Common use of Key Decisions Clause in Contracts

Key Decisions. From and after the Closing Date, (A) the Company shall take no action (including any action by the Board or by any officer of the Company) and (B) the Shareholders shall take no action in their capacity as Shareholders (including voting any of their Shares) with respect to any of the following matters (and, to the full extent within the power of the Company, the Company shall cause the Subsidiaries of the Company not to take any action with respect to any of the following matters), (x) without such first action being submitted to a duly-convened meeting of the Board held in accordance with Section 3.3 and (y) if at any such meeting any of the Directors votes against such action (each of the following matters a “Key Decision”): (a) the adoption of any business plan other than the Business Plan, or any material departures from or amendment or revision to, the Business Plan; (b) subject to the provisions of Section 8.2, the approval and adoption of any Annual Budget for a given financial year, if the proposed Annual Budget does not provide for a targeted EBIT at least equal to the EBIT set forth in the Business Plan for the applicable financial year; (c) any merger, statutory share exchange, consolidation, spin-off or similar corporate transaction, or sale of all or substantially all of its assets, other than any transaction involving only the Company and/or its wholly-owned Subsidiaries and no other Person; (d) the issuance of any debt or equity securities; (e) other than transactions involving only the Company and/or its wholly-owned Subsidiaries: (i) the incurrence of any indebtedness for borrowed money if, as a result, the consolidated indebtedness of the Group would exceed (x) €10 million in any of the first three quarters of any calendar year or (y) €15 million in the fourth quarter of any calendar year; provided that the foregoing levels of indebtedness shall be increased proportionately with the growth in the revenue of the Business relative to FY 2007, (ii) the grant of any loan or credit to any other person (other than trade credit on customary terms in the ordinary course of business), and (iii) the grant of any guarantee or other surety with respect to the debt obligations or other liabilities of any person; except for any guarantee or other surety granted in connection with the obtaining of banderols by WH Import or any other import company; (f) the sale or other disposition, or purchase, directly or indirectly, of any assets in excess of €500,000 in the aggregate in any financial year, other than the purchase and sale of inventory held for sale in the ordinary course of business; (g) the grant of any lien or other security interest of any kind on any material assets used in the conduct of the Business, other than liens arising in the ordinary course of business or under applicable Requirements of Law or in connection with the obtaining of banderols by WH Import or any other import company; (h) the acquisition of the stock of or other investment in the equity interests of any other Person, or the organization of any new, or the dissolution and winding up of any existing, Subsidiary or the entry into any form of joint venture or partnership with any Person; (i) the entry into, termination (other than in accordance with its terms) of, any material amendment or revision to, or the granting of any material waiver under, any of the following contracts, provided that neither the renewal, extension or replacement of any such existing contract on substantially similar terms nor the granting of any waiver under any such existing contract in the ordinary course of business consistent with past practice shall constitute a Key Decision: (i) any distribution agreement; (ii) any contract (including any real estate or financial lease commitment) requiring payments in excess of €250,000 in any financial year; (iii) any Related Party Transaction (including for the avoidance of doubt the Management Agreement); or (iv) any agreement providing for any form of employee compensation, which, individually or in the aggregate, would result in employee compensation in excess of the amount agreed in the most recent approved Annual Budget, except for any such increase in compensation that is required under applicable Requirements of Law or pursuant to the terms of any contract as in effect on the date hereof; (j) the removal of the existing, and the appointment of new, auditors of the Company or any Company Subsidiary; (k) any material change in any method of accounting or accounting practice or policy, other than such changes that are required by RAS or IFRS, as the case may be, or by applicable Requirements of Law; (l) the making or the revocation of any material tax election; (m) the initiation (other than routine debt collection) of any suit, claim, action or proceeding or the settlement of any of the same for an amount in excess of €250,000, or which contains injunctive, equitable or other provisions that would be reasonably likely to adversely affect the ongoing conduct of the Business in any material respect; (n) any amendment to the Joint Venture Agreement as well as any decision extending or otherwise terminating the Joint Venture; provided, however, that any decision to extend the term of the Joint Venture Agreement shall be subject to the unanimous approval of the Shareholders (voting in their sole discretion); (o) any material amendment to the memorandum of association or the articles of association of the Company (or any Subsidiary thereof or the Joint Venture (or the analogous foundational or organizational documents)), including any increase or decrease in the share capital of the Company or the authorization of any new class or series of share capital; (p) subject to Section 11.4, any appropriations of retained profits and any distributions made by the Company; or (q) any voluntary winding up, dissolution or liquidation or reduction in the share capital of the Company or any arrangement having the same economic effect as the foregoing.