Supermajority Voting. Except as provided in Section 9.2, the amendment or repeal of provisions in any of the following Articles or sections listed in this Section 9.1 shall require the affirmative vote of the holders of not less than two-thirds of all the votes entitled to be cast thereon by the shareholders of this corporation, voting together as a single voting group:
Supermajority Voting. The DGCL provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation or bylaws, unless a corporation’s certificate of incorporation or bylaws, as the case may be, requires a greater percentage. Our amended and restated bylaws may be amended or repealed by a majority vote of the Choice of Forum. Our restated certificate of incorporation, as amended, provides that unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for (1) any derivative action or proceeding brought on behalf of us, (2) any action asserting a claim of breach of fiduciary duty owed by any director, officer or other employee or stockholder of ours to us or our stockholders, (3) any action asserting a claim arising pursuant to any provision of the General Corporation Law or as to which the General Corporation Law of the State of Delaware confers jurisdiction on the Court of Chancery, or (4) any action asserting a claim governed by the internal affairs doctrine. Our restated certificate of incorporation, as amended, further provides that unless we consent in writing to the selection of an alternative forum, the federal district courts of the United States of America shall, to the fullest extent permitted by law, be the sole and exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act of 1933, as amended. Delaware Business Combination Statute. Section 203 of the DGCL is applicable to us. Section 203 of the DGCL restricts some types of transactions and business combinations between a corporation and a 15% stockholder. A 15% stockholder is generally considered by Section 203 to be a person owning 15% or more of the corporation’s outstanding voting stock. Section 203 refers to a 15% stockholder as an “interested stockholder.” Section 203 restricts these transactions for a period of three years from the date the stockholder acquires 15% or more of our outstanding voting stock. With some exceptions, unless the transaction is approved by the board of directors and the holders of at least two-thirds of the outstanding voting stock of the corporation, Section 203 prohibits significant business transactions such as:
Supermajority Voting. 4 Section 9.
Supermajority Voting. In addition to the act of the majority of the directors present at a meeting at which a quorum is present, from and after the date of execution of that certain Stock Purchase Agreement to be entered into between the corporation and the investors named therein with respect to, among other things, the initial capitalization of the corporation (the "Stock Purchase Agreement"), the following shall require the affirmative vote of at least five (5) directors designated pursuant to Section 5.1 of the Stockholders Agreement (as defined in Article VIII, Section 9 below) by the Stockholders (as defined therein):
(i) the disposition of assets (in a single transaction or a series of related transactions) in an amount in excess of $5,000,000;
(ii) the entry into any transaction which would result in a Change of Control of the corporation, where "Change of Control" means (i) any sale, transfer or other conveyance, whether direct or indirect, of a majority of the fair market value of the assets of the corporation, in one transaction or a series of related transactions, to any "person" or "group" (as such terms are used for purposes of Section 13(d) of the Securities Exchange Act of 1934, as amended, whether or not applicable), (ii) any "person" or "group" (as such terms are used for purposes of such Section 13(d)) is or becomes the "beneficial owner," directly or indirectly, of more than 50% of the total equity in the aggregate of all classes of capital stock of the corporation then outstanding normally entitled to vote in elections of directors, or (iii) during any period of 12 consecutive months after an initial public offering, individuals who at the beginning of any such 12-month period constituted the Board of Directors (together with any new directors whose election by such Board or whose nomination for election by the shareholders of the corporation was approved by a vote of a majority of the directors then still in office who were either directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the Board of Directors then in office;
Supermajority Voting. Notwithstanding any other provision of Article 6, the following actions of or in connection with the Company shall require the approval of the Members having at least 100% of the Sharing Ratios:
(a) the sale, exchange, or other disposition of substantially all of the property and other assets of the Company, other than assets in the ordinary course of business;
(b) the removal of a Manager; provided that, upon the removal of a Manager, or upon the Incapacity or resignation of a Manager, the Member who elected such removed Manager as its designee pursuant to Section 6.1 of this Agreement may elect a successor Manager;
(c) the guarantee of debts or obligations of another person;
(d) entering into any transaction or agreement involving payments in cash, property or services in excess of $10,000 or with a Member or an Affiliate of a Member;
(e) incurring indebtedness in excess of $10,000 in the aggregate for all indebtedness of the Company;
(f) issue additional Membership Interests to any person; and
(g) make capital expenditures in excess of $10,000 that are not included in the approved capital budget for the year in which the capital expenditure is proposed.
Supermajority Voting. Notwithstanding anything to the contrary contained herein but subject to the last sentence of this Section 4.1(h), the following matters relating to the business and operations of the Company and/or the Subsidiaries shall be presented to the Board of Directors and shall require the affirmative vote of at least seven (7) out of the nine (9) Directors, or in the event that the Board of Directors is expanded pursuant to Section 4.1(d)(i), a number of Directors that includes at least two (2) Class B Directors, or in the event of and for so long as there exists an FTB Ownership Event , at least two (2) Class A Directors (a “Board Supermajority”):
(i) any Change of Control (A) during the first three (3) years following the Effective Date, (B) during the fourth year following the Effective Date that implies an Equity Value of the Company and the Subsidiaries of less than $2.3 billion, (C) during the fifth year following the Effective Date that implies an Equity Value of the Company and the Subsidiaries of less than $2.5 billion; provided, however, that no such Board Supermajority consent shall be necessary (x) at any time if the Company and/or the Subsidiaries is in a payment default or financial covenant default under the Notes, unless the Notes have been amended consistent with a waiver of such payment default or financial covenant default, or (y) at any time after June 30, 2012 if the Company’s LTM EBITDA is less than $335,000,000;
(ii) any sale, transfer or disposition, in one or a series of related transactions, of any assets or other property of the Company and/or any Subsidiary having a value in excess of $100,000,000 in the aggregate (other than pursuant to a Change of Control); provided that no such Board Supermajority consent shall be required for any sale of the EFT Business at an aggregate purchase price greater than $1.0 billion;
(iii) any acquisition of assets or securities or investment in any other Person by the Company and/or any Subsidiary, in one or a series of related acquisitions, investments or contributions, other than with respect to any Person set forth on Exhibit B attached hereto, for a value exceeding $175,000,000 in the aggregate;
(iv) the retention, termination or replacement of the independent auditor of the Company and the Subsidiaries;
(v) other than (A) the arrangements set forth on Exhibit C, (B) issuances of New Securities permitted by this Agreement, (C) distributions provided to such Person in its capacity as a Member of the ...
Supermajority Voting. Without limiting the other provisions of this Agreement, the consent or approval of the Managers voting a Supermajority will be required for the items set forth below (unless such item is contemplated by the Annual Business Plan):
(1) the Company or any Subsidiary making any investment other than investments in prime commercial paper, money market funds, certificates of deposit in any United States bank having a senior obligations or institutional rating of “A” or higher by Standard & Poor’s or an equivalent rating by Xxxxx’x or Xxxxx’x, or obligations issued or guaranteed by the United States of America, in each case having a maturity not in excess of two years;
(2) the Company or any Subsidiary having at any one time outstanding indebtedness for borrowed money or capital leases in excess of $500,000 in the aggregate other than pursuant to the Credit Agreement;
(3) the Company or any Subsidiary pledging or encumbering any assets other than pursuant to the Credit Agreement or allowing to exist any Encumbrance other than Permitted Liens (as such term is defined in the Contribution Agreement);
(4) approving or amending the Annual Business Plan;
(5) except as provided in Section 3.2(f), authorizing funding in excess of annual budgeted aggregate amounts provided for in the Annual Business Plan (after taking into account the cushion amount set forth therein);
(6) approving any Distribution to the Members in excess of the Target Distribution Amount;
(7) the Company or any Subsidiary commencing any litigation other than litigation (a) in the ordinary course of business and (b) involving claims not in excess of $500,000 (except litigation covered by Section 4.6(c)(1));
(8) selecting or replacing the Company’s auditors;
(9) approving the operation of any business by the Company or any Subsidiary outside the United States or Canada;
(10) establishing or changing tax elections or methods of tax accounting;
(11) except as provided in the last two sentences of Section 3.1 or in Section 3.8(b)(2), approving any Additional Capital Contribution or loan under the Credit Agreement;
(12) except as limited by item 17 below and other than the acquisition of Greenbrier Rail Services Canada Inc., the Company or any Subsidiary acquiring in any single or series of related transactions any business, properties or assets other than in the ordinary course of business or involving an aggregate purchase price of less than $500,000;
(13) except pursuant to the Master Real Property Lease...
Supermajority Voting. (a) Notwithstanding Sections 3.3(a) and 3.3(e), without first obtaining the affirmative vote or written consent of at least five (5) Managers, the Company shall not:
(i) Effect any merger, consolidation, combination, or any other comparable transaction of the Company with or into any other entity, or any sale, transfer, encumbrance or other disposition of a significant (as such term is defined in the context of "significant subsidiary" in Rule 1-01(w) of Regulation S-X) portion of the assets of the Company;
(ii) Incur indebtedness (other than Permitted Indebtedness) that, together with any other indebtedness of the Company (other than Permitted Indebtedness), would cause the aggregate debt of the Company to exceed the greatest of (x) $2,000,000, (y) 20% of the Capitalization of MM or (z) five times the greater of the annual net income of MM or the annual net income of the Company as reflected on the audited income statement of MM or the Company, as the case may be, for its most recently concluded fiscal year;
(iii) Issue additional Membership Interests;
(iv) Make a demand under the Promissory Note; or
(v) Enter into, materially amend, or vote not to extend the term of any employment agreement or comparable arrangements in respect of (a) any executive officer (as defined in Rule 3b-7 promulgated under the Exchange Act) of the Company, (b) the heads of sales and marketing of the Company, or (c) any person who is a member of the immediate family (as such term is defined in Item 404 of Regulation S-K under the Securities Act) of Seymour Holtzman, GF, or any Manager or executive officer of the Cxxxxxx (xxxxxxxx that the terms of any extension shall remain within the discretion of the Board).
(b) The Company shall not enter into or materially amend any contract, agreement or other arrangement relating to the use of the Foreman Assets with an entity other than a Controlled Entity, unlexx xxx subject matter of such contract, agreement, arrangement or amendment has been approved by at least five (5) members of the Board pursuant to either an affirmative vote or written consent.
Supermajority Voting. The DGCL provides generally that the affirmative vote of a majority of the shares entitled to vote on any matter is required to amend a corporation’s certificate of incorporation or TABLE OF CONTENTS bylaws, unless a corporation’s certificate of incorporation or bylaws, as the case may be, requires a greater percentage. Our amended and restated bylaws may be amended or repealed by a majority vote of the board of directors or the affirmative vote of the holders of at least 66-2/3% of the votes that all stockholders would be entitled to cast for the election of directors. In addition, the affirmative vote of the holders of at least 66-2/3% of the votes that all stockholders would be entitled to cast for the election of directors is required to amend, repeal, or adopt any provisions inconsistent with any of the provisions of our restated certificate of incorporation, as amended, with respect to the staggered board, quorum of directors, and removal of directors and the provisions of our restated certificate of incorporation, as amended, with respect to special meetings of the stockholders.
Supermajority Voting. Notwithstanding anything to the contrary contained herein but subject to the last sentence of this Section 4.01(h) and Section 4.09 (g), the following matters relating to the business and operations of the Company and/or the Subsidiaries shall be presented to the Board of Directors and shall require the affirmative vote of at least four out of the five Directors, or, in the event that the Board of Directors is expanded pursuant to Section 4.01(d)(i), a number of Directors that includes at least one Class B Director who is designated by FNBO (a “Board Supermajority”):
(i) any Change of Control of the Company or Opco (A) during the first two years following the Effective Date, (B) during the third year following the Effective Date that implies an Enterprise Value of the Company and the Subsidiaries of less than $295,000,000 or (C) during the fourth or fifth years following the Effective Date that implies an Enterprise Value of the Company and the Subsidiaries of less than $400,000,000 (in each case other than in connection with a Qualifying Acquisition or a Large Acquisition);
(ii) any sale, transfer or disposition, in one or a series of related transactions, of any assets or other property of the Company and/or any Subsidiary having a Fair Market Value in excess of $29,500,000 in the aggregate (other than pursuant to a Change of Control or as contemplated by the Business Plan or in connection with a Qualifying Acquisition or a Large Acquisition);
(iii) any transfer of a Business function or service from the Company or Opco to a person other than FNBO or its Affiliates, unless such transfer is included in the process provided for in the initial Business Plan agreed to by CDEC and FNBO as of the Effective Date or is done pursuant to the Transition Services Agreement (as defined in the Investment Agreement), or otherwise does not increase costs attributable to the Company for functions or services of equivalent quality and service levels;
(iv) any contract between a Member (or an Affiliate), other than CDEC or its Affiliates, and the Company or Opco, other than in connection with a Qualifying Acquisition or a Large Acquisition;
(v) the engagement by the Company or any Subsidiary, either directly or indirectly, in a transaction or series of related transactions with TSYS or any entity in which TSYS holds equity securities or debt convertible into equity securities or any executive management employee of the Company or any Subsidiary, including ownership by TSYS...
