Certain Actions. (a) Subject to the provisions of Section 6(b), without the approval of a majority of the directors then on the Board, which must include the approval of a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c), the Corporation shall not, and (to the extent applicable) shall not permit any Subsidiary of the Corporation to: (i) amend, modify or repeal any provision of the Amended and Restated Certificate of Incorporation of the Corporation, as amended from time to time (the “Charter”), the Amended and Restated Bylaws of the Corporation, as amended from time to time (the “Bylaws”) or similar organizational documents of the Corporation in a manner that disproportionately adversely affects the Apollo Entities; (ii) issue additional equity interests of the Corporation, other than (A) any award under any stockholder-approved equity compensation plan, (B) any award under an equity compensation plan approved by a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c) or (C) any intra-company issuance among the Corporation and its wholly-owned Subsidiaries; (iii) merge or consolidate with or into any other entity, or transfer (by lease, assignment, sale or otherwise) all or substantially all of the Corporation’s and its Subsidiaries’ assets, taken as a whole, to another entity, or enter into or agree to undertake any transaction that would constitute a “Change of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures (other than, in each case, transactions between the Corporation and a wholly-owned Subsidiary); (iv) other than in the ordinary course of business with vendors, customers and suppliers, enter into any (A) acquisition by the Corporation or any Subsidiary of the equity interests or assets of any Person, or the acquisition by the Corporation or any Subsidiary of any business, properties, assets, or Persons, in one transaction or a series of related transactions or (B) disposition of assets of the Corporation or any Subsidiary or the shares or other equity interests of any Subsidiary, in each case where the amount of consideration for any such acquisition or disposition exceeds $100 million in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar year; (v) incur financial indebtedness, in a single transaction or a series of related transactions, aggregating to more than $75 million, except that borrowings under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit to the extent such borrowings exceed $125 million in the aggregate; (vi) terminate the Chief Executive Officer or designate a new Chief Executive Officer of the Corporation; or (vii) change the size of the Board. (b) The approval rights set forth in Section 6(a) shall terminate at such time as the Apollo Entities no longer collectively beneficially own at least 30% of the outstanding Stock.
Appears in 3 contracts
Sources: Stockholders Agreement, Shareholder Agreements (Presidio, Inc.), Stockholders Agreement (Presidio, Inc.)
Certain Actions. (a) Subject to the provisions of Section 6(b), without the approval of a majority of the directors then Effective on the Boarddate hereof and until the earlier of (i) October 1, 2005 and (ii) the date on which must include the approval there are no longer outstanding any shares of a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c)Convertible Preferred Stock, the Corporation shall Stockholders will not, and (to the extent applicable) shall will not permit any Subsidiary of the Corporation Investment Fund Affiliate to:
(ia) amendmake, modify or repeal take any provision of the Amended and Restated Certificate of Incorporation of the Corporationaction to solicit, as amended from time to time (the “Charter”)initiate or encourage, the Amended and Restated Bylaws of the Corporation, as amended from time to time (the “Bylaws”) or similar organizational documents of the Corporation in a manner that disproportionately adversely affects the Apollo Entitiesan Acquisition Proposal;
(iib) issue additional equity interests make, or in any way participate in, any “solicitation” of “proxies” to vote (as such terms are defined in Rule 14a-1 under the CorporationExchange Act), solicit any consent with respect to the voting of any Voting Securities or nominate, or solicit any votes or proxies for the nomination of, any directors with respect to the Company (other than (A) any award under any stockholder-approved equity compensation plan, (B) any award under an equity compensation plan approved as contemplated by a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c) or (C) any intra-company issuance among the Corporation and its wholly-owned Subsidiaries;
(iii) merge or consolidate with or into any other entity, or transfer (by lease, assignment, sale or otherwise) all or substantially all of the Corporation’s and its Subsidiaries’ assets, taken as a whole, to another entity, or enter into or agree to undertake any transaction that would constitute a “Change of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures (other than, in each case, transactions between the Corporation and a wholly-owned Subsidiary2.1 hereof);
(ivc) form, join or encourage the formation of any “group” (within the meaning of Section 13(d)(3) of the Exchange Act) with respect to the voting of any Voting Securities (other than any “group” consisting only of the Stockholders and Investment Fund Affiliates);
(d) call or seek to have called any meeting of the stockholders of the Company;
(e) solicit, seek to effect, negotiate with or voluntarily provide any confidential information to any other Person with respect to, or otherwise make any public announcement (except as required by Law or the requirements of any relevant stock exchange) whatsoever with respect to, (i) any merger or other business combination transaction involving the Company, (ii) the acquisition of Voting Securities if, as a result thereof, the Person acquiring such Voting Securities, together with its Affiliates, would Beneficially Own in the ordinary course of business with vendors, customers and suppliers, enter into any (A) acquisition by the Corporation or any Subsidiary aggregate more than 15% of the equity interests or assets of any Personoutstanding Voting Securities, or (iii) the acquisition by the Corporation or any Subsidiary of any business, properties, assets, or Personsacquisition, in one transaction or a series of related transactions or (B) disposition transactions, of assets more than 50% of the Corporation assets or earning power of the Company and its subsidiaries taken as a whole (an “Acquisition Transaction”);
(f) enter into an agreement, arrangement or understanding with respect to any Subsidiary Acquisition Transaction;
(g) assist, advise or encourage any other Person in doing any of the shares foregoing; or
(j) request the Company to amend, waive or other equity interests not to enforce any provision of any Subsidiarythis section, in each case where unless specifically invited by the amount Company’s Board of consideration for any such acquisition or disposition exceeds $100 million in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar year;
(v) incur financial indebtedness, in a single transaction or a series of related transactions, aggregating Directors to more than $75 million, except that borrowings under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit to the extent such borrowings exceed $125 million in the aggregate;
(vi) terminate the Chief Executive Officer or designate a new Chief Executive Officer of the Corporation; or
(vii) change the size of the Boarddo so.
(b) The approval rights set forth in Section 6(a) shall terminate at such time as the Apollo Entities no longer collectively beneficially own at least 30% of the outstanding Stock.
Appears in 2 contracts
Sources: Stockholders Agreement (Tc Group LLC), Stockholders Agreement (Duratek Inc)
Certain Actions. (a) Subject to the provisions of Section 6(b10(b), without the approval of a majority the Board as provided for in the bylaws of the directors then on the BoardCorporation, which must include the approval of a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c)by Apollo Stockholders voting on such matter, the Corporation shall not, and (to the extent applicable) shall not permit any Subsidiary of the Corporation to:
(i) amend, modify or repeal any provision of the Amended certificate of incorporation and Restated Certificate of Incorporation of the Corporation, as amended from time to time (the “Charter”), the Amended and Restated Bylaws of the Corporation, as amended from time to time (the “Bylaws”) bylaws or similar organizational documents of the Corporation in a manner that disproportionately adversely affects the Apollo Entities;
(ii) issue additional equity interests of the Corporation, other than (A) any award under any stockholder-stockholder approved equity compensation plan, (B) any award under an equity compensation plan approved by a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c) or (C) any intra-company issuance among the Corporation and its wholly-owned SubsidiariesSubsidiaries or (C) any issuance of equity interests pursuant to the Exchange Agreement;
(iii) merge or consolidate with or into any other entity, or transfer (by lease, assignment, sale or otherwise) all or substantially all of the Corporation’s and its Subsidiaries’ assets, taken as a whole, to another entity, or enter into or agree to undertake any transaction that would constitute a “Change of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures (other than, in each case, transactions between the Corporation and a wholly-owned Subsidiary)indentures;
(iv) other than in the ordinary course of business with vendors, customers and suppliers, enter into any (A) acquisition by the Corporation or any Subsidiary of the equity interests or assets of any Person, or the acquisition acquiring by the Corporation or any Subsidiary by any other manner of any business, properties, assets, or Persons, in one transaction or a series of related transactions or (B) disposition of assets of the Corporation or any Subsidiary or the shares or other equity interests of any Subsidiary, in each case where the amount of consideration for any such acquisition or disposition exceeds $100 million in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar year;
(v) incur financial indebtednessthe incurrence of indebtedness for borrowed money (including through capital leases, in a single transaction the issuance of debt securities or a series the guarantee of related transactions, aggregating to more than $75 million, except indebtedness of another Person) that borrowings under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit to the extent such borrowings exceed $125 million would result in the aggregateCompany’s total net indebtedness to adjusted EBITDA for the trailing twelve month period exceeding 2.50:1.0;
(vi) terminate the Chief Executive Officer or designate a new Chief Executive Officer of the Corporation; or
(vii) change the size of the Board.
(b) The approval rights set forth in Section 6(a10(a) shall terminate at such time as the Apollo Entities Stockholders no longer collectively beneficially own at least 3033 1/3% of the total number of shares of Common Stock outstanding Stockat any time.
Appears in 2 contracts
Sources: Stockholders Agreement (Athlon Energy Inc.), Stockholders Agreement (Athlon Energy Inc.)
Certain Actions. Subject to Section 4.02 below, Shareholder hereby agrees that neither it nor any of its Affiliates will, without the prior written consent of the Company:
(a) Subject for a period of fourteen (14) months from the date hereof (“Fourteen Month Period”):
(i) acquire or agree, offer, seek or propose to acquire, or cause to be acquired, directly or indirectly, by purchase or otherwise, ownership, including, without limitation, Beneficial Ownership, of any Voting Securities of the Company or direct or indirect rights to acquire any class of securities of the Company or any subsidiary thereof, or of any successor thereto, or any assets of the Company or any subsidiary or division thereof or of any such successor if after giving effect thereto, the Shareholder Group would Beneficially Own more than 29.9% of Total Voting Power;
(ii) participate in (A) any tender, takeover or exchange offer, merger or other business combination involving the Company or any of its subsidiaries; (B) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the provisions Company or any of Section 6(b), without its subsidiaries; or (C) any “solicitation” of “proxies” (as such terms are used in the approval of a majority proxy rules of the directors then on the Board, which must include the approval of a majority Securities and Exchange Commission) or consents to vote any Voting Securities of the directors nominated pursuant to Company or any of its subsidiaries;
(iii) form, join or in any way participate in a “group” as defined in Section 3(a13(d)(3) or designated pursuant to Section 3(c), the Corporation shall not, and (to the extent applicable) shall not permit any Subsidiary of the Corporation toExchange Act, in connection with any of the foregoing;
(iv) otherwise act, alone or in concert with others, to seek to control the Board of Directors of the Company;
(v) take any action which would force the Company to make a public announcement regarding the matters set forth in (a)(i) above under applicable law; or
(vi) enter into any arrangements with any third party with respect to any of the foregoing;
(b) after the expiration of the Fourteen Month Period:
(i) amendacquire or agree, modify offer, or repeal propose to acquire, or cause to be acquired by purchase or otherwise, whether individually or otherwise, Beneficial Ownership, of any provision Voting Securities of the Amended and Restated Certificate Company or direct or indirect rights to acquire any class of Incorporation securities of the CorporationCompany or any subsidiary thereof, as amended from time or of any successor to time or person in control of the Company, or any assets of the Company or any subsidiary or division thereof or of any such successor or controlling person, if (the “Charter”)1) prior to giving effect thereto, the Amended Shareholder Group Beneficially Owns less than 60% of Total Voting Power, and Restated Bylaws (2) after giving effect thereto the Shareholder Group would Beneficially Own more than 29.9% of Total Voting Power (provided, that the Corporation, as amended from time Shareholder Group shall not be deemed to time (Beneficially Own any Voting Securities owned by any other Person if the “Bylaws”) or similar organizational documents sole reason the Shareholder Group is deemed to own such security is by reason of being the Corporation in member of a manner that disproportionately adversely affects group with such other Person AND no other indicia of Beneficial Ownership of such securities are attributable to the Apollo Entities;Shareholder Group); or
(ii) issue additional equity interests of the Corporation, other than participate in (A) any award under any stockholder-approved equity compensation plantender, takeover or exchange offer, merger or other business combination involving the Company; or (B) any award under an equity compensation plan approved recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to the Company; if (1) prior to giving effect thereto, the Shareholder Group Beneficially Owns less than 60% of Total Voting Power, and (2) after giving effect thereto the Shareholder Group would Beneficially Own more than 29.9% of Total Voting Power (provided, that the Shareholder Group shall not be deemed to Beneficially Own any Voting Securities owned by a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c) or (C) any intra-company issuance among the Corporation and its wholly-owned Subsidiaries;
(iii) merge or consolidate with or into any other entity, or transfer (Person if the sole reason the Shareholder Group is deemed to own such security is by lease, assignment, sale or otherwise) all or substantially all reason of being the Corporation’s and its Subsidiaries’ assets, taken as member of a whole, to another entity, or enter into or agree to undertake any transaction that would constitute a “Change group with such other Person AND no other indicia of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures (other than, in each case, transactions between the Corporation and a wholly-owned Subsidiary);
(iv) other than in the ordinary course Beneficial Ownership of business with vendors, customers and suppliers, enter into any (A) acquisition by the Corporation or any Subsidiary of the equity interests or assets of any Person, or the acquisition by the Corporation or any Subsidiary of any business, properties, assets, or Persons, in one transaction or a series of related transactions or (B) disposition of assets of the Corporation or any Subsidiary or the shares or other equity interests of any Subsidiary, in each case where the amount of consideration for any such acquisition or disposition exceeds $100 million in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar year;
(v) incur financial indebtedness, in a single transaction or a series of related transactions, aggregating to more than $75 million, except that borrowings under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit securities are attributable to the extent such borrowings exceed $125 million in the aggregate;
(vi) terminate the Chief Executive Officer or designate a new Chief Executive Officer of the Corporation; or
(vii) change the size of the BoardShareholder Group).
(b) The approval rights set forth in Section 6(a) shall terminate at such time as the Apollo Entities no longer collectively beneficially own at least 30% of the outstanding Stock.
Appears in 2 contracts
Sources: Standstill Agreement (Spark Networks PLC), Standstill Agreement (Spark Networks PLC)
Certain Actions. During the period from the date of this Agreement to the Closing or the earlier termination of this Agreement pursuant to Article 9, the Company shall not, except as otherwise expressly contemplated by this Agreement and the transactions contemplated hereby, without the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld:
(a) Subject do or effect any of the following actions with respect to its securities: (A) adjust, split, combine or reclassify its capital stock; (B) make, declare or pay any dividend or distribution on, or directly or indirectly redeem, purchase or otherwise acquire, any shares of its capital stock or any securities or obligations convertible into or exchangeable for any shares of its capital stock (except in connection with the use of shares of capital stock to pay the exercise price or tax withholding in connection with stock-based employee benefit plans of the Company); (C) grant any person any right or option to acquire any shares of its capital stock other than pursuant to a currently authorized stock option plan; (D) issue, deliver or sell or agree to issue, deliver or sell any additional shares of its capital stock or such securities (except pursuant to the exercise of outstanding convertible securities, warrants, options or rights to purchase Common Stock); or (E) enter into any agreement, understanding or arrangement with respect to the sale or voting of its preferred stock other than pursuant to the provisions of Section 6(b), without the approval of a majority of the directors then on the Board, which must include the approval of a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c), the Corporation shall not, and (to the extent applicable) shall not permit any Subsidiary of the Corporation to:
(i) amend, modify or repeal any provision of the Amended and Restated Certificate of Incorporation of the Corporation, as amended from time to time (the “Charter”), the Amended and Restated Bylaws of the Corporation, as amended from time to time (the “Bylaws”) or similar organizational documents of the Corporation in a manner that disproportionately adversely affects the Apollo Entitiesthis Agreement;
(iib) issue additional equity interests of the Corporationmake or propose any changes in its Charter (or other similar organizational documents), each as amended and restated, or other organizational documents, other than (A) any award under any stockholder-approved equity compensation plan, (B) any award under an equity compensation plan approved by a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c) or (C) any intra-company issuance among Amendment and the Corporation and its wholly-owned SubsidiariesRestatement;
(iiic) merge or consolidate with or into any other entity, Person or transfer (by lease, assignment, sale acquire a material amount of assets or otherwise) all or substantially all capital stock of the Corporation’s and its Subsidiaries’ assets, taken as a whole, to another entity, or enter into or agree to undertake any transaction that would constitute a “Change of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures (other than, in each case, transactions between the Corporation and a wholly-owned Subsidiary)Person;
(ivd) take any action to exempt under or make not subject to any applicable state takeover law or state law that purports to limit or restrict business combinations or the ability to acquire or vote shares, any Person (other than in between the ordinary course of business with vendors, customers and suppliers, enter into any (Aparties or their subsidiaries) acquisition by the Corporation or any Subsidiary of action taken thereby, which Person or action would have otherwise been subject to the equity interests or assets of any Person, or the acquisition by the Corporation or any Subsidiary of any business, properties, assets, or Persons, in one transaction or a series of related transactions or (B) disposition of assets of the Corporation or any Subsidiary or the shares or other equity interests of any Subsidiary, in each case where the amount of consideration for any such acquisition or disposition exceeds $100 million in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar yearrestrictive provisions thereof and not exempt therefrom;
(ve) incur financial indebtedness, in a single transaction permit or a series of related transactions, aggregating cause any subsidiary to more than $75 million, except that borrowings under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit to the extent such borrowings exceed $125 million in the aggregate;
(vi) terminate the Chief Executive Officer or designate a new Chief Executive Officer do any of the Corporationforegoing or agree or commit to do any of the foregoing; or
(viif) change the size agree in writing or otherwise to take any of the Boardforegoing actions.
(b) The approval rights set forth in Section 6(a) shall terminate at such time as the Apollo Entities no longer collectively beneficially own at least 30% of the outstanding Stock.
Appears in 2 contracts
Sources: Restructuring Agreement (Teletouch Communications Inc), Restructuring Agreement (Teletouch Communications Inc)
Certain Actions. (a) Subject to From and after the provisions Closing until the occurrence of Section 6(b)a Fall- Away Event, the Company will not, and will cause the Company Subsidiaries and the Company Business not to, without the approval of a majority prior written consent of the directors then on the Board, which must include the approval of a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c), the Corporation shall not, and (to the extent applicable) shall not permit any Subsidiary of the Corporation toStockholder:
(i) amend, modify or repeal any provision of amend the Amended and Restated Certificate of Incorporation of the Corporation, as amended from time to time (the “Charter”), the Amended and Restated Bylaws of the Corporation, as amended from time to time (the “Bylaws”) or similar organizational documents of (A) the Corporation Company or (B) the Company Subsidiaries that are material to the Company Business, in a manner either case so as to include provisions that would disproportionately adversely affects affect the Apollo EntitiesStockholder in any material respect relative to AIG, in each case in their capacities as holders of Company Common Stock, after taking into account differences in their respective ownership levels (for example, rights that are typically provided by a company to a parent company that consolidates a company);
(ii) issue additional equity interests effect a voluntary liquidation, dissolution or winding up of the Corporation, other than (A) any award under any stockholder-approved equity compensation plan, (B) any award under an equity compensation plan approved by a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c) or (C) any intra-company issuance among the Corporation and its wholly-owned SubsidiariesCompany;
(iii) merge or consolidate with or into any other entityrepurchase shares of Company Common Stock, or transfer (by leaseif such repurchase would result in the Stockholder owning, assignmentof record, sale or otherwise) all or substantially all more than 9.9% of the Corporation’s and its Subsidiaries’ assets, taken as a whole, to another entity, or enter into or agree to undertake any transaction that would constitute a “Change of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures (other than, in each case, transactions between the Corporation and a whollythen-owned Subsidiary)outstanding Company Common Stock;
(iv) other than (x) with respect to the Separation Documentation (which shall be governed by the terms of the Separation Principles), (y) any modification, amendment or termination of, or entry into, any Affiliate Contract that is on arm’s length terms, fair and reasonable to the Company Business in all material respects or in the ordinary course of business consistent with vendorshistorical practice, customers and suppliersor (z) any modification, enter into amendment or termination of, or entry into, any Affiliate Contracts in connection with the Separation in accordance with the Separation Documentation, (A) acquisition by the Corporation modify, amend (in any material respect) or any Subsidiary terminate (other than, as a result of the equity interests or assets expiration of the term thereof) any PersonAffiliate Contract, or the acquisition by the Corporation waive, release or assign any Subsidiary of any business, properties, assets, material rights or Persons, in one transaction or a series of related transactions claims thereunder or (B) disposition of assets of the Corporation or enter into any Subsidiary or the shares or other equity interests of any SubsidiaryAffiliate Contract, in each case where the amount of consideration for any such acquisition or disposition exceeds $100 million cases (A) and (B), on terms that are adverse in any single transactionmaterial respect to the Stockholder; provided that the consent of the Stockholder in respect of this Section 2.5(a)(iv) shall not be unreasonably withheld, delayed or an aggregate amount of $200 million in any series of transactions during a calendar yearconditioned;
(v) incur financial indebtednessfollowing an IPO, in effect a single transaction or a series voluntary deregistration of related transactions, aggregating to more than $75 million, except that borrowings the Company Common Stock under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit to Exchange Act or delisting of the extent such borrowings exceed $125 million in the aggregate;Company Common Stock with any applicable national securities exchange; or
(vi) terminate the Chief Executive Officer or designate a new Chief Executive Officer agree to take any of the Corporationforegoing actions; or
(vii) change provided that the size consent of the BoardStockholder in respect of this Section 2.5(a)(vi) as it relates to Section 2.5(a)(iv) shall not be unreasonably withheld, delayed or conditioned.
(b) The approval rights From and after the Closing until the earlier of the closing of the IPO and the occurrence of a Fall-Away Event, the Company will not, and will cause the Company Subsidiaries and the Company Business not to, without the prior written consent of the Stockholder:
(i) declare, set a record date or set aside or pay any dividends or distributions (whether in cash, stock or property) on, or effect any redemption, repurchase or other acquisition in respect of, shares of Company Common Stock that are not declared, paid or effected, or otherwise transfer or make payments in respect of the equity interests in the Company that are not made, on a pro rata basis with respect to all holders of shares of Company Common Stock; provided that, in connection with the Separation, the Company shall be permitted to set a record date, set aside or pay any dividend or distribution, or otherwise transfer or make payments in respect of the equity interests in the Company, to AIG and/or any of its Subsidiaries on a non-pro rata basis (such that the Stockholder and its Affiliates will not be entitled to receive such dividend, distribution or payment) in respect of the Affordable Housing Transaction (it being agreed that the aggregate impact of any such dividend, distribution or payment shall be determined in accordance with the Calculation Methodologies and reflected in full in the calculation of each of the Interim Adjusted Book Value (as defined in the SPA) and Final Adjusted Book Value (as defined in the SPA));
(ii) effect any split, combine or reclassify any of the Company’s outstanding capital stock or equity securities or issue or authorize the issuance of any other stock or securities (including any derivatives securities) in respect of, in lieu of or in substitution for shares or other interests representing any of the Company’s outstanding capital stock or equity securities, in each case, that is not on a proportionate basis with respect to all holders thereof;
(iii) other than with respect to any Insurance Company, incur, assume, guarantee, refinance, be allocated or become obligated with respect to any third-party indebtedness (including by issuance of debt securities of the Company or any Company Subsidiary, but excluding any intercompany indebtedness or payables owed to AIG or any of its Subsidiaries to the extent permitted by Section 2.5(b)(iv)) in excess of, in each case outstanding at any one time, (x) ten billion U.S. dollars ($10,000,000,000) of new third-party indebtedness issued by the Company and the Company Subsidiaries in a total aggregate principal amount on a consolidated basis (excluding guaranteed investment contracts, FHLB short-term financings and other ordinary course operating indebtedness, in each case, incurred in the ordinary course of business consistent with past practice) plus (y) two billion U.S. dollars ($2,000,000,000) of third-party indebtedness issued by the Company and the Company Subsidiaries under a customary revolving credit facility on market terms; provided that the consent of the Stockholder in respect of this Section 2.5(b)(iii) shall not be unreasonably withheld, delayed or conditioned;
(iv) other than (x) repayments of intercompany indebtedness and payables to AIG or its Subsidiaries in the ordinary course of business consistent with past practice (which repayments are not subject to limitation) and (y) the incurrence of ordinary course intercompany indebtedness consistent with historical practice, on terms (including with respect to interest rates) consistent with historical practice with respect to existing ordinary course intercompany indebtedness), (A) repay, forgive or otherwise cancel any indebtedness or payables between the Company or the Company Subsidiaries, on the one hand, and AIG or its Subsidiaries (other than the Company and the Company Subsidiaries), on the other hand, (B) loan any amounts to AIG or its Subsidiaries (other than the Company and the wholly owned Company Subsidiaries) or (C) incur any indebtedness to AIG or its Subsidiaries (other than the Company and the wholly owned Company Subsidiaries); provided that, in connection with the Separation, the Company and the Company Subsidiaries shall be permitted to incur (including through the creation or distribution of one or more intercompany notes to AIG and/or its Subsidiaries) and, from the proceeds of the third-party indebtedness set forth in subclause (x) of Section 6(a2.5(b)(iii), repay up to an aggregate of eight billion three hundred million U.S. dollars ($8,300,000,000) of intercompany indebtedness and/or payables (on terms (including with respect to interest rates) and conditions consistent with historical practice with respect to existing intercompany indebtedness or payables, as applicable) between the Company or the Company Subsidiaries, on the one hand, and AIG or its Subsidiaries (other than the Company and its Subsidiaries), on the other hand; provided, further, that the amount of such repayment shall be reflected in full in the calculation of Final Adjusted Book Value; provided, further, that any portion of intercompany indebtedness (including any portion of the eight billion three hundred million U.S. dollars ($8,300,000,000) of intercompany indebtedness) and/or payables that is incurred but not so repaid shall (1) remain outstanding unless forgiven or otherwise cancelled by AIG in its discretion and (2) be reflected in full in the calculation of Final Adjusted Book Value;
(v) enter into any new material line of business that would subject the Stockholder or its Affiliates to obligations under the Bank Holding Company Act or any other Applicable Law that governs banking or similar entities; or
(vi) agree to take any of the foregoing actions; provided that the consent of the Stockholder in respect of this Section 2.5(b)(vi), insofar as it relates to Section 2.5(b)(iii) shall terminate at such time as the Apollo Entities no longer collectively beneficially own at least 30% of the outstanding Stocknot be unreasonably withheld, delayed or conditioned.
Appears in 2 contracts
Sources: Stockholders Agreement (SAFG Retirement Services, Inc.), Stockholders Agreement (SAFG Retirement Services, Inc.)
Certain Actions. (a) Subject to From and after the provisions date of Section 6(b)this Agreement, the --------------- Company, without the approval of a majority prior written consent of the directors then on Holders (such consent being one hundred percent (100%) of the BoardHolders with respect to each of clauses (a), (b), (f), (g), (n), (p)(iii), (p)(iv), (p)(v) and (u) below), which must include consent may be withheld in the approval sole discretion of a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c)each such Holder, the Corporation shall will not, and (to the extent applicable) shall will not permit any Subsidiary of the Corporation to:
(ia) amendexcept as otherwise contemplated by this Agreement, modify permit to occur any amendment, alteration, or repeal modification of its articles of incorporation, as amended, or other charter or organizational documents of the Company, in each case as constituted on the date of this Agreement, the effect of which, in the good faith judgment of any provision Holder, would be to adversely alter, impair, or affect, either the rights and benefits of any of the Holders or the duties and obligations of the Company under or with respect to this Agreement, the Other Agreements, the Warrant or the Series D Preferred Stock;
(b) except as otherwise permitted pursuant to the terms of this Agreement, the Other Agreements or the Amended and Restated Certificate Articles, (i) declare or make any dividends or distributions of Incorporation its cash, stock, property or assets or (ii) redeem, retire, purchase or otherwise acquire, directly or indirectly, any of the Corporation, as amended from time to time (the “Charter”), the Amended and Restated Bylaws Capital Stock of the Corporation, as amended from time to time (the “Bylaws”) Company or similar organizational documents any of the Corporation in a manner that disproportionately adversely affects Capital Stock of any Affiliate of the Apollo EntitiesCompany;
(iic) issue additional equity interests of the Corporationeffect any sale, other than (A) any award under any stockholder-approved equity compensation plan, (B) any award under an equity compensation plan approved by a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c) or (C) any intra-company issuance among the Corporation and its wholly-owned Subsidiaries;
(iii) merge or consolidate with or into any other entity, or transfer (by lease, assignment, sale transfer or otherwise) all or substantially all other conveyance of any portion of the Corporation’s and its Subsidiaries’ assets, taken as a whole, to another entity, assets or enter into operations or agree to undertake any transaction that would constitute a “Change the revenue or income generating capacity of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures Company (other than, in each case, transactions between the Corporation and a wholly-owned Subsidiary);
(iv) other than inventory in the ordinary course of business with vendorsand other assets reasonably and in good faith determined by the Company to be obsolete or no longer necessary to the business of the Company) or to take any such action that has the effect of any of the foregoing;
(d) except for the issuance of Warrant Shares upon exercise of the Warrants or as otherwise provided pursuant to the terms of this Agreement, customers the Other Agreements Agreement or the Amended and suppliersRestated Articles, (i) issue, sell or otherwise dispose of any Capital Stock of the Company or any Capital Stock of any Subsidiary, (ii) dissolve or liquidate the Company or any of its Subsidiaries or (iii) effect any consolidation or merger involving the Company or any reclassification, corporate reorganization, stock split, reverse stock split or other change of or in any class of Capital Stock;
(e) enter into any line of business that the Company is not conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise);
(f) except for the issuance of Warrant Shares upon exercise of the Warrants or as otherwise provided pursuant to the terms of this Agreement or the Other Agreements, (i) enter into any transaction or transactions with any Initial Holder, any director, officer, employee, securityholder or Affiliate of the Company, or any Affiliate of the foregoing, except upon terms that, in the opinion of all Holders, are fair and reasonable and that are, in any event, at least as favorable as would result in a comparable arm's-length transaction with a Person who is not a director, officer, employee, securityholder or Affiliate of the Company, or any Affiliate of the foregoing, or (ii) advance any monies to any such Persons;
(g) except for ordinary and reasonable annual directors fees to be paid by the Company to its outside directors and except as otherwise provided in the Monitoring Agreement, pay any management, consulting or similar fee to or for the direct or indirect benefit of any of its officers, directors, Affiliates or securityholders;
(i) acquire any debt or equity interest in any Person, (ii) establish or acquire any Subsidiary not in existence as of the date hereof, (iii) make any additional capital contribution or purchase any additional equity in any existing Subsidiary, (iv) make any advances or loans to any Subsidiary or (iv) during any fiscal year of the Company, transfer any assets to its Subsidiaries which, either alone or in the aggregate, have a fair market value in excess of two hundred fifty thousand dollars ($250,000);
(i) allow the aggregate par value of the Capital Stock subject to the Warrants from time to time to exceed the price payable upon exercise of the Warrants, as adjusted from time to time;
(j) except as otherwise provided herein, file a registration statement with the Commission or any state securities commission or agency regarding any Capital Stock of the Company;
(k) except as otherwise provided in the Senior Loan Documents, incur or suffer to exist any Indebtedness (including, without limitation, any Indebtedness incurred in respect of any revolving credit loans, term loans, capital lease obligations and/or guaranties) in excess of eight million dollars ($8,000,000);
(l) except as otherwise provided in the Senior Loan Documents, permit the assets of the Company to be subject to any Liens;
(m) undertake any litigation against any third party (other than litigation instituted against one or more account debtors of the Company with respect to one or more unpaid accounts, where the aggregate amount in controversy is less than one hundred thousand dollars ($100,000));
(n) during any fiscal year, increase by more than five percent (5%) the total annual compensation (including, but not limited to, base salary, bonus and perquisites) of any executive officer of the Company;
(o) enter into any contract or other agreement (other than the Senior Loan Documents) that obligates the Company to make annual payments thereunder in excess of two hundred fifty thousand dollars ($250,000);
(i) terminate any Key Employee of the Company or any of its Subsidiaries, (ii) hire any Person to serve as Key Employee of the Company or any of its Subsidiaries, (iii) grant any additional equity-based compensation to any Key Employee of the Company or any of its Subsidiaries, (iv) make any severance payment to any Key Employee in connection with any termination of the employment of such Key Employee (other than, with respect to the Management Employees only, severance payments contemplated by the Employment Agreements, as in effect on the Closing Date), (v) modify (A) acquisition by the Corporation or any Subsidiary severance payment obligations of the equity interests or assets of any Person, or the acquisition by the Corporation or any Subsidiary of any business, properties, assets, or Persons, in one transaction or a series of related transactions Company or (B) disposition of assets of the Corporation or any Subsidiary or incentive compensation payable by the shares or other equity interests of any SubsidiaryCompany, in each case where set forth in the amount of consideration for any such acquisition or disposition exceeds $100 million Employment Agreements, as in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar yeareffect on the Closing Date;
(vq) incur financial indebtednessacquire during any twelve (12) month period any Property or other assets from any Person or Person, in a single transaction the aggregate value of which exceeds five hundred thousand dollars ($500,000);
(r) adopt any annual budget for the Company or a series any of related transactionsits Subsidiaries; provided, aggregating however, that for purposes of this Section 8.04(r) only and after the -------- ------- --------------- Closing Date, the consent of the Holders shall be deemed to more have been received if the Holder Representatives approve such budget;
(s) make or agree to make any capital expenditures other than capital expenditures that (i) are the subject of contractually committed purchase orders as of the date hereof and are disclosed on Schedule 7.01(l) or (ii) do not ---------------- exceed two hundred fifty thousand dollars ($75 million, except that borrowings under the Corporation’s revolving credit 250,000) individually and accounts receivable facility shall only count against such limit to the extent such borrowings exceed one million dollars ($125 million 1,000,000) in the aggregate;
(vit) terminate make any tax election or settle or compromise any material tax liability or take any other action with respect to the Chief Executive Officer computation of taxes or designate a the preparation of tax returns or reports, in each case that is inconsistent with past practice;
(u) enter into or adopt any new Chief Executive Officer Employee Plan or other Benefit Arrangement or amend in any material respect any Employee Plan or other Benefit Arrangement in effect as of the Corporationdate of this Agreement, in each case except as otherwise required by applicable law;
(i) fail to maintain in full force and effect any Permit that is required in or for the conduct of the businesses of the Company or any of its Subsidiaries, or (ii) sell, transfer, license or otherwise dispose of any rights or interests under such Permits;
(w) except as may be required by GAAP, make any change in or to its accounting methods or any of its tax or accounting principles or practices; or
(viix) change the size obligate itself or otherwise agree to take, permit or enter into any of the Board.
events described in subsections (ba) The approval rights set forth in through (w) --------------- --- of this Section 6(a) shall terminate at such time as the Apollo Entities no longer collectively beneficially own at least 30% of the outstanding Stock.8.04. ------------
Appears in 2 contracts
Sources: Securities Exchange and Purchase Agreement (Fresh America Corp), Securities Exchange and Purchase Agreement (Fresh America Corp)
Certain Actions. The Company shall not, and shall not permit any of its Subsidiaries (or, for the avoidance of doubt, any Person that immediately after such transaction would be a Subsidiary of the Company) to, without the prior written consent of the Plan Sponsor:
6.3.1 engage in any business that is materially different from the business of the Company and its Subsidiaries as of the date hereof or enter into any new line of business;
6.3.2 (a) Subject to change or convert the provisions of Section 6(b), without the approval of a majority current legal form or organizational structure of the directors then Company or any of its Subsidiaries or change the classifications for tax purposes of the Company or any of its Subsidiaries; (b) amend or waive (including by merger, consolidation, conversions, Transfer, liquidation, dissolution or any other means) any provision of any governing or organizational document of the Company or any of its Subsidiaries; or (c) increase or decrease the number of individuals on the Board, which must include the approval of a majority any Sub Board or any committee of the directors nominated pursuant Board or any Sub Board;
6.3.3 liquidate, dissolve, or commence or consent to Section 3(aany Proceeding under the law of any jurisdiction relating to bankruptcy, insolvency, reorganization, conservatorship or relief of debtors seeking to have an order for relief entered with respect to the Company or any of its Subsidiaries, or seeking to adjudicate the Company or any of its Subsidiaries a bankrupt or insolvent entity, or seeking reorganization, winding-up, liquidation or dissolution;
6.3.4 enter into any merger, combination, conversion, consolidation, amalgamation, recapitalization, reorganization, joint venture or partnership, where such transaction, or series of related transactions would be material to the Company or any of its Subsidiaries;
6.3.5 approve any equity incentive plans (other than the Equity Incentive Plan) or designated pursuant to Section 3(c)any awards, the Corporation shall not, and (to the extent applicable) shall not permit any Subsidiary of the Corporation to:
(i) amendments or allocations thereunder or amend, modify or repeal waive any provision of the Amended and Restated Certificate of Incorporation or consent to any extension of the CorporationPlan Warrant Agreement or the Equity Incentive Plan;
6.3.6 create, as amended from time to time (the “Charter”)authorize, the Amended and Restated Bylaws assign, grant, sell or issue any Common Stock or other Equity Securities of the Corporation, as amended from time to time (Company or any of its Subsidiaries or otherwise provide a Person with the “Bylaws”) or similar organizational documents benefits of the Corporation in a manner that disproportionately adversely affects the Apollo Entities;
(ii) issue additional equity interests of the Corporationsame, other than (Aa) any award under any stockholder-issuances of Equity Securities pursuant to the Equity Incentive Plan or other plans or awards approved equity compensation plan, (B) any award under an equity compensation plan approved by a majority of the directors nominated pursuant to Section 3(a6.3.5 and (b) or designated issuances of Equity Securities pursuant to Section 3(cexercise of (i) the Plan Warrants in accordance with the terms thereof or (Cii) any intra-company issuance among awards issued in accordance with clause (a);
6.3.7 declare any dividend on, or repurchase or redeem, any Common Stock or other Equity Securities of the Corporation and Company or any of its Subsidiaries, except (a) distributions or dividends by wholly-owned Subsidiaries and (b) as specifically set forth in the Equity Incentive Plan and the applicable grant agreements thereunder, to repurchase Common Stock or other Equity Securities of the Company or any of its Subsidiaries from grantees thereunder;
6.3.8 enter into, amend, alter or waive any material rights with respect to any arrangements, transactions or agreements with any Stockholder, any Affiliate or Related Fund of any Stockholder or any other Affiliate;
6.3.9 effect an Initial Public Offering or commence filing reports with the Commission;
6.3.10 hire, terminate (actually or constructively) or materially alter the responsibilities, compensation or benefits of the Chief Executive Officer of the Company or any other officer of the Company or its Subsidiaries;
6.3.11 approve (iiia) merge or consolidate with or into any other entitythe annual business plan, or transfer (by lease, assignment, sale or otherwise) all or substantially all including annual operating and capital expenditure and G&A budgets of the Corporation’s Company and its Subsidiaries’ assets, taken as a whole, to another entity, Subsidiaries or enter into (b) any subsequent material deviations from any such approved business plan or agree to undertake any transaction that would constitute a “Change of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures (other than, in each case, transactions between the Corporation and a wholly-owned Subsidiary)budgets;
(iva) other than make any acquisitions of or investments in any Person or business, whether in the ordinary course form of business with vendorsdebt or equity, customers and suppliers, enter into any (A) acquisition by the Corporation or any Subsidiary of the equity interests or assets of any Person, or the acquisition by the Corporation or any Subsidiary of any business, properties, assets, or Persons, whether in one transaction or a series of related transactions and regardless of how such transaction is structured, or (Bb) disposition sell, divest or otherwise dispose of assets or exchange any assets, Common Stock or Equity Securities of the Corporation Company or any Subsidiary or the shares or other equity interests of any Subsidiaryits Subsidiaries, in each any case where of (a) or (b), that (x) exceed $1,000,000 individually or $5,000,000 in the amount aggregate and (y) are explicitly contemplated in the budgets approved pursuant to Section 6.3.11; or
6.3.13 incur, assume, refinance, replace, guarantee or pledge any of consideration the Company’s or its Subsidiaries’ assets as security for or otherwise become liable or responsible for (or agree to incur, assume, refinance, guarantee, pledge or otherwise become liable for) any such acquisition or disposition exceeds $100 million indebtedness for borrowed money in any single transaction, or an aggregate amount excess of $200 million in any series of transactions during a calendar year;
(v) incur financial indebtedness, in a single transaction or a series of related transactions, aggregating to more than $75 million, except that borrowings under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit to the extent such borrowings exceed $125 million 25,000,000 in the aggregate;
, other than the First Lien Facility, or amend in any material respect any existing agreement governing, creating or relating to indebtedness for borrowed money; provided that (vii) terminate in the Chief Executive Officer or designate a new Chief Executive Officer event that the Plan Sponsor and its Affiliates and Related Funds hold in the aggregate less than 40% (but more than 26%) of the Corporation; or
(vii) change issued and outstanding Common Stock, the size prior written consent of the Plan Sponsor will not be required with respect to any action contemplated by this Section 6.3 that is approved by all of the members of the Board.
, other than the Plan Sponsor Director and (bii) The approval rights set forth in Section 6(a) shall terminate at such time as the Apollo Entities no longer collectively beneficially own at least 30event that the Plan Sponsor and its Affiliates and Related Funds hold in the aggregate less than 26% of the issued and outstanding Common Stock, the prior written consent of the Plan Sponsor will not be required with respect to any action contemplated by this Section 6.3.
Appears in 1 contract
Certain Actions. (a) Subject to During the provisions of Section 6(b)Standstill Period, without H&F shall not, and shall cause its Affiliates not to, directly or indirectly, in any manner, alone or in concert with others (unless specifically requested by the approval Company, acting through a resolution of a majority of the directors then on the Board, which must include the approval Board of a majority Directors of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(cCompany (the “Board of Directors”)), (i) engage in, or in any way participate in any “solicitation” of proxies for the Corporation shall notelection of individuals to the Board of Directors or to approve stockholder proposals that have not been recommended for approval by the Board of Directors, and or become a “participant” in any contested “solicitation” for the election of directors to the Board of Directors, otherwise seek to influence the vote of holders of any voting securities of the Company, or make or be the proponent of any stockholder proposal; (ii) join, encourage, influence, advise or in any way participate in any “group” with any persons who are not Affiliates with respect to any securities of the Company; (iii) acquire, offer to acquire, or agree to acquire, directly or indirectly, any securities of the Company or any derivatives of such securities that would result in H&F, together with its Affiliates, having Beneficial Ownership in more than 9.9% in the aggregate of the shares of the Company Common Stock outstanding at such time, excluding, if applicable, any issuance by the Company of shares of Company Common Stock or options, warrants or other rights to acquire Common Stock (or the exercise thereof) to any director of the Company who is an Affiliate of H&F as compensation for such director’s membership of the Board of Directors; provided that nothing herein will require any shares of Company Common Stock or other securities to be sold to the extent applicableH&F and its Affiliates, collectively, exceed the ownership limit under this paragraph as the result of a share repurchase or other Company actions that reduce the number of outstanding shares of Company Common Stock; (iv) transfer, directly or indirectly, the Company Common Stock Beneficially Owned by H&F or its Affiliates or any economic or voting rights decoupled from the underlying securities held by H&F or its Affiliates to any Person that, to the knowledge of H&F at the time it enters into such transaction, would result in such Person, together with its Affiliates and Associates, having B▇▇▇▇▇▇▇▇▇ Ownership in the aggregate of more than 10% of the shares of Company Common Stock outstanding at such time, provided that nothing in this clause (iv) shall not permit in any Subsidiary of the Corporation to:
(i) amendway prohibit, modify limit or repeal restrict any provision of the Amended and Restated Certificate of Incorporation of the Corporation, as amended from time to time (the “Charter”), the Amended and Restated Bylaws of the Corporation, as amended from time to time (the “Bylaws”) or similar organizational documents of the Corporation in a manner that disproportionately adversely affects the Apollo Entities;
(ii) issue additional equity interests of the Corporation, other than transfer (A) pursuant to any award bona fide margin loan, back leverage or similar loan arrangement or any foreclosure thereunder, (B) pursuant to (1) the tender of any Company Common Stock into any tender or exchange offer made to some or all of the holders of Company Common Stock by a third party for a number of voting equity securities that, if consummated, would result in a Change in Control (as defined below) solely to the extent that (x) the Board of Directors has recommended such tender or exchange offer in a Schedule 14D-9 under the Exchange Act or (y) such tender offer or exchange offer is either (I) a tender offer or exchange offer for less than all of the outstanding shares of Company Common Stock or (II) part of a two-step transaction and the consideration to be received in the second step of such transaction is not identical in the amount or form of consideration (or the election of the type of consideration available to the holders of the Company Common Stock is not identical in the second step of such transaction) as the first step of such transaction or (2) a merger, consolidation or similar transaction entered into by the Company, (C) in a bona fide underwritten public offering (or an equivalent transaction under Rule 144A), in a block sale to one or more broker-dealers in connection with a transaction pursuant to Rule 144A or in a broker transaction pursuant to Rule 144 (provided that, in relation to any stockholdersuch Rule 144A offering or such Rule 144 offering, H&F has not directly or indirectly instructed or encouraged any initial purchaser, broker or broker dealer as applicable, to sell such Company Common Stock to a specific third party or class of third parties which would otherwise result in a violation of this clause (iv)), or (D) in a derivatives transaction entered into with, or purchased from, a bank, broker-approved equity compensation plandealer or other recognized derivatives dealer that is not a hedge fund or activist investor, or to the knowledge of H&F, an Affiliate of a hedge fund or activist investor; (v) effect or seek to effect, make any proposal with respect to, or in any way solicit, assist or facilitate any other person to effect, seek to effect, participate in or make any proposal with respect to, any Extraordinary Transaction or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by H&F or its Affiliates of any securities of the Company into any tender or exchange offer or the vote by H&F or its Affiliates of any voting securities of the Company with respect to any Extraordinary Transaction; (vi) (A) call or seek to call any meeting of stockholders of the Company, (B) publicly seek representation on the Board of Directors, (C) seek the removal of any member of the Board of Directors, (D) make a demand to inspect the Company’s books and records, or (E) solicit consents from stockholders; (vii) take any action in support of or make any proposal or request with respect to, or solicit, assist or facilitate any other person in taking any action in support of or making any proposal or request with respect to: (A) changing the Board of Directors or management of the Company (other than the potential inclusion of an Affiliate of H&F on the Board of Directors, which may be discussed privately with the Board of Directors or management of the Company), (B) any award under an equity compensation plan approved by a majority material change in the capitalization or dividend policy of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c) or Company, (C) any intra-company issuance among other material change in the Corporation Company’s business or corporate structure, or (D) seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws, or other actions that may impede or facilitate the acquisition of control of the Company by any person; (viii) make disparaging statements about the Company or its Subsidiaries or any of its current or former officers or directors in a manner that is reasonably expected to result in a broad dissemination of such remarks (provided, that H&F or its applicable Affiliates shall have the opportunity to publicly cure any such statement within two (2) Business Days after being informed by the Company that H&F or its Affiliates have breached this clause (viii)); (ix) make any public disclosure regarding any intent, purpose, plan or proposal related to the Company that is inconsistent with the provisions of this Agreement; (x) enter into any discussions, negotiations, agreements or understandings with any third party with respect to any of the foregoing clauses (i) through (ix), or advise, assist, knowingly encourage or seek to persuade any third party to take any action or make any statement with respect to any of the foregoing clauses (i) through (ix); or (xi) request any amendment, modification or waiver of this Section 3(a) (including this clause (xi)). H▇▇▇▇▇▇ & F▇▇▇▇▇▇▇ Advisors LLC September 7, 2022
(b) The foregoing provisions of Section 3(a) shall not be deemed to prohibit H&F and its wholly-owned Subsidiaries;Affiliates or their respective directors, executive officers, partners, employees or managing members or agents (acting in such capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications; provided that no such person may request, directly or indirectly, any amendment, modification or waiver of this Section 3.
(iiic) merge or consolidate Notwithstanding anything in this Section 3 (including Section 3(a)) to the contrary, if (i) the Company enters into a definitive agreement providing for a transaction that, if consummated, would result in a Change in Control and (ii) the Company had not, reasonably prior to entering into such definitive agreement, provided H&F with or into any other entity, or transfer (by lease, assignment, sale or otherwise) all or substantially all of the Corporation’s a written notice inviting H&F and its Subsidiaries’ assets, taken as Affiliates to make one or more proposals or offers to effect a whole, to another entity, or enter into or agree to undertake any transaction that would constitute result in a “Change in Control, then after the announcement of Control” such transaction and prior to the earlier of any termination of such definitive agreement or Company stockholder approval of such definitive agreement, nothing in this Section 3 (including Section 3(a)) will prevent H&F and its Affiliates (A) from submitting to the Board of Directors one or more bona fide proposals or offers for an alternative transaction involving, directly or indirectly, one or more of H&F’s Affiliates, (B) pursuing and entering into any such alternative transaction with the Company and (C) taking any actions in furtherance of the foregoing, including actions relating to obtaining equity and/or debt financing for the alternative transaction as defined long as (x) any proposal or offer is conditioned on the proposed transaction being approved by the Board of Directors and (y) H&F and its Representatives do not make any public announcement or disclosure of such proposal, offer or actions other than any filings and disclosures that may be required in filings with the CorporationSEC.
(d) Without limiting H&F’s obligations under, and subject to the restrictions in, Section 3(a), the Company hereby acknowledges neither H&F nor any of its Affiliates owes the Company any duty that would restrain or restrict H&F or its Subsidiaries’ principal credit facilities Affiliates from purchasing or note indentures (other thanselling any securities of the Company or any derivatives of such securities, in each case, transactions between except during any Closed Trading Window (as defined below). “Closed Trading Window” shall mean (i) the Corporation Company’s regular quarterly restricted trading period during which directors and a whollyexecutive officers of the Company are not permitted to trade under the i▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy of the Company then in effect and which is not longer than the regular quarterly restricted period that has been in effect historically consistent with past practice in all material respects and (ii) any restricted trading period that the Company deems necessary or advisable to prohibit persons who possess material, non-owned Subsidiary);
(iv) other than in public information of the ordinary course Company from trading on the basis of business such information that is applicable to directors and officers of the Company; provided, that the Company shall not implement or maintain any trading policy or similar guideline or policy with vendors, customers and suppliers, enter into any (A) acquisition by respect to the Corporation trading of securities of the Company or any Subsidiary derivatives thereof that is targeted at H&F or its Affiliates. This Section 3(d) shall survive for ninety (90) days following the Termination Date. H&F hereby acknowledges that it is aware, and that it will advise its Representatives who are informed as to the matters that are the subject of this Agreement, that the United States securities laws prohibit any person who is in possession of material, non-public information concerning an issuer with respect to matters that are of the equity interests nature of those covered by this Agreement from purchasing or assets of any Person, or the acquisition by the Corporation or any Subsidiary of any business, properties, assets, or Persons, in one transaction or a series of related transactions or (B) disposition of assets selling securities of the Corporation Company or from communicating such information to any Subsidiary other person under circumstances in which it is reasonably foreseeable that such person may purchase or the shares or other equity interests of any Subsidiarysell such securities. H▇▇▇▇▇▇ & F▇▇▇▇▇▇▇ Advisors LLC September 7, in each case where the amount of consideration for any such acquisition or disposition exceeds $100 million in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar year;
(v) incur financial indebtedness, in a single transaction or a series of related transactions, aggregating to more than $75 million, except that borrowings under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit to the extent such borrowings exceed $125 million in the aggregate;
(vi) terminate the Chief Executive Officer or designate a new Chief Executive Officer of the Corporation; or
(vii) change the size of the Board.
(b) The approval rights set forth in Section 6(a) shall terminate at such time as the Apollo Entities no longer collectively beneficially own at least 30% of the outstanding Stock.2022
Appears in 1 contract
Certain Actions. (a) Subject From and after the date hereof until the earlier of the Effective Time or the termination of this Agreement in accordance with the terms hereof, none of the Company, any Company Subsidiary or any of their respective directors, officers, employees, investment bankers, financial advisors, counsel, accountants, representatives or agents, shall, directly or indirectly: (i) make, encourage, facilitate, solicit, induce, assist or initiate any inquiry or proposal, or participate in any negotiations with, or provide any information to, any corporation, partnership, agent, attorney, financial advisor, or other person (other than Purchaser, an affiliate of Purchaser or an officer, employee or other authorized representative of Purchaser or such affiliate, or counsel for Purchaser or its directors and financial advisor, solely for use in connection with the transactions contemplated hereby) relating to any Competing Proposal; (ii) furnish any information to any person in connection with, or participate in any negotiations with respect to, or knowingly take any other action designed to facilitate, any Competing Proposal; or (iii) participate in any discussions regarding any Competing Proposal; provided, however, that if, at any time prior to approval of this Agreement by the stockholders of Company, the Board of Directors of Company determines in good faith, after receipt of advice from outside counsel, that the failure to provide such information or to participate in such negotiations or discussions would likely be inconsistent with its fiduciary duties to Company’s stockholders under applicable law, Company may, in response to a proposal that was not solicited by it and that did not otherwise result from a breach of this Section 4.2(a), and that has been determined by the Company’s Board of Directors to be a Superior Proposal, subject to the provisions Company giving Purchaser at least two (2) Business Days’ written notice of Section 6(b)its intention to do so, without (x) furnish information with respect to the approval of a majority of the directors then on the Board, which must include the approval of a majority of the directors nominated Company to any person pursuant to Section 3(a) or designated pursuant a customary confidentiality agreement provided that a copy of all such information is delivered simultaneously to Section 3(c), the Corporation shall notPurchaser, and (y) participate in negotiations regarding such proposal. The Company shall as promptly as practicable notify Purchaser orally and in writing of any inquiry, request for information or any proposal in connection with a Competing Proposal, the material terms and conditions of such request or proposal (including a copy thereof, a summary of if in writing, and any related correspondence) and the identity of the person making such request or proposal. The Company will keep Purchaser reasonably informed of the status and details (including amendments or proposed amendments) of such request or proposal on a current basis, and will respond promptly in writing to any reasonable inquiry by Purchaser concerning the foregoing. The Company shall immediately cease and terminate any existing solicitation, initiation, encouragement, activity, discussion or negotiation with any person conducted heretofore by the Company or its representatives with respect to the extent applicableforegoing.
(b) For purposes of this Agreement, “Competing Proposal” shall not permit mean, whether in the form of an actual or intended proposal to or from a completed action by or other communication with, as the case may be, any Subsidiary person (or group of persons) other than Purchaser and the Corporation to:
Purchaser’s subsidiaries (a “Third Party”), any of: (i) amenda merger (whether or not the Company is the surviving corporation) or consolidation, modify or repeal any provision similar transaction (other than the Merger) of any company with either the Company or any significant subsidiary (as defined in Rule 1.2 of Regulation S-X of the Amended and Restated Certificate of Incorporation SEC) (a “Significant Subsidiary”) of the Corporation, as amended from time to time (the “Charter”), the Amended and Restated Bylaws of the Corporation, as amended from time to time (the “Bylaws”) or similar organizational documents of the Corporation in a manner that disproportionately adversely affects the Apollo Entities;
Company; (ii) issue additional equity interests a purchase, lease or other acquisition of the Corporation, other than (A) any award under any stockholder-approved equity compensation plan, (B) any award under an equity compensation plan approved by a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c) or (C) any intra-company issuance among the Corporation and its wholly-owned Subsidiaries;
(iii) merge or consolidate with or into any other entity, or transfer (by lease, assignment, sale or otherwise) all or substantially all the assets of either the Corporation’s and its Subsidiaries’ assets, taken as a whole, to another entity, or enter into or agree to undertake any transaction that would constitute a “Change of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures (other than, in each case, transactions between the Corporation and a wholly-owned Subsidiary);
(iv) other than in the ordinary course of business with vendors, customers and suppliers, enter into any (A) acquisition by the Corporation Company or any Significant Subsidiary of the equity interests Company; (iii) a purchase or assets of any Person, or the acquisition by the Corporation or any Subsidiary of any business, properties, assets, or Personsother acquisition, in one transaction or a series of related transactions or (B) disposition of assets of the Corporation or any Subsidiary or the shares or other equity interests of any Subsidiary, in each case where the amount of consideration for any such acquisition or disposition exceeds $100 million in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar year;
(v) incur financial indebtedness, in a single transaction or a series of related transactions, aggregating to more than $75 million, except that borrowings under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit to the extent such borrowings exceed $125 million in the aggregate;
of “beneficial ownership” by any “person” or “group” (vi) terminate the Chief Executive Officer or designate a new Chief Executive Officer of the Corporation; or
(vii) change the size of the Board.
(b) The approval rights set forth in Section 6(a) shall terminate at such time as the Apollo Entities no longer collectively beneficially own at least 30% of the outstanding Stock.such
Appears in 1 contract
Sources: Merger Agreement (Upbancorp Inc)
Certain Actions. (a) Subject to For so long as the provisions of Section 6(b)Second Supplemental Warrant or the Warrant Shares remain outstanding, without the approval of a majority prior written consent of the directors then on the BoardHolders, which must include consent may be withheld in the approval of a majority sole discretion of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c)Holders, the Corporation shall Company will not, and (to the extent applicable) shall will not permit any Subsidiary of the Corporation to:
(ia) amendpermit to occur any amendment, modify alteration, or repeal any provision modification of the Amended Bylaws of the Company, as constituted on the date of this Agreement, the effect of which, in the sole judgment of the Holders, would be to alter, impair, or affect adversely, either the rights and benefits of the Holders or the duties and obligations of the Company under this Agreement, the Warrant, the Restated Certificate Articles of Incorporation of the CorporationCompany (sometimes called the "Certificate") or the Priority Shareholder Agreement or permit to occur any amendment, as amended from time to time (the “Charter”)alteration, the Amended and Restated Bylaws or modification of the Corporation, as amended from time to time (the “Bylaws”) Restated Articles of Incorporation or similar other charter or organizational documents of the Corporation in a manner that disproportionately adversely affects Company, as constituted on the Apollo Entitiesdate of this Agreement except to the extent necessary to comply with Section 4.04(h) or 4.10;
(b) except as otherwise permitted in the Certificate or required by the Priority Shareholder Agreement or the Other Shareholder Agreements, (i) declare or make any dividends or distributions of its cash, stock, property, or assets or redeem, retire, purchase, or otherwise acquire, directly or indirectly, any of the Capital Stock or capital stock or securities of any Affiliate or any Subsidiary of the Company, or any securities convertible or exchangeable into Capital Stock or capital stock or securities of any Affiliate or any Subsidiary of the Company or otherwise make any distribution on account of the purchase, repurchase, redemption, put, call or other retirement of any shares of Capital Stock of the Company or any Subsidiary thereof or of any warrant, option or other right to acquire such shares (except pursuant to the Purchase Documents) (as defined in Section 11.1 of the Priority Note Agreement or the Certificate), or (ii) issue additional equity interests make any payment or distribution on account of any Indebtedness (as defined in such Priority Note Agreement) of the CorporationCompany which is subordinate to the Senior Subordinated Notes (as defined in Section 11.1 of the Original Note Agreement (as defined in the Priority Shareholder Agreement)), and the Priority Note (except that Subsidiaries may make distributions to the Company), and (iii) except as otherwise provided for in the Priority Note Agreement or the Original Note Agreement, pay any professional consulting or management fees or any other than payments to any shareholder of Parent or any Subsidiary; provided, however, that the following shall be permitted as exceptions to the preceding provisions of this clause (b): declare and make payments of (A) any award under any stockholder-approved equity compensation plandividends in cash from Subsidiaries of the Company to the Company to the extent necessary to permit the Company or its Subsidiaries to pay the Priority Senior Subordinated Obligations (as defined in Section 11.1 of the Priority Note Agreement) and the Senior Subordinated Obligations (as defined in Section 11.1 of the Original Note Agreement) due and payable from the Company or its Subsidiaries to Rice, and (B) any award under an equity compensation plan approved dividends or stock repurchases permitted by a majority the Senior Loan Agreement (as defined in Section 11.1 of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c) or (C) any intra-company issuance among the Corporation and its wholly-owned SubsidiariesPriority Note Agreement);
(iiic) merge or consolidate with or into effect any other entitysale, or transfer (by lease, assignment, sale transfer, or otherwise) all or substantially all other conveyance of any material portion of the Corporation’s and its Subsidiaries’ assets, taken as a whole, to another entity, assets or enter into operations or agree to undertake any transaction that would constitute a “Change the revenue or income generating capacity of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures Company (other than, in each case, transactions between the Corporation and a wholly-owned Subsidiary);
(iv) other than inventory in the ordinary course of business with vendorsand other assets reasonably and in good faith determined by the Company to be obsolete or no longer necessary to the business of the Company or any Subsidiary and other asset dispositions permitted by the Senior Loan Agreement including the Asset Transfer (as defined in the Senior Loan Agreement)) or to take any such action that has the effect of any of the foregoing;
(d) except for issuances of stock permitted by the Senior Loan Agreement, customers the Permitted Stock, or pursuant to the express terms of this Agreement or the Other Shareholder Agreement, issue or sell, or otherwise dispose of any Capital Stock or Capital Stock of any Subsidiary, dissolve or liquidate, or effect any consolidation or merger involving the Company or any Subsidiary or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock of the Company or of any Subsidiary;
(e) enter into any business that the Company or any Subsidiary is not conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise except for businesses and suppliersacquisitions permitted by the Senior Loan Agreement);
(f) except for Permitted Stock, enter into any transaction or transactions with any director, officer, employee, or shareholder of the Company, or any Affiliate or relative of the foregoing except upon terms that, in the opinion of the Holders, are fair and reasonable and that are, in any event, at least as favorable as would result in a comparable arm's-length transaction with a Person not a director, officer, employee, shareholder, or Affiliate of the Company or any Affiliate or related party of the foregoing, or advance any monies to any such Persons, except for travel advances in the ordinary course of business;
(Ag) acquisition except for (i) Permitted Indebtedness (as defined in Section 11.1 of the Priority Note Agreement), and (ii) other capital contributions, permitted purchases, advances and loans permitted by the Corporation Senior Loan Agreement, acquire any debt or equity interest in any Person or establish or acquire a Subsidiary of the or make any additional capital contribution or purchase any additional equity interests or assets of any Person, or the acquisition by the Corporation or any Subsidiary of any business, properties, assets, or Persons, in one transaction or a series of related transactions or (B) disposition of assets of the Corporation or any Subsidiary or the shares make any advances or other equity interests of loans to any Subsidiary or transfer any technology or assets to any Subsidiary, in each case where the amount of consideration for any such acquisition or disposition exceeds $100 million in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar year;
(vh) incur financial indebtedness, in a single transaction or a series allow the aggregate par value of related transactions, aggregating to more than $75 million, except that borrowings under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit Capital Stock subject to the extent such borrowings Warrant from time to time to exceed $125 million in the aggregate;
(vi) terminate the Chief Executive Officer or designate a new Chief Executive Officer price payable upon exercise of the CorporationWarrant, as adjusted from time to time; or
(viii) change the size obligate itself or otherwise agree to take, permit or enter into any of the Boardevents described in subsections (a) through (h) above.
(b) The approval rights set forth in Section 6(a) shall terminate at such time as the Apollo Entities no longer collectively beneficially own at least 30% of the outstanding Stock.
Appears in 1 contract
Certain Actions. (a) Subject to the provisions of Section 6(b2.3(c), in the event the Sponsors collectively Beneficially Own 30% or more of the outstanding shares of Common Stock, without the approval of a majority of the directors then on shares of Common Stock Beneficially Owned by the Sponsors, each acting solely in each of their individual capacities as a stockholder of the Company, the Company shall not, and shall cause each of the Company’s subsidiaries not to, in each case except with respect to such matters expressly contemplated by Section 2.3(b):
(i) adopt or propose any amendment, modification or restatement of or supplement to the Company’s Certificate of Incorporation;
(ii) adopt or propose any amendment, modification or restatement of or supplement to the Company’s Bylaws;
(iii) commence a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or similar law or of any other case or proceeding to be adjudicated as bankrupt or insolvent, or consent to the entry of a decree or order for relief or in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it or them, or the file a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or consent to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or its subsidiaries or of any substantial part of its or their property, or make an assignment for the benefit of creditors, or admit in writing of its or their inability to pay its or their debts generally as they become due, or take any action in furtherance of any such action; or
(iv) change the size of the Board, which must include except as required by applicable law or pursuant to the terms of this Agreement.
(b) Subject to the provisions of Section 2.3(c), in the event the Sponsors collectively Beneficially Own 50% or more of the outstanding shares of Common Stock, without the approval of a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c)shares of Common Stock Beneficially Owned by the Sponsors, each acting solely in each of their individual capacities as a stockholder of the Company, the Corporation Company shall not, and (to the extent applicable) shall not permit any Subsidiary cause each of the Corporation Company’s subsidiaries not to:
(i) amendconsummate any acquisition, modify whether by purchase, contribution, merger, consolidation or repeal otherwise, of any provision of the Amended and Restated Certificate of Incorporation of the Corporationproperty, assets or equity interests for consideration with a Fair Market Value, as amended from time to time (determined in good faith by the “Charter”)Board, the Amended and Restated Bylaws of the Corporation, as amended from time to time (the “Bylaws”) or similar organizational documents of the Corporation greater than $150,000,000 in a manner that disproportionately adversely affects the Apollo Entities;any single transaction; or
(ii) issue additional any class or series of equity interests securities of the CorporationCompany, other than (A) any award under any stockholder-approved equity compensation planthe terms of which expressly provide that such class or series will rank senior to the Common Stock as to dividend rights or distribution rights upon the liquidation, (B) any award under an equity compensation plan approved by a majority winding up or dissolution of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c) or (C) any intra-company issuance among the Corporation and its wholly-owned Subsidiaries;
(iii) merge or consolidate with or into any other entity, or transfer (by lease, assignment, sale or otherwise) all or substantially all of the Corporation’s and its Subsidiaries’ assets, taken as a whole, to another entity, or enter into or agree to undertake any transaction that would constitute a “Change of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures (other than, in each case, transactions between the Corporation and a wholly-owned Subsidiary);
(iv) other than in the ordinary course of business with vendors, customers and suppliers, enter into any (A) acquisition by the Corporation or any Subsidiary of the equity interests or assets of any Person, or the acquisition by the Corporation or any Subsidiary of any business, properties, assets, or Persons, in one transaction or a series of related transactions or (B) disposition of assets of the Corporation or any Subsidiary or the shares or other equity interests of any Subsidiary, in each case where the amount of consideration for any such acquisition or disposition exceeds $100 million in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar year;
(v) incur financial indebtedness, in a single transaction or a series of related transactions, aggregating to more than $75 million, except that borrowings under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit to the extent such borrowings exceed $125 million in the aggregate;
(vi) terminate the Chief Executive Officer or designate a new Chief Executive Officer of the Corporation; or
(vii) change the size of the BoardCompany.
(bc) The approval rights set forth in Section 6(a2.3(a) above shall terminate at such time as that the Apollo Entities no longer Sponsors collectively beneficially own at least Beneficially Own less than 30% of the outstanding shares of Common Stock; provided that if this Agreement is terminated with respect to any Sponsor pursuant to Section 3.1, such Sponsor’s Beneficial Ownership of outstanding shares of Common Stock shall no longer be considered in calculating the Sponsors’ collective Beneficial Ownership of outstanding shares of Common Stock pursuant to this Agreement.
Appears in 1 contract
Certain Actions. (a) Subject to During the provisions of Section 6(b)Standstill Period, without H&F shall not, and shall cause its Affiliates not to, directly or indirectly, in any manner, alone or in concert with others (unless specifically requested by the approval Company, acting through a resolution of a majority of the directors then on the Board, which must include the approval Board of a majority Directors of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(cCompany (the “Board of Directors”)), (i) engage in, or in any way participate in any “solicitation” of proxies for the Corporation shall notelection of individuals to the Board of Directors or to approve stockholder proposals that have not been recommended for approval by the Board of Directors, and or become a “participant” in any contested “solicitation” for the election of directors to the Board of Directors, otherwise seek to influence the vote of holders of any voting securities of the Company, or make or be the proponent of any stockholder proposal; (ii) join, encourage, influence, advise or in any way participate in any “group” with any persons who are not Affiliates with respect to any securities of the Company; (iii) acquire, offer to acquire, or agree to acquire, directly or indirectly, any securities of the Company or any derivatives of such securities that would result in H&F, together with its Affiliates, having Beneficial Ownership in more than 9.9% in the aggregate of the shares of the Company Common Stock outstanding at such time, excluding, if applicable, any issuance by the Company of shares of Company Common Stock or options, warrants or other rights to acquire Common Stock (or the exercise thereof) to any director of the Company who is an Affiliate of H&F as compensation for such director’s membership of the Board of Directors; provided that nothing herein will require any shares of Company Common Stock or other securities to be sold to the extent applicableH&F and its Affiliates, collectively, exceed the ownership limit under this paragraph as the result of a share repurchase or other Company actions that reduce the number of outstanding shares of Company Common Stock; (iv) transfer, directly or indirectly, the Company Common Stock Beneficially Owned by H&F or its Affiliates or any economic or voting rights ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Advisors LLC September 7, 2022 decoupled from the underlying securities held by H&F or its Affiliates to any Person that, to the knowledge of H&F at the time it enters into such transaction, would result in such Person, together with its Affiliates and Associates, having Beneficial Ownership in the aggregate of more than 10% of the shares of Company Common Stock outstanding at such time, provided that nothing in this clause (iv) shall not permit in any Subsidiary of the Corporation to:
(i) amendway prohibit, modify limit or repeal restrict any provision of the Amended and Restated Certificate of Incorporation of the Corporation, as amended from time to time (the “Charter”), the Amended and Restated Bylaws of the Corporation, as amended from time to time (the “Bylaws”) or similar organizational documents of the Corporation in a manner that disproportionately adversely affects the Apollo Entities;
(ii) issue additional equity interests of the Corporation, other than transfer (A) pursuant to any award bona fide margin loan, back leverage or similar loan arrangement or any foreclosure thereunder, (B) pursuant to (1) the tender of any Company Common Stock into any tender or exchange offer made to some or all of the holders of Company Common Stock by a third party for a number of voting equity securities that, if consummated, would result in a Change in Control (as defined below) solely to the extent that (x) the Board of Directors has recommended such tender or exchange offer in a Schedule 14D-9 under the Exchange Act or (y) such tender offer or exchange offer is either (I) a tender offer or exchange offer for less than all of the outstanding shares of Company Common Stock or (II) part of a two-step transaction and the consideration to be received in the second step of such transaction is not identical in the amount or form of consideration (or the election of the type of consideration available to the holders of the Company Common Stock is not identical in the second step of such transaction) as the first step of such transaction or (2) a merger, consolidation or similar transaction entered into by the Company, (C) in a bona fide underwritten public offering (or an equivalent transaction under Rule 144A), in a block sale to one or more broker-dealers in connection with a transaction pursuant to Rule 144A or in a broker transaction pursuant to Rule 144 (provided that, in relation to any stockholdersuch Rule 144A offering or such Rule 144 offering, H&F has not directly or indirectly instructed or encouraged any initial purchaser, broker or broker dealer as applicable, to sell such Company Common Stock to a specific third party or class of third parties which would otherwise result in a violation of this clause (iv)), or (D) in a derivatives transaction entered into with, or purchased from, a bank, broker-approved equity compensation plandealer or other recognized derivatives dealer that is not a hedge fund or activist investor, or to the knowledge of H&F, an Affiliate of a hedge fund or activist investor; (v) effect or seek to effect, make any proposal with respect to, or in any way solicit, assist or facilitate any other person to effect, seek to effect, participate in or make any proposal with respect to, any Extraordinary Transaction or make any public statement with respect to an Extraordinary Transaction; provided, however, that this clause shall not preclude the tender by H&F or its Affiliates of any securities of the Company into any tender or exchange offer or the vote by H&F or its Affiliates of any voting securities of the Company with respect to any Extraordinary Transaction; (vi) (A) call or seek to call any meeting of stockholders of the Company, (B) publicly seek representation on the Board of Directors, (C) seek the removal of any member of the Board of Directors, (D) make a demand to inspect the Company’s books and records, or (E) solicit consents from stockholders; (vii) take any action in support of or make any proposal or request with respect to, or solicit, assist or facilitate any other person in taking any action in support of or making any proposal or request with respect to: (A) changing the Board of Directors or management of the Company (other than the potential inclusion of an Affiliate of H&F on the Board of Directors, which may be discussed privately with the Board of Directors or management of the Company), (B) any award under an equity compensation plan approved by a majority material change in the capitalization or dividend policy of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c) or Company, (C) any intra-company issuance among other material change in the Corporation and its wholly-owned Subsidiaries;
(iii) merge Company’s business or consolidate with or into any other entitycorporate structure, or transfer (by leaseD) seeking to have the Company waive or make amendments or modifications to the Company’s certificate of incorporation or bylaws, assignment, sale or otherwise) all other actions that may impede or substantially all facilitate the acquisition of control of the Corporation’s and its Subsidiaries’ assets, taken as a whole, to another entity, or enter into or agree to undertake Company by any transaction that would constitute a “Change of Control” as defined in person; (viii) make disparaging statements about the Corporation’s Company or its Subsidiaries’ principal credit facilities Subsidiaries or note indentures any of its current or former ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Advisors LLC September 7, 2022 officers or directors in a manner that is reasonably expected to result in a broad dissemination of such remarks (other thanprovided, in each casethat H&F or its applicable Affiliates shall have the opportunity to publicly cure any such statement within two (2) Business Days after being informed by the Company that H&F or its Affiliates have breached this clause (viii)); (ix) make any public disclosure regarding any intent, transactions between purpose, plan or proposal related to the Corporation and a wholly-owned Subsidiary);
Company that is inconsistent with the provisions of this Agreement; (ivx) other than in the ordinary course of business with vendors, customers and suppliers, enter into any (A) acquisition by the Corporation discussions, negotiations, agreements or understandings with any Subsidiary third party with respect to any of the equity interests or assets of any Personforegoing clauses (i) through (ix), or advise, assist, knowingly encourage or seek to persuade any third party to take any action or make any statement with respect to any of the acquisition by the Corporation or any Subsidiary of any business, properties, assets, or Persons, in one transaction or a series of related transactions foregoing clauses (i) through (ix); or (Bxi) disposition request any amendment, modification or waiver of assets of the Corporation or any Subsidiary or the shares or other equity interests of any Subsidiary, in each case where the amount of consideration for any such acquisition or disposition exceeds $100 million in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar year;
this Section 3(a) (v) incur financial indebtedness, in a single transaction or a series of related transactions, aggregating to more than $75 million, except that borrowings under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit to the extent such borrowings exceed $125 million in the aggregate;
including this clause (vi) terminate the Chief Executive Officer or designate a new Chief Executive Officer of the Corporation; or
(vii) change the size of the Boardxi)).
(b) The approval rights set forth in foregoing provisions of Section 6(a3(a) shall terminate at not be deemed to prohibit H&F and its Affiliates or their respective directors, executive officers, partners, employees or managing members or agents (acting in such time capacity) from communicating privately with the Company’s directors, officers or advisors so long as such communications are not intended to, and would not reasonably be expected to, require any public disclosure of such communications; provided that no such person may request, directly or indirectly, any amendment, modification or waiver of this Section 3.
(c) Notwithstanding anything in this Section 3 (including Section 3(a)) to the Apollo Entities no longer collectively beneficially own at least 30% contrary, if (i) the Company enters into a definitive agreement providing for a transaction that, if consummated, would result in a Change in Control and (ii) the Company had not, reasonably prior to entering into such definitive agreement, provided H&F with a written notice inviting H&F and its Affiliates to make one or more proposals or offers to effect a transaction that would result in a Change in Control, then after the announcement of such transaction and prior to the earlier of any termination of such definitive agreement or Company stockholder approval of such definitive agreement, nothing in this Section 3 (including Section 3(a)) will prevent H&F and its Affiliates (A) from submitting to the Board of Directors one or more bona fide proposals or offers for an alternative transaction involving, directly or indirectly, one or more of H&F’s Affiliates, (B) pursuing and entering into any such alternative transaction with the Company and (C) taking any actions in furtherance of the outstanding Stockforegoing, including actions relating to obtaining equity and/or debt financing for the alternative transaction as long as (x) any proposal or offer is conditioned on the proposed transaction being approved by the Board of Directors and (y) H&F and its Representatives do not make any public announcement or disclosure of such proposal, offer or actions other than any filings and disclosures that may be required in filings with the SEC.
(d) Without limiting H&F’s obligations under, and subject to the restrictions in, Section 3(a), the Company hereby acknowledges neither H&F nor any of its Affiliates owes the Company any duty that would restrain or restrict H&F or its Affiliates from purchasing or selling any securities of the Company or any derivatives of such securities, in each case, except during any Closed Trading Window (as defined below). “Closed Trading Window” shall mean (i) the Company’s regular quarterly restricted trading period during which directors and executive officers of the Company are not permitted to trade under the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ policy of the Company then in effect and which is not longer than the regular quarterly restricted period that has been in effect historically consistent with past practice in all material respects and (ii) any restricted trading ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Advisors LLC September 7, 2022 period that the Company deems necessary or advisable to prohibit persons who possess material, non-public information of the Company from trading on the basis of such information that is applicable to directors and officers of the Company; provided, that the Company shall not implement or maintain any trading policy or similar guideline or policy with respect to the trading of securities of the Company or any derivatives thereof that is targeted at H&F or its Affiliates. This Section 3(d) shall survive for ninety (90) days following the Termination Date. H&F hereby acknowledges that it is aware, and that it will advise its Representatives who are informed as to the matters that are the subject of this Agreement, that the United States securities laws prohibit any person who is in possession of material, non-public information concerning an issuer with respect to matters that are of the nature of those covered by this Agreement from purchasing or selling securities of the Company or from communicating such information to any other person under circumstances in which it is reasonably foreseeable that such person may purchase or sell such securities.
Appears in 1 contract
Sources: Confidentiality Agreement (H&F Corporate Investors X, Ltd.)
Certain Actions. (a) Subject to the provisions of Section 6(b2.3(c), in the event the Sponsors collectively Beneficially Own 30% or more of the outstanding shares of Common Stock, without the approval of a majority of the directors then on shares of Common Stock Beneficially Owned by the Sponsors, each acting solely in each of their individual capacities as a stockholder of the Company, the Company shall not, and shall cause each of the Company’s subsidiaries not to, in each case except with respect to such matters expressly contemplated by Section 2.3(b):
(i) adopt or propose any amendment, modification or restatement of or supplement to the Company’s Certificate of Incorporation;
(ii) adopt or propose any amendment, modification or restatement of or supplement to the Company’s Bylaws;
(iii) commence a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or similar law or of any other case or proceeding to be adjudicated as bankrupt or insolvent, or consent to the entry of a decree or order for relief or in an involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it or them, or the file a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or consent to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or its subsidiaries or of any substantial part of its or their property, or make an assignment for the benefit of creditors, or admit in writing of its or their inability to pay its or their debts generally as they become due, or take any action in furtherance of any such action; or
(iv) change the size of the Board, which must include except as required by applicable law or pursuant to the terms of this Agreement.
(b) Subject to the provisions of Section 2.3(c), in the event the Sponsors collectively Beneficially Own 50% or more of the outstanding shares of Common Stock, without the approval of a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c)shares of Common Stock Beneficially Owned by the Sponsors, each acting solely in each of their individual capacities as a stockholder of the Company, the Corporation Company shall not, and (to the extent applicable) shall not permit any Subsidiary cause each of the Corporation Company’s subsidiaries not to:
(i) amendconsummate any acquisition, modify whether by purchase, contribution, merger, consolidation or repeal otherwise, of any provision of the Amended and Restated Certificate of Incorporation of the Corporationproperty, assets or equity interests for consideration with a Fair Market Value, as amended from time to time (determined in good faith by the “Charter”)Board, the Amended and Restated Bylaws of the Corporation, as amended from time to time (the “Bylaws”) or similar organizational documents of the Corporation greater than $150,000,000 in a manner that disproportionately adversely affects the Apollo Entities;any single transaction; or
(ii) issue additional any class or series of equity interests securities of the CorporationCompany, other than (A) any award under any stockholder-approved equity compensation planthe terms of which expressly provide that such class or series will rank senior to the Common Stock as to voting rights, (B) any award under an equity compensation plan approved by a majority dividend rights or distribution rights upon the liquidation, winding up or dissolution of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c) or (C) any intra-company issuance among the Corporation and its wholly-owned Subsidiaries;
(iii) merge or consolidate with or into any other entity, or transfer (by lease, assignment, sale or otherwise) all or substantially all of the Corporation’s and its Subsidiaries’ assets, taken as a whole, to another entity, or enter into or agree to undertake any transaction that would constitute a “Change of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures (other than, in each case, transactions between the Corporation and a wholly-owned Subsidiary);
(iv) other than in the ordinary course of business with vendors, customers and suppliers, enter into any (A) acquisition by the Corporation or any Subsidiary of the equity interests or assets of any Person, or the acquisition by the Corporation or any Subsidiary of any business, properties, assets, or Persons, in one transaction or a series of related transactions or (B) disposition of assets of the Corporation or any Subsidiary or the shares or other equity interests of any Subsidiary, in each case where the amount of consideration for any such acquisition or disposition exceeds $100 million in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar year;
(v) incur financial indebtedness, in a single transaction or a series of related transactions, aggregating to more than $75 million, except that borrowings under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit to the extent such borrowings exceed $125 million in the aggregate;
(vi) terminate the Chief Executive Officer or designate a new Chief Executive Officer of the Corporation; or
(vii) change the size of the BoardCompany.
(bc) The approval rights set forth in Section 6(a2.3(a) above shall terminate at such time as that the Apollo Entities no longer Sponsors collectively beneficially own at least Beneficially Own less than 30% of the outstanding shares of Common Stock; provided that if this Agreement is terminated with respect to any Sponsor pursuant to Section 3.1, such Sponsor’s Beneficial Ownership of outstanding shares of Common Stock shall no longer be considered in calculating the Sponsors’ collective Beneficial Ownership of outstanding shares of Common Stock pursuant to this Agreement.
Appears in 1 contract
Certain Actions. (a) Subject to Without the provisions of Section 6(b), without the approval of a majority prior written consent of the directors then on the BoardHolders, which must include consent may be withheld in the approval of a majority sole discretion of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c)Holders, the Corporation shall Company will not, and (to the extent applicable) shall Company will not permit any Subsidiary of the Corporation its Subsidiaries to:
(ia) amendpermit to occur any amendment, modify alteration or repeal any provision modification of its Articles of Incorporation, Bylaws or other charter or organizational documents, as constituted on the date of this Agreement, the effect of which, in the reasonable credit judgment of the Amended Holders, would be to alter, impair, or affect adversely, either the rights and Restated Certificate of Incorporation benefits of the Corporation, as amended from time to time (Holders or the “Charter”)duties and obligations of Company under this Agreement, the Amended and Restated Bylaws of Warrants, or the Corporation, as amended from time to time (the “Bylaws”) or similar organizational documents of the Corporation in a manner that disproportionately adversely affects the Apollo EntitiesShareholder Agreement;
(iib) issue additional equity interests declare or make any dividends or distributions of the Corporationits cash, stock, property, or assets (other than (Ai) any award under any stockholder-approved equity compensation plan, (B) any award under an equity compensation plan approved by a majority dividends and distributions which are permitted pursuant to the terms of the directors nominated pursuant Note Agreement and (ii) regularly scheduled dividends on the ▇▇▇▇▇▇▇▇ Preferred Stock, subject to the restrictions set forth in Section 3(a4.04 of the Shareholder Agreement) or designated pursuant to Section 3(c) redeem, retire, purchase, or (C) otherwise acquire, directly or indirectly, any intra-company issuance among of its Capital Stock or Capital Stock or securities of any Affiliate of the Corporation and its wholly-owned SubsidiariesCompany, or any securities convertible or exchangeable into Capital Stock or Capital Stock or securities of any Affiliate of the Company;
(iiic) merge or consolidate with or into effect any other entitysale, or transfer (by lease, assignment, sale transfer, or other conveyance of any portion of the assets or operations or the revenue or income generating capacity of the Company or any Subsidiary (other than sales, leases, assignments, transfers and other conveyances which are permitted pursuant to the terms of the Note Agreement) or to take any such action that has the effect of the foregoing;
(d) except for Permitted Stock or pursuant to this Agreement, the Shareholder Agreement, the Note Agreement or the Pecks Securities Purchase Agreement, issue or sell, or otherwise dispose of any Capital Stock, or dissolve or liquidate (except that any Inactive Subsidiary may be dissolved or liquidated), or effect any consolidation or merger involving the Company or any Subsidiary (except that any Subsidiary of Precise may be merged with and into (i) Precise, provided that Precise is the surviving corporation or (ii) any other Subsidiary of Precise) or any reclassification, corporate reorganization, stock split or reverse stock split, or other change of any class of Capital Stock;
(e) enter into any business that the Company or Precise is not conducting on the date of this Agreement or acquire any substantial business operation or assets (through a stock or asset purchase or otherwise) all or substantially all of the Corporation’s and its Subsidiaries’ assets, taken as a whole, to another entity, or enter into or agree to undertake any transaction that would constitute a “Change of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures (other than, in each case, transactions between the Corporation and a wholly-owned Subsidiary);
(ivf) other than except for Permitted Stock or as otherwise permitted in the Note Agreement, enter into any transaction or transactions with any director, officer, or shareholder of the Company or the Shareholder, or any Affiliate or relative of the foregoing except upon terms that are disclosed in writing to the Holders and are (i) in the opinion of the Holders, fair and reasonable and (ii) in any event, at least as favorable as would result in a comparable arm's-length transaction with a Person not a director, officer, employee, shareholder, or Affiliate of the Company or the Shareholder or any Affiliate or related party of the foregoing, or advance any monies to any such Persons, except for travel advances in the ordinary course of business with vendorsbusiness;
(g) increase the amount of benefits payable under any benefit plan in the aggregate, customers and suppliersor increase the aggregate amount of professional, enter into any (A) acquisition management, consulting or similar fees paid or accrued by the Corporation Company or its Subsidiaries during any fiscal year to or for the direct or indirect benefit of any of its officers, directors, or security holders or Affiliates beyond the amounts permitted under the Note Agreement;
(h) acquire any debt or equity interest in any Person or establish or acquire a Subsidiary (other than any Subsidiary of existing on the date hereof) or, except as otherwise permitted under the Note Agreement, make any additional capital contribution or purchase any additional equity interests or assets of any Person, or the acquisition by the Corporation or in any Subsidiary of or, except as otherwise permitted under the Note Agreement, make any business, properties, assets, advances or Persons, in one transaction or a series of related transactions or (B) disposition of assets of the Corporation or loans to any Subsidiary or the shares transfer any technology or other equity interests of assets to any Subsidiary, in each case where the amount of consideration for any such acquisition or disposition exceeds $100 million in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar year;
(vi) incur financial indebtedness, in a single transaction or a series allow the aggregate par value of related transactions, aggregating to more than $75 million, except that borrowings under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit Capital Stock subject to the extent such borrowings Warrants from time to time to exceed $125 million in the aggregate;
(vi) terminate the Chief Executive Officer or designate a new Chief Executive Officer price payable on exercise of the CorporationWarrants, as adjusted from time to time; or
(viij) change the size obligate itself or otherwise agree to take, permit or enter into any of the Boardevents described in subsections (a) through (i) above.
(b) The approval rights set forth in Section 6(a) shall terminate at such time as the Apollo Entities no longer collectively beneficially own at least 30% of the outstanding Stock.
Appears in 1 contract
Sources: Warrant Purchase Agreement (Massic Tool Mold & Die Inc)
Certain Actions. (a) Subject None of the Company or any Company Subsidiary or their directors, officers or employees (i) shall solicit, initiate, participate in discussions of, or encourage or take any other action to facilitate (including by way of the disclosing or furnishing of any information that it is not legally obligated to disclose or furnish) any inquiry or the making of any proposal relating to an Acquisition Transaction (as defined below) or a potential Acquisition Transaction with respect to the provisions Company or, except at the request of Section 6(bPurchaser, any Company Subsidiary, or (ii) shall enter into any agreement, arrangement, or understanding (whether written or oral), without the approval of a majority regarding any proposal or transaction providing for or requiring it to abandon, terminate or fail to consummate this Agreement, or compensating it or any Company Subsidiary under any of the directors then on instances described in this clause, provided, however, that nothing contained in this Section 4.3 shall prohibit the Board, which must include the approval Board of a majority Directors of the directors nominated Company from furnishing information to, or entering into discussions or negotiations or an agreement with any person or entity that makes an unsolicited written proposal after the date hereof to acquire the Company pursuant to Section 3(a) or designated pursuant to Section 3(can Acquisition Transaction (an "Acquisition Proposal"), the Corporation shall notif, and (only to the extent applicable) shall not permit any Subsidiary of the Corporation to:
(i) amendthat, modify or repeal any provision of the Amended and Restated Certificate of Incorporation of the Corporation, as amended from time to time (the “Charter”), the Amended and Restated Bylaws of the Corporation, as amended from time to time (the “Bylaws”) or similar organizational documents of the Corporation in a manner that disproportionately adversely affects the Apollo Entities;
(ii) issue additional equity interests of the Corporation, other than (A) any award under any stockholderthe Board of Directors of the Company has consulted with its independent financial advisor as to whether such Acquisition Proposal may be or could be superior to the Merger from a financial point-approved equity compensation planof-view to the Company's shareholders, (B) any award under an equity compensation plan approved by a majority the Board of Directors of the directors nominated pursuant Company, after consultation with and after considering the advice of independent legal counsel, determines in good faith that the failure to Section 3(a) furnish information to or designated pursuant enter into discussions with such person may cause the Board of Directors of the Company to Section 3(c) or breach its fiduciary duties to shareholders under applicable law; (C) any intra-company issuance among such Acquisition Proposal was not solicited by the Corporation Company after the date hereof and its wholly-owned Subsidiaries;
did not otherwise result from a breach of this Section 4.3 by the Company (iii) merge or consolidate with or into any other entity, or transfer (by lease, assignment, sale or otherwise) all or substantially all of the Corporation’s and its Subsidiaries’ assets, taken as a whole, to another entity, or enter into or agree to undertake any transaction such proposal that would constitute a “Change of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures (other than, in each case, transactions between the Corporation and a wholly-owned Subsidiary);
(iv) other than in the ordinary course of business with vendors, customers and suppliers, enter into any satisfies (A) acquisition by the Corporation or any Subsidiary of the equity interests or assets of any Person), or the acquisition by the Corporation or any Subsidiary of any business, properties, assets, or Persons, in one transaction or a series of related transactions or (B) disposition and (C) being referred to herein as a "Superior Proposal"); (D) the Company promptly notifies Purchaser of assets of the Corporation such inquiries, proposals or offers received by, any such information requested from, or any Subsidiary such discussions or negotiations sought to be initiated or continued with the shares Company or other equity interests any of its representatives indicating, in connection with such notice, the name of such person and the material terms and conditions of any Subsidiaryinquiries, Acquisition Proposals or offers, and receives from such person or entity an executed confidentiality agreement in each case where the amount of consideration for any such acquisition or disposition exceeds $100 million form and substance identical in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar year;
(v) incur financial indebtedness, in a single transaction or a series of related transactions, aggregating to more than $75 million, except that borrowings under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit all material respects to the extent confidentiality agreement that the Company and Purchaser entered into; and (E) the Stockholders' Meeting has not occurred. The Company shall immediately instruct and otherwise use its best efforts to cause its agents, advisors (including, without limitation, any investment banker, attorney or accountant retained by the Company or any Company Subsidiary), consultants and other representatives to comply with such borrowings exceed $125 million in the aggregate;
(vi) terminate the Chief Executive Officer prohibitions. The Company shall immediately cease and cause to be terminated any existing activities, discussions or designate a new Chief Executive Officer of the Corporation; or
(vii) change the size of the Boardnegotiations with any parties conducted heretofore with respect to such activities.
(b) The approval rights set forth in Section 6(a) shall terminate at such time as the Apollo Entities no longer collectively beneficially own at least 30% of the outstanding Stock.
Appears in 1 contract
Sources: Merger Agreement (Maf Bancorp Inc)
Certain Actions. (ai) Subject to the provisions of Section 6(b), without Without obtaining the approval of a majority of the directors then on the Board, which must include the approval of a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c), the Corporation Company shall not, not and (to the extent applicable) shall not permit any Subsidiary of the Corporation its Subsidiaries to:
(iA) amend, modify or repeal any provision approve the Annual Budget of the Amended and Restated Certificate of Incorporation Company or any Major Subsidiary or any multi-year projections of the Corporation, as amended from time to time (the “Charter”), the Amended and Restated Bylaws of the Corporation, as amended from time to time (the “Bylaws”) Company or similar organizational documents of the Corporation in a manner that disproportionately adversely affects the Apollo Entitiesany Major Subsidiary;
(iiB) issue additional equity interests of the Corporation, incur any indebtedness (other than ordinary course borrowings under revolving credit facilities), assume, guarantee, endorse or otherwise as an accommodation become responsible for any obligations of another Person, make any loan, advance or capital contribution to another Person, make any voluntary prepayments of existing indebtedness (A) other than ordinary course voluntary prepayments under revolving credit facilities), or make any award under any stockholder-approved equity compensation planamendment to the maturity date, (B) any award under an equity compensation plan approved by a majority aggregate principal amount or interest rate of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c) or existing indebtedness;
(C) hire the Chief Financial Officer or Chief Operating Officer of the Company or any intra-company issuance among Major Subsidiary, including setting or materially amending the Corporation and terms accompanying such positions, or terminate the employment of the Chief Financial Officer or the Chief Operating Officer of the Company or any Major Subsidiary;
(D) appoint the independent auditor of the Company or terminate the engagement of any such independent auditor of the Company; PROVIDED, that if the Board resolves to establish an Audit Committee, such authority will accordingly be granted to such Audit Committee;
(E) purchase, exchange or otherwise acquire (including by way of merger, consolidation, business combination or similar transaction involving the Company or any of its Subsidiaries) any equity securities of any Person (other than a wholly-owned Subsidiaries;
(iiiSubsidiary of the Company) merge or consolidate with or into any other entity, or transfer (by lease, assignment, sale or otherwise) all or substantially all or a substantial portion of the Corporation’s and its Subsidiaries’ assets, taken as a whole, to another entity, or enter into or agree to undertake any transaction that would constitute a “Change of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures (other than, in each case, transactions between the Corporation and a wholly-owned Subsidiary);
(iv) other than in the ordinary course of business with vendors, customers and suppliers, enter into any (A) acquisition by the Corporation or any Subsidiary of the equity interests or assets of any Person, or the acquisition by the Corporation or any Subsidiary of any business, properties, assets, or Persons, in one transaction or a series of related transactions or (B) disposition of assets of the Corporation or any Subsidiary or the shares or other equity interests of any Subsidiary, in each case where the amount of consideration for any such acquisition or disposition exceeds $100 million in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar year;
(v) incur financial indebtedness, Person in a single transaction or a series of related transactionstransactions or by any other manner;
(F) other than as contemplated in the Annual Budget or in any multi-year projection and approved by the Board pursuant to Section 1(c)(i)(A) herein, aggregating enter into any contract with a value in excess of $5 million or requiring payments in excess of $3 million per annum;
(G) settle any claim or litigation for an amount in excess of $5 million;
(H) form any Subsidiary of the Company, other than a wholly-owned Subsidiary thereof;
(I) enter into or become subject to more any joint ventures, partnerships, alliances or similar arrangements, other than in the ordinary course of business of the Company; and
(J) without the approval of a majority of the disinterested members of the board, enter into any Affiliate Transaction, including the approval of the JPMP Designee(s) in the case of an Affiliate Transaction involving the Apollo Investors or any of their Affiliates and the approval of the Apollo Designee(s) in the case of an Affiliate Transaction involving the JPMP Investors or any of their Affiliates; PROVIDED, that, in the case where such Affiliate Transaction (i) has an aggregate value in excess of $75 5 million, except (ii) is not a permitted "affiliate transaction" pursuant to any of the Financing Documents, and (iii) involves a Principal Investor or any of its Affiliates, such Affiliate Transaction must be (a) on terms that borrowings under the Corporation’s revolving credit and accounts receivable facility shall only count against such limit are no less favorable to the extent Company or its Subsidiaries, as the case may be, than would be available at the time of such borrowings exceed Affiliate Transaction in a comparable transaction on an arm's-length basis with any unaffiliated third party, or (b) approved by at least one other Investor that is not a Principal Investor.
(ii) In addition to certain of the aforementioned actions, without obtaining the approval of each Principal Investor if at such time there exists at least one Principal Investor, and if at such time there does not exist a Principal Investor, without obtaining the approval of the Board, the Company shall not and shall not permit any of its Subsidiaries to:
(A) enter into, agree to or cause or effectuate an AMC Sale;
(B) purchase, exchange or otherwise acquire (including by way of merger, consolidation, business combination or similar transaction involving the Company or any of its Subsidiaries)
(i) any equity securities of any Person (other than a wholly-owned Subsidiary of the Company) or (ii) all or substantially all or a substantial portion of the business or assets of any Person in a single transaction or a series of related transactions or by any other manner, in the case of either (i) or (ii) above, with an aggregate value in excess of $125 million 25 million;
(C) sell, transfer, lease, license or otherwise engage in disposition transactions including assets or properties with a value in excess of $25 million, individually or in the aggregate;
(viD) terminate cause or permit any capital expenditures not specifically included in the Chief Executive Officer Annual Budget approved pursuant to Section 1(c)(i)(A) herein and with a value in excess of $10 million;
(E) other than as contemplated in the Annual Budget or designate in any multi-year projection which in either instance is approved by the Board pursuant to Section 1(c)(i)(A) herein, enter into any contract with a new value in excess of $25 million or requiring payments in excess of $10 million per annum;
(F) settle any claim or litigation for an amount in excess of $25 million;
(G) form any Subsidiary of the Company, other than a wholly-owned Subsidiary thereof, in which the Company invests an aggregate amount in excess of $5 million;
(H) enter into or become subject to any joint ventures, partnerships, alliances or similar arrangements in which the Company invests an aggregate amount in excess of $5 million;
(I) cause or effectuate an Initial Public Offering;
(J) hire the Chief Executive Officer of the Corporation; orCompany or any Major Subsidiary, including setting or materially amending the terms accompanying such position, or terminate the employment of the Chief Executive Officer of the Company or any Major Subsidiary;
(viiK) authorize, cause or effectuate any issuance or creation of securities or capital stock of the Company or any of its Subsidiaries (other than issuances made to wholly-owned Subsidiaries of the Company), including, but not limited to, any issuances of Shares;
(L) dissolve, liquidate, recapitalize or reorganize the Company or any Subsidiary of the Company, other than in connection with a combination of any wholly-owned Subsidiary of the Company with any other wholly-owned Subsidiary of the Company;
(M) purchase or redeem securities of the Company or any Subsidiary of the Company, declare or make any payment of any dividend or distribution in respect of the shares of Stock, or permit any dividend or distribution to be declared or paid on the securities of any Subsidiary of the Company, other than dividends or other distributions by a wholly-owned Subsidiary of the Company to the Company or a wholly-owned Subsidiary of the Company;
(N) adopt, materially amend or terminate any equity incentive or other material benefit program of the Company;
(O) incur any indebtedness (other than ordinary course borrowings under revolving credit facilities), assume, guarantee, endorse or otherwise as an accommodation become responsible for any obligations of another Person, make any loan, advance or capital contribution to another Person, make any voluntary prepayments of existing indebtedness (other than ordinary course voluntary prepayments under revolving credit facilities), or make any amendment to the maturity date, aggregate principal amount or interest rate of existing indebtedness, in each case, with a value in excess of $50 million or with recourse to any Investor; PROVIDED, that the incurrence of indebtedness with recourse to any Investor shall also require the consent of such Investor;
(P) change the size material tax elections or accounting methods of the Board.Company or any Subsidiary of the Company;
(bQ) The approval rights set forth in Section 6(awaive or amend any provision of (A) shall terminate at such time as the Apollo Entities no longer collectively beneficially own at least 30% certificate of incorporation or bylaws of the outstanding StockCompany, or (B) the debt financing documents relating to the acquisition of AMC, other than amendments that would discriminate against a particular Investor, in which case such amendment will require the consent of such Investor;
(R) enter into any Affiliate Transaction with an aggregate value in excess of $5 million or that is not negotiated on an arm's length basis;
(S) engage in any line of business or expand into any new business other than those related to the business conducted by the Company and its Subsidiaries on the date of this Agreement; and
(T) enter into any agreement, commitment or arrangement, to effect any of the foregoing.
Appears in 1 contract
Certain Actions. (a) Subject to Notwithstanding any other provisions in this Agree- ment, as long as any Preferred A Interest or Preferred B Interest remains issued and outstanding, the provisions Executive Committee shall not approve, and the Company shall not take, any of Section 6(b), without the following actions except with the approval of a majority of the directors then on the Board, which must include the approval of a majority of the directors nominated (x) unless GFC has designated two GFC Directors pursuant to Section 3(a) or designated pursuant to Section 3(c)4.13, the Corporation shall notChairman (or, if such office is vacant, at least one Management Director) and (to the extent applicabley) shall not permit any Subsidiary of the Corporation toat least one GFC Director:
(i) amend, modify any issuance or repeal agreement to issue any provision profit share or interest (including any LLC Interests) of the Amended and Restated Certificate Company or any of Incorporation its Significant Subsidiaries or any securities or rights of any kind convertible into or exchangeable for such profit share or interest, or to issue any option, warrant, put, call or other arrangement of any kind to purchase or otherwise receive from the Corporation, as amended from time to time (the “Charter”), the Amended and Restated Bylaws of the Corporation, as amended from time to time (the “Bylaws”) Company any such profit share or similar organizational documents of the Corporation in a manner that disproportionately adversely affects the Apollo Entitiesinterest;
(ii) issue additional equity interests any repurchase by the Company of the Corporation, other than any profit share or interest (A) including any award under any stockholder-approved equity compensation plan, (B) any award under an equity compensation plan approved by a majority of the directors nominated pursuant to Section 3(a) or designated pursuant to Section 3(c) or (C) any intra-company issuance among the Corporation and its wholly-owned SubsidiariesLLC Interests);
(iii) merge subject to clause (i) in the proviso in Section 8.4, any approval or consolidate with disapproval of any Transfer of any profit share or into interest (including any LLC Interests) of the Company or any of its Significant Subsidiaries;
(iv) any incurrence of indebtedness for borrowed money or other entitycommitment or liability, issuance of guarantees, or transfer (by lease, assignment, sale or otherwise) all or substantially all granting of liens over assets of the Corporation’s and Company or any of its Subsidiaries’ assets, taken as a whole, to another entity, Significant Subsidiaries (whether or enter into not in connection with such incurrence or agree to undertake any transaction that would constitute a “Change of Control” as defined in the Corporation’s or its Subsidiaries’ principal credit facilities or note indentures (other thanissuance), in each case, transactions between the Corporation and a wholly-owned Subsidiary);
(iv) other than in the ordinary course of business with vendorsexcess of, customers and suppliers, enter into any (A) acquisition by the Corporation or any Subsidiary of the equity interests or assets of any Person, or the acquisition by the Corporation or any Subsidiary of any business, properties, assets, or Persons, in one transaction or a series of related transactions or (B) disposition of assets of the Corporation or any Subsidiary or the shares or other equity interests of any Subsidiary, in each case where the amount of consideration for any such acquisition or disposition exceeds $100 million in any single transaction, or an aggregate amount of $200 million in any series of transactions during a calendar year;
(v) incur financial indebtedness, whether in a single transaction or a series of related transactions, aggregating to more than $75 15 million, except that borrowings under including without limitation any acquisition of any asset, securities or business from any Person in excess of, whether in a single transaction or a series of related transactions, $15 million, other than of the Corporation’s revolving credit type currently incurred or granted by GFC and accounts receivable facility shall only count against such limit to its Subsidiaries, as the extent such borrowings exceed $125 million case may be, in the aggregateordinary course of business;
(vi) terminate the Chief Executive Officer or designate a new Chief Executive Officer of the Corporation; or
(vii) change the size of the Board.
(b) The approval rights set forth in Section 6(a) shall terminate at such time as the Apollo Entities no longer collectively beneficially own at least 30% of the outstanding Stock.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Home Holdings Inc)