this Section 8.1; and
(iv) additional Indebtedness at any one time outstanding not to exceed $4,000,000.
(jh) enter into any merger, combination, consolidation, reorganization, recapitalization, liquidation or other similar transaction of the Company or any agreement with respect to any of the foregoing, other than a transaction for the purpose of changing the Company's domicile;
(k) amend the Certificate of Incorporation or Bylaws, or alter the rights, preferences and privileges of the Securities, the Conversion Shares or the Warrant Shares;
(l) create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its properties, rights or other assets, whether now owned or hereafter acquired, or assign or otherwise transfer, or permit any of its Subsidiaries to assign or otherwise transfer, any right to receive income, other than the following ("Permitted Liens"):
(i) Liens existing on the date hereof, as set forth in Schedule 8.1(l) hereto, but not the extension of coverage thereof to other property or the extension of maturity, refinancing or other modification of the terms thereof or of the Indebtedness secured thereby;
(ii) Liens created by operation of law (other than Environmental Liens), such as materialmen's liens, mechanics' liens and other similar Liens arising in the ordinary course of business;
(iii) deposits, pledges or Liens (other than Liens arising under ERISA or the Code) securing (A) obligations incurred in respect of workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, (B) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business and secure obligations which are not past due;
(iv) restrictions or covenants on the use of real property and minor irregularities in the title thereto which do not (A) secure obligations for the payment of money or (B) materially adversely impair the value or marketability of such property or its use by the Company or any of its Subsidiaries in the normal conduct of such Person's business; provided, that in all such cases the Company or relevant Subsidiary complies in all material respects with all of its obligations under such title restrictions or covenants;
(v) Liens securing Capitalized Leases permitted by subparagraph (p) of this Section 8.1; and
(vi) non-consensual Liens, but only if the Company has posted a bond or other financial assurance sufficient to satisfy the Indebtedness secured by such Lien.
(m) assume, guarantee, endorse or otherwise become directly or contingently liable (including, without limitation, liable by way of agreement, contingent or otherwise, to purchase, to provide funds for payment, to supply funds to or otherwise invest in the debtor or otherwise to assure the creditor against loss), in connection with any Indebtedness of any other Person (other than, in the case of the Company, guaranties of Indebtedness of any Subsidiaries), other than
(i) guaranties by endorsement of negotiable instruments for deposit or collection in the ordinary course of business; and
(ii) guaranties existing on the date hereof, as set forth in Schedule 8.1(m) hereto, but not any renewal or other modification thereof;
(n) make, or permit any of its Subsidiaries to make, any loan or advance to any Person or purchase or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any capital stock, properties, assets or obligations of, or any interest in, any Person, other than (i) raw material purchased in the ordinary course of business and (ii) trade credit extended in the ordinary course of business;
(o) create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any obligations as lessee (i) for the payment of rent for any real or personal property in connection with any sale and leaseback transaction, or (ii) for the payment of rent for any real or personal property under Capitalized Leases which would cause the aggregate amount of all obligations under Capitalized Leases entered into after the Closing Date owing by the Company in any fiscal year to exceed the amounts set forth in subsection (p) of this Section 8.1;
(p) except as set forth on Schedule 8.1(p), make or be committed to make, or permit any of its Subsidiaries to make or be committed to make, any Capital Expenditure (by purchase or capitalized lease) other than Capital Expenditures (including obligations under Capitalized Leases) which would not cause the aggregate amount of all such Capital Expenditures to exceed the greater of (i) $300,000 and (ii) 15% of the greater of (A) Consolidated EBITDA (as defined in the Notes) for the prior fiscal year of the Company and (B) Consolidated EBITDA for the current fiscal year of the Company, in any fiscal year of the Company;
(q) allow the use, handling, generation, storage, treatment, release or disposal of Hazardous Materials at any property owned or leased by the Company or any of its Subsidiaries except in compliance with Environmental Laws and so long as such use, handling, generation, storage, treatment, release or disposal of Hazardous Materials does not result in a violation of Environmental Law which would result in a Material Adverse Change;
(A) engage or permit any ERISA Affiliate to engage in any transaction described in Section 4069 of ERISA; (B) engage, or permit any ERISA Affiliate to engage, in any prohibited transaction described in Section 406 of ERISA or 4975 of the Code for which a statutory or class exemption is not available or a private exemption has not previously been obtained from the Department of Labor; (C) adopt or permit any ERISA Affiliate to adopt any employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA or applicable law; (D) fail to make any contribution or payment to any Multiemployer Plan which the Company or any Subsidiary or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereof; (E) fail, or permit any ERISA Affiliate to fail, to pay any required installment or any other payment required under Section 412 of the Code on or before the due date for such installment or other payment; and
(s) grant any rights of registration under the Securities Act relating to any of its shares of capital stock Capital Stock or other securities to any Person other than pursuant to this Agreement, unless (i) the rights so granted to another Person do not limit, restrict or impair the rights of the Purchaser under this Agreement and under the Related Documents and (ii) such rights so granted to another Person do not grant priority in registration rights to such other Person over rights granted to Purchaser under this Agreement and under the Related Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Flexpoint Sensor Systems Inc)
Restricted Actions. Without the prior written consent of the holders of (i) two-thirds (2/3) (or such higher percentage of holders as may then be required by law) of the then outstanding shares of Preferred Stock and (ii) two-thirds (2/3) of the then outstanding aggregate principal amount of the NotesPurchaser, and for so long as any of the Preferred Stock or Notes Debentures remain outstanding, the Company shall not, and shall not permit any Subsidiary to:
(a) become subject to any agreement or instrument which by its terms would (under any circumstances) restrict or impair the Company's right to comply with or fulfill its obligations under the terms of this Agreement or any of the Related Documents;
(b) use the proceeds from the sale of the Securities other than for repayment of indebtedness, working capital and other general corporate purposes; provided, that the Company will in no event use the proceeds to invest in any securities other than short-term, interest-bearing government securities;
(c) enter into any transaction or series of transactions with any stockholder, director, officer, employee or Affiliate, including, without limitation, the purchase, sale, lease orexchange or exchange of any property, the rendering of any service or any investment, loan or advance, unless such transaction (i) is consummated by the Company in good faith on an arm's-length basis, (ii) is less than $100,000 per occurrence or $250,000 in the aggregate, and (iii) is approved by the Board of Directors, including by a majority of the Company's disinterested directors;
(d) expand the Board of Directors to greater than eight (8) members;
(e) except with respect to the sale of the synthetic fuel facilities of the Company set forth on Schedule 8.1(e), sell all or any material portion of its assets, determined on a consolidated basis;
(f) declare or pay any dividends, purchase or otherwise acquire for value any of its membership interests or other Capital Stock now or hereafter outstanding, return any capital to its members as such, or make any other payment or distribution of assets to its stockholders as such, or permit any of its Subsidiaries to do any of the foregoing or to purchase or otherwise acquire for value any Capital Stock of the Company or its Subsidiaries, or make any payment or prepayment of principal of, premium, if any, or interest on, or redeem, decrease or otherwise retire, any Indebtedness before its scheduled due date;
(ge) materially alter or change the business of the Company;
(hf) issue any stock option or warrant at less than the fair market value Fair Market Value at the time of grant;
(ig) unless the Company has issued and sold $4,000,000.00 of the Debentures to the Purchaser, create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, exist any Indebtedness, other than:
(i) Indebtedness created hereunder and under the Notes;Debentures; and
(ii) Indebtedness existing on the date hereof, as set forth in Schedule 8.1(i) hereto, and any extension of maturity, refinancing or modification of the terms thereof; there of provided, however, that such extension, refinancing or modification (A) is pursuant to terms that are not materially less favorable to the Purchaser purchaser than the terms of the Indebtedness being extended, refinanced or modified and (B) after giving effect to the extension, refinancing or modification, such Indebtedness is not greater than the amount of Indebtedness outstanding immediately prior to such extension, refinancing or modification;
(iii) Indebtedness under Capitalized Leases permitted by subparagraph (p) of this Section 8.1; and
(iv) additional Indebtedness at any one time outstanding not to exceed $4,000,000.
(jh) enter into any merger, combination, consolidation, reorganization, recapitalization, liquidation or other similar transaction of the Company or any agreement with respect to any of the foregoing, other than a transaction for the purpose of changing the Company's domicile;
(k) amend the Certificate of Incorporation or Bylaws, or alter the rights, preferences and privileges of the Securities, the Conversion Shares or the Warrant Shares;
(l) create or suffer to exist, or permit any of its Subsidiaries to create or suffer to exist, any Lien upon or with respect to any of its properties, rights or other assets, whether now owned or hereafter acquired, or assign or otherwise transfer, or permit any of its Subsidiaries to assign or otherwise transfer, any right to receive income, other than the following ("Permitted Liens"):
(i) Liens existing on the date hereof, as set forth in Schedule 8.1(l) hereto, but not the extension of coverage thereof to other property or the extension of maturity, refinancing or other modification of the terms thereof or of the Indebtedness secured thereby;
(ii) Liens created by operation of law (other than Environmental Liens), such as materialmen's liens, mechanics' liens and other similar Liens arising in the ordinary course of business;
(iii) deposits, pledges or Liens (other than Liens arising under ERISA or the Code) securing (A) obligations incurred in respect of workers' compensation, unemployment insurance or other forms of governmental insurance or benefits, (B) the performance of bids, tenders, leases, contracts (other than for the payment of money) and statutory obligations, or (C) obligations on surety or appeal bonds, but only to the extent such deposits, pledges or Liens are incurred or otherwise arise in the ordinary course of business and secure obligations which are not past due;
(iv) restrictions or covenants on the use of real property and minor irregularities in the title thereto which do not (A) secure obligations for the payment of money or (B) materially adversely impair the value or marketability of such property or its use by the Company or any of its Subsidiaries in the normal conduct of such Person's business; provided, that in all such cases the Company or relevant Subsidiary complies in all material respects with all of its obligations under such title restrictions or covenants;
(v) Liens securing Capitalized Leases permitted by subparagraph (p) of this Section 8.1; and
(vi) non-consensual Liens, but only if the Company has posted a bond or other financial assurance sufficient to satisfy the Indebtedness secured by such Lien.
(m) assume, guarantee, endorse or otherwise become directly or contingently liable (including, without limitation, liable by way of agreement, contingent or otherwise, to purchase, to provide funds for payment, to supply funds to or otherwise invest in the debtor or otherwise to assure the creditor against loss), in connection with any Indebtedness of any other Person (other than, in the case of the Company, guaranties of Indebtedness of any Subsidiaries), other than
(i) guaranties by endorsement of negotiable instruments for deposit or collection in the ordinary course of business; and
(ii) guaranties existing on the date hereof, as set forth in Schedule 8.1(m) hereto, but not any renewal or other modification thereof;
(n) make, or permit any of its Subsidiaries to make, any loan or advance to any Person or purchase or otherwise acquire or permit any of its Subsidiaries to purchase or otherwise acquire, any capital stock, properties, assets or obligations of, or any interest in, any Person, other than (i) raw material purchased in the ordinary course of business and (ii) trade credit extended in the ordinary course of business;
(o) create, incur or suffer to exist, or permit any of its Subsidiaries to create, incur or suffer to exist, any obligations as lessee (i) for the payment of rent for any real or personal property in connection with any sale and leaseback transaction, or (ii) for the payment of rent for any real or personal property under Capitalized Leases which would cause the aggregate amount of all obligations under Capitalized Leases entered into after the Closing Date owing by the Company in any fiscal year to exceed the amounts set forth in subsection (p) of this Section 8.1;
(p) except as set forth on Schedule 8.1(p), make or be committed to make, or permit any of its Subsidiaries to make or be committed to make, any Capital Expenditure (by purchase or capitalized lease) other than Capital Expenditures (including obligations under Capitalized Leases) which would not cause the aggregate amount of all such Capital Expenditures to exceed the greater of (i) $300,000 and (ii) 15% of the greater of (A) Consolidated EBITDA (as defined in the Notes) for the prior fiscal year of the Company and (B) Consolidated EBITDA for the current fiscal year of the Company, in any fiscal year of the Company;
(q) allow the use, handling, generation, storage, treatment, release or disposal of Hazardous Materials at any property owned or leased by the Company or any of its Subsidiaries except in compliance with Environmental Laws and so long as such use, handling, generation, storage, treatment, release or disposal of Hazardous Materials does not result in a violation of Environmental Law which would result in a Material Adverse Change;
(A) engage or permit any ERISA Affiliate to engage in any transaction described in Section 4069 of ERISA; (B) engage, or permit any ERISA Affiliate to engage, in any prohibited transaction described in Section 406 of ERISA or 4975 of the Code for which a statutory or class exemption is not available or a private exemption has not previously been obtained from the Department of Labor; (C) adopt or permit any ERISA Affiliate to adopt any employee welfare benefit plan within the meaning of Section 3(1) of ERISA which provides benefits to employees after termination of employment other than as required by Section 601 of ERISA or applicable law; (D) fail to make any contribution or payment to any Multiemployer Plan which the Company or any Subsidiary or any ERISA Affiliate may be required to make under any agreement relating to such Multiemployer Plan, or any law pertaining thereof; (E) fail, or permit any ERISA Affiliate to fail, to pay any required installment or any other payment required under Section 412 of the Code on or before the due date for such installment or other payment; and
(sj) grant any rights of registration under the Securities Act relating to any of its shares of capital stock Capital Stock or other securities to any Person other than pursuant to this Agreement, unless (i) the rights so granted to another Person do not limit, restrict or impair the rights of the Purchaser under this Agreement and under the Related Documents and (ii) such rights so granted to another Person do not grant priority in registration rights to such other Person over rights granted to Purchaser under this Agreement and under the Related Documents.
Appears in 1 contract
Samples: Securities Purchase Agreement (Covol Technologies Inc)
