Common use of Blocking Rights Clause in Contracts

Blocking Rights. Subject to Section 2.4, the Company shall not take, and no Stockholder shall cause the Company to take, any of the following actions if prior to the time such action is taken, Institutional Stockholders holding in the aggregate 30% of the outstanding Common Stock Equivalents shall have voted against such action either by written consent or at a meeting held for the purpose of voting on such action: (a) the redemption, purchase or other acquisition of any Common Stock Equivalents, other than those redemptions, purchases or acquisitions made (A) pursuant to this Agreement or any employment agreement or option agreement entered into by the Company or any of its Subsidiaries, (B) on a pro rata basis among the holders of a particular class or series of securities of the Company or (C) pursuant to the terms of securities of the Company created after the date hereof which require or permit such redemption, purchase or acquisition; (b) the amendment of the Company's or any Subsidiary's certificate of incorporation or bylaws; (c) the declaration or payment of any dividend or other distribution by the Company with respect to any Common Stock Equivalents, other than those declarations or payments of dividends or other distributions that are made (A) on pro rata basis among the holders of a particular class or series of securities of the Company, (B) pursuant to the terms of securities of the Company created after the date hereof which require or permit such declaration, payment or other distribution or (C) to the Company or any Subsidiary; (d) the termination or appointment of the Chief Executive Officer or Chief Financial Officer of the Company or any Subsidiary; (e) any issuance of Common Stock Equivalents or Subsidiary Common Stock Equivalents (which are not subject to the Preemptive Rights set forth in Section 5.1) in connection with a transaction or series of related transactions involving an acquisition of the equity or assets of a Third Party which results in an aggregate issuance of greater than 10% of the total outstanding Common Stock Equivalents or Subsidiary Common Stock Equivalents (other than issuances to the Company or any Subsidiary), (f) the entering into of any transaction or agreement, directly or indirectly, by the Company or any Subsidiary with any Institutional Holder or any director, officer or Affiliate of any Institutional Holder, including any of the portfolio companies held or managed by the Institutional Holders; (g) any significant change in the nature of the Company's or any of its Subsidiary's business as of the date hereof; (h) until the third anniversary of the date hereof, a sale, merger, winding up, reorganization or dissolution of the Company or its Subsidiaries resulting in a Transfer, directly or indirectly, to a Third Party of all or substantially all of the stock or assets of the Company and its Subsidiaries (on a consolidated basis); or (i) incurrence of indebtedness by the Company or any Subsidiary, other than in the ordinary course of business (including, without limitation, any extensions, renewals or replacements of existing indebtedness, indebtedness consisting of purchase money indebtedness to finance capital expenditures, indebtedness in respect of capital lease obligations, indebtedness in respect of rate protection agreements and interest rate or currency protection agreements and indebtedness of the Company to any of its Subsidiaries or of any of the Company's Subsidiaries to the Company). Notwithstanding the foregoing, if between the second anniversary of the date hereof and the third anniversary of the date hereof a transaction of the type contemplated by Section 4.3(h) cannot be consummated as a result of the exercise by the Institutional Holders (other than the JWC Holders) of their rights under this Section 4.3, then the JWC Holders shall have the right to require the Company to purchase, by delivery of a written notice to the Company during the 30-day period after the date of the vote, and the Company shall be required to purchase, the number of Common Stock Equivalents proposed to be Transferred by the JWC Holders in such transaction, at fair market value, to be agreed in good faith by the JWC Holders and the Company (it being agreed that any nominees of the JWC Holders to the Board of Directors shall be excluded from all such deliberations) in consultation with at least two, but not more than three, nationally recognized investment banks. The closing of any purchase by the Company from the JWC Holders pursuant to this Section 4.3 shall take place at the principal office of the Company on such date as the Company shall specify to the JWC Holders in writing, but not more than 60 days after delivery by the JWC Holders to the Company of the notice to sell their Common Stock Equivalents to the Company pursuant to this Section 4.3. At such closing, the JWC Holders shall deliver to the Company, against payment by the Company of the purchase price for the JWC Holders' Common Stock Equivalents in cash (by wire transfer of immediately available funds to the JWC Holders), certificates and/or other instruments representing, together with stock or other appropriate powers duly endorsed with respect to the JWC Holders' Common Stock Equivalents, free and clear of all Liens (other than pursuant to securities laws, this Agreement or a Stock Option Agreement). All of the foregoing deliveries will be deemed to be made simultaneously and none shall be deemed completed until all have been completed. Notwithstanding anything set forth in this Section 4.3 to the contrary, the OMERS Holders and/or the Borealis Holders may agree with the Company to acquire, in lieu of the Company, some (if the Company is acquiring the remaining Common Stock Equivalents that the JWC Holders have determined to sell) or all (if the Company is not acquiring any of the Common Stock Equivalents that the JWC Holders have determined to sell) of the Common Stock Equivalents that the Company is required to purchase from the JWC Holders under this Section 4.3 on the same terms and conditions as set forth in this Section 4.3 which apply to the repurchase of Common Stock Equivalents by the Company from the JWC Holders.