Shareholder Reserved Matters. The Company and the Key Group Companies shall not, and the Company, the Key Group Companies and the Founder Parties shall procure each Group Company not to, take, permit to occur, approve, authorize, or agree or commit to do any action (including any action by the Board or any committee thereof) with respect to any of the following matters, whether in a single transaction or in a series of related transactions, directly or indirectly, whether by amendment, merger, amalgamation, consolidation or otherwise, without approval or written consent from (a) Ordinary Holders representing more than fifty percent (50%) of the voting power of all of the Ordinary Shares of the Company voting as a single class and (b) the Majority Preferred Holders; provided that, any transaction for the purposes of the Restructuring that is expressly contemplated in the Restructuring Memorandum or the Restructuring Framework Agreement shall not require approval or consent in accordance with this Section 2.11; provided further that where any such action requires the approval of a special resolution under the Companies Law and if the relevant approval or written consent has not been obtained from the Ordinary Holders representing more than fifty percent (50%) of the voting power of all of the Ordinary Shares of the Company voting as a single class and the Majority Preferred Holders, then all the Shareholders voting against such resolution shall have the voting rights equal to the aggregate power of all the Shareholders voting in favor of such resolution plus one: (i) any Public Offering other than a Qualified IPO; (ii) any issuance or authorization of issuance of any securities (including Equity Securities and bond instruments) by the Company except (A) securities issued or authorized to be issued since the Closing Date that do not exceed in the aggregate ten percent (10%) of the total issued and outstanding securities of the Company on an as-converted and fully diluted basis immediately after the Closing Date, for an effective issue price per Ordinary Share (on an as-converted basis) not less than the Series D+ Original Issue Price (for the avoidance of doubt, any issuance separately approved as a reserved matter in accordance with this Section 2.11(ii) shall not be counted toward this ten percent (10%) limit), and (B) in addition to and not exclusive with the ten percent (10%) limit referred to in Section 2.11(ii)(A) above, Ordinary Shares issued or authorized to be issued since the Closing Date in connection with any acquisition transaction in the ordinary course of business that do not exceed in the aggregate three percent (3%) of the total issued and outstanding securities of the Company on an as-converted and fully diluted basis immediately after the Closing date, for an effective issue price per Ordinary Share not less than the Series D+ Original Issue Price; (iii) any issuance or authorization of issuance of any securities (including Equity Securities and bond instruments) by any Group Company other than the Company that is not solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix); (iv) any amendment, modification or waiver of any provision of any charter document of the Company or any Significant Group Company that is not solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix) or Section 2.11(ii), (iii), (vi) or (vii); (v) any adoption of, material amendment to or termination of any ESOP, or any increase to the total number of Equity Securities issuable pursuant to the 2018 ESOP, other than the adoption of the 2018 ESOP, any amendment of the 2018 ESOP that does not have the effect of increasing the total number of Equity Securities issuable pursuant thereto, termination of the 2018 ESOP, and any issuance of grants pursuant to the 2018 ESOP; (vi) repurchase, redemption, share subdivision, share combination, share split, recapitalization, reclassification or similar event in respect of any Equity Securities of any Group Company or otherwise make any changes to its capital structure other than as expressly contemplated in this Agreement or the Memorandum and Articles, or reclassification solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.11(vii); (vii) any merger, amalgamation or consolidation of the Company or any Significant Group Company with or into any Person, or any other corporate reorganization of the Company or any Significant Group Company; (viii) any pledge of Equity Securities of any Group Company by the Founder Parties to any Person, other than any pledge of Equity Securities of any Group Company in compliance with Section 3.03(ii); (ix) any disposal of any asset of any Group Company established in the PRC to a third party prior to the completion of the Restructuring other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement; (x) any disposal of all or substantially all assets or the Business of the Group to a third party; (xi) any action that would result in the Company ceasing to be an exempted company with limited liability; (xii) any material change of the scope or nature of the Business, or cessation of any business line of the Group; (xiii) the liquidation, dissolution, winding up or commencement of bankruptcy or similar proceedings of the Company or any Significant Group Company; (xiv) any declaration or payment of a dividend on Equity Securities by any Group Company established in the PRC prior to the completion of the Restructuring other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement; or (xv) any declaration or payment of a dividend on Equity Securities with a total amount exceeding fifteen percent (15%) of gross profits of the Company for the prior fiscal year other than any declaration or payment of a dividend on Equity Securities for the purposes of payment of (A) any Preferred Redemption Price in accordance with Article VII, or (B) the SVF Put Price in accordance with Section 9.14.
Appears in 2 contracts
Samples: Investor Rights Agreement (KE Holdings Inc.), Investor Rights Agreement (KE Holdings Inc.)
Shareholder Reserved Matters. The Company and the Key Group Companies shall not, and the Company, the Key Group Companies Company and the Founder Parties shall procure each Group Company not to, take, permit to occur, approve, authorize, or agree or commit to do any action (including any action by the Board Board, the board of directors of any Subsidiary of the Company, or any committee thereof) with respect to any of the following matters, whether in a single transaction or in a series of related transactions, directly or indirectly, whether by amendment, merger, amalgamation, consolidation or otherwise, without prior approval or written consent from (a) Ordinary Holders representing more than of the holders of fifty percent (50%) of the voting power of all of the Ordinary outstanding Shares of the Company voting as a single class and (b) including the Majority Preferred Holdersprior approval or consent of each Investor Shareholder); provided that, any transaction for the purposes of the Restructuring that is expressly contemplated in the Restructuring Memorandum or the Restructuring Framework Agreement shall not require approval or consent in accordance with this Section 2.11; 2.09, provided further that where any such action requires the approval of a special resolution under the Companies Law and if the relevant approval or written consent has not been obtained from the Ordinary Holders holders representing more than fifty percent (50%) of the voting power of all of the Ordinary Shares of the Company voting as a single class and all of the Majority Preferred HoldersInvestor Shareholders, then all the Shareholders voting against such resolution shall have the voting rights equal to the aggregate power of all the Shareholders voting in favor of such resolution plus one; provided further, that the quorum of any general meeting of the Shareholders which is concerned with any reserved matter as provided in this Section 2.09 shall include all the Investor Shareholders; provided further, that if any specific matter has been approved by Investor Directors pursuant to Section 2.07 or Section 2.08, that matter shall not be subject to any approval pursuant to this Section 2.09:
(ia) any Public Offering other than a Qualified IPOamendment to the Company’s Memorandum and Articles;
(iib) winding up, dissolution, liquidation, merger, acquisition, division or reorganization of the Company;
(c) modification of authorized capital of the Company;
(d) any issuance or authorization of issuance of any securities (including without limitation Equity Securities and bond instrumentsSecurities, debt instruments and/or convertible securities) by the Company to a Person other than a Group Company, except (A) securities issued for a Qualified IPO or authorized to be issued since the Closing Date that do not exceed in the aggregate ten percent (10%) of the total issued and outstanding securities of the Company on an as-converted and fully diluted basis immediately after the Closing Date, for an effective issue price per Ordinary Share (on an as-converted basis) not less than the Series D+ Original Issue Price (for the avoidance of doubt, any issuance separately approved as a reserved matter in accordance with this Section 2.11(ii) shall not be counted toward this ten percent (10%) limit), and (B) in addition to and not exclusive with the ten percent (10%) limit referred to described in Section 2.11(ii)(A) above, Ordinary Shares issued or authorized to be issued since the Closing Date in connection with any acquisition transaction in the ordinary course of business that do not exceed in the aggregate three percent (3%) of the total issued and outstanding securities of the Company on an as-converted and fully diluted basis immediately after the Closing date, for an effective issue price per Ordinary Share not less than the Series D+ Original Issue Price;
(iii) any issuance or authorization of issuance of any securities (including Equity Securities and bond instruments) by any Group Company other than the Company that is not solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix5.02(e);
(ive) any amendment, modification or waiver of any provision of any charter document of the Company or any Significant Group Company that is not solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix) or Section 2.11(ii), (iii), (vi) or (vii);
(v) any adoption of, material amendment to or termination of any ESOP, or any increase to the total number of Equity Securities issuable pursuant to the 2018 ESOP, other than the adoption of the 2018 ESOP, any amendment of the 2018 ESOP that does not have the effect of increasing the total number of Equity Securities issuable pursuant thereto, termination of the 2018 ESOP, and any issuance of grants pursuant to the 2018 ESOP;
(vi) repurchase, redemption, share subdivision, share combination, share split, recapitalization, reclassification or similar event in respect of any Equity Securities of any Group Company or otherwise make any changes to its capital structure other than as expressly contemplated in this Agreement or the Memorandum and Articles, or reclassification solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.11(vii);
(vii) any merger, amalgamation or consolidation of the Company or any Significant Group Company with or into any Person, or any other corporate reorganization of the Company or any Significant Group Company;
(viii) any pledge of Equity Securities of any Group Company by the Founder Parties to any Person, other than any pledge of Equity Securities of any Group Company in compliance with Section 3.03(ii);
(ix) any disposal of any asset of any Group Company established in the PRC to a third party prior to the completion of the Restructuring other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement;
(x) any disposal of all or substantially all assets or the Business of the Group to a third party;
(xi) any action that would result in the Company ceasing to be an exempted company with limited liability;
(xii) any material change of the scope size or nature composition of the Business, or cessation of any business line of the Group;
(xiii) the liquidation, dissolution, winding up or commencement of bankruptcy or similar proceedings of the Company or any Significant Group Company;
(xiv) any declaration or payment of a dividend on Equity Securities by any Group Company established in the PRC prior Board not consistent with Section 2.01 to the completion of the Restructuring other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement2.03; or
(xvf) any declaration enhancement or payment of a dividend on Equity Securities with a total amount exceeding fifteen percent (15%) of gross profits limitation of the Company for power of the prior fiscal year other than any declaration or payment of a dividend on Equity Securities for the purposes of payment of (A) any Preferred Redemption Price in accordance with Article VII, or (B) the SVF Put Price in accordance with Section 9.14Board.
Appears in 1 contract
Shareholder Reserved Matters. The Company and the Key Group Companies shall not, and the Company, the Key Group Companies Company and the Founder Parties shall procure each Group Company not to, take, permit to occur, approve, authorize, or agree or commit to do any action (including any action by the Board Board, the board of directors of any Subsidiary of the Company, or any committee thereof) with respect to any of the following matters, whether in a single transaction or in a series of related transactions, directly or indirectly, whether by amendment, merger, amalgamation, consolidation or otherwise, without prior approval or written consent from (a) Ordinary Holders representing more than of the holders of fifty percent (50%) of the voting power of all of the Ordinary outstanding Shares of the Company voting as a single class and (b) including the Majority Preferred Holdersprior approval or consent of each Investor Shareholder); provided that, any transaction for the purposes of the Restructuring that is expressly contemplated in the Restructuring Memorandum or the Restructuring Framework Agreement shall not require approval or consent in accordance with this Section 2.11; 2.09, provided further that where any such action requires the approval of a special resolution under the Companies Law and if the relevant approval or written consent has not been obtained from the Ordinary Holders holders representing more than fifty percent (50%) of the voting power of all of the Ordinary Shares of the Company voting as a single class and all of the Majority Preferred HoldersInvestor Shareholders, then all the Shareholders voting against such resolution shall have the voting rights equal to the aggregate power of all the Shareholders voting in favor of such resolution plus one; provided further, that the quorum of any general meeting of the Shareholders which is concerned with any reserved matter as provided in this Section 2.09 shall include all the Investor Shareholders; provided further, that if any specific matter has been approved by Investor Directors pursuant to Section 2.07 or Section 2.08, that matter shall not be subject to any approval pursuant to this Section 2.09:
(ia) any Public Offering other than a Qualified IPOamendment to the Company’s Memorandum and Articles;
(iib) winding up, dissolution, liquidation, merger, acquisition, division or reorganization of the Company;
(c) modification of authorized capital of the Company;
(d) any issuance or authorization of issuance of any securities (including without limitation Equity Securities and bond instrumentsSecurities, debt instruments and/or convertible securities) by the Company to a Person other than a Group Company, except (A) securities issued for a Qualified IPO or authorized to be issued since the Closing Date that do not exceed in the aggregate ten percent (10%) of the total issued and outstanding securities of the Company on an as-converted and fully diluted basis immediately after the Closing Date, for an effective issue price per Ordinary Share (on an as-converted basis) not less than the Series D+ Original Issue Price (for the avoidance of doubt, any issuance separately approved as a reserved matter in accordance with this Section 2.11(ii) shall not be counted toward this ten percent (10%) limit), and (B) in addition to and not exclusive with the ten percent (10%) limit referred to described in Section 2.11(ii)(A) above, Ordinary Shares issued or authorized to be issued since the Closing Date in connection with any acquisition transaction in the ordinary course of business that do not exceed in the aggregate three percent (3%) of the total issued and outstanding securities of the Company on an as-converted and fully diluted basis immediately after the Closing date, for an effective issue price per Ordinary Share not less than the Series D+ Original Issue Price;
(iii) any issuance or authorization of issuance of any securities (including Equity Securities and bond instruments) by any Group Company other than the Company that is not solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix5.02(e);
(ive) any amendment, modification or waiver of any provision of any charter document of the Company or any Significant Group Company that is not solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix) or Section 2.11(ii), (iii), (vi) or (vii);
(v) any adoption of, material amendment to or termination of any ESOP, or any increase to the total number of Equity Securities issuable pursuant to the 2018 ESOP, other than the adoption of the 2018 ESOP, any amendment of the 2018 ESOP that does not have the effect of increasing the total number of Equity Securities issuable pursuant thereto, termination of the 2018 ESOP, and any issuance of grants pursuant to the 2018 ESOP;
(vi) repurchase, redemption, share subdivision, share combination, share split, recapitalization, reclassification or similar event in respect of any Equity Securities of any Group Company or otherwise make any changes to its capital structure other than as expressly contemplated in this Agreement or the Memorandum and Articles, or reclassification solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.11(vii);
(vii) any merger, amalgamation or consolidation of the Company or any Significant Group Company with or into any Person, or any other corporate reorganization of the Company or any Significant Group Company;
(viii) any pledge of Equity Securities of any Group Company by the Founder Parties to any Person, other than any pledge of Equity Securities of any Group Company in compliance with Section 3.03(ii);
(ix) any disposal of any asset of any Group Company established in the PRC to a third party prior to the completion of the Restructuring other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement;
(x) any disposal of all or substantially all assets or the Business of the Group to a third party;
(xi) any action that would result in the Company ceasing to be an exempted company with limited liability;
(xii) any material change of the scope size or nature composition of the Business, Board not consistent with Section 2.01 to 2.03; or cessation of any business line (f) enhancement or limitation of the Group;
(xiii) the liquidation, dissolution, winding up or commencement of bankruptcy or similar proceedings power of the Company or any Significant Group Company;
(xiv) any declaration or payment of a dividend on Equity Securities by any Group Company established in the PRC prior to the completion of the Restructuring other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement; or
(xv) any declaration or payment of a dividend on Equity Securities with a total amount exceeding fifteen percent (15%) of gross profits of the Company for the prior fiscal year other than any declaration or payment of a dividend on Equity Securities for the purposes of payment of (A) any Preferred Redemption Price in accordance with Article VII, or (B) the SVF Put Price in accordance with Section 9.14Board.
Appears in 1 contract
Shareholder Reserved Matters. The (A) For as long as each Party owns Garanti Shares representing 15% or more of the Shares, (i) each Party shall vote all of the Garanti Shares it then owns to ensure that the matters listed below (whether such matters are decided by the Company or a Material Subsidiary (as the case may be) in a meeting of the Board of Directors, annual or extra-ordinary meeting of shareholders or otherwise) shall only be implemented or approved with all the Parties’ consent or as decided at the Reserved Matters Decision Committee meeting and (ii) Dogus Shareholders otherwise undertakes not to vote against or challenge any other matter not listed below proposed to be implemented or approved by BBVA Shareholder (save where such matter conflicts with an express right granted to it under this Agreement during the Key Group Companies shall notPhase II Period).
(i) to adversely affect the voting, dividends and other rights attached to any Garanti Shares that each Party owns or shares in the Material Subsidiaries, whether by amendment to the Articles, the articles of association of such Subsidiaries or otherwise,
(ii) any capital increase and/or the grant of any option or other right to subscribe for or issue any shares in the Company or a Material Subsidiary, whether for cash or by conversion, exchange of instruments into shares in the share capital of the Company or a Material Subsidiary or otherwise or any restriction of pre-emption rights over such shares except where: (i) this matter has already been agreed upon in the business plan or (ii) in respect of the Company, where the Key Group Companies Company maintains, immediately prior to any such proposed capital increase, a capital adequacy ratio of less than either [***]% or, if higher, such ratio required by law or regulation at the relevant time, calculated pursuant to the regulations regarding the capital adequacy of banks in force in the Republic of Turkey. For the avoidance of doubt, the capitalization of any dividends, reserves or any other accounting surplus the capitalization of which is permitted under the applicable legislation does not constitute a Shareholder Reserve Matter,
(iii) to allow any change in the number of the Directors, the Auditors or the committee members to serve on the Board of Directors or the Board of Auditors or any committees of the Company or any Material Subsidiary from that agreed between the Parties in this Agreement (unless required by applicable law and/or regulation),
(iv) to allow any change in the meeting or decision quorum for meetings of the Board of Directors and the Founder Reserved Matters Decision Committee from that agreed between the Parties shall procure each Group Company not to, take, permit in this Agreement (unless required by applicable law and/or regulation),
(v) to occur, approve, authorizeapprove any Board compensation plan and any amendments thereto,
(vi) to liquidate, or agree enter into any insolvency proceedings, in relation to the Company or commit a Material Subsidiary,
(vii) to do any action (including any action by participate in the Board disposal of, in one or any committee thereof) with respect to any of the following matters, whether in a single transaction or in a series of related transactionstransactions in one financial year, directly any existing Material Subsidiary,
(viii) to participate in the subscription for, acquisition or indirectlydisposal of, whether by amendmentin one or a series of related transactions in one financial year, mergerany shares or other securities of any business entity or any business(es), amalgamation, consolidation or otherwise, without approval any line of businesses or written consent from (a) Ordinary Holders representing more than fifty percent (50%) assets with a value in excess of 10% of the voting power of all Group’s total net assets based on the latest consolidated audited accounts of the Ordinary Shares Company;
(ix) to approve the annual budget and the business plan and any amendments thereto of the Company voting as or a single class and Material Subsidiary;
(bx) to provide any loans or approve credit lines to a Party or its Affiliates;
(xi) to enter into any contract or arrangement with a Party or its Affiliates other than on an arm’s length basis;
(xii) to make any changes to the Majority Preferred Holders; provided that, any transaction for the purposes of the Restructuring that is expressly contemplated in the Restructuring Memorandum or the Restructuring Framework Agreement shall not require approval or consent in accordance with this Section 2.11; provided further that where any such action requires the approval of a special resolution under the Companies Law and if the relevant approval or written consent has not been obtained from the Ordinary Holders representing more than fifty percent (50%) of the voting power of all of the Ordinary Shares constitutional documents of the Company voting or a Material Subsidiary that conflict with the rights of the Shareholders holding 15% or more of the Shares in the Phase II Period; and
(xiii) to appoint senior non-Board executives of the Company or a Material Subsidiary. This right shall be valid only so long as a single class (i) the BBVA Shareholder owns less than 50% of the Shares; and (ii) the difference between the percentage of Shares owned by the BBVA Shareholder and the Majority Preferred HoldersDogus Shareholders is less than 20% of the Shares. This right provided by this Section 6.05(A)(xiii) can only be exercised by the Dogus Shareholders and cannot be assigned to a third party regardless of assignment any other rights under this Agreement or adherence by a third party to this Agreement.
(B) Once Dogus Shareholders owns Garanti Shares representing over 9.95% but less than 15% of the Shares, (i) each Party shall vote all Garanti Shares it then all owns to ensure that the matters listed below (whether such matters are decided by the Company or a Material Subsidiary (as the case may be) in a meeting of the Board of Directors, annual or extra-ordinary meeting of shareholders or otherwise) shall only be implemented or approved with each Parties’ consent or as decided at the Reserved Matters Decision Committee meeting; and (ii) Dogus Shareholders voting otherwise undertakes not to vote against or challenge any other matter not listed below proposed to be implemented or approved by BBVA Shareholder (save where such resolution shall have matter conflicts with an express right granted to it under this Agreement during the voting rights equal to the aggregate power of all the Shareholders voting in favor of such resolution plus one:Phase II Period):
(i) to adversely affect the voting and other rights attached to any Public Offering other than a Qualified IPOGaranti Shares that Dogus Shareholders owns, whether by amendment to the Articles, the articles of association of such Subsidiaries or otherwise;
(ii) to make any issuance or authorization of issuance of any securities (including Equity Securities and bond instruments) by changes to the Company except (A) securities issued or authorized to be issued since the Closing Date that do not exceed in the aggregate ten percent (10%) of the total issued and outstanding securities constitutional documents of the Company on an as-converted and fully diluted basis immediately after the Closing Date, for an effective issue price per Ordinary Share (on an as-converted basis) not less than the Series D+ Original Issue Price (for the avoidance of doubt, any issuance separately approved as or a reserved matter in accordance with this Section 2.11(ii) shall not be counted toward this ten percent (10%) limit), and (B) in addition to and not exclusive Material Subsidiary that conflict with the ten percent (10%) limit referred to in Section 2.11(ii)(A) above, Ordinary rights of the Dogus Shareholders holding 9.95% or more of the Shares issued or authorized to be issued since the Closing Date in connection with any acquisition transaction in the ordinary course of business that do not exceed in the aggregate three percent (3%) of the total issued and outstanding securities of the Company on an as-converted and fully diluted basis immediately after the Closing date, for an effective issue price per Ordinary Share not less than the Series D+ Original Issue Price;Phase II Period.
(iii) to liquidate, or enter into any issuance or authorization of issuance of any securities (including Equity Securities and bond instruments) by any Group Company other than insolvency proceedings, in relation to the Company that is not solely to implement or a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix)Material Subsidiary;
(iv) to grant any amendment, modification right to any person or waiver persons that restricts the pre-emptive rights of any provision Dogus Shareholders in respect of any charter document of the Company or any Significant Group Company that is not solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix) or Section 2.11(ii), (iii), (vi) or (vii);share capital increases; or
(v) any adoption the disposal or discontinuance of, or material amendment to changes to, in one or termination a series of related transactions in one financial year any ESOP, line of business or any increase to business entity within the total number of Equity Securities issuable pursuant to the 2018 ESOP, other than the adoption of the 2018 ESOP, any amendment of the 2018 ESOP that does not have the effect of increasing the total number of Equity Securities issuable pursuant thereto, termination of the 2018 ESOP, and any issuance of grants pursuant to the 2018 ESOP;
(vi) repurchase, redemption, share subdivision, share combination, share split, recapitalization, reclassification or similar event in respect of any Equity Securities of any Group Company or otherwise make any changes to its capital structure other than as expressly contemplated in this Agreement or the Memorandum and Articles, or reclassification solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.11(vii);
(vii) any merger, amalgamation or consolidation value in excess of the Company or any Significant Group Company with or into any Person, or any other corporate reorganization of the Company or any Significant Group Company;
(viii) any pledge of Equity Securities of any Group Company by the Founder Parties to any Person, other than any pledge of Equity Securities of any Group Company in compliance with Section 3.03(ii);
(ix) any disposal of any asset of any Group Company established in the PRC to a third party prior to the completion of the Restructuring other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement;
(x) any disposal of all or substantially all assets or the Business of the Group to a third party;
(xi) any action that would result in the Company ceasing to be an exempted company with limited liability;
(xii) any material change of the scope or nature of the Business, or cessation of any business line 25% of the Group;’s total net assets based on the latest consolidated audited accounts of the Company.
(xiiiC) the liquidation, dissolution, winding up Once Dogus Shareholders owns Garanti Shares representing equal to or commencement of bankruptcy or similar proceedings under 9.95% of the Company Shares, Dogus Shareholders’ only rights and protections as a shareholder shall be those granted to it under Turkish law or under the Articles provided that Dogus Shareholders undertakes not to vote against or challenge any Significant Group Company;matter proposed to be implemented or approved by BBVA Shareholder (save where such matter conflicts with an express right granted to it under this Agreement during the Phase II Period).
(xivD) any declaration or payment of a dividend on Equity Securities by any Group Company established in In the PRC prior to the completion event that Dogus Shareholders drops below one of the Restructuring other than thresholds above in this Section 6.05(B), (C) and (D), then the provisions applicable to such lower threshold in this Section 6.05 shall continue to apply to it notwithstanding any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement; or
(xv) any declaration or payment future increase in its ownership of a dividend on Equity Securities with a total amount exceeding fifteen percent (15%) of gross profits of the Company for the prior fiscal year other than any declaration or payment of a dividend on Equity Securities for the purposes of payment of (A) any Preferred Redemption Price in accordance with Article VII, or (B) the SVF Put Price in accordance with Section 9.14Shares.
Appears in 1 contract
Samples: Shareholders Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
Shareholder Reserved Matters. The Company 15.1 Shareholders’ meetings shall be governed by this Agreement, the Articles and the Key Group Companies Laws of KSA.
15.2 The Shareholders shall notprocure, and the Companyas far as they are lawfully able, the Key Group Companies and the Founder Parties shall procure each Group Company not to, take, permit to occur, approve, authorize, that no action is taken or agree or commit to do any action (including any action resolution passed by the Board or any committee thereof) with respect to any of the following matters, whether in a single transaction or in a series of related transactions, directly or indirectly, whether by amendment, merger, amalgamation, consolidation or otherwise, without approval or written consent from (a) Ordinary Holders representing more than fifty percent (50%) of the voting power of all of the Ordinary Shares of the Company voting as a single class and (b) the Majority Preferred Holders; provided that, any transaction for the purposes of the Restructuring that is expressly contemplated in the Restructuring Memorandum or the Restructuring Framework Agreement shall not require approval or consent in accordance with this Section 2.11; provided further that where any such action requires the approval of a special resolution under the Companies Law and if the relevant approval or written consent has not been obtained from the Ordinary Holders representing more than fifty percent (50%) of the voting power of all of the Ordinary Shares of the Company voting as a single class and the Majority Preferred Holders, then all the Shareholders voting against such resolution shall have the voting rights equal to the aggregate power of all the Shareholders voting in favor of such resolution plus one:
(i) any Public Offering other than a Qualified IPO;
(ii) any issuance or authorization of issuance of any securities (including Equity Securities and bond instruments) by the Company except (A) securities issued or authorized to be issued since the Closing Date that do not exceed in the aggregate ten percent (10%) of the total issued and outstanding securities of the Company on an as-converted and fully diluted basis immediately after the Closing Date, for an effective issue price per Ordinary Share (on an as-converted basis) not less than the Series D+ Original Issue Price (for the avoidance of doubt, any issuance separately approved as a reserved matter in accordance with this Section 2.11(ii) shall not be counted toward this ten percent (10%) limit), and (B) in addition to and not exclusive with the ten percent (10%) limit referred to in Section 2.11(ii)(A) above, Ordinary Shares issued or authorized to be issued since the Closing Date in connection with any acquisition transaction in the ordinary course of business that do not exceed in the aggregate three percent (3%) of the total issued and outstanding securities of the Company on an as-converted and fully diluted basis immediately after the Closing date, for an effective issue price per Ordinary Share not less than the Series D+ Original Issue Price;
(iii) any issuance or authorization of issuance of any securities (including Equity Securities and bond instruments) by any Group Company other than the Company that is not solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix);
(iv) any amendment, modification or waiver of any provision of any charter document of the Company or any Significant Group Company, and the Company shall not take, and shall procure that no Group Company that is not solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix) or Section 2.11(iishall take, any action in respect of the matters listed in Schedule 2 (Shareholder Reserved Matters), without the prior written consent of both the Shareholders. Unless required by the Laws of KSA, such matters do not need to be approved by the Shareholders in a general meeting.
15.3 The Board shall provide the Shareholders with sufficient information (iii), (viincluding voting recommendations) or (vii);
(v) any adoption of, material amendment to or termination of any ESOP, or any increase enable them to the total number of Equity Securities issuable pursuant to the 2018 ESOP, other than the adoption of the 2018 ESOP, any amendment of the 2018 ESOP that does not have the effect of increasing the total number of Equity Securities issuable pursuant thereto, termination of the 2018 ESOP, and any issuance of grants pursuant to the 2018 ESOP;
(vi) repurchase, redemption, share subdivision, share combination, share split, recapitalization, reclassification or similar event make a reasonably informed decision in respect of any Equity Securities Shareholder Reserved Matter requiring their consent.
15.4 A series of related transactions shall be construed as a single transaction, and any Group amounts involved in the related transactions shall be aggregated, to determine whether a matter is a Shareholder Reserved Matter.
15.5 The Shareholders acknowledge and agree that should either Shareholder (the “Enforcing Shareholder”) wish the Company to enforce any of its rights under a Transaction Document to which neither the Enforcing Shareholder nor any of its Associated Companies is party, against the other Shareholder or otherwise make any changes of its Associated Companies (the “Defaulting Shareholder”):
15.5.1 the Enforcing Shareholder shall be entitled to require the Company to take any action required to enforce such rights, including by commencing proceedings against the Defaulting Shareholder (or its capital structure other than as expressly contemplated in this Agreement or the Memorandum and Articles, or reclassification solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.11(viirelevant Associated Company);
(vii) 15.5.2 Board approval of such action by the Company shall not require the affirmative vote of any merger, amalgamation or consolidation Director appointed by the Defaulting Shareholder; and
15.5.3 each of the Company or any Significant Group Company with or into any PersonShareholders shall use its respective powers, or including voting Shares owned by it and instructing the Directors appointed by it to vote in such a way as, to ensure, so far as it is legally able, that (notwithstanding any other corporate reorganization provision of this Agreement) the Company or takes any Significant Group Company;
(viii) any pledge such action required of Equity Securities of any Group Company it by the Founder Parties to any Person, other than any pledge of Equity Securities of any Group Company in compliance with Section 3.03(ii);
(ix) any disposal of any asset of any Group Company established in the PRC to a third party prior to the completion of the Restructuring other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement;
(x) any disposal of all or substantially all assets or the Business of the Group to a third party;
(xi) any action that would result in the Company ceasing to be an exempted company with limited liability;
(xii) any material change of the scope or nature of the Business, or cessation of any business line of the Group;
(xiii) the liquidation, dissolution, winding up or commencement of bankruptcy or similar proceedings of the Company or any Significant Group Company;
(xiv) any declaration or payment of a dividend on Equity Securities by any Group Company established in the PRC prior to the completion of the Restructuring other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement; or
(xv) any declaration or payment of a dividend on Equity Securities with a total amount exceeding fifteen percent (15%) of gross profits of the Company for the prior fiscal year other than any declaration or payment of a dividend on Equity Securities for the purposes of payment of (A) any Preferred Redemption Price in accordance with Article VII, or (B) the SVF Put Price in accordance with Section 9.14Enforcing Shareholder.
Appears in 1 contract
Shareholder Reserved Matters. The Company and the Key Group Companies shall not(A) For so long as Dogus Shareholders own Garanti Shares representing over 9.95%, and the Company, the Key Group Companies and the Founder Parties shall procure each Group Company not to, take, permit to occur, approve, authorize, or agree or commit to do any action (including any action by the Board or any committee thereof) with respect to any of the following matters, whether in a single transaction or in a series of related transactions, directly or indirectly, whether by amendment, merger, amalgamation, consolidation or otherwise, without approval or written consent from (a) Ordinary Holders representing more than fifty percent (50%) of the voting power of all of the Ordinary Shares of the Company voting as a single class and (b) the Majority Preferred Holders; provided that, any transaction for the purposes of the Restructuring that is expressly contemplated in the Restructuring Memorandum or the Restructuring Framework Agreement shall not require approval or consent in accordance with this Section 2.11; provided further that where any such action requires the approval of a special resolution under the Companies Law and if the relevant approval or written consent has not been obtained from the Ordinary Holders representing more than fifty percent (50%) of the voting power of all of the Ordinary Shares of the Company voting as a single class and the Majority Preferred Holders, then all the Shareholders voting against such resolution shall have the voting rights equal to the aggregate power of all the Shareholders voting in favor of such resolution plus one:
(i) any Public Offering other than each Party shall vote all Garanti Shares it then owns to ensure that the matters listed below (whether such matters are decided by the Company or a Qualified IPO;
Material Subsidiary (as the case may be) in a meeting of the Board of Directors, annual or extra-ordinary meeting of shareholders or otherwise) shall only be implemented or approved with each Parties’ consent or as decided at the Reserved Matters Decision Committee meeting; and (ii) any issuance Dogus Shareholders otherwise undertakes not to vote against or authorization of issuance of any securities (including Equity Securities and bond instruments) by the Company except (A) securities issued or authorized to be issued since the Closing Date that do not exceed in the aggregate ten percent (10%) of the total issued and outstanding securities of the Company on an as-converted and fully diluted basis immediately after the Closing Date, for an effective issue price per Ordinary Share (on an as-converted basis) not less than the Series D+ Original Issue Price challenge (for the avoidance of doubt, including seeking compensation) any issuance separately approved as a reserved other matter in accordance with this Section 2.11(ii) shall not be counted toward this ten percent (10%) limit), and (B) in addition to and not exclusive with the ten percent (10%) limit referred to in Section 2.11(ii)(A) above, Ordinary Shares issued or authorized listed below proposed to be issued since implemented or approved by BBVA Shareholder (save where such matter conflicts with an express right granted to it under this Agreement):
(a) to adversely affect the Closing Date in connection with voting and other rights attached to any acquisition transaction in Garanti Shares that Dogus Shareholders own, whether by amendment to the ordinary course Articles, the articles of business that do not exceed in the aggregate three percent (3%) association of the total issued and outstanding securities of the Company on an as-converted and fully diluted basis immediately after the Closing date, for an effective issue price per Ordinary Share not less than the Series D+ Original Issue Pricesuch Subsidiaries or otherwise;
(iiib) to make any issuance or authorization of issuance of any securities (including Equity Securities and bond instruments) by any Group Company other than changes to the Company that is not solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix);
(iv) any amendment, modification or waiver of any provision of any charter document constitutional documents of the Company or any Significant Group Company a Material Subsidiary that is not solely to implement a transaction that has been separately approved as conflict with the rights of the Dogus Shareholders holding 9.95% or expressly exempted from being a reserved matter pursuant to Section 2.10(ix) or Section 2.11(ii), (iii), (vi) or (vii)more of the Shares;
(vc) any adoption of, material amendment to or termination of any ESOPliquidate, or enter into any increase insolvency proceedings, in relation to the total number of Equity Securities issuable pursuant to the 2018 ESOP, other than the adoption of the 2018 ESOP, any amendment of the 2018 ESOP that does not have the effect of increasing the total number of Equity Securities issuable pursuant thereto, termination of the 2018 ESOP, and any issuance of grants pursuant to the 2018 ESOPCompany or a Material Subsidiary;
(vid) repurchase, redemption, share subdivision, share combination, share split, recapitalization, reclassification to grant any right to any person or similar event persons that restricts the pre-emptive rights of Dogus Shareholders in respect of any Equity Securities of any Group Company or otherwise make any changes to its share capital structure other than as expressly contemplated in this Agreement or the Memorandum and Articles, or reclassification solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.11(vii);
(vii) any merger, amalgamation or consolidation of the Company or any Significant Group Company with or into any Person, or any other corporate reorganization of the Company or any Significant Group Company;
(viii) any pledge of Equity Securities of any Group Company by the Founder Parties to any Person, other than any pledge of Equity Securities of any Group Company in compliance with Section 3.03(ii);
(ix) any disposal of any asset of any Group Company established in the PRC to a third party prior to the completion of the Restructuring other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement;
(x) any disposal of all or substantially all assets or the Business of the Group to a third party;
(xi) any action that would result in the Company ceasing to be an exempted company with limited liability;
(xii) any material change of the scope or nature of the Business, or cessation of any business line of the Group;
(xiii) the liquidation, dissolution, winding up or commencement of bankruptcy or similar proceedings of the Company or any Significant Group Company;
(xiv) any declaration or payment of a dividend on Equity Securities by any Group Company established in the PRC prior to the completion of the Restructuring other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreementincreases; or
(xve) the disposal or discontinuance of, or material changes to, in one or a series of related transactions in one financial year any line of business or business entity within the Group that has a value in excess of 25% of the Group’s total net assets based on the latest consolidated audited accounts of the Company.
(B) Once Dogus Shareholders own Garanti Shares representing equal to or under 9.95% of the Shares, Dogus Shareholders’ only rights and protections as a shareholder shall be those granted to it under Turkish law or under the Articles provided that Dogus Shareholders undertake not to vote against or challenge (for the avoidance of doubt, including seeking compensation) any declaration matter proposed to be implemented or payment of a dividend on Equity Securities approved by BBVA Shareholder (save where such matter conflicts with a total amount exceeding fifteen percent an express right granted to it under this Agreement).
(15%C) of gross profits In the event that Dogus Shareholders drop below one of the Company for the prior fiscal year other than any declaration or payment of a dividend on Equity Securities for the purposes of payment of (Athresholds above in this Section 5.04(A) any Preferred Redemption Price in accordance with Article VII, or (B), then the provisions applicable to such lower threshold in this Section 5.04 (Shareholder Reserved Matters) the SVF Put Price shall continue to apply to it notwithstanding any future increase in accordance with Section 9.14its ownership of Shares.
Appears in 1 contract
Samples: Shareholder Agreement (Banco Bilbao Vizcaya Argentaria, S.A.)
Shareholder Reserved Matters. 15.1 Subject to the terms of Clauses 15.2 and 15.3 below but notwithstanding any other provision of this Agreement to the contrary, the Shareholders shall procure that no action is undertaken by the Company or any Group Company, and the Company shall not undertake and shall procure that no Group Company shall undertake any action with respect to the matters set out in Part A of Schedule 2 (“Shareholder Reserved Matters”) without the prior written consent of both the Original CPZ Shareholder (the “CPZ Consent Right”) and the Original Melco Shareholder.
15.2 The Original CPZ Shareholder may by written notice to the Company and the Key Group Companies shall not, and other Shareholders irrevocably transfer the Company, the Key Group Companies and the Founder Parties shall procure each Group Company not to, take, permit to occur, approve, authorize, or agree or commit to do any action (including any action by the Board or any committee thereof) with respect CPZ Consent Right to any of CPZ Transferee which holds the following mattersRequisite Minimum CPZ Shareholding, whether in a single transaction or in a series of related transactions, directly or indirectly, whether by amendment, merger, amalgamation, consolidation or otherwise, without approval or written consent from (a) Ordinary Holders representing more than fifty percent (50%) of the voting power of all of the Ordinary Shares of the Company voting as a single class and (b) the Majority Preferred Holders; provided that, any transaction for the purposes of the Restructuring that is expressly contemplated in the Restructuring Memorandum or the Restructuring Framework Agreement shall not require approval or consent in accordance with this Section 2.11; provided further that where any such action requires the approval of a special resolution under the Companies Law and if the relevant approval or written consent has not been obtained from the Ordinary Holders representing more than fifty percent (50%) of the voting power of all of the Ordinary Shares of the Company voting as a single class and the Majority Preferred Holders, then all the Shareholders voting against such resolution shall have the voting rights equal subject to the aggregate power of all the Shareholders voting in favor of such resolution plus onefollowing:
(i) upon the transfer of the CPZ Consent Right by the Original CPZ Shareholder to any Public Offering other than a Qualified IPOCPZ Transferee in accordance with this Clause 15.2, the applicable Shareholder Reserved Matters shall consist only of the matters set out in Part B of Schedule 2 (and for the avoidance of doubt, no consent of any CPZ Shareholder will be required under this Clause 15 at any time following such transfer in respect to the matters set out in Part A of Schedule 2, which shall cease to have any effect) (the “Modified Shareholder Reserved Matters”);
(ii) any issuance or authorization of issuance of any securities (including Equity Securities CPZ Transferee which is transferred and bond instruments) continues to hold the CPZ Consent Right in accordance with this Clause 15.2 above may by written notice to the Company except and the other Shareholders irrevocably transfer the CPZ Consent Right to any other CPZ Shareholder which holds the Requisite Minimum CPZ Shareholding; and
(Aiii) securities issued or authorized if any CPZ Shareholder which holds the CPZ Consent Right in accordance with the terms of this Clause 15 ceases to hold the Requisite Minimum CPZ Shareholding, then:
(a) that CPZ Shareholder may immediately transfer the CPZ Consent Right to a CPZ Shareholder which holds the Requisite Minimum CPZ Shareholding; or
(b) if no CPZ Shareholder holds the Requisite Minimum CPZ Shareholding, the CPZ Consent Right shall lapse with immediate effect and may not be issued since exercised by any person notwithstanding that any CPZ Shareholder may hold the Closing Date that do not exceed in the aggregate ten percent (10%) of the total issued and outstanding securities of the Company on an as-converted and fully diluted basis immediately after the Closing Date, for an effective issue price per Ordinary Share (on an as-converted basis) not less than the Series D+ Original Issue Price (for Requisite Minimum CPZ Shareholding at any future time.
15.3 For the avoidance of doubt, :
(i) nothing in this Clause 15 shall entitle the Original CPZ Shareholder or any issuance separately approved as a reserved matter CPZ Transferee to both concurrently hold consent rights in accordance with this Section 2.11(iirelation to the Shareholder Reserved Matters or the Modified Shareholder Reserved Matters; and
(ii) shall not be counted toward this ten percent (10%) limit), and (B) in addition to and not exclusive with the ten percent (10%) limit referred to in Section 2.11(ii)(A) above, Ordinary Shares issued or authorized to be issued since the Closing Date in connection with any acquisition transaction in the ordinary course of business that do not exceed in the aggregate three percent (3%) consent of the total issued and outstanding securities relevant CPZ Shareholder which holds the CPZ Consent Right under this Clause 15 shall be deemed to have been duly given if that CPZ Shareholder has voted in favour of any resolution or proposed resolution giving effect to or authorising a Shareholder Reserved Matter or Modified Shareholder Reserved Matter (as the case may be) which has been put to a vote at any general meeting of the Company on an as-converted and fully diluted basis immediately after the Closing date, for an effective issue price per Ordinary Share not less than the Series D+ Original Issue Price;
(iii) any issuance or authorization of issuance of any securities (including Equity Securities and bond instruments) by any Group Company other than the Company that is not solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix);
(iv) any amendment, modification or waiver of any provision of any charter document of the Company or any Significant Group Company that is not solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix) or Section 2.11(ii), (iii), (vi) or (vii);
(v) any adoption of, material amendment to or termination of any ESOP, or any increase to the total number of Equity Securities issuable pursuant to the 2018 ESOP, other than the adoption of the 2018 ESOP, any amendment of the 2018 ESOP that does not have the effect of increasing the total number of Equity Securities issuable pursuant thereto, termination of the 2018 ESOP, and any issuance of grants pursuant to the 2018 ESOP;
(vi) repurchase, redemption, share subdivision, share combination, share split, recapitalization, reclassification or similar event in respect of any Equity Securities of any Group Company or otherwise make any changes to its capital structure other than as expressly contemplated in this Agreement or the Memorandum and Articles, or reclassification solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.11(vii);
(vii) any merger, amalgamation or consolidation of the Company or any Significant Group Company with or into any Person, or any other corporate reorganization of the Company or any Significant Group Company;
(viii) any pledge of Equity Securities of any Group Company by the Founder Parties to any Person, other than any pledge of Equity Securities of any Group Company in compliance with Section 3.03(ii);
(ix) any disposal of any asset of any Group Company established in the PRC to a third party prior to the completion of the Restructuring other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement;
(x) any disposal of all or substantially all assets or the Business of the Group to a third party;
(xi) any action that would result in the Company ceasing to be an exempted company with limited liability;
(xii) any material change of the scope or nature of the Business, or cessation of any business line of the Group;
(xiii) the liquidation, dissolution, winding up or commencement of bankruptcy or similar proceedings of the Company or any Significant Group Company;
(xiv) any declaration or payment of a dividend on Equity Securities by any Group Company established in the PRC prior to the completion of the Restructuring other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement; or
(xv) any declaration or payment of a dividend on Equity Securities with a total amount exceeding fifteen percent (15%) of gross profits of the Company for the prior fiscal year other than any declaration or payment of a dividend on Equity Securities for the purposes of payment of (A) any Preferred Redemption Price in accordance with Article VII, or (B) the SVF Put Price in accordance with Section 9.14Shareholders.
Appears in 1 contract
Samples: Shareholders’ Agreement (Melco Resorts & Entertainment LTD)
Shareholder Reserved Matters. The Company and the Key Group Companies shall not, and the Company, the Key Group Companies and the Founder Parties shall procure each Group Company not to, take, permit to occur, approve, authorize, or agree or commit to do any action (including any action by the Board or any committee thereof) with respect to any of the following matters, whether in a single transaction or in a series of related transactions, directly or indirectly, whether by amendment, merger, amalgamation, consolidation or otherwise, without approval or written consent from (a) Ordinary Holders representing more than fifty percent (50%) For so long as the AIP Parties Beneficially Own in the aggregate a number of Company Shares equal to at least 15% of the voting power of all of then outstanding Company Shares, the Ordinary Shares of following matters (“Shareholder Reserved Matters”) shall require the Company voting as a single class and (b) the Majority Preferred Holders; provided that, any transaction for the purposes of the Restructuring that is expressly contemplated in the Restructuring Memorandum or the Restructuring Framework Agreement shall not require approval or consent in accordance with this Section 2.11; provided further that where any such action requires the approval of a special resolution under the Companies Law and if the relevant approval or written consent has not been obtained Requisite Consent from the Ordinary Holders representing more than fifty percent (50%) of the voting power of all of the Ordinary Shares of the Company voting as a single class and the Majority Preferred Holders, then all the Shareholders voting against such resolution shall have the voting rights equal to the aggregate power of all the Shareholders voting in favor of such resolution plus oneAIP Parties:
(i) commencement of any Public Offering other than proceeding for the voluntary dissolution, winding up or bankruptcy of the Company or a Qualified IPOSignificant Subsidiary;
(ii) any issuance or authorization of issuance of any securities (including Equity Securities and bond instruments) by non-pro rata reduction to the Company except (A) securities issued or authorized to be issued since the Closing Date that do not exceed in the aggregate ten percent (10%) of the total issued and outstanding securities share capital of the Company on an as-converted and fully diluted basis immediately after the Closing Dateor its Significant Subsidiaries, for an effective issue price per Ordinary Share (on an as-converted basis) not less than the Series D+ Original Issue Price (for the avoidance of doubt, any issuance separately approved except as a reserved matter in accordance with this Section 2.11(ii) shall not be counted toward this ten percent (10%) limit), and (B) in addition to and not exclusive with the ten percent (10%) limit referred to in Section 2.11(ii)(A) above, Ordinary Shares issued or authorized to be issued since the Closing Date in connection with any acquisition transaction in the ordinary course of business that do not exceed in the aggregate three percent (3%) of the total issued and outstanding securities of the Company on an as-converted and fully diluted basis immediately after the Closing date, for an effective issue price per Ordinary Share not less than the Series D+ Original Issue Pricerequired by law;
(iii) any issuance amendment to the Governing Documents that would change:
(A) the name of the Company;
(B) the jurisdiction of incorporation of the Company;
(C) the location of the Company’s principal executive offices;
(D) the purpose or authorization of issuance of any securities (including Equity Securities and bond instruments) by any Group Company other than purposes for which the Company that is not solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to incorporated; or
(E) this Section 2.10(ix)3.05;
(iv) any amendment, modification cash dividend or waiver of any provision of any charter document distribution to holders of the Company Shares where the aggregate amount of such cash dividend or distribution exceeds $10.0 million (other than any Significant Group regular quarterly cash dividend on the Company that is not solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix) or Section 2.11(ii), (iii), (vi) or (viiShares);
(v) any adoption of, material amendment to or termination of any ESOP, or any increase to the total number of Equity Securities issuable pursuant to the 2018 ESOP, other than the adoption of the 2018 ESOP, any amendment of the 2018 ESOP that does not have the effect of increasing the total number of Equity Securities issuable pursuant thereto, termination of the 2018 ESOP, and any issuance of grants pursuant to the 2018 ESOP;
(vi) repurchase, redemption, share subdivision, share combination, share split, recapitalization, reclassification or similar event in respect of any Equity Securities of any Group Company or otherwise make any changes to its capital structure other than as expressly contemplated in this Agreement or the Memorandum and Articles, or reclassification solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.11(vii);
(vii) any merger, amalgamation or consolidation of the Company or any Significant Group Company with or into any Person, or any other corporate reorganization entity or the spinoff of a business of the Company with Total Assets in excess of 15% of the Total Assets of the Company and its Subsidiaries or any Significant Group CompanyTotal Revenue in excess of 15% of the Total Revenue of the Company and its Subsidiaries;
(viiivi) any pledge of Equity Securities of any Group Company by the Founder Parties to any Personsale, conveyance transfer or other than any pledge of Equity Securities of any Group Company in compliance with Section 3.03(ii);
(ix) any disposal of any asset of any Group Company established in the PRC to a third party prior to the completion of the Restructuring other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement;
(x) any disposal disposition of all or substantially all assets or the Business more than 15% of the Group to a third party;
(xi) any action that would result in the Company ceasing to be an exempted company with limited liability;
(xii) any material change of the scope or nature of the Business, or cessation of any business line of the Group;
(xiii) the liquidation, dissolution, winding up or commencement of bankruptcy or similar proceedings Total Assets of the Company and its Subsidiaries or any Significant Group Company;
(xiv) any declaration or payment of a dividend on Equity Securities by any Group Company established in the PRC prior to the completion of the Restructuring business or other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement; or
(xv) any declaration or payment of a dividend on Equity Securities with a total amount exceeding fifteen percent (15%) of gross profits assets of the Company for and its Subsidiaries representing more than 15% of the prior fiscal year Total Revenue of the Company and its Subsidiaries; and
(vii) any designation to the Board contrary to the provisions regarding designation of Directors set forth in Section 3.01 or the Governing Documents.
(b) For so long as the AIP Parties Beneficially Own in the aggregate a number of Company Shares equal to at least 15% of the then outstanding Company Shares, the Company shall not take any action or step in respect of any Shareholder Reserved Matter without having first received the Requisite Consent.
(c) Each Shareholder (other than the JPM Parties) shall only vote its Company Shares at any declaration annual or payment special meeting of a dividend on Equity Securities for shareholders of the purposes of payment of (A) Company at which action is to be taken with respect to any Preferred Redemption Price in accordance with Article VIIShareholder Reserved Matter, or in any written consent or resolution in lieu of such a meeting of shareholders, in favor of any Shareholder Reserved Matter if AIP Parties representing the Requisite Consent have given advance written notice to each Shareholder that they are in favor of the approval of the Shareholder Reserved Matter. Each Shareholder (Bother than the JPM Parties) shall vote its Company Shares at any annual or special meeting of shareholder of the SVF Put Price Company at which action is to be taken with respect to any Shareholder Reserved Matter, or in accordance with Section 9.14any written consent or resolution in lieu of such a meeting of shareholders, against any Shareholder Reserved Matter unless AIP Parties representing the Requisite Consent have first given written notice to each other Shareholder that they are in favor of the approval of such Shareholder Reserved Matter. For so long as the AIP Parties Beneficially Own in the aggregate a number of Company Shares equal to at least 15% of the then outstanding Company Shares, the Shareholders (other than the JPM Parties) shall take all actions necessary to ensure that no Shareholder Reserved Matter is approved by the shareholders of the Company unless the AIP Parties have given the Requisite Consent.
Appears in 1 contract
Shareholder Reserved Matters. The (A) For as long as each Party owns Garanti Shares representing 15% or more of the Shares, (i) each Party shall vote all of the Garanti Shares it then owns to ensure that the matters listed below (whether such matters are decided by the Company or a Material Subsidiary (as the case may be) in a ***Confidential Treatment Requested meeting of the Board of Directors, annual or extra-ordinary meeting of shareholders or otherwise) shall only be implemented or approved with all the Parties’ consent or as decided at the Reserved Matters Decision Committee meeting and (ii) Dogus Shareholders otherwise undertakes not to vote against or challenge any other matter not listed below proposed to be implemented or approved by BBVA Shareholder (save where such matter conflicts with an express right granted to it under this Agreement during the Key Group Companies shall notPhase II Period).
(i) to adversely affect the voting, dividends and other rights attached to any Garanti Shares that each Party owns or shares in the Material Subsidiaries, whether by amendment to the Articles, the articles of association of such Subsidiaries or otherwise,
(ii) any capital increase and/or the grant of any option or other right to subscribe for or issue any shares in the Company or a Material Subsidiary, whether for cash or by conversion, exchange of instruments into shares in the share capital of the Company or a Material Subsidiary or otherwise or any restriction of pre-emption rights over such shares except where: (i) this matter has already been agreed upon in the business plan or (ii) in respect of the Company, where the Key Group Companies Company maintains, immediately prior to any such proposed capital increase, a capital adequacy ratio of less than either [***]% or, if higher, such ratio required by law or regulation at the relevant time, calculated pursuant to the regulations regarding the capital adequacy of banks in force in the Republic of Turkey. For the avoidance of doubt, the capitalization of any dividends, reserves or any other accounting surplus the capitalization of which is permitted under the applicable legislation does not constitute a Shareholder Reserve Matter,
(iii) to allow any change in the number of the Directors, the Auditors or the committee members to serve on the Board of Directors or the Board of Auditors or any committees of the Company or any Material Subsidiary from that agreed between the Parties in this Agreement (unless required by applicable law and/or regulation),
(iv) to allow any change in the meeting or decision quorum for meetings of the Board of Directors and the Founder Reserved Matters Decision Committee from that agreed between the Parties shall procure each Group Company not to, take, permit in this Agreement (unless required by applicable law and/or regulation),
(v) to occur, approve, authorizeapprove any Board compensation plan and any amendments thereto,
(vi) to liquidate, or agree enter into any insolvency proceedings, in relation to the Company or commit a Material Subsidiary,
(vii) to do any action (including any action by participate in the Board disposal of, in one or any committee thereof) with respect to any of the following matters, whether in a single transaction or in a series of related transactionstransactions in one financial year, directly any existing Material Subsidiary,
(viii) to participate in the subscription for, acquisition or indirectlydisposal of, whether by amendmentin one or a series of related transactions in one financial year, mergerany shares or other securities of any business entity or any business(es), amalgamation, consolidation or otherwise, without approval any line of businesses or written consent from (a) Ordinary Holders representing more than fifty percent (50%) assets with a value in excess of 10% of the voting power of all Group’s total net assets based on the latest consolidated audited accounts of the Ordinary Shares Company;
(ix) to approve the annual budget and the business plan and any amendments thereto of the Company voting as or a single class and Material Subsidiary;
(bx) to provide any loans or approve credit lines to a Party or its Affiliates;
(xi) to enter into any contract or arrangement with a Party or its Affiliates other than on an arm’s length basis;
(xii) to make any changes to the Majority Preferred Holders; provided that, any transaction for the purposes of the Restructuring that is expressly contemplated in the Restructuring Memorandum or the Restructuring Framework Agreement shall not require approval or consent in accordance with this Section 2.11; provided further that where any such action requires the approval of a special resolution under the Companies Law and if the relevant approval or written consent has not been obtained from the Ordinary Holders representing more than fifty percent (50%) of the voting power of all of the Ordinary Shares constitutional documents of the Company voting or a Material Subsidiary that conflict with the rights of the Shareholders holding 15% or more of the Shares in the Phase II Period; and ***Confidential Treatment Requested
(xiii) to appoint senior non-Board executives of the Company or a Material Subsidiary. This right shall be valid only so long as a single class (i) the BBVA Shareholder owns less than 50% of the Shares; and (ii) the difference between the percentage of Shares owned by the BBVA Shareholder and the Majority Preferred HoldersDogus Shareholders is less than 20% of the Shares. This right provided by this Section 6.05(A)(xiii) can only be exercised by the Dogus Shareholders and cannot be assigned to a third party regardless of assignment any other rights under this Agreement or adherence by a third party to this Agreement.
(B) Once Dogus Shareholders owns Garanti Shares representing over 9.95% but less than 15% of the Shares, (i) each Party shall vote all Garanti Shares it then all owns to ensure that the matters listed below (whether such matters are decided by the Company or a Material Subsidiary (as the case may be) in a meeting of the Board of Directors, annual or extra-ordinary meeting of shareholders or otherwise) shall only be implemented or approved with each Parties’ consent or as decided at the Reserved Matters Decision Committee meeting; and (ii) Dogus Shareholders voting otherwise undertakes not to vote against or challenge any other matter not listed below proposed to be implemented or approved by BBVA Shareholder (save where such resolution shall have matter conflicts with an express right granted to it under this Agreement during the voting rights equal to the aggregate power of all the Shareholders voting in favor of such resolution plus one:Phase II Period):
(i) to adversely affect the voting and other rights attached to any Public Offering other than a Qualified IPOGaranti Shares that Dogus Shareholders owns, whether by amendment to the Articles, the articles of association of such Subsidiaries or otherwise;
(ii) to make any issuance or authorization of issuance of any securities (including Equity Securities and bond instruments) by changes to the Company except (A) securities issued or authorized to be issued since the Closing Date that do not exceed in the aggregate ten percent (10%) of the total issued and outstanding securities constitutional documents of the Company on an as-converted and fully diluted basis immediately after the Closing Date, for an effective issue price per Ordinary Share (on an as-converted basis) not less than the Series D+ Original Issue Price (for the avoidance of doubt, any issuance separately approved as or a reserved matter in accordance with this Section 2.11(ii) shall not be counted toward this ten percent (10%) limit), and (B) in addition to and not exclusive Material Subsidiary that conflict with the ten percent (10%) limit referred to in Section 2.11(ii)(A) above, Ordinary rights of the Dogus Shareholders holding 9.95% or more of the Shares issued or authorized to be issued since the Closing Date in connection with any acquisition transaction in the ordinary course of business that do not exceed in the aggregate three percent (3%) of the total issued and outstanding securities of the Company on an as-converted and fully diluted basis immediately after the Closing date, for an effective issue price per Ordinary Share not less than the Series D+ Original Issue Price;Phase II Period.
(iii) to liquidate, or enter into any issuance or authorization of issuance of any securities (including Equity Securities and bond instruments) by any Group Company other than insolvency proceedings, in relation to the Company that is not solely to implement or a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix)Material Subsidiary;
(iv) to grant any amendment, modification right to any person or waiver persons that restricts the pre-emptive rights of any provision Dogus Shareholders in respect of any charter document of the Company or any Significant Group Company that is not solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.10(ix) or Section 2.11(ii), (iii), (vi) or (vii);share capital increases; or
(v) any adoption the disposal or discontinuance of, or material amendment to changes to, in one or termination a series of related transactions in one financial year any ESOP, line of business or any increase to business entity within the total number of Equity Securities issuable pursuant to the 2018 ESOP, other than the adoption of the 2018 ESOP, any amendment of the 2018 ESOP that does not have the effect of increasing the total number of Equity Securities issuable pursuant thereto, termination of the 2018 ESOP, and any issuance of grants pursuant to the 2018 ESOP;
(vi) repurchase, redemption, share subdivision, share combination, share split, recapitalization, reclassification or similar event in respect of any Equity Securities of any Group Company or otherwise make any changes to its capital structure other than as expressly contemplated in this Agreement or the Memorandum and Articles, or reclassification solely to implement a transaction that has been separately approved as or expressly exempted from being a reserved matter pursuant to Section 2.11(vii);
(vii) any merger, amalgamation or consolidation value in excess of the Company or any Significant Group Company with or into any Person, or any other corporate reorganization of the Company or any Significant Group Company;
(viii) any pledge of Equity Securities of any Group Company by the Founder Parties to any Person, other than any pledge of Equity Securities of any Group Company in compliance with Section 3.03(ii);
(ix) any disposal of any asset of any Group Company established in the PRC to a third party prior to the completion of the Restructuring other than any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement;
(x) any disposal of all or substantially all assets or the Business of the Group to a third party;
(xi) any action that would result in the Company ceasing to be an exempted company with limited liability;
(xii) any material change of the scope or nature of the Business, or cessation of any business line 25% of the Group;’s total net assets based on the latest consolidated audited accounts of the Company.
(xiiiC) the liquidation, dissolution, winding up Once Dogus Shareholders owns Garanti Shares representing equal to or commencement of bankruptcy or similar proceedings under 9.95% of the Company Shares, Dogus Shareholders’ only rights and protections as a shareholder shall be those granted to it under Turkish law or under the Articles provided that Dogus Shareholders undertakes not to vote against or challenge any Significant Group Company;matter proposed to be implemented or approved by BBVA Shareholder (save where such matter conflicts with an express right granted to it under this Agreement during the Phase II Period).
(xivD) any declaration or payment of a dividend on Equity Securities by any Group Company established in In the PRC prior to the completion event that Dogus Shareholders drops below one of the Restructuring other than thresholds above in this Section 6.05(B), (C) and (D), then the provisions applicable to such lower threshold in this Section 6.05 shall continue to apply to it notwithstanding any such transaction expressly contemplated by the Restructuring Memorandum or the Restructuring Framework Agreement; or
(xv) any declaration or payment future increase in its ownership of a dividend on Equity Securities with a total amount exceeding fifteen percent (15%) of gross profits of the Company for the prior fiscal year other than any declaration or payment of a dividend on Equity Securities for the purposes of payment of (A) any Preferred Redemption Price in accordance with Article VII, or (B) the SVF Put Price in accordance with Section 9.14Shares.
Appears in 1 contract
Samples: Shareholders' Agreement
